                     UNITED STATES, Appellee

                             v.

              Joshua C. BLAZIER, Senior Airman
                  U.S. Air Force, Appellant

                        No. 09-0441

                    Crim. App. No. 36988

    United States Court of Appeals for the Armed Forces

                 Argued September 27, 2010

                  Decided December 1, 2010

RYAN, J., delivered the opinion of the Court, in which
EFFRON, C.J., and BAKER, ERDMANN, AND STUCKY, JJ., joined.

                          Counsel

For Appellant: Major Marla J. Gillman (argued); Colonel
James B. Roan and Major Shannon A. Bennett (on brief);
Colonel Eric Eklund, Lieutenant Colonel Maria A. Fried, and
Major Lance J. Wood.

For Appellee: Gerald R. Bruce, Esq. (argued); Colonel
Douglas P. Cordova and Lieutenant Colonel Jeremy S. Weber
(on brief); Colonel Don M. Christensen and Captain Coretta
E. Gray.

Amicus Curiae for Appellant: Lieutenant Colonel Jonathan
F. Potter, Lieutenant Colonel Matthew M. Miller, Captain E.
Patrick Gilman, and Captain William Jeremy Stephens (on
brief) -- for the United States Army, Defense Appellate
Division; Major Kirk Sripinyo (on brief) -- for the United
States Navy-Marine Corps, Defense Appellate Division;
Michelle M. Lindo McCluer, Esq., Jonathan E. Tracy, Esq.,
and Stephen A. Saltzburg, Esq. (on brief) -- for the
National Institute of Military Justice; Donald G. Rehkopf
Jr., Esq. (on brief) -- for the National Association of
Criminal Defense Lawyers.

Amicus Curiae for Appellee: Colonel Norman F. J. Allen
III, Lieutenant Colonel Martha L. Foss, and Major Lisa L.
Gumbs (on brief) -- for the United States Army, Government
United States v. Blazier, No. 09-0441/AF


Appellate Division; Lieutenant Commander Sergio Sarkany,
JAGC, USN (on brief) -- for the United States Navy-Marine
Corps, Government Appellate Division; Captain S. P.
McCleary (on brief) -- for the United States Coast Guard,
Government Appellate Division.

Military Judge:     Joseph S. Kiefer

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION




                                   2
United States v. Blazier, No. 09-0441/AF


     Judge RYAN delivered the opinion of the Court.

     In United States v. Blazier (Blazier I), 68 M.J. 439

(C.A.A.F. 2010), we considered the admissibility of two

multi-page drug testing reports from the Air Force

Institute for Operational Health, Drug Testing Division

(“the Brooks Lab”) in light of Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527 (2009).   Each report

included (1) a cover memorandum summarizing the tests the

urine samples were subjected to and the results of those

tests, and (2) attached records, the vast majority of which

were printouts of the machine-generated data from the drug

tests and machine calibrations, along with a specimen

custody document, intralaboratory chain of custody

documents for each of the laboratory tests conducted,

presumptive positive reports, and occasional handwritten

annotations.

     The cover memoranda, prepared in response to a

Government request for use at court-martial, list the

results and the corresponding Department of Defense cutoff

levels for illegal substances, followed by the

certification and signature of a “Results Reporting

Assistant, Drug Testing Division”:   Marina Jaramillo for

the June test and Andrea P. Lee for the July test.     The

bottom portion of each memorandum is a signed and sworn


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United States v. Blazier, No. 09-0441/AF


declaration by Dr. Vincent Papa, the “Laboratory Certifying

Official,” confirming the authenticity of the attached

records and stating that they were “made and kept in the

course of the regular conducted activity” at the Brooks

Lab.

       The drug testing reports, including the cover

memoranda, were admitted into evidence over defense

objection made in a motion in limine on Confrontation

Clause and hearsay grounds.   Dr. Papa testified at trial

about procedures at the Brooks Lab and the different

urinalysis tests conducted at the lab.   He also testified

about the drug testing reports, explaining the significance

of nearly every page and often repeating the substance

contained on them.   Dr. Papa stated that based upon his

review of the reports, as well as his knowledge, training,

and experience, the drug tests were reliable and that

Appellant had tested positive for methamphetamine and

marijuana.   The defense objected to this testimony in its

motion in limine on the ground that its substance was

inadmissible hearsay in violation of the Confrontation

Clause and Military Rule of Evidence (M.R.E.) 801.




