                         UNITED STATES, Appellee

                                         v.

             Henry A. MAGYARI, Draftsman First Class
                       U.S. Navy, Appellant


                                  No. 05-0300
                          Crim. App. No. 9801499


       United States Court of Appeals for the Armed Forces

                         Argued January 11, 2006

                           Decided May 10, 2006

BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and EFFRON and ERDMANN, JJ., joined. CRAWFORD, J., filed
a separate opinion concurring in the result.


                                     Counsel

For Appellant:    Captain Richard A. Viczorek, USMC (argued).

For Appellee: Lieutenant Craig A. Poulson, JAGC, USNR (argued);
Commander C. N. Purnell, JAGC, USN (on brief).



Military Judge:    Peter J. Straub



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Magyari, No.05-0300/NA


    Judge BAKER delivered the opinion of the Court.

    Appellant was attached to the Commander, Submarine Force,

U.S. Pacific Fleet (COMSUBPAC), in Pearl Harbor, Hawaii.   On

February 12, 1998, the Navy Drug Screening program randomly

generated Appellant’s name for urinalysis testing at the Navy

Base in Pearl Harbor.   At the orders of COMSUBPAC command,

Appellant, a petty officer, along with thirty-five to forty

other servicemembers, provided a urine sample to the urinalysis

coordinators.    Appellant’s sample and eleven other samples from

COMSUBPAC were received by the Navy Drug Screening Laboratory in

San Diego, California, six days later.    Appellant’s sample,

identified with lab accession number S9802132117, was

subsequently combined in a batch of 200 samples.   Appellant’s

sample tested positive for methamphetamine.   Between receipt of

the sample and release of the test results, approximately twenty

lab personnel handled and/or tested Appellant’s sample.

     After a contested special court-martial before members,

Appellant was convicted of wrongful use of methamphetamine, a

schedule III controlled substance, in violation of Article

112(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

912(a) (2000).   He was sentenced to a reduction to pay grade E-3

and a bad-conduct discharge.   His sentence was approved as

adjudged by the convening authority, and except for the bad-

conduct discharge, was ordered executed.


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     The United States Navy-Marine Corps Court of Criminal

Appeals affirmed in an unpublished opinion, United States v.

Magyari, No. NMCCA 9801499, 2000 CCA LEXIS 131, 2000 WL 703572

(N-M. Ct. Crim. App. May 13, 2000).   Upon Appellant’s petition,

we granted review of the following issue:

     WHETHER, IN LIGHT OF CRAWFORD v. WASHINGTON, 541 U.S.
     36 (2004), APPELLANT WAS DENIED HIS SIXTH AMENDMENT
     RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHERE THE
     GOVERNMENT’S CASE CONSISTED SOLELY OF APPELLANT’S
     POSITIVE URINALYSIS.

We answer in the negative and affirm the decision of the Navy-

Marine Corps Court of Criminal Appeals.   As spelled out below,

in the context of random urinalysis screening, where the lab

technicians do not equate specific samples with particular

individuals or outcomes, and the sample is not tested in

furtherance of a particular law enforcement investigation, the

data entries of the technicians are not “testimonial” in nature.

Nonetheless, the lab results and reports must satisfy the

standard for reliability established in Ohio v. Roberts, 448

U.S. 56, 66 (1980).

                           BACKGROUND

     Appellant testified at his court-martial that he was aware

of the Navy’s zero tolerance policy on drug use and that he had

never knowingly violated it.   No witness testified to ever

seeing Appellant use unlawful drugs in his fifteen years of

naval service.


