                    UNITED STATES, Appellee

                                 v.

              Andrew D. TEARMAN, Lance Corporal
                 U.S. Marine Corps, Appellant

                           No. 12-0313

                    Crim. App. No. 201100195

    United States Court of Appeals for the Armed Forces

                    Argued October 23, 2012

                     Decided March 19, 2013

RYAN, J., delivered the opinion of the Court, in which
ERDMANN and STUCKY, JJ., and EFFRON, S.J., joined. BAKER,
C.J., filed a separate opinion concurring in part and in
the result.


                              Counsel

For Appellant: Captain Michael D. Berry, USMC (argued);
Captain Jason Wareham, USMC.

For Appellee: Major William C. Kirby, USMC (argued);
Colonel Kurt J. Brubaker, USMC, and Brian K. Keller, Esq.
(on brief).

Amicus Curiae for Appellant: Captain Zaven T. Saroyan,
USAF (on brief) -- for the Air Force Appellate Defense
Division.

Military Judge:   Gregory L. Simmons


    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Tearman, 12-0313/MC	


     Judge RYAN delivered the opinion of the Court.

     Contrary to his pleas, a panel of officer members

sitting as a special court-martial convicted Appellant of a

single specification of wrongfully using marijuana in

violation of Article 112a, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 912a (2006).    The adjudged and approved

sentence provided for a bad-conduct discharge and reduction

to E-1.   The United States Navy-Marine Corps Court of

Criminal Appeals (NMCCA) affirmed the findings and sentence

as approved by the convening authority.    United States v.

Tearman, 70 M.J. 640, 645 (N-M. Ct. Crim. App. 2012).

     We granted Appellant’s petition for review to

determine whether:   (1) the admission of the chain-of-

custody documents and internal review worksheets violated

Appellant’s right of confrontation under the Sixth

Amendment; and (2) the admission of the official test

result and certification contained in the DD Form 2624 in

violation of the Confrontation Clause of the Sixth

Amendment was harmless beyond a reasonable doubt.1    Applying


																																																								
1
     On March 23, 2012, we granted review of the following
issues:
     I.    THE LOWER COURT HELD THAT THE ADMISSION, OVER
           APPELLANT’S OBJECTION, OF TWO PIECES OF
           TESTIMONIAL HEARSAY FOUND WITHIN THE DD FORM 2624
           WAS HARMLESS ERROR BEYOND A REASONABLE DOUBT.
           BUT IT MISAPPLIED THE SWEENEY FACTORS AND DID NOT

                               2	
United States v. Tearman, 12-0313/MC	


the principles set forth in United States v. Sweeney, 70

M.J. 296 (C.A.A.F. 2011), United States v. Blazier (Blazier

II), 69 M.J. 218 (C.A.A.F. 2010), and United States v.

Blazier (Blazier I), 68 M.J. 439 (C.A.A.F. 2010), as well

as Supreme Court precedent, see Bullcoming v. New Mexico,

131 S. Ct. 2705 (2011); Melendez-Diaz v. Massachusetts, 557

U.S. 305 (2009); Davis v. Washington, 547 U.S. 813 (2006);

Crawford v. Washington, 541 U.S. 36 (2004), we agree with

the NMCCA that the chain-of-custody documents and internal

review worksheets at issue in this case are nontestimonial.

Tearman, 70 M.J. at 642-43.

             Further, applying the balancing test set forth in

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986), we also

agree with the NMCCA that the error in admitting the

official test result and certification contained in the DD




																																																																																																																																																																					
                           CONSIDER THE BLAZIER II FACTORS IN ASSESSING
                           PREJUDICE. DID THE LOWER COURT ERR IN HOLDING
                           THAT THE TESTIMONIAL HEARSAY DID NOT CONTRIBUTE
                           TO APPELLANT’S CONVICTION?

             II.           THE LOWER COURT HELD THAT THE MILITARY JUDGE DID
                           NOT ABUSE HIS DISCRETION IN ADMITTING, OVER
                           APPELLANT’S OBJECTION, THE CHAIN-OF-CUSTODY
                           DOCUMENTS AND INTERNAL REVIEW WORKSHEETS BECAUSE
                           THEY WERE NON-TESTIMONIAL. ARE THESE NON-MACHINE
                           GENERATED DOCUMENTS AND WORKSHEETS TESTIMONIAL?

United States v. Tearman, 71 M.J. 197 (C.A.A.F. 2012)
(order granting review).

                                                                                3	
United States v. Tearman, 12-0313/MC	


Form 2624 was harmless beyond a reasonable doubt.    Tearman,

70 M.J. at 645.

                          I.   FACTS

     On July 7, 2010, Appellant was one of approximately

forty-four Marines randomly selected to participate in a

urinalysis.   His urine sample was packaged and shipped with

the other samples to the Navy Drug Screening Laboratory

(NDSL), in San Diego, California, for forensic testing.

Upon arrival, Appellant’s urine bottle was assigned a

unique laboratory accessing number (LAN).   NDSL testing

detected and confirmed the presence of tetrahydrocannabinol

(THC), a marijuana metabolite, in an amount above the

Department of Defense (DoD) cutoff level in Appellant’s

urine.

     On July 16, 2010, the NDSL sent an electronic

notification of Appellant’s positive result to the

Substance Abuse Coordination Officer (SACO) assigned to

Appellant’s squadron, Sergeant O’Neil (Sgt O’Neil).   On

October 5, 2010, trial counsel requested that the NDSL send

the empty urinalysis bottle and “drug lab documentation”

pertaining to Appellant’s batch number, specimen number,

and unique LAN.   Thereafter, a single charge and

specification for wrongful use of marijuana, in violation




                               4	
United States v. Tearman, 12-0313/MC	


of Article 112a, UCMJ, was referred to a special court-

martial, to which Appellant pleaded not guilty.

     Prior to trial, the Government submitted an exhibit

that included the drug testing report prepared by the NDSL.

The drug testing report included the DD Form 2624, other

chain-of-custody documents, machine-generated data, and

internal review worksheets, documenting the NDSL’s

urinalysis process.2


																																																								
2
     The drug testing report was made up of the following:

     Pages 1–2, 5, 7, 12–13, and 17–18 are all chain
     of custody documents for the appellant’s urine
     bottle, urine sample (“aliquot”) or the batch
     containing the appellant’s aliquot. These
     documents all contain handwritten signatures or
     initials and date stamps indicating the handling
     of the bottle, urine aliquot, or batch within the
     laboratory during the testing process. Pages 3
     and 4 are the specimen custody document, DD 2624,
     which contains numerous stamped entries
     indicating the chain of custody from collection
     through receipt at the NDSL. It also contains a
     certification block (block H) where a certifying
     official, “Tito R. Romero, Jr., Chemist”, signs
     his name certifying that “[he is] a laboratory
     official, that the laboratory results indicated
     on this form were correctly determined by proper
     laboratory procedures, and they are correctly
     annotated”. In block G of the form the notation
     “THC” appears next to appellant’s LAN and his
     social security number. Pages 6, 11, and 19 are
     all internal review worksheets for the initial
     screen, rescreen, and confirmation tests, which
     list the batch number and the signatures of a
     technician, quality control reviewer, and initial
     and final laboratory certifying official. Pages
     8–10, 14–16 and 20–34 are mostly machine
     generated annotations with corresponding time

                               5	
United States v. Tearman, 12-0313/MC	


             The defense moved to exclude the drug testing report

in its entirety because the report was “prepared in

anticipation for use at trial,” or, in the alternative, to

exclude the non-machine-generated portions of the report.

The military judge denied the motions, finding that the

“entries including chain[-]of[-]custody notations made by

technicians of the [NDSL] in the urinalysis lab report do

not constitute testimonial statements within the scope of

the confrontation clause” and “are potentially admissible

under the business records exception.”3

             At trial, the Government called Andrea Kaminski, a

supervisory forensic chemist and expert witness from the

NDSL.              The Government offered a portion of Ms. Kaminski’s

testimony for the purpose of laying the foundation for

admitting the drug testing report as a business record

under M.R.E. 803(6).                                        When the Government offered the drug

testing report into evidence, the defense asserted a

continuing objection on Confrontation Clause grounds.                                                                                                 The

military judge again overruled the objection, finding that:


																																																																																																																																																																					
              stamps and abbreviations.

Tearman, 70 M.J. at 642 n.6.
	
3
  Military Rule of Evidence (M.R.E.) 803(6) (providing an
exception to the rule against hearsay for “[r]ecords of
regularly conducted activity”).