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United States v. Blazier, No. 09-0441/AF


     We held in Blazier I that “at least the top portion of

the drug testing report memoranda . . . were testimonial.”1

68 M.J. at 443.   As we explained:

          Similar to the sworn certificates of
     analysis in Melendez-Diaz, the top portion of the
     drug testing report cover memoranda in this case
     identify the presence of an illegal drug and
     indicate the quantity present. And the
     evidentiary purpose of those memoranda was
     apparent, as they not only summarize and digest
     voluminous data but were generated in direct
     response to a request from the command indicating
     they were needed for use at court-martial. This
     is true regardless of the impetus behind the
     testing, the knowledge of those conducting
     laboratory tests at different points in time, or
     whether the individual underlying documents are
     themselves testimonial.

          In another respect, however, the cases are
     distinct. In Melendez-Diaz, the certificates
     were introduced as evidence without more: no one
     was subject to cross-examination about the
     testing, procedures, or quality control, for
     example, with respect to the results upon which
     the certificates were based. See id. at 2531.
     Here, while Dr. Papa did not personally perform
     or observe the testing (other than reviewing the
     bottle label for the first sample) or author the
     cover memoranda, he was the certifying official
     for the drug testing reports and was recognized

1
  The Government did not appeal this holding, which is the
law of the case. See United States v. Erickson, 65 M.J.
221, 224 n.1 (C.A.A.F. 2007) (holding that when a ruling is
not appealed, it “will normally be regarded as the law of
the case and binding upon the parties”). In any event, we
are satisfied that the signed, certified cover memoranda --
prepared at the request of the Government for use at trial,
and which summarized the entirety of the laboratory
analyses in the manner that most directly “bore witness”
against Appellant -- are testimonial under current Supreme
Court precedent. See Melendez-Diaz, 129 S. Ct. at 2532;
Crawford v. Washington, 541 U.S. 36, 51-53 (2004).

                              5
United States v. Blazier, No. 09-0441/AF


     as an expert in “the field of pharmacology area
     of drug testing and forensic toxicology,” without
     defense objection.

Id. (footnote omitted).

     Dr. Papa was qualified as an expert in “‘the field of

pharmacology area of drug testing and forensic

toxicology,’” under M.R.E. 703 without defense objection

and testified in that capacity.      Id.   Neither Jaramillo nor

Lee testified; no showing was made that either individual

was unavailable or had been previously subject to cross-

examination.   Id. at 440 n.2.

     We thus invited briefing from the parties on the

following issues:

          While the record establishes that the drug
     testing reports, as introduced into evidence by
     the prosecution, contained testimonial evidence
     (the cover memoranda of August 16), and the
     defense did not have the opportunity at trial to
     cross-examine the declarants of such testimonial
     evidence,

          (a) was the Confrontation Clause
          nevertheless satisfied by testimony from Dr.
          Papa? See, e.g., Pendergrass v. Indiana,
          913 N.E.2d 703, 707-08 (Ind. 2009). But
          see, e.g., State v. Locklear, 363 N.C. 438,
          681 S.E.2d 293, 304-05 (N.C. 2009); or

          (b) if Dr. Papa’s testimony did not itself
          satisfy the Confrontation Clause, was the
          introduction of testimonial evidence
          nevertheless harmless beyond a reasonable
          doubt under the circumstances of this case
          if he was qualified as, and testified as, an
          expert under M.R.E. 703 (noting that “[i]f
          of a type reasonably relied upon by experts


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United States v. Blazier, No. 09-0441/AF


          in the particular field in forming opinions
          or inferences upon the subject, the facts or
          data [upon which the expert relied] need not
          be admissible in evidence in order for the
          opinion or inference to be admitted”)?
          Compare, e.g., United States v. Turner, 591
          F.3d 928, 933-34 (7th Cir. 2010), and United
          States v. Moon, 512 F.3d 359, 362 (7th Cir.
          2008), with United States v. Mejia, 545 F.3d
          179, 197-98 (2d Cir. 2008).

Id. at 444.   We consider these issues below.

                                  I.

     The Sixth Amendment provides:     “In all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him . . . .”    U.S.