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        The Government’s case against Appellant consisted of a lab

report from the Navy Drug Screening Laboratory in San Diego that

showed Appellant’s urine sample tested positive for

methamphetamine.    The Government called four witnesses to

introduce the evidence contained in the lab report.      The

Government called three witnesses stationed at COMSUBPAC in

Hawaii, who were involved in the initial collection of

Appellant’s urine sample.    These witnesses included:   Sonar

Technician Chief Michael S. Szymonik, the urinalysis

coordinator, Chief Operations Specialist Steve Hapeman, the

designated urinalysis coordinator at the time of Appellant’s

testing, and Fire Control Technician Chief David R. Chadwick,

who observed the Appellant fill his sample bottle in the men’s

head.    One witness was called from the Navy Drug Screening

Laboratory in San Diego, Mr. Robert J. Czarny, a civilian

quality assurance officer.    Mr. Czarny testified about how urine

samples are handled and how results are generated at the

Laboratory.    Mr. Czarny signed off on Appellant’s report upon

its release, but he was not personally involved in the handling

or testing of Appellant’s sample.      The Government did not call

any of the lab technicians at the Navy Drug Screening Laboratory

whose names appeared on the lab report and chain of custody

documents, and who reviewed Appellant’s paperwork, tested his

urine sample, or prepared the lab report.


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     Appellant’s defense counsel cross-examined Mr. Czarny, but

did not call any of the other lab personnel who handled or

tested Appellant’s urine sample.       Appellant now argues that his

constitutional right to confront the witnesses against him was

violated and that any statements contained in the lab report

that indicated his urine tested positive for the presence of

methamphetamine were inadmissible testimonial hearsay and could

not be used against him at trial.

                             DISCUSSION

     When an error is not objected to at trial, plain error

analysis applies.   United States v. Gilley, 56 M.J. 113, 122

(C.A.A.F. 2001).    To prevail under a plain error analysis,

Appellant must show that: (1) “there was an error; (2) it was

plain or obvious; and (3) the error materially prejudiced a

substantial right.”   United States v. Tyndale, 56 M.J. 209, 217

(C.A.A.F. 2001).    If Appellant meets his burden of showing plain

error, the burden shifts to the Government to prove that any

constitutional error was harmless beyond a reasonable doubt.

United States v. Brewer, 61 M.J. 425, 430 (C.A.A.F. 2005).

     The Confrontation Clause of the Sixth Amendment states that

“In all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him . . . .”

U.S. Const. amend. VI.   In Crawford v. Washington, the Supreme

Court held that in order for the prosecution to introduce


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“testimonial” out-of-court statements into evidence against an

accused, the Confrontation Clause requires that the witness who

made the statement be unavailable, and that the accused have had

a prior opportunity to cross-examine the witness.   541 U.S. 36,

53-54 (2004).

      Prior to Crawford, the admissibility of out-of-court

statements was controlled by Ohio v. Roberts.   Under Roberts,

the statements of an out-of-court witness could be admitted

against an accused if the statements carried adequate indicia of

reliability.    Roberts, 448 U.S. at 66.

      The Crawford Court departed from the Roberts framework for

admitting out-of-court hearsay statements, and transformed the

inquiry to one hinging on whether the out-of-court statement

comes within the scope of the Sixth Amendment because it “bears

testimony” against an accused.   Crawford, 541 U.S. at 51.    “‘The

lynchpin of the Crawford decision . . . is its distinction

between testimonial and nontestimonial hearsay . . . .’”     United

States v. Scheurer, 62 M.J. 100, 104-05 (C.A.A.F. 2005) (quoting

United States v. Hendricks, 395 F.3d 173, 179 (3rd Cir. 2005)).

Where nontestimonial statements are at issue, the statements do

not fall within Crawford’s scope and may be exempted from

Confrontation Clause scrutiny altogether.   Crawford, 541 U.S. at

68.




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United States v. Magyari, No.05-0300/NA


     However, the Crawford Court did not “spell out a

comprehensive definition of ‘testimonial,’” leaving to lower

courts the responsibility to determine which statements qualify

as “testimonial” and fall within its scope.   Id.    Nevertheless,

the Court identified three forms of “core” testimonial evidence.

They include:   (1) ex parte in-court testimony; (2)

extrajudicial statements in formalized trial materials; and (3)

statements made under circumstances that would cause a

reasonable witness to believe they could be used at trial.       Id.

at 51-52.   Further, the Court identified examples of testimonial

hearsay, including “prior testimony at a preliminary hearing,

before a grand jury, or at a former trial; and . . . police

interrogations.”   Id. at 68.