                                                                                6	
United States v. Tearman, 12-0313/MC	


(1) the drug testing report was admissible in its entirety

under United States v. Magyari, 63 M.J. 123 (C.A.A.F.

2006), because the testing was performed on “a random

sample basis,” under a “non-investigative urinalysis

process;” and (2) “trial counsel has laid a proper

foundation for [the drug testing report] under [M.R.E.

803(6)].”   Thereafter, the drug testing report was admitted

into evidence in its entirety.

     Ms. Kaminski was trained and certified as an expert

witness in the field of forensic science, and testified

regarding the NDSL’s mission, its process by which samples

are accessioned, its testing methodology, and the contents

of the drug testing report.   Ms. Kaminski explained that

the NDSL’s THC testing process consisted of three

independent tests:

     The first test is a screening test called
     immunoassay. If the sample from that first test
     is presumptive positive, we do a second test.
     It’s called a rescreen immunoassay. And if that
     is presumptive positive, we do a third test
     called a confirmation GCMS [(gas chromatography
     mass spectrometry)] test.

Her expert opinion was that the urine sample associated

with Appellant’s LAN contained THC in an amount above the

DoD cutoff limit.

     Ms. Kaminski was specifically asked about the front

side of the DD Form 2624, i.e., the “specimen custody

                              7	
United States v. Tearman, 12-0313/MC	


document.”    After reviewing the document and the official

test result presented in block G, she stated that

Appellant’s specimen was positive for THC.    Ms. Kaminski

then testified about the NDSL’s urinalysis process in

detail, focusing on the laboratory’s procedural steps for

handling a positive sample and the machine-generated data

produced in the course of testing Appellant’s urine sample.4

        First, Ms. Kaminski described the NDSL’s process for

the initial screening test.    Then, based on the machine-

generated screening results displayed on page eight of the

drug testing report, she indicated that Appellant’s sample

tested above the DoD cutoff level for THC.    Next, Ms.

Kaminski testified about the process for the rescreening

test.    Again, relying on the machine-generated rescreening

results contained on pages fourteen and fifteen of the drug

testing report, she testified that Appellant’s sample

“tested presumptive positive for THC” and indicated that

the sample tested above the DoD cutoff level for THC.

Finally, Ms. Kaminski described the GCMS confirmation test.

Once again, relying on the machine-generated test results

																																																								
4
     Ms. Kaminski could not specifically testify about the
accessioning, initial screening, or the rescreening
processes with regard to Appellant’s specimen because she
was not present for those stages in the testing. She was,
however, present for the GCMS confirmation test, which took
place in her department.


                                8	
United States v. Tearman, 12-0313/MC	


on page thirty-one of the drug testing report, she

concluded that Appellant’s sample “tested positive for THC”

and tested above the DoD cutoff level for THC.

     The Government also called Sgt O’Neil, the SACO for

Appellant’s squadron, who testified about the process of

collecting Appellant’s urine sample, storing the sample,

and shipping the sample to the NDSL.    Sgt O’Neil identified

his signatures on the chain-of-custody portion of the DD

Form 2624.   Sgt O’Neil testified that he signed the chain-

of-custody document when he released the urine samples to

storage, when he removed the samples from storage to

prepare for shipping, and when he shipped the samples to

the NDSL.

                     II.   NMCCA DECISION

     The NMCCA applied Sweeney and unanimously held that,

except for blocks G and H on the DD Form 2624, the military

judge did not err in admitting the drug testing report as a

business record because the report’s remaining statements

were either (1) machine-generated, and thus nontestimonial,

citing Blazier II, 69 M.J. at 224, or (2) lacked the

attendant characteristics and formalities to suggest that

they were “affirmation[s] made for the purpose of

establishing or proving some fact in a criminal

proceeding.”   Tearman, 70 M.J. at 642-43 (alteration in

                               9	
United States v. Tearman, 12-0313/MC	


original) (quoting Bullcoming, 131 S. Ct. at 2716)

(internal quotation marks omitted).

     In contrast, the NMCCA held that portions of the DD

Form 2624 -- i.e., the “official Department of Defense

specimen custody form used by the NDSL for certifying and

reporting urinalysis test results” -- were testimonial.

Id. at 643.   The NMCCA held that it was error to admit both

the NDSL’s official test result -- block G on the DD Form

2624 -- and its certification “that the laboratory

results . . . were correctly determined by proper

laboratory procedures, and that they are correctly

annotated,” -- block H on the DD Form 2624 -- noting that,

taken together, they “present a formalized, conclusory

affirmation, much like the certificates of the analysts in

Melendez-Diaz and Bullcoming, and identical to the

certification in Sweeney.”   Id.      The NMCCA further held

that the admission of this testimonial hearsay over defense

objection was harmless beyond a reasonable doubt under Van

Arsdall, 475 U.S. at 684, because the erroneously admitted

evidence was “cumulative with, and ultimately corroborated

by, the testimony and independent opinion of the

Government’s expert witness.”     Tearman, 70 M.J. at 645.




                                10	
United States v. Tearman, 12-0313/MC	


                       III.   DISCUSSION

     Appellant alleges that the NMCCA erred in holding that

the chain-of-custody documents and internal review

worksheets contained within the drug testing report were

nontestimonial, and further argues that the admission of

the testimonial statements contained in the DD Form 2624

was not harmless beyond a reasonable doubt.   We disagree.5

                               A.

     Whether admitted evidence constitutes testimonial

hearsay is a question of law reviewed de novo.   Blazier I,

68 M.J. at 441-42.   “[A] statement is testimonial if ‘made


																																																								
5
     Chief Judge Baker’s discussion of the
testimonial/nontestimonial nature of blocks G and H of the
DD Form 2624, in the wake of Williams v. Illinois, 132 S.
Ct. 2221 (2012) (plurality opinion), see United States v.
Tearman, __ M.J. __ (15-17) (C.A.A.F. 2013) (Baker, C.J.,
concurring in part and in the result), is irrelevant to the
issues before us. Even assuming that Williams either
stands for the holding or has the precedential value he
asserts, that the DD Form 2624 certifications are
testimonial was decided in Sweeney, 70 M.J. at 304 -- the
continuing vitality of which is not raised by the granted
issues. See Tearman, 71 M.J. 197 (order granting review).
Furthermore, the Government not only declined to challenge
the NMCCA’s holding that it was constitutional error to
admit blocks G and H of the DD Form 2624, Tearman, 70 M.J.
at 643, but also conceded that the DD Form 2624 is
testimonial during oral argument, Audio recording of oral
argument at 18:58, Tearman, __ M.J. __ (C.A.A.F. Oct. 23,
2012) (No. 12-0313),
http://www.armfor.uscourts.gov/newcaaf/calendar/2012-
10.htm#23 -- months after Williams was decided -- and
instead focused its argument on the fact that the error was
harmless beyond a reasonable doubt.


                               11	
United States v. Tearman, 12-0313/MC	


under circumstances which would lead an objective witness

reasonably to believe that the statement would be available

for use at a later trial.’”   Sweeney, 70 M.J. at 301

(quoting Blazier I, 68 M.J. at 442).      “Asked another way,

would it be reasonably foreseeable to an objective person

that the purpose of any individual statement in a drug

testing report is evidentiary?”      Id. at 302.   To make this

determination, we treat “fine distinctions based on the

impetus behind the testing and the knowledge of those

conducting laboratory tests at different points in time” as

relevant considerations, but not as dispositive factors.

Blazier I, 68 M.J. at 442; see also Sweeney, 70 M.J. at 302

(“[T]he focus has to be on the purpose of the statements in

the drug testing report itself, rather than the initial

purpose for the urine being collected and sent to the

laboratory for testing.”).    Moreover, “the formality” of a

statement “is a factor to be considered” when determining

whether the statement is testimonial.     Sweeney, 70 M.J. at

303 n.13 (citing Bullcoming, 131 S. Ct. at 2717).

     The language used by the Supreme Court to describe

whether and why a statement is testimonial is far from

fixed.   Compare Bullcoming, 131 S. Ct. at 2714 n.6

(plurality opinion) (“To rank as ‘testimonial,’ a statement

must have ‘a primary purpose’ of ‘establish[ing] or

                               12	
United States v. Tearman, 12-0313/MC	


prov[ing] past events potentially relevant to later

criminal prosecution.’” (alterations in original) (quoting

Davis, 547 U.S. at 822)), with Melendez–Diaz, 557 U.S. at

311 (“Here . . . the affidavits [were] ‘made under

circumstances which would lead an objective witness

reasonably to believe that the statement would be available

for use at a later trial’ . . . .” (quoting Crawford, 541

U.S. at 52)), and Melendez–Diaz, 557 U.S. at 329 (Thomas,

J., concurring) (“I continue to adhere to my position that

‘the Confrontation Clause is implicated by extrajudicial

statements only insofar as they are contained in formalized

testimonial materials, such as affidavits, depositions,

prior testimony, or confessions.’” (quoting White v.

Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring

in part and concurring in the judgment))), and Davis, 547

U.S. at 826-28 (distinguishing “interrogations solely

directed at establishing the facts of a past crime” –-

which elicit testimonial statements -- from interrogations

designed to enable law enforcement “to meet an ongoing

emergency” -- which do not), and Crawford, 541 U.S. at 51

(offering one formulation of testimonial statements as

“‘material such as affidavits, custodial examinations,

prior testimony that the defendant was unable to cross-

examine, or similar pretrial statements that declarants

                             13	
United States v. Tearman, 12-0313/MC	


would reasonably expect to be used prosecutorially’”)

(citation omitted), and Crawford, 541 U.S. at 52

(“Statements taken by police officers in the course of

interrogations are also testimonial under even a narrow

standard.”).6    However, under any of the various

formulations of testimonial statements, neither the chain-

of-custody documents nor the internal review worksheets at

issue qualify.

     As an initial matter, we note that the challenged

internal chain-of-custody documents and internal review

worksheets7 are substantially different from the DD Form


																																																								
6
     We do not view Williams, 132 S. Ct. 2221, as altering
either the Supreme Court’s or this Court’s Confrontation
Clause jurisprudence and do not attempt to unravel
Williams’s various opinions except to note that (1) there
was no majority support for any point but the result, see
Williams, 132 S. Ct. at 2265 (Kagan, J., with whom Scalia,
J., Ginsburg, J., and Sotomayor, J., joined, dissenting)
(“Five Justices specifically reject every aspect of [the
plurality’s] reasoning and every paragraph of its
explication.”); id. at 2255 (Thomas, J., concurring in the
judgment) (concluding that the “statements lacked the
requisite formality and solemnity to be considered
testimonial for purposes of the Confrontation Clause,” but
noting that he “share[s] the dissent’s view of the
plurality’s flawed analysis”) (internal quotation marks
omitted), and (2) the plurality nonetheless understood its
conclusion that petitioner’s Sixth Amendment confrontation
right was not violated to be “entirely consistent with
Bullcoming and Melendez–Diaz,” id. at 2240 (plurality
opinion).
7
  The NMCCA described the chain-of-custody documents and
internal review worksheets in relevant part:


                               14	
United States v. Tearman, 12-0313/MC	


2624 certification in Sweeney and the cover memoranda in

Sweeney and Blazier I.                                           With regard to the DD Form 2624

certification, we held that the statement was testimonial

where it (1) was completed and signed by a laboratory

official after all testing was complete, Sweeney, 70 M.J.

at 299, (2) indicated that the sample tested positive for

cocaine and codeine, id., and (3) certified that the

“‘laboratory results [on the DD Form 2624] were correctly

determined by proper laboratory procedures, and that they

are correctly annotated.’”                                                  Id. at 304.                         Additionally, we

concluded that the cover memoranda certifications were

testimonial where they (1) were generated in response to

the command’s request, and, like the DD Form 2624

certification, after all testing was complete, see Sweeney,

70 M.J. at 299; Blazier I, 68 M.J. at 442, (2)

“identif[ied] the presence of an illegal drug and

indicate[d] the quantity present,” Blazier I, 68 M.J. at
																																																																																																																																																																					
              These eight pages, containing a total of thirty-
              seven individual chain of custody entries, all
              list a stamped or handwritten name, a signature
              or initials, a date, and a stamped entry
              indicating the purpose for the change in custody
              within the NDSL. . . . The internal review
              worksheets only contain names, signatures, and
              dates. None of the “comments” portions of these
              worksheets contain any notations. Nor do they
              certify the accuracy of any test results or
              adherence to any testing protocol.

Tearman, 70 M.J. at 642-43.	

                                                                               15	
United States v. Tearman, 12-0313/MC	


443, and (3) “summarize[d] and digest[ed] voluminous data.”

Id.

       In contrast, here, the process of creating the

challenged statements was initiated without any external

request, before Appellant was charged, and before all, or

in the case of the chain-of-custody documents, any testing

was complete.   Cf. Sweeney, 70 M.J. at 299, 304.    While it

is true that the statements were admitted into evidence,

whether a statement is testimonial is a determination made

ab initio.    See Sweeney, 70 M.J. at 301 (citing Bullcoming,

131 S. Ct. at 2717); id. at 302.     The fact that a document

is ultimately admitted at trial as part of a prosecution

exhibit, does not prove a fortiori that it “would . . . be

reasonably foreseeable to an objective person” that it was

created for an evidentiary purpose.     Sweeney, 70 M.J. at

302.   The technicians’ signatures and annotations on the

documents at issue were made under circumstances, which,

taken as a whole, establish that they were made for an

administrative rather than an evidentiary purpose.      Id.

       In the first place, the NDSL’s internal chain-of-

custody and internal review documentation process began

immediately upon receipt of the urine specimens from the

shipping agent and prior to the initial screening test, and

were prepared pursuant to internal procedures and not at

                               16	
United States v. Tearman, 12-0313/MC	


the request of law enforcement, the command, or

prosecution.8   The entries and notations contained in the

documents were made contemporaneously with a change in

custody of the sample or a step in the testing process,9

pursuant to the regular practice of the NDSL and in the

regular course of conducting its business.    Cf. Blazier I,

68 M.J. at 442 (holding that the cover memorandum was

testimonial where it “was prepared not only after the

results reporting assistant knew that the specimens had

tested positive for illegal substances, but also in

response to the prior day’s request by Appellant’s command

for such reports ‘for court-martial use’”).    Thus, when the

laboratory technicians signed and annotated the internal

chain-of-custody and internal review documents, they did so

under circumstances which would lead an objective witness

reasonably to believe that they did so to maintain internal

control, not to create evidence for use at a later trial.

Sweeney, 70 M.J. at 301.

																																																								
8
     This is similarly true of Sgt O’Neil’s initial entries in
the chain-of-custody portion of the DD Form 2624, which
were made (1) following a random, noninvestigative
urinalysis, and (2) in the regular course of his duties as
the urinalysis unit coordinator.	
9
  For example, the   signatures and date stamps on the chain-
of-custody portion   of the DD Form 2624 for July 7-8, 2010,
match Sgt O’Neil’s   testimony regarding his handling of the
urine specimens on   those dates.
	

                               17	
United States v. Tearman, 12-0313/MC	


     Second, none of the statements at issue summarize or

certify “additional substantive information.”10   Id. at 299;

see also United States v. Rankin, 64 M.J. 348, 352

(C.A.A.F. 2007) (listing as one relevant factor “in

distinguishing between testimonial and nontestimonial

hearsay” whether the statement “involve[d] more than a

routine and objective cataloguing of unambiguous factual

matters”).   Instead, the signatures and annotations in the

chain-of-custody documents and internal review worksheets

track the progress of the specimen bottle from the command

to the NDSL and from person-to-person at the NDSL, and note

the progress of the sample through the testing processes.11

The NDSL’s internal chain-of-custody documents and internal

review worksheets appear to be little more than part and


																																																								
10
      Like the laboratory technicians’ signatures and
annotations, Sgt O’Neil’s signatures on the specimen chain-
of-custody portion of the DD Form 2624 made no
certification of “additional substantive information,”
beyond a verification of each custodial step for which he
was responsible as the SACO assigned to Appellant’s unit.
Sweeney, 70 M.J. at 299.
11
  Ms. Kaminski’s testimony demonstrates that, unlike the DD
Form 2624 certification and cover memoranda, the signatures
and annotations on the documents at issue offer very
limited substantive information. For example, when asked
“[w]hat does the [initial screening review worksheet] tell
us?” Ms. Kaminski stated that “[i]t tells you the batch
number, the drugs that the sample was tested for and a list
of all the technicians who reviewed the data and paperwork
for this test.”
	