Const. amend. VI.   Accordingly, no testimonial hearsay may

be admitted against a criminal defendant unless (1) the

witness is unavailable, and (2) the witness was subject to

prior cross-examination.   Crawford, 541 U.S. at 53-54.      The

outcome of this case depends on answers to three questions.

The first question is whether the Confrontation Clause is

satisfied with respect to the testimonial hearsay of

Jaramillo and Lee contained in the cover memoranda in light

of the fact that Dr. Papa -- who was at least as

knowledgeable as the declarants about both procedures at

the Brooks Lab generally and, in the Government’s view, the

substance of their testimony (i.e., the “substitute




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United States v. Blazier, No. 09-0441/AF


witness”2 or “surrogate witness”3 theory) -- was subject to

cross-examination at trial.   If the Confrontation Clause

was not satisfied, the second question is what Dr. Papa

could and did rely upon and convey in testifying that it

was his expert opinion that Appellant’s samples “were

subjected to valid, reliable, scientific and forensic

tests” and that methamphetamine and marijuana “were

accurately detected.”   Finally, and relatedly, if evidence

was introduced at trial in violation of the Sixth Amendment

right to confrontation, the remaining question is whether

such constitutional violation was nullified because Dr.

Papa was qualified as and testified as an expert under

M.R.E. 702 and M.R.E. 703.

     We hold that where testimonial hearsay is admitted,

the Confrontation Clause is satisfied only if the declarant

of that hearsay is either (1) subject to cross-examination

at trial, or (2) unavailable and subject to previous cross-

examination.   We further hold that an expert may,

consistent with the Confrontation Clause and the rules of

2
  See People v. Benitez, 106 Cal. Rptr. 3d 39, 45 (Cal. Ct.
App. 2010) (describing a laboratory supervisor testifying
in place of the analyst as a “substitute witness”), review
granted and opinion superseded by 230 P.3d 1117 (Cal.
2010).
3
  See Jennifer L. Mnookin, Expert Evidence and the
Confrontation Clause After Crawford v. Washington, 15 J.L.
Pol’y 791, 834 (2007) (describing a reliable witness other
than the declarant as a “surrogate”).

                              8
United States v. Blazier, No. 09-0441/AF


evidence, (1) rely on, repeat, or interpret admissible and

nonhearsay machine-generated printouts of machine-generated

data, see, e.g., Moon, 512 F.3d at 362; United States v.

Washington, 498 F.3d 225, 230-31 (4th Cir. 2007), and/or

(2) rely on, but not repeat, testimonial hearsay that is

otherwise an appropriate basis for an expert opinion, so

long as the expert opinion arrived at is the expert’s own,

see, e.g., United States v. Ayala, 601 F.3d 256, 275 (4th

Cir. 2010) (quoting United States v. Johnson, 587 F.3d 625,

635 (4th Cir. 2009)); Mejia, 545 F.3d at 198; United States

v. Law, 528 F.3d 888, 912 (D.C. Cir. 2008).     However, the

Confrontation Clause may not be circumvented by an expert’s

repetition of otherwise inadmissible testimonial hearsay of

another.   Mejia, 545 F.3d at 198.

                                  II.

     As a threshold matter, we consider whether the

admission of the testimonial hearsay of Jaramillo and Lee

was “cured” because Dr. Papa testified and was subject to

cross-examination.   We hold that it was not.

     While reasonable minds may disagree about what

constitutes testimonial hearsay, there can be no

disagreement about who is the “witness” the accused has the

right to confront.   That “witness” is the declarant.   See

Crawford, 541 U.S. at 51 (“The text of the Confrontation


                              9
United States v. Blazier, No. 09-0441/AF


Clause . . . applies to ‘witnesses’ against the accused --

in other words, those who ‘bear testimony.’” (quoting 2 N.

Webster, An American Dictionary of the English Language

(1828))); id. at 59 (“Testimonial statements of witnesses

absent from trial have been admitted only where the

declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine.”); Melendez-Diaz,

129 S. Ct. at 2537 n.6 (“The analysts who swore the

affidavits provided testimony against Melendez-Diaz, and

they are therefore subject to confrontation.”).