     In addition, the Crawford Court linked its analysis to the

legal policies underpinning the right to confrontation.     It

noted that the focus of the Confrontation Clause is to protect

criminal defendants from prosecutorial abuse and the

“[i]nvolvement of government officials in the production of

testimony with an eye towards trial.”   Id. at 56.     Thus, the

application of Crawford not only depends on the meaning of

“testimonial,” but on the circumstances and context in which

out-of-court statements are generated, and whether the out-of-

court statements were made under circumstances that would lead

an objective witness reasonably to believe that the statement


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United States v. Magyari, No.05-0300/NA


would be available for use at a later trial by the government.

Id. at 52.

     The question before this Court is whether the data entries

in Appellant’s urinalysis lab report made by the Navy Drug

Screening Laboratory technicians constituted testimonial

statements, or whether in the alternative, they represented

nontestimonial hearsay, subject to the indicia of reliability

analysis under Roberts.

     The Appellant contends that the data recorded in the lab

reports are statements by the lab technicians and that these

statements fall under the third category of core testimonial

evidence identified in Crawford because the lab technicians

would have anticipated that the lab report would be used against

him at trial.   The Government argues that the lab reports are

business records and therefore are by definition nontestimonial

in nature and fall outside Crawford’s scope.

     On the one hand, technicians working in government

laboratories screening and testing urine samples are surely

aware that a sample testing positive for a controlled substance

may be used to prosecute the provider of the sample.   On the

other hand, not all urine samples test positive, and not all

positive results end in prosecution.   The record in this case

reflects that the lab technicians work with batches of urine

samples containing about 200 samples each.   The technicians do


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United States v. Magyari, No.05-0300/NA


not equate a particular sample with a particular person;

instead, they assign identification numbers to every sample.

The vast majority of samples analyzed do not test positive for

illegal substances.   The lab technicians handling samples work

in a nonadversarial environment, where they conduct routine

series of tests requiring virtually no discretionary judgments.

The lab technicians handling Appellant’s particular sample had

no reason to suspect him of wrongdoing, and no reason to

anticipate that his sample, out of all the 200 samples in the

batch, would test positive and be used at a trial.

     In this context, the better view is that these lab

technicians were not engaged in a law enforcement function, a

search for evidence in anticipation of prosecution or trial.

Rather, their data entries were “simply a routine, objective

cataloging of an unambiguous factual matter.”   United States v.

Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005).      See also

State v. Dedman, 2004-NMSC-37, ¶ 30, 136 N.M. 561, 569, 102 P.3d

628, 636 (finding that a blood alcohol report was prepared in a

nonadversarial setting).   Because the lab technicians were

merely cataloging the results of routine tests, the technicians

could not reasonably expect their data entries would “bear

testimony” against Appellant at his court-martial.   See

Commonwealth v. Verde, 827 N.E.2d 701, 704 (Mass. 2005) (drug

tests are nontestimonial if they are “mere[   ] records of


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United States v. Magyari, No.05-0300/NA

primary fact, with no judgment or discretion on the part of the

analysts”).   This conclusion is consistent with the Crawford

Court’s policy concerns that might arise where government

officers are involved “in the production of testimony with an

eye toward trial” and where there is “unique potential for

prosecutorial abuse” and overreaching.    Crawford, 541 U.S. at

56.

      Approximately twenty different people conducted tests, made

clerical data notations in Appellant’s records, or at one time

had physical custody of Appellant’s urine sample while it was at

the Navy Drug Screening Laboratory.   There is no indication that

any of these individuals had reason, or were under pressure, to

reach a particular conclusion about Appellant’s sample, number

S9802132117, or that they had reason to distinguish sample

number S9802132117 from the other thousands of samples routinely

screened and tested by batch at the laboratory.