                              18	
United States v. Tearman, 12-0313/MC	


parcel of the internal controls necessary to conduct the

NDSL’s business.12   See Melendez-Diaz, 557 U.S. at 324

(“Business and public records are generally admissible

absent confrontation not because they qualify under an

exception to the hearsay rules, but because -- having been

created for the administration of an entity’s affairs and

not for the purpose of establishing or proving some fact at

trial -- they are not testimonial.”).    Although not every

business record is necessarily nontestimonial, see id. at

321; Sweeney, 70 M.J. at 302, the characteristics that

distinguish documents prepared “in the course of a

regularly conducted business activity” from those prepared

“in anticipation of litigation” under M.R.E. 803(6), see

United States v. Foerster, 65 M.J. 120, 126 (C.A.A.F.

2007), are also indicative of an administrative purpose

rather than an evidentiary purpose.     See id. at 123-26

(holding that a third-party affidavit was both

nontestimonial and a business record where (1) it was “made


																																																								
12
      Appellant challenges whether the chain-of-custody
documents and the internal review worksheets are
testimonial; he does not dispute that they are business
records under M.R.E. 803(6). This is consistent with
defense counsel’s actions at trial -- defense counsel
objected to the admission of the drug testing report on the
ground that it violated the Confrontation Clause, not on
the ground that it failed to meet the business records
exception to the hearsay rule.


                              19	
United States v. Tearman, 12-0313/MC	


at the behest of [the bank],” (2) it “catalog[ed] objective

facts,” and (3) its primary purpose was “preventing

fraud”); cf. Palmer v. Hoffman, 318 U.S. 109, 114 (1943)

(holding that an accident report provided by an employee of

a railroad company did not qualify as a business record

because “[its] primary utility [was] in litigating, not in

railroading”).

     Third, and finally, we observe that the documents at

issue lack any indicia of formality or solemnity that, if

present, would suggest an evidentiary purpose.   See

Bullcoming, 131 S. Ct. at 2717 (citing Melendez-Diaz, 557

U.S. at 310-11).   Instead, the “statements” we are asked to

deem testimonial are comprised of nothing more than

signatures, stamped names, dates, and minimal notations

with no certification, swearing, witnessing, or other

attestation.   Cf. Melendez-Diaz, 557 U.S. at 308, 310-11

(concluding that the “certificates of analysis” were “quite

plainly affidavits” where they reported the drug type,

amount, and “[t]he certificates were sworn to before a

notary public by analysts at the State Laboratory Institute

of the Massachusetts Department of Public Health, as

required under Massachusetts law”); id. at 330 (Thomas, J.,

concurring) (same).   The documents at issue in this case

utterly lacked attendant formalities, a characteristic that

                              20	
United States v. Tearman, 12-0313/MC	


stands in stark contrast to the formal, affidavit-like

certificates and memoranda at issue in Bullcoming,

Melendez-Diaz, Sweeney, and Blazier I, and is -- under

Sweeney -- a factor that points to the statements being

nontestimonial.   70 M.J. at 303 n.13 (citing Bullcoming,

131 S. Ct. at 2717; Melendez-Diaz, 557 U.S. at 329 (Thomas,

J., concurring)).

     Based on all of the above, we agree with the NMCCA

that none of the statements contained in the chain-of-

custody documents and the internal review worksheets at

issue are testimonial and that the military judge did not

abuse his discretion in admitting them as business records

under M.R.E. 803(6).13



																																																								
13
      We reiterate that the fact that the government may
introduce, subject to M.R.E. 803(6), nontestimonial hearsay
via the chain-of-custody documents and internal review
worksheets contained in drug testing reports does not
preclude an accused from seeking to call as witnesses those
who handled the urine specimen and performed the screens,
rescreens, and confirmation tests to challenge, among other
things, the accuracy, validity, and reliability of the test
results. Blazier II, 69 M.J. at 225 n.6 (citing Compulsory
Process Clause, U.S. Const. amend. VI; Article 46, UCMJ, 10
U.S.C. § 846 (2006); Rule for Courts–Martial (R.C.M.)
703(a)). Moreover, if Appellant were challenging
particular steps in the chain-of-custody or internal review
process, as opposed to objecting to the introduction of
nontestimonial signatures and notations, the government may
choose to establish those challenged steps through live
witness testimony, or choose not to at its own peril. See
Melendez-Diaz, 557 U.S. at 311 n.1.


                              21	
United States v. Tearman, 12-0313/MC	


                               B.

       In contrast to the statements made in the chain-of-

custody documents and internal review worksheets, blocks G

and H of the DD Form 2624 were testimonial statements under

Sweeney and, therefore, their admission was error.      See 70

M.J. at 304 (“[I]t was plain and obvious error to admit the

specimen custody document certification.    This

certification is a formal, affidavit-like statement of

evidence.”).   Therefore, we review for prejudice.14    Id. at

306.

       Relief for Confrontation Clause errors will be granted

only where they are not harmless beyond a reasonable doubt.

Id.    Whether a constitutional error was harmless beyond a

reasonable doubt is a question of law reviewed de novo.

See United States v. Savala, 70 M.J. 70, 77 (C.A.A.F.

2011).   In the context of the erroneous admission of

testimonial hearsay, our harmless beyond a reasonable doubt

inquiry focuses on whether “‘there is a reasonable

possibility that the evidence complained of might have

contributed to the conviction.’”     Blazier II, 69 M.J. at

																																																								
14
      We note that here, unlike in Sweeney, 70 M.J. at 304,
Appellant objected to the admission of the drug testing
report. Therefore, plain error review is inapplicable.
Nevertheless, under Van Arsdall, the erroneous admission of
blocks G and H of the DD Form 2624 remains subject to
harmless error analysis. 475 U.S. at 684.	


                               22	
United States v. Tearman, 12-0313/MC	


226-27 (quoting Chapman v. California, 386 U.S. 18, 23

(1967)).

        To determine whether a Confrontation Clause error is

harmless beyond a reasonable doubt, this Court has adopted

the balancing test established in Van Arsdall, considering

such factors as:    “[1] the importance of the unconfronted

testimony in the prosecution’s case, [2] whether that

testimony was cumulative, [3] the existence of

corroborating evidence, [4] the extent of confrontation

permitted, and [5] the strength of the prosecution’s case.”

Sweeney, 70 M.J. at 306 (citing Van Arsdall, 475 U.S. at

684).    This list of factors is not exhaustive, and “‘[the]

determination is made on the basis of the entire record.’”

Sweeney, 70 M.J. at 306 (quoting Blazier II, 69 M.J. at

227).    To conclude that a Confrontation Clause error was

harmless beyond a reasonable doubt, we must be convinced

that the testimonial hearsay was unimportant in light of

everything else the court members considered on the issue

in question.    United States v. Gardinier, 67 M.J. 304, 306

(C.A.A.F. 2009).

        Applying Van Arsdall, the NMCCA determined that four

of the five factors supported the Government’s position.

Tearman, 70 M.J. at 644-45.     Because we agree with the

NMCCA and find that any impact the testimonial statements

                                23	
United States v. Tearman, 12-0313/MC	


may have had on the panel’s findings was de minimis when

viewed in light of the entire record of this case, we hold

that the error in admitting the testimonial statements --

blocks G and H of the DD Form 2624 -- was harmless beyond a

reasonable doubt.

     First, the NMCCA determined that the testimonial

hearsay “had no bearing on the Government’s case” and “was

‘unimportant in relation to everything else the [members]

considered.’”   Id. at 644.   Ms. Kaminski, the testifying

expert, made only one passing reference to the “THC”

notation in block G of the DD Form 2624 and no reference at

all to Mr. Romero’s certification in block H, “when

explaining the basis for her opinion that the appellant’s

urine sample contained the metabolite THC.”   Id.    Thus, the

overwhelming majority of Ms. Kaminski’s testimony was

squarely within the parameters set by this Court in Blazier

I and Blazier II.   The record indicates that she reviewed

and relied upon the nontestimonial machine-generated data

contained in the drug testing report as the basis for her

independent conclusion that Appellant’s urinalysis

indicated a positive result for THC.    Further, she properly

relied on machine-generated data as the basis for her

conclusion that Appellant’s urinalysis complied with NDSL

procedure and was accurate.   See Blazier II, 69 M.J. at

                               24	
United States v. Tearman, 12-0313/MC	


224.   Thus, the minimal testimonial hearsay admitted was

unimportant to the Government’s case when viewed as a

whole.

       Second, the NMCCA found that the admission of the two

testimonial portions of the DD Form 2624 and Ms. Kaminski’s

reference to block G were cumulative with the rest of Ms.

Kaminski’s testimony.   Tearman, 70 M.J. at 644.    Ms.