Accordingly, the right of confrontation is not satisfied by

confrontation of a surrogate for the declarant.   See, e.g.,

United States v. Martinez-Rios, 595 F.3d 581, 586 (5th

2010); Locklear, 681 S.E.2d at 305; Commonwealth v. Avila,

912 N.E.2d 1014, 1029 (Mass. 2009).

     Furthermore, “reliability” is no substitute for this

right of confrontation.   As the Supreme Court explained,

          Where testimonial statements are involved .
     . . . [The Sixth Amendment] commands, not that
     evidence be reliable, but that reliability be
     assessed in a particular manner: by testing in
     the crucible of cross-examination. The Clause
     thus reflects a judgment, not only about the
     desirability of reliable evidence . . . but about
     how reliability can best be determined.

Crawford, 541 U.S. at 61; see also Melendez-Diaz, 129 S.

Ct. at 2536 (“Respondent and the dissent may be right that



                              10
United States v. Blazier, No. 09-0441/AF


there are other ways -- and in some cases better ways -- to

challenge or verify the results of a forensic test.        But

the Constitution guarantees one way:      confrontation.   We do

not have license to suspend the Confrontation Clause when a

preferable trial strategy is available.”).      While

“reliability” is the end, the right of confrontation is the

means, and it is the means (rather than the end) that the

Sixth Amendment insists upon.

     The Government nonetheless argues that admission of

the testimonial hearsay of Jaramillo and Lee did not

violate the Confrontation Clause because Dr. Papa was “the

more logical and ideal witness from the lab,” and “a

properly and fully qualified expert witness . . . ideally

suited to explain, interpret, and admit Appellant’s drug

tests.”    But Crawford overruled the “particularized

guarantees of trustworthiness” test established in Ohio v.

Roberts, 448 U.S. 56, 66 (1980), and abandoned the focus on

substantive reliability in favor of the inexorable demand

for cross-examination of the declarant of testimonial

hearsay.   Thus, while no one questions Dr. Papa’s status as

a qualified expert, this does not permit him to convey the

testimonial hearsay of others.       Substitute means of

ensuring reliability do not satisfy the Confrontation

Clause, no matter how efficacious they might be.


                                11
United States v. Blazier, No. 09-0441/AF


     Some of the cases the Government cites to the contrary

are distinguishable from this case in that they either (1)

consider out-of-court statements that, unlike the hearsay

we held testimonial in Blazier I, were deemed not

testimonial, see, e.g., People v. Lovejoy, 919 N.E.2d 843,

869-70 (Ill. 2009); State v. Appleby, 221 P.3d 525, 551

(Kan. 2009); or (2) deal not with the admission of

testimonial hearsay, as happened in this case, but with

expert reliance on that unadmitted hearsay in forming

opinions, Turner, 591 F.3d at 934 (noting that the hearsay

relied upon “was not admitted into evidence, let alone

presented to the jury in the form of a sworn affidavit,

‘functionally identical to live, in-court testimony . . .

.’” (quoting Melendez-Diaz, 129 S. Ct. at 2532)).

     And contrary to the Government’s view on the

precedential value of a denial of certiorari, see Teague v.

Lane, 489 U.S. 288, 296 (1989); Eugene Gressman et al.,

Supreme Court Practice 334 (9th ed. 2007), we are not bound

by the Supreme Court of Indiana’s decision in Pendergrass,

913 N.E.2d at 707-08, cert. denied, 130 S. Ct. 3409 (2010).

The Supreme Court of Indiana found that, under Melendez-

Diaz, the statements of two non-testifying declarants were

testimonial, id. at 707, but went on to hold that the right

of confrontation was satisfied because the defendant “had


                             12
United States v. Blazier, No. 09-0441/AF


the opportunity to confront at trial two witnesses who were

directly involved in the substantive analysis, unlike

Melendez-Diaz, who confronted none at all,”    id. at 708.

Of course, in this case Dr. Papa was not personally or

directly involved in the substantive analyses at all.

Moreover, we respectfully disagree with the principle the

Government draws from Pendergrass -- that “the chief

mechanism for ensuring reliability of evidence is . . .

cross-examination” of someone.    See id.   That principle is

incompatible with both Crawford and Melendez-Diaz; the

right of confrontation is the right to confront and cross-

examine the “witness” who made the “testimonial” statement.

     In short, we hold that cross-examination of Dr. Papa

was not sufficient to satisfy the right to confront

Jaramillo and Lee, and the introduction of their

testimonial statements as prosecution exhibits violated the

Confrontation Clause.

                            III.