      To be clear, we reach this conclusion based on the facts of

this case.    The Government’s contention that lab reports are

inherently not testimonial because they are business and public

records goes too far.   For sure, Appellant’s lab report is a

business record.   Military Rule of Evidence (M.R.E.) 803(6)

implies that lab reports are included in the definition of

business records because forensic laboratories are impartial

examining centers and a laboratory report is a record of


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“regularly conducted” activity.    At trial, the Government

elicited ample testimony verifying that Appellant’s report was

completed in the normal course of the Navy Drug Screening

Laboratory’s business.   Further, lab results, DNA analyses, and

hospital records, are oftentimes prepared in the course of

routine, “regularly conducted” business.

     Nonetheless, the same types of records may also be prepared

at the behest of law enforcement in anticipation of a

prosecution, which may make the reports testimonial.    See State

v. Norman, 125 P.3d 15, 19 (Or. Ct. App. 2005) (concluding that

the Sixth Amendment was not implicated where technicians did not

function “as the proxy of the police investigation concerning

[the] defendant”).   Thus, lab results or other types of routine

records may become testimonial where a defendant is already

under investigation, and where the testing is initiated by the

prosecution to discover incriminating evidence.   For example,

cross-examination may be appropriate where a particular

defendant is accused of rape and law enforcement conducts and

seeks to admit the results from a blood or DNA test.    See People

v. Rogers, 780 N.Y.S.2d 393, 397 (N.Y. App. Div. 2004).       Cross-

examination may also be necessary where a suspect is believed to

have operated a vehicle under the influence of drugs or alcohol

and a record or affidavit is prepared by hospital personnel for

the prosecution’s use at trial.    See Las Vegas v. Walsh, 91 P.3d


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591, 595 (Nev. 2004), modified by 100 P.3d 658 (Nev. 2004).              But

these factors are not at play in the case addressed today and we

need not and do not determine in what other contexts Crawford

might apply.

      Having determined the data entries in the lab report are

not testimonial under Crawford, and that there was no plain

error, we must still determine whether the lab reports were

properly admitted as evidence at trial.          In Scheurer, this Court

held that when the Crawford framework does not apply, the “Ohio

v. Roberts requirement for particularized guarantees of

trustworthiness continues to govern confrontation analysis for

nontestimonial statements.”1       62 M.J. at 106 (internal footnote

omitted).

      This Court therefore analyzes Appellant’s claim under the

Roberts framework, which provides that if “the declarant is

unavailable to be cross-examined, the Confrontation Clause

permits the admission of a hearsay statement in a criminal trial

only if:    (1) the statement ‘falls within a firmly rooted

hearsay exception,’ or (2) it bears other ‘particularized

guarantees of trustworthiness.’”          Id. at 107 (quoting Roberts,

448 U.S. at 66).




1
  “Where nontestimonial hearsay is at issue, it is wholly consistent with the
Framers’ design to afford the States flexibility in their development of
hearsay law . . . .” Crawford, 541 U.S. at 68.


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     The first Roberts condition is satisfied here because the

lab report was simply a record of “regularly conducted” activity

of the Navy Drug Screening Laboratory that qualifies as a

business record under M.R.E. 803(6), a firmly rooted hearsay

exception.   As the Supreme Court emphasized in Roberts,

“[p]roperly administered the business and public records

exceptions would seem to be among the safest of the hearsay

exceptions.’”   Roberts, 448 U.S. at 66 n.8 (internal quotation

marks omitted).   See also United States v. Bridges, 55 M.J. 60,

63 (C.A.A.F. 2001) (business record exception is firmly rooted).

The Roberts analysis is disjunctive, we need not determine

whether the lab report at issue in this case carried other

particularized guarantees of trustworthiness.   Consequently, we

conclude there was no error and that the lab report satisfies

the requirements of the Roberts test for nontestimonial evidence

and the statements contained in the lab report were properly

admitted as evidence at Appellant’s trial.

                             DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Magyari, No. 05-0300/NA


     CRAWFORD, Judge (concurring in the result):

     I respectfully concur in the result and note that “[t]he

plain error issue is not unique to military practice . . . .

[and] we should apply Supreme Court precedent in determining

whether we correct an error not raised at trial.”   United States

v. Cary, 62 M.J. 277, 279 (C.A.A.F. 2006) (Crawford, J.,

concurring in the result).