Kaminski repeatedly relied on “[her] reading of [the

machine] printout[s]” and “[her] expertise,” to reach the

conclusion that the specimen tested “above the DoD cutoff.”

In addition, she relied on her independent knowledge of the

drug testing procedures at the NDSL to “offer[] her own

conclusions . . . as to the accuracy, reliability, and

ultimate result of the tests performed.”    Id.    In this

capacity, she testified to matters such as the calibration

of the testing machinery, the general reputation of the

machinery in the scientific community, and the quality

control measures taken during testing.

       Third, the testimonial statements in blocks G and H

were independently corroborated.     Her testimony, which was

based on nontestimonial, machine-generated data,

corroborated the “THC” notation in block G.    For each of

the three tests that were run on the urine sample -- the

screening test, rescreening test, and GCMS confirmation

                               25	
United States v. Tearman, 12-0313/MC	


test -- Ms. Kaminski indicated that the specimen tested

“above the DoD cutoff” based on the “test result[s] and

[her] expertise.”   Similarly, as noted by the NMCCA, Ms.

Kaminski was “in charge of the department responsible for

the confirmation test, which is required for the NDSL to

report a positive test.”   Tearman, 70 M.J. at 644.      With

regard to the GCMS confirmation test, Ms. Kaminski

testified that:   (1) the DoD “sets the cutoff for THC at 15

ng/ml;” (2) “anything 15.0 greater [sic] is considered a

positive result;” and (3) the LAN associated with

Appellant’s sample “tested positive for THC at 37.17

ng/ml.”   Thus, Ms. Kaminski corroborated Mr. Romero’s

certification in block H with “her own imprimatur of

authenticity and reliability.”       Id.

     Finally, the NMCCA concluded that, “[o]verall, the

Government’s case was strong.”       Id. at 645.   The evidence

suggested “no defects in the collection or chain of

custody.”   Id.   And, although Ms. Kaminski could not cure

the Confrontation Clause error by serving as a “surrogate

witness,” see Blazier II, 69 M.J. at 222, 224, she was

subject to extensive cross-examination that failed to

reveal any weaknesses in the testing process or her




                               26	
United States v. Tearman, 12-0313/MC	


conclusions as to the ultimate result of the tests.15

Moreover, Appellant’s primary defense of possible passive

marijuana exposure was “dubious,” and effectively rebutted

by trial counsel during closing argument.    Tearman, 70 M.J.

at 645 & n.19.

     Here, (1) an expert witness, relying on nontestimonial

statements, independently and conclusively established the

presence of a drug metabolite in an amount above the DoD

cutoff level in Appellant’s urine, (2) the testimonial

hearsay was barely touched on during either the expert’s

testimony or the Government’s case, and (3) any impact of

introducing the testimonial hearsay was both cumulative and

de minimis.   In this context, there is no “reasonable

possibility that the evidence complained of might have

contributed to the conviction.”     Chapman, 386 U.S. at 23

(quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)

(internal quotation marks omitted).




																																																								
15
      With respect to the fourth Van Arsdall factor, the NMCCA
did note that the declarants of the testimonial portions of
the DD Form 2624 did not testify and therefore could not
have been cross-examined. Tearman, 70 M.J. at 645. While
this factor would weigh against a finding that the
admission of the testimonial statements was harmless beyond
a reasonable doubt, it is far outweighed by the other four
Van Arsdall factors. 	


                              27	
United States v. Tearman, 12-0313/MC	


                       IV.   DECISION

     The decision of the United States Navy-Marine Corps

Court of Criminal Appeals is affirmed.




                             28	
United States v. Tearman, No. 12-0313/MC
 

     BAKER, Chief Judge (concurring in part and in the result):

     I write separately because I continue to believe that the

application of Crawford v. Washington, 541 U.S. 36 (2004), and

the line of cases that followed, cannot and should not be

resolved without analysis of the distinct features and purposes

of the military drug testing program.   A lab report generated as

part of an anonymous unit random urinalysis inspection intended

to deter drug use and promote military readiness is not the same

as a lab report generated from the testing of a single sample by

a forensic drug lab for the purpose of prosecution.    As

importantly, I do not believe one can resolve this case without

first addressing Williams v. Illinois, 132 S. Ct. 2221 (2012).

Williams is the Supreme Court’s latest Crawford case.       It was

decided after United States v. Sweeney, 70 M.J. 296 (C.A.A.F.

2011), and United States v. Blazier, 69 M.J. 218 (C.A.A.F.

2010), and it narrows the reach of the Supreme Court’s prior

cases upon which this Court relies.

     The Confrontation Clause provides that “In all criminal

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

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

amend. VI.   At root, the Confrontation Clause bars prosecution

on the basis of testimony that is not subject to “the crucible

of cross-examination.”   Crawford, 541 U.S. at 61.    The Supreme
United States v. Tearman, No. 12-0313/MC
 

Court has sought to define what “witness against him” means with

respect to out-of-court testimony.                                   Id. at 51–52.

              What the Confrontation Clause means after Crawford in the

context of lab reports has proven particularly vexing to the

Supreme Court.                                 See Williams, 132 S. Ct. at 2227 (DNA matching

report); Bullcoming v. New Mexico, 131 S. Ct. 2705, 2709 (2011)

(blood alcohol analysis); Melendez-Diaz v. Massachusetts, 557

U.S. 305, 320 (2009) (cocaine testing).                                   As a result, it is not

clear what these cases mean or should mean with respect to

materials generated as part of the Department of Defense’s

ongoing random urinalysis program.1                                   That answer depends on how,

and whether, one gets to a majority of five on the Supreme

Court.                 It also depends on which Supreme Court case one cites,

and then, which text is applied.                                    There is persuasive authority

to support almost any position.                                 This elevates the importance of

subordinate courts explaining, in context, how and why a

particular outcome is reached.




                                                            
1
  See Dep’t of Defense Dir. 1010.01, Military Personnel Drug
Abuse Testing Program (MPDATP) (Sept. 13, 2012) [hereinafter
Dep’t of Defense Dir. 1010.01]; Dep’t of Defense Dir. 1010.16,
Technical Procedures for the Military Personnel Drug Abuse
Testing Program (MPDATP) (Oct. 10, 2012); see also Sweeney, 70
M.J. 296; United States v. Blazier (Blazier II), 69 M.J. 218
(C.A.A.F. 2010); United States v. Blazier (Blazier I), 68 M.J.
439 (C.A.A.F. 2010); United States v. Harcrow, 66 M.J. 154
(C.A.A.F. 2008); United States v. Magyari, 63 M.J. 123 (C.A.A.F.
2006).
                                                               2 
 
United States v. Tearman, No. 12-0313/MC
 

                                                               I.

              Williams is the latest Supreme Court case to address the

meaning of “testimonial” evidence.                                  Like prior Court cases, it

does not address the military context.                                 Neither does it address

a generalized program of urinalysis inspection that has multiple

purposes other than criminal prosecution.                                 Indeed, the military

program in this case addresses, in order of priority, three

purposes:                       (1) military readiness and fitness; (2) deterrence;

and (3) the separation of servicemembers who use drugs.2                                 A

court-martial is one possible outcome of a positive test, but it

is not listed as a purpose of the program.                                 In this case, the

basis of the test as listed on the form the lab technicians

filled-in or reviewed was “random inspection of individuals




                                                            
2
  The MPDATP operates under Dep’t of Defense Dir. 1010.01. Dep’t
of Defense Dir. 1010.01 mandates three purposes for drug
testing: (1) to “[p]ermit commanders to use drug testing to
detect drug abuse and to assess the security, military fitness,
readiness, and good order and discipline of their commands”; (2)
to deter servicemembers, including those entering active duty,
from misusing drugs “including pharmaceutical medications,
illegal drugs, and other substances of abuse”; and (3) to
“[p]rocess all Service members who knowingly misuse drugs for
separation in accordance with applicable Service regulations.”
Id. at para. 4.b.-d. The directive notes that the “drug testing
program shall enable commanders to take action, adverse or
otherwise (including referral for treatment), as appropriate.”
Id. at para. 4.d. Specifically, the military requires drug
testing of service applicants, new military entrants,
reservists, appointees to service academies, Reserve Officer
Training Corps cadets, and midshipmen. Id. at encl. 2, para. 1.
 