     The answer to the question whether Dr. Papa’s

testimony satisfied the Confrontation Clause with respect

to the admission of the testimonial hearsay of Jamarillo

and Lee in the cover memoranda does not answer the

altogether different question as to the permissible bases

and content of Dr. Papa’s expert opinion testimony.


                             13
United States v. Blazier, No. 09-0441/AF


      A qualified expert witness may give testimony in the

form of opinion if “(1) the testimony is based upon

sufficient facts or data, (2) the testimony is the product

of reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of

the case.”   M.R.E. 702.   With respect to the first

requirement, “[i]f of a type reasonably relied upon by

experts in the particular field in forming opinions or

inferences upon the subject, the facts or data need not be

admissible in evidence in order for the opinion or

inference to be admitted.”   M.R.E. 703.   However, such

inadmissible facts or data “shall not be disclosed to the

members by the proponent of the opinion or inferences

unless the military judge determines that their probative

value in assisting the members to evaluate the expert’s

opinion substantially outweighs their prejudicial effect.”

Id.

      Dr. Papa was qualified as an expert witness without

defense objection based on his education and background, as

well as his personal knowledge of laboratory procedures at

the Brooks Lab.   The question here is whether and to what

extent Dr. Papa’s testimony violated the Confrontation

Clause and/or M.R.E. 703 by relaying testimonial hearsay.




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United States v. Blazier, No. 09-0441/AF


We first note certain well-established principles, with

which we agree.

     First, it is well-settled that under both the

Confrontation Clause and the rules of evidence, machine-

generated data and printouts are not statements and thus

not hearsay -- machines are not declarants -- and such data

is therefore not “testimonial.”4     United States v. Lamons,

532 F.3d 1251, 1263 (11th Cir. 2008); Moon, 512 F.3d at

362; Washington, 498 F.3d at 230-31; United States v.

Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005); United

States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003); see

also 4 Christopher B. Mueller & Laird C. Kirkpatrick,

Federal Evidence § 380 (2d ed. 1994) (“[N]othing ‘said’ by

a machine . . . is hearsay”).    Machine-generated data and

printouts such as those in this case are distinguishable

from human statements, as they “involve so little

intervention by humans in their generation as to leave no

doubt they are wholly machine-generated for all practical

purposes.”   Lamons, 532 F.3d at 1263 n.23.    Because

machine-generated printouts of machine-generated data are

not hearsay, expert witnesses may rely on them, subject

4
  M.R.E. 801(a) defines a “statement” as either an “oral or
written assertion” or “nonverbal conduct of a person, if it
is intended by the person as an assertion.” (emphasis
added). Furthermore, M.R.E. 801(b) defines “declarant” as
“a person who makes a statement.” (emphasis added).

                                15
United States v. Blazier, No. 09-0441/AF


only to the rules of evidence generally, and M.R.E. 702 and

M.R.E. 703 in particular.

     Second, an expert witness may review and rely upon the

work of others, including laboratory testing conducted by

others, so long as they reach their own opinions in

conformance with evidentiary rules regarding expert

opinions.   M.R.E. 702; M.R.E. 703; see also Moon, 512 F.3d

at 362; Washington, 498 F.3d at 228-32.    An expert witness

need not necessarily have personally performed a forensic

test in order to review and interpret the results and data

of that test.   See, e.g., Rector v. State, 681 S.E.2d 157,

160 (Ga. 2009) (holding that a toxicologist’s testimony was

not barred by the Confrontation Clause because the

toxicologist “had reviewed the work of the doctor who had

originally prepared the report and reached the same

conclusion that the victim’s blood sample tested negative

for cocaine”); Smith v. State, 28 So. 3d 838, 855 (Fla.

2009) (holding that a laboratory supervisor who did not

perform DNA tests could testify “because she . . .

formulated her own conclusions from the raw data produced

by the biologists under her supervision”).5


5
  Melendez-Diaz, 129 S. Ct. at 2536-38, which explained at
length the myriad ways a laboratory analyst’s report could
be attacked on cross-examination and why the analyst whose
testimonial hearsay was admitted must be subject to cross-

                              16
United States v. Blazier, No. 09-0441/AF


     That an expert did not personally perform the tests

upon which his opinion is based is explorable on cross-

examination, but that goes to the weight, rather than to

the admissibility, of that expert’s opinion.   See United

States v. Raya, 45 M.J. 251, 253 (C.A.A.F. 1996) (holding

that a social worker’s lack of personal interaction with or

observation of a victim went to the weight, and not the

admissibility of her testimony).   Moreover, lack of

knowledge or unwarranted reliance on the work of others may

make an expert opinion inadmissible:   the military judge,

in his capacity as a “gatekeeper,” see United States v.