                                                               3 
 
United States v. Tearman, No. 12-0313/MC
 

within a unit,” not for example “probable cause,” another

option.3

              In the case of the military, for example, the majority of

positive tests result in administrative or nonjudicial response,

not criminal prosecution.4                                     Like any scientific testing system,


                                                            
3
  The primary purpose for testing a sample is written on the DD-
2624 next to the Social Security Number of the person who gave
the sample. The DD-2624 is labeled with a code stating the
basis of the test: random inspection of an entire unit (IU),
random inspection of individuals within a unit (IR), probable
cause (PO), a consent search (VO), rehabilitation (RO), a safety
mishap (AO), a command-directed examination (CO), medical (MO),
new entrant (NO), or other (OO). Dep’t of Defense Dir. 1010.01
at encl. 2, para. g. While the directive notes that
“[u]rinalysis results may be used as evidence in disciplinary
actions under the UCMJ, and in administrative actions (including
separation from the Military Service),” id. at encl. 2, para.
h.(1), the primary purpose for random inspection,
rehabilitation, safety mishap, command direction, medical, or
new entrant testing is clearly not criminal prosecution. While
the primary purpose of a “probable cause” or “consent” search
may be less clear, those are not present in this case. Indeed,
Appellant’s DD-2624 explicitly states next to his Social
Security Number that the “Test Basis” is “IR,” that is, “random
inspection or examination of an individual(s) within a unit.”
See id. at encl. 2, para. g.(b).
 
4
  Most positive drug tests do not result in prosecution. In the
fiscal year 2011, 8,988 active duty personnel tested positive
for controlled substances. Office of the Under Secretary of
Defense for Personnel and Readiness, Status of Drug Use in the
Department of Defense Personnel: Fiscal Year 2011 Drug Testing
Statistical Report at 8. In the same year, there were 4,898
courts-martial (including general, special, and summary courts-
martial) across the four services and for all offenses. Annual
Report Pursuant to the Uniform Code of Military Justice for the
Period of October 1, 2010 to September 30, 2011, sec. 3, app. at
21, sec. 4, app. at 24, sec. 5, app., sec. 6, app. A (2012),
reprinted in 70 M.J. CXI, CXXVIII, CLVIII, CLXVI (2012). While
at least the Navy collects quarterly reports on drug
prosecutions, see Dep’t of the Navy, Naval Service Training
                                                                   4 
 
United States v. Tearman, No. 12-0313/MC
 

the urinalysis program is designed to identify and safeguard

against false positives.                                                   This is a critical function tied

directly to good order and discipline and unit morale.                                                                                                             Where

entire units are randomly inspected for drug use, the quality

and redundancy of the safeguards to avoid mistakes are thus

critical not only to the scientific process, but to military

readiness.                         It follows that the more accountable a random

urinalysis process is, the greater the confidence service

personnel will have in the outcomes generated by the random

inspections in which they are required to participate.

              The Supreme Court’s case law has not addressed the

distinctions in lab process and testing that the military’s

random drug screening program presents.                                                                                See Sweeney, 70 M.J. at

309–13 (Baker, J., joined by Stucky, J., concurring in part and

dissenting in part).                                            This Court has not sought to fill in these

contextual differences and blanks.                                                                       To the contrary, each of the

Supreme Court’s lab cases is addressed to a single specific lab
                                                                                                                                                                                               
                                                                                                                                                                                               
Command Inst. 5800.1A, encl. (1): Quarterly Criminal Activity
Feeder Report of Disciplinary Infractions and Courts-Martial
(May 16, 2012), these reports apparently are not publicly
available. However, even without the precise statistics, it is
clear that even if drug prosecutions were the sole crime charged
in courts-martial in fiscal year 2011, then only about half of
the personnel who tested positive were charged. Obviously,
since drug crimes make up only a small percentage of courts-
martial charges, the actual percentage of positive drug tests
that are used in criminal prosecution is much lower. See also
Sweeney, 70 M.J. at 309-11 (Baker, C.J., joined by Stucky, J.,
concurring in part and dissenting in part).


                                                                                             5 
 
United States v. Tearman, No. 12-0313/MC
 

test, involving a specific identified crime, where criminal

prosecution is the purpose of the report.                                        See Williams, 132 S.

Ct. at 2227 (DNA match report in rape prosecution); Bullcoming,

131 S. Ct. at 2709 (blood alcohol analysis in DWI prosecution);

Melendez-Diaz, 557 U.S. at 320 (cocaine testing in drug

distribution prosecution).                                        As Justice Sotomayor noted in her

controlling5 concurrence in Bullcoming, the Supreme Court’s cases

dealt with statements which had “‘a primary purpose of creating

an out-of-court substitute for trial testimony,’” 131 S. Ct. at

2720 (quoting Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011)),

and not lab testing situations in which the state “suggested an

alternate purpose, much less an alternate primary purpose, for

the” lab report, id. at 2722.

              Williams is the latest Supreme Court opinion to address the

meaning of the Confrontation Clause after Crawford.                                         As a

result, it warrants more than passing citation in the majority

opinion, especially since it expressly delimits the Supreme

Court’s prior cases on which this Court relies.                                        See Williams,

132 S. Ct. at 2242-43.                                         It is the most important of the Supreme


                                                            
5
  See Marks v. United States, 430 U.S. 188, 193 (1977) (“When a
fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, ‘the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest
grounds . . . .’” (alteration in original) (quoting Gregg v.
Georgia, 428 U.S. 153, 169 n.15 (1976))).


                                                                       6 
 
United States v. Tearman, No. 12-0313/MC
 

Court’s post-Crawford cases, because it appears to go furthest

in attempting to wrestle with the ambiguities that remain after

Crawford.   It was also decided after Sweeney and Blazier.

     The conflicting opinions in Williams support a variety of

standards for “testimonial” evidence.   As illustration, one can

extract the following statements from Williams:

        The abuses that the Court has identified as prompting
     adoption of the Confrontation Clause shared the following
     two characteristics: (a) they involved out-of-court
     statements having the primary purpose of accusing the
     targeted individual of engaging in criminal conduct and (b)
     they involved formalized statements such as affidavits,
     depositions, prior testimony, or confessions.

132 S. Ct. at 2242.   Williams later notes an alternate standard

regarding primary purpose that does not consider the formality

of the statement.   See id. at 2243 (“[I]f a statement is not

made for ‘the primary purpose of creating an out-of-court

substitute for trial testimony,’ its admissibility ‘is the

concern of state and federal rules of evidence, not the

Confrontation Clause.’”).   In his concurrence, Justice Breyer

emphasized the distinct nature of professional scientific

analysis:

     [T]he employees who contributed to the report’s findings
     were professional analysts working on technical matters at
     a certified laboratory; and the employees operated behind a
     veil of ignorance that likely prevented them from knowing
     the identity of the defendant in this case. Statements of
     this kind fall within a hearsay exception that has
     constituted an important part of the law of evidence for
     decades. . . . [S]uch statements also presumptively fall


                                 7 
 
United States v. Tearman, No. 12-0313/MC
 

     outside the category of “testimonial” statements that the
     Confrontation Clause makes inadmissible.

Id. at 2249 (Breyer, J., concurring).   Justice Thomas,

concurring in the judgment, argued that formality, not purpose,

was the touchstone of the Confrontation Clause:

     [T]he Confrontation Clause regulates only the use of
     statements bearing “indicia of solemnity.” This test
     comports with history because solemnity marked the
     practices that the Confrontation Clause was designed to
     eliminate, namely the ex parte examination of witnesses
     under the English bail and committal statutes during the
     reign of Queen Mary. . . . [T]he Confrontation Clause
     reaches “formalized testimonial materials,” such as
     depositions, affidavits, and prior testimony, or statements
     resulting from “formalized dialogue,” such as custodial
     interrogation.

Id. at 2259-60 (Thomas, J. concurring in the judgment) (internal

citations omitted).   Justice Kagan’s dissent suggested a broader

“available for use at a later trial” standard for “testimonial”

evidence:

     [T]he [Confrontation] Clause’s “core class of testimonial
     statements” . . . [include statements] “made under
     circumstances which would lead an objective witness
     reasonably to believe that [they] would be available for
     use at a later trial.”. . .

     . . . “[T]he accused’s right is to be confronted with” the
     actual analyst . . . .

     . . . [T]he report was made to establish “‘some fact’ in a
     criminal proceeding.”

Id. at 2266 (Kagan, J., with whom Scalia, J., Ginsburg, J., and

Sotomayor, J., joined, dissenting) (third bracket in original).

However, the Williams dissent also favorably cited a primary


                                 8 
 
United States v. Tearman, No. 12-0313/MC
 

purpose test, though it was distinct from the primary purpose

test of the plurality.   See id. at 2273 (“We have previously

asked whether a statement was made for the primary purpose of

establishing ‘past events potentially relevant to later criminal

prosecution’-– in other words, for the purpose of providing

evidence.”) (quoting Davis v. Washington, 547 U.S. 813, 822

(2006))).

     From these statements three different tests emerge for

determining whether lab material is testimonial:   (1) a “primary

purpose” test, which considers the historical reasons for

adoption of the Confrontation Clause including the use of out-

of-court statements (often extracted under duress) to convict

persons in court (often of treason) without the opportunity to

question the witness or test the veracity of the statements, and

which asks whether the primary purpose for generating the out-

of-court statement or data was for criminal prosecution; (2) a

stylistic test, which looks to the form and solemnity of the

out-of-court statement, rather than its purpose, to determine if

it is “testimonial”; and, (3) a literal test, which considers

any statement brought into a trial, including some but

apparently not all lab notations, to be subject to cross-

examination if the maker of the statement could reasonably have

contemplated the possibility of prosecution.



                                 9 
 
United States v. Tearman, No. 12-0313/MC
 

     A majority of courts interpreting Crawford after Williams

have adopted a purpose-based test, reflecting analysis of both

the historical purposes behind the Confrontation Clause as well

as the primary purpose for the particular lab report (statement)

at issue.   See, e.g., United States v. Cameron, 699 F.3d 621,

640 (1st Cir. 2012) (“To rank as ‘testimonial,’ a statement must

have a ‘primary purpose’ of ‘establishing or proving past events

potentially relevant to later criminal prosecution.’” (quoting

Bullcoming, 131 S. Ct. at 2714 n.6)); United States v. Polidore,

690 F.3d 705, 711-12, 716-18 (5th Cir. 2012) (“Although it does

appear that the declarant contemplated that his call could lead

to a later criminal prosecution, he was not making his

statements to establish or prove past events potentially

relevant to later criminal prosecution.”) (internal quotation

marks omitted); Brown v. Epps, 686 F.3d 281, 287 (5th Cir. 2012)

(“[A] statement is not testimonial if it is procured under . . .

circumstances where the primary purpose is not to create an out-

of-court substitute for trial testimony.”); United States v.

Sedillo, No. 11-2237, 2013 U.S. App. LEXIS 2167, *41-*42, 2013

WL 363469, at *14 (10th Cir. Jan. 31, 2013) (Brisco, C.J.,

dissenting) (distinguishing Williams from case in which “[t]he

primary purpose of the DNA test was to accuse a targeted

individual and to create evidence for use at trial,” and in

which the lab analyst knew that if the results were inculpatory,

                                10 
 
United States v. Tearman, No. 12-0313/MC
 

they would be used against this particular defendant at trial).

Several courts have adopted a joint solemnity–primary purpose

test.               See, e.g., People v. Lopez, 55 Cal. 4th 569, 581-82 (Cal.

2012) (to be testimonial, a statement “must have been made with

some degree of formality or solemnity,” and its “primary purpose

[must] pertai[n] in some fashion to a criminal prosecution”);

People v. Dungo, 55 Cal. 4th 608, 620 n.5 (Cal. 2012) (“But

formality is not enough to make an extrajudicial statement

testimonial; the statement must also have a primary purpose

pertaining to the investigation and prosecution of a crime.”);

see also Dungo, 55 Cal. 4th at 628-30 (Chin, J., concurring)

(asserting that, after Williams, a statement is only testimonial

if it meets both the solemnity and primary purpose tests);

People v. Leech, 980 N.E.2d 570 (Ill. 2012) (“[W]e conclude that

under the objective test set out by the plurality in Williams,

under the test adopted in Davis, and under Justice Thomas’s

‘formality and solemnity’ rule, autopsy reports prepared by a

medical examiner’s office in the normal course of its duties are

nontestimonial.”).                                        Other courts have adopted a literal test, as

endorsed by the majority opinion in this case.6                                       See, e.g.,


                                                            
6
  Other courts have favorably cited the “available for use at a
later trial” test, but have understood it in the context of a
“primary purpose” test. See, e.g., People v. Nunley, 821 N.W.2d
642, 655 n.77 (Mich. 2012) (While asserting that its “analysis
is consistent with the reasoning of both the lead opinion and
the dissenting opinion” in Williams, the Michigan Supreme Court
                                                                     11 
 
United States v. Tearman, No. 12-0313/MC
 

United States v. Pablo, 696 F.3d 1280, 1287, 1289 (10th Cir.

2012) (“A testimonial statement is a statement that a reasonable

person in the position of the declarant would objectively

foresee might be used in the investigation or prosecution of a

crime. . . . [G]iven the facts of this case and the plain-error

posture of our review, we need not decide the precise mandates

and limits of Williams, to the extent they exist.).

              No court has addressed a context like that in the military,

where multiple tests are conducted at once on numerous anonymous

samples for the purpose of military readiness and deterrence and

where the procedures are intended to safeguard against false

positives in a demonstrable and accountable way in part to

support military morale.                                                   To the contrary, all of these post-
                                                                                                                                                                                               
                                                                                                                                                                                               
found that “the primary purpose of the certificate of mailing
was not to accuse a targeted individual of engaging in criminal
conduct” and that “the circumstances here would not lead an
objective witness to reasonably believe that the certificate of
mailing would be available for use at a later trial” because no
crime had yet been committed or investigation started.); State
v. Kennedy, 735 S.E. 2d 905, 915 (W. Va. 2012) (alteration in
original) (“The primary purpose test states that a statement is
testimonial if the primary purpose . . . is to establish or
prove past events potentially relevant to later criminal
prosecution. Since that time, the United States Supreme Court
has reiterated that the primary purpose test focuses the inquiry
on whether the evidence was for the purpose of establishing or
proving some fact at trial. Consistent with these decisions,
this Court has adopted the following iteration of the primary
purpose test to determine if a statement is testimonial: . . .
[A] testimonial statement is, generally, a statement that is
made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for
use at a later trial.”) (citations and internal quotation marks
omitted).
                                                                                            12 
 
United States v. Tearman, No. 12-0313/MC
 

Williams cases involve singular tests for specific criminal law

investigations, whether to identify a specific culprit for

prosecution (as in Williams), or to prove that a particular

suspect is guilty, cf. Melendez-Diaz, 557 U.S. at 319-20

(proving that the white powdery substance possessed by suspected

drug dealer was cocaine); Bullcoming, 131 S. Ct. at 2709-11

(proving that the blood alcohol content in the suspected drunk

driver was above legal limits).                                    Which line of reasoning one

selects from Williams is outcome determinative in different

directions.                           It is easy to see, for example, how the application

of the “solemnity” test might cover a statement with the word

“certify” in it.                                     It is also easy to see how a primary purpose

test would lead to an opposite result in a lab report

documenting in an objective manner all the results from a random

unit sweep.                           Less certain is how the “would be available for use

at a later trial” or literal standard would apply especially

where Williams appears to dramatically narrow this earlier

language from Crawford.7


                                                            
7
  Williams considerably narrows the Supreme Court’s previous
language, previously adopted by this Court, that “a statement is
testimonial if ‘made under circumstances which would lead an
objective witness reasonably to believe that the statement would
be available for use at a later trial.’” Sweeney, 70 M.J. at
301 (quoting Crawford, 541 U.S. at 51-52). In this context, it
may be worth noting that Crawford did not explicitly adopt the
“available for use at a later trial,” standard, but rather
merely articulated it as one possible formulation among many,
and specifically noted that this was the formulation suggested
                                                                  13 
 
United States v. Tearman, No. 12-0313/MC
 

              I do not fault the majority for adopting a rule.                                                                                                  Blazier

I, 68 M.J. 439, adopts a clear rule with respect to a cover

document that is specifically produced for prosecuting a

particular person in a criminal proceeding.                                                                                        Id. at 443-43

(cover memorandum, which was produced “for court-martial use”

after accused’s samples “tested positive for illegal substances”

and which detailed the drug tests and summarized the results,

was “clearly testimonial”); see also Blazier II, 69 M.J. at 224

(cross-examination of “laboratory certifying official” familiar

with lab procedures but who did not take part in testing did not

satisfy the right to confront the authors of the cover

memorandum).                            The rule has to be set somewhere, and there is

value in establishing a rule and sticking with it.