Sanchez, 65 M.J. 145, 149 (C.A.A.F. 2007) (citing Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597

(1993)), must determine whether the opinion is “based upon

sufficient facts or data” and is the product of “reliable

principles and methods” reliably applied to the case.   See

M.R.E. 702.6



examination, is not to the contrary. That case, which
involved the admission of testimonial hearsay, did not hold
that unadmitted forensic reports trigger the requirements
of the Confrontation Clause.
6
  The fact that the Government may, consistent with the
rules of evidence and the Confrontation Clause, introduce
machine-generated data and expert testimony relying on the
work of others does not preclude an accused from seeking to
call as witnesses those who operated the machines or
performed the work being relied upon to test, among other

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United States v. Blazier, No. 09-0441/AF


     Third, and relatedly, neither the rules of evidence

nor the Confrontation Clause permit an expert witness to

act as a conduit for repeating testimonial hearsay.   Mejia,

545 F.3d at 198.   An expert witness may review and rely

upon inadmissible hearsay in forming independent

conclusions, but he may not circumvent either the rules of

evidence, see M.R.E. 703 (prohibiting the proponent from

disclosing inadmissible facts and data relied upon by an

expert witness unless the military judge determines “that

their probative value in assisting the members to evaluate

the expert’s opinion substantially outweighs their

prejudicial effect”), or the Sixth Amendment by repeating

the substance of the hearsay.    See Ayala, 601 F.3d at 275

(“[T]he question when applying Crawford to expert testimony

is ‘whether the expert is, in essence, giving an

independent judgment or merely acting as a transmitter for

testimonial hearsay.’” (quoting Johnson, 587 F.3d at 635));



things, the accuracy, validity, and reliability of those
machines and tests. As the Compulsory Process Clause of
the Sixth Amendment, Article 46, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 846 (2006), and Rule for
Courts-Martial (R.C.M.) 703(a) make clear, a defendant has
the right to the compulsory process of witnesses who can
provide relevant and necessary evidence in their defense.
In other words, a live witness not required by the
Confrontation Clause because the Government admitted no
testimonial hearsay may nonetheless be called by the
defense, and attendance compelled upon a showing of
relevancy and necessity. Id.

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United States v. Blazier, No. 09-0441/AF


Law, 528 F.3d at 912 (holding that the Confrontation Clause

was not violated where the expert witness “did not relate

statements by out-of-court declarants to the jury,” but

based his conclusion on his experience as a narcotics

investigator).

       Applying these principles to the instant case, many of

the documents contained in the drug testing reports are

machine-generated printouts of raw data and calibration

charts,7 and Dr. Papa’s testimony consisted in large part of

explaining and analyzing these documents.   This portion of

Dr. Papa’s testimony was permissible because the documents

relied upon were not hearsay of any kind, let alone

testimonial hearsay.

       Dr. Papa presented his ultimate conclusions as his

own.   When asked to give an opinion, Dr. Papa testified

that based on his “training, education, and experience” it

was his opinion that the tests of Appellant’s samples were

conducted reliably and that Appellant’s urine showed traces

of methamphetamine in the first test and marijuana in the

second test.




7
  By our count, machine printouts comprise 111 pages out of
the 128 pages (approximately 87 percent) in the June drug
testing report, and 19 pages out of the 32 pages
(approximately 59 percent) in the July drug testing report.

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United States v. Blazier, No. 09-0441/AF


     Nonetheless, Dr. Papa’s testimony repeated at least

some testimonial hearsay of declarants who did not testify:

the cover memoranda were not only admitted into evidence,

but the substance of the testimonial hearsay contained

therein was repeated almost verbatim by Dr. Papa himself

when he testified that one of the summaries “tells you . .

. that we tested this particular specimen with our required

menu of screen, rescreen, and GCMS confirmation” and “shows

you what the results of the testing were.”