              My trouble is with the treatment of the DD-2624 Specimen

Custody Form, and by implication all the other standard chain-

of-custody documents, after Williams.                                                                            One can see how each of


                                                                                                                                                                                               
                                                                                                                                                                                               
by the brief for the National Association of Criminal Defense
Lawyers. See Blazier I, 68 M.J. at 442. Similarly, Melendez-
Diaz noted the “available for use at a later trial” standard as
one of several possible formulations, 557 U.S. at 310 (quoting
Crawford, 541 U.S. at 51-52), but noted that the affidavits in
Melendez-Diaz “not only” would meet the “available for use at a
later trial” standard, but in fact had the “sole purpose” of
providing evidence at trial. Id. at 311. Thus it appears that
the Supreme Court never adopted the “available for use at a
later trial” language as the definitive standard for evidence
implicating the Confrontation Clause, regardless of what the
Williams dissent suggests, see 132 S. Ct. at 2266 (Kagan, J.,
with whom Scalia, J., Ginsburg, J., and Sotomayor, J., joined,
dissenting).
                                                                                            14 
 
United States v. Tearman, No. 12-0313/MC
 

the legal statements taken from Williams might result in the

exclusion or inclusion of each line of the DD-2624.     The

majority does not explain how or why Williams applies, or more

to the point, why it doesn’t apply.   Nor does the majority

explain how we have gotten from Lord Cobham and the dungeons

below the Tower of London, see Crawford, 541 U.S. at 44, to the

recording of lab results at the Brooks Army Medical Lab in

determining what is testimonial or determining what it means to

bear witness against someone in the context of unit inspections.

     There is an argument, for example, that none of the

material on the form DD-2624 is testimonial, because it is not

composed of the sort of out-of-court statements against which

the Confrontation Clause was intended to protect and the primary

purpose of the statements is directed toward military readiness

and not criminal prosecution.   There is a separate and equally

valid argument that Block H is testimonial because the word

“certification” is used in validating the results and process.

Thus, this block satisfies the solemnity requirement of Justice

Thomas.   See Williams, 132 S. Ct. at 2259-60 (Thomas, J.,

concurring in the judgment) (fifth vote concurrence).    But that

does not explain the inclusion of Block G, which merely records

a lab result in a dispassionate objective manner.   Moreover, if

Block G is testimonial, which it would appear to be based on

Sweeney, see 70 M.J. at 301 (“[A] statement is testimonial if

                                15 
 
United States v. Tearman, No. 12-0313/MC
 

‘made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for

use at a later trial.’” (quoting Blazier I, 68 M.J. at 442)),

but not Williams, then it is not clear why all the results and

data compiled by the lab technicians at Brooks, or for that

matter all the chain-of-custody signatures, are not also

testimonial.   As Justice Breyer notes in Williams, “[o]nce one

abandons the traditional rule, there would seem often to be no

logical stopping place between requiring the prosecution to call

as a witness one of the other laboratory experts who worked on

the matter and requiring the prosecution to call all of the

laboratory experts who did so.”    132 S. Ct. at 2246 (Breyer, J.,

concurring).   The line of demarcation for Block H is clear to

the extent it is based on the word “certify.”       But it is not

clear why some neutral and objective entries are testimonial and

others are not.

     The application of the Confrontation Clause to lab data and

custody reports generated pursuant to the military’s random

urinalysis program seems random.        The person who certifies that

lab procedures were followed is providing out-of-court

testimony, but the persons who sign the “quality control review”

sheet and the “final laboratory certifying official review”




                                  16 
 
United States v. Tearman, No. 12-0313/MC
 

sheet8 are not doing so.                                       The person who indicates that the

sample being tested belongs to Appellant9 is not “testifying,”

but the person who indicates that the data recorded represents

THC is testifying, and all in a context where prosecution is

only one possible outcome of a positive test and, by percentage,

the least likely.                                       Cf. Melendez-Diaz, 557 U.S. at 335-36

(Kennedy, J., with whom Roberts, C.J., Breyer, J., and Alito,

J., joined, dissenting) (noting the inconsistent applications of

the testimonial standard).

                                                                    II.

              In the end, it may not make a difference which parts of

which Defense Department urinalysis lab report are testimonial.

In light of the first holding in Williams regarding the

admission of expert testimony and this Court’s unanimous view in

this case, that so long as an expert lab supervisor testifies

and draws his or her own independent conclusion from the lab

reports, any Confrontation Clause error is presumptively

harmless beyond a reasonable doubt.                                       Cf. Bullcoming, 131 S. Ct.

at 2722 (Sotomayor, J., concurring in part) (“[T]his is not a


                                                            
8
  Technicians sign quality review sheets, give signatures
indicating that the batch was dumped, and make notations
regarding the pouring of samples and the GC-MS autotune
(calibration).
9
  The lab technician who attaches bar code stickers to the GC-MS
injector worksheet, so that the GC-MS knows what sample is
associated with what number, apparently does not sign.
                                                                    17 
 
United States v. Tearman, No. 12-0313/MC
 

case in which the person testifying is a supervisor, reviewer,

or someone else with a personal, albeit limited, connection to

the scientific test at issue. . . . It would be a different case

if, for example, a supervisor who observed an analyst conducting

a test testified about the results or a report about such

results.”).

     But it should matter.    We should get the law right, which

every judge on this Court is assuredly trying to do.    It also

seems peculiar, if not cynical, for the military to prosecute

urinalysis cases based on evidence this Court has now determined

is constitutionally inadmissible, but nonetheless harmless

beyond a reasonable doubt.    That cannot contribute to confidence

in the urinalysis program or the military justice system

generally.

     We should also consider the effect of our decisions on

military readiness and morale.    Is it clear what needs to change

in the random urinalysis process in order to conduct the program

in a manner consistent with this Court’s application of

Crawford?     Is it possible to build in redundant and accountable

checks on the process of random urinalysis inspections so as to

assure servicemembers they will not be falsely identified for

using drugs, without also necessitating the production of

multiple Crawford witnesses at trial?     Or will this continue to



                                  18 
 
United States v. Tearman, No. 12-0313/MC
 

be litigated and resolved on a case-by-case, line-by-line basis?

These questions are as important as they are rhetorical.

     Unless we are constitutionally compelled to conclude that a

person who validates the chain of custody, objectively records

lab data, or validates the process used for a random urinalysis

sweep is a witness for the purposes of the Confrontation Clause,

I would not adopt such a literal rule.   Such a rule is not

needed to protect the confrontation rights of the accused, who

under any Crawford theory or test remains free to call witnesses

that are needed and constitutionally necessary to put on a

defense.   Such a rule could discourage accountability, which

increases the likelihood of false positives and mistakes.     See

Williams, 132 S. Ct. at 2251 (Breyer, J., concurring).     Such a

rule would incentivize limiting the number of lab statements and

lab technicians so as to avoid the “solemnity” of a document and

would result in a process with fewer accountable checks and

certifications.   Alternatively, prosecutors might decline to

introduce lab data at all, and rely exclusively on expert

testimony.   This might have the detrimental effect of

eliminating the presence of empirical, testable scientific

reports altogether, and turning a urinalysis trial into an

opaque presentation of a scientist instructing the members to

accept that the accused is guilty.    See Williams, 132 S. Ct. at

2267-77 (Kagan, J., with whom Scalia, J., Ginsburg, J., and

                                19 
 
United States v. Tearman, No. 12-0313/MC
 

Sotomayor, joined, dissenting) (looking to formality alone

“grants constitutional significance to minutia, in a way that

can only undermine the Confrontation Clause’s protections”);

Crawford, 541 U.S. at 52, n.3 (“We find it implausible that a

provision which concededly condemned trial by sworn ex parte

affidavit thought trial by unsworn ex parte affidavit perfectly

OK”).    Moreover, in the unique military context, presentation of

the complete urinalysis process allows members to validate a

program which they themselves are subject to.    Alternatively,

courts-martial will be left to continue litigating each entry

and each block of each form going forward leading to

inconsistent rulings.    The majority’s rule will also certainly

lead to inconsistent application of the law.    Different

commanders will differently weigh the needs of military

readiness against the leadership, administrative, nonjudicial,

and prosecutorial choices that they will face after a positive

urinalysis test.    From my perspective, Supreme Court case law

does not address this military context, and neither the text of

the Constitution nor case law dictates this result.

        For these reasons, I concur in the result and in the

analysis regarding the introduction of Ms. Kaminski’s expert

testimony, but do not join the analysis with respect to the DOD

Form DD-2624 or note 6, which in my view, should address the

distinct military context presented by a random urinalysis

                                  20 
 
United States v. Tearman, No. 12-0313/MC
 

inspection as well as Williams, the Supreme Court’s latest

Crawford case.




                               21 
 