     In short, although Dr. Papa may well have been able to

proffer a proper expert opinion based on machine-generated

data and calibration charts, his knowledge, education, and

experience and his review of the drug testing reports

alone, both the drug testing reports and Dr. Papa’s

testimony contained a mix of inadmissible and admissible

evidence.   Specifically, the cover memoranda were

inadmissible under the Confrontation Clause, and Dr. Papa’s

testimony conveying the statements contained in those cover

memoranda -- including those concerning what tests were

conducted, what substances were detected, and the nanogram

levels of each substance detected -- were inadmissible

under both the Confrontation Clause and M.R.E. 703, while

the machine-generated printouts and data were not hearsay




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United States v. Blazier, No. 09-0441/AF


at all and could properly be admitted into evidence and

serve as the basis for Dr. Papa’s expert conclusions.

                             IV.

     The CCA viewed the drug testing reports in toto, and

decided this case on the ground that the “drug testing

results” were business records and not testimonial.8    United

States v. Blazier, 68 M.J. 544, 545-46 (A.F. Ct. Crim. App.

2008).   Finding no error, the CCA did not have cause to

examine the effect of error on the case.

    As noted supra, the testimonial cover memoranda were

admitted in violation of the Confrontation Clause.     See

Blazier I, 68 M.J. at 443.   In light of this admission and

Dr. Papa’s repetition of the cover memoranda in his

testimony, it is appropriate to consider harmlessness in

light of a constitutional error.

          “For most constitutional errors at trial, we
     apply the harmless error test set forth in
     Chapman v. California, 386 U.S. 18 (1967), to
     determine whether the error is harmless beyond a
     reasonable doubt.” United States v. Upham, 66
     M.J. 83, 86 (C.A.A.F. 2008). Evidence admitted
     in violation of . . . the Confrontation Clause of
     the Sixth Amendment is subject to that standard.



8
  As noted in Melendez-Diaz, statements prepared in
anticipation of litigation (as at least the cover memoranda
clearly were), are not business records and, even if a
document might otherwise be a business record, if it is
testimonial hearsay, its admission violates the
Confrontation Clause. 129 S. Ct. at 2538-40.

                              21
United States v. Blazier, No. 09-0441/AF


United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F.

2009).   Dr. Papa could have arrived at an expert opinion

based on training, education, experience, and admissible

evidence alone, and considered, but not repeated,

inadmissible evidence in arriving at an independent expert

opinion.   Such expert opinion and admissible evidence

together could have been legally sufficient to establish

the presence of drug metabolite in the urine tested.     See

United States v. Barrow, 45 M.J. 478, 479 (C.A.A.F. 1997).

But in assessing harmlessness in the constitutional

context, the question is not whether the evidence is

legally sufficient to uphold a conviction without the

erroneously admitted evidence.     See Fahy v. Connecticut,

375 U.S. 85, 86 (1963).   Rather, “‘[t]he question is

whether there is a reasonable possibility that the evidence

complained of might have contributed to the conviction.’”

Chapman, 386 U.S. at 23 (quoting Fahy, 375 U.S. at 86-87).

This determination is made on the basis of the entire

record, and its resolution will vary depending on the facts

and particulars of the individual case.

   In this case the parties have confined their harmless

error arguments to the specified harmless error issue --

the effect of Dr. Papa’s testimony.    The parties have not

addressed whether or not the constitutional error was


                              22
United States v. Blazier, No. 09-0441/AF


harmless in light of the entire record.    Having answered

the specified issues, we remand this case for the parties

to brief, and the CCA to resolve in the first instance --

on the basis of the entire record -- whether the admission

of the drug testing report cover memoranda and Dr. Papa’s

repetition of the contents of such memoranda were harmless

beyond a reasonable doubt.9

     Accordingly, the decision below is reversed.    The

record is returned to the Judge Advocate General of the Air

Force for remand to the Court of Criminal Appeals.




9
  Consistent with the principles articulated in Melendez-
Diaz, Crawford, United States v. Magyari, 63 M.J. 123
(C.A.A.F. 2006), United States v. Harcrow, 66 M.J. 154
(C.A.A.F. 2008), Blazier I, and this case, the CCA may
determine whether any other documents within the drug
testing reports for the June and July tests (such as
certifications that all procedures were properly followed
on the specimen custody documents) were testimonial or
utilized in violation of M.R.E. 703 if necessary to its
decision.

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