                      UNITED STATES, Appellee

                                      v.

            Terris N. CAVITT, Airman First Class
             United States Air Force, Appellant

                               No. 11-0210

                       Crim. App. No. S31637

    United States Court of Appeals for the Armed Forces


                    Decided February 25, 2011

                                PER CURIAM

                                  Counsel


For Appellant: Lieutenant Colonel Gail E. Crawford and
Captain Andrew J. Unsicker.


For Appellee:   Gerald R. Bruce, Esq.


Military Judge:    Gary Jackson




         THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Cavitt, No. 11-0210/AF


       PER CURIAM:

       We consider whether the admission of a drug testing

report through a surrogate witness violated the

Confrontation Clause of the Sixth Amendment.1    In light of

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

(Blazier II), we find error under the Confrontation Clause

and remand to the United States Air Force Court of Criminal

Appeals (AFCCA) for consideration of whether the error was

harmless beyond a reasonable doubt.

       Pursuant to her pleas, Appellant was convicted of one

specification of absence without leave and one

specification of abuse of over-the-counter medication.

Articles 86 and 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 886, 934 (2006).   Contrary to her

pleas, Appellant was convicted of one specification of

wrongful use of marijuana and one specification of assault.

Articles 112a and 128, UCMJ, 10 U.S.C. § 912a, 928 (2006).

1
    We grant the following issue:

       WHETHER THE MILITARY JUDGE ABUSED HIS
       DISCRETION WHEN HE ALLOWED DR. AARON JACOBS
       TO TESTIFY IN RELIANCE UPON TESTIMONIAL
       HEARSAY IN VIOLATION OF APPELLANT’S SIXTH
       AMENDMENT RIGHT TO CONFRONT WITNESSES
       AGAINST HER AND WHETHER THE ADMISSION OF THE
       11 SEPTEMBER 2009 BROOKS DRUG TESTING REPORT
       WITHOUT THE IN-COURT APPEARANCE OF THE
       ANALYSTS WHO TESTED APPELLANT’S SAMPLE ALSO
       VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT
       TO CONFRONTATION.

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United States v. Cavitt, No. 11-0210/AF


The drug testing report at issue -- admitted over defense

objection to prove the marijuana charge -- consists of a

cover memorandum stating the tests performed and the

results thereof, a specimen custody document, a

confirmation intervention log, a blind quality control

memorandum, chain of custody documents, and machine-

generated printouts of machine-generated data.    The

declarant who made statements on the cover memorandum did

not testify.   The drug test itself was conducted with

Appellant’s consent after she returned from unauthorized

absence.

     The AFCCA found error in the admission of the cover

memorandum of the drug testing report.    United States v.

Cavitt, No. ACM S31637, slip. op. at 4 (A.F. Ct. Crim. App.

Oct. 21, 2010).   However, it found that error harmless

beyond a reasonable doubt.   Id.   Moreover, it concluded

that the remainder of the drug testing report was

admissible under United States v. Magyari, 63 M.J. 123

(C.A.A.F. 2006), as a “business record,” a “firmly rooted

hearsay exception.”   Cavitt, No. ACM S31637, slip. op. at

4.

     We reverse and remand for reconsideration in light of

principles announced in Blazier II.    First, the language

concerning business records as admissible pursuant to a


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United States v. Cavitt, No. 11-0210/AF


“firmly rooted hearsay exception” derives from the

“particularized guarantees of trustworthiness” test of Ohio

v. Roberts.   See 448 U.S. 56, 66 (1980) (holding that

whether hearsay falls within a “firmly rooted” exception is

an “indici[um] of reliability” sufficient to satisfy the

Confrontation Clause).   Despite our reliance on this

language in Magyari, we made clear in Blazier II that the

Confrontation Clause is not satisfied by “reliability” --

it requires confrontation of the declarant of testimonial

hearsay.   Blazier, 69 M.J. at 223 (stating that Crawford

overruled the “particularized guarantees of

trustworthiness” test and holding that “[s]ubstitute means

of ensuring reliability do not satisfy the Confrontation

Clause, no matter how efficacious they might be”).

     Second, in making the threshold determination of

whether the remainder of the drug testing report contained

testimonial hearsay, the AFCCA failed even to cite -- let

alone consider -- this Court’s decision in United States v.

Harcrow, 66 M.J. 154 (C.A.A.F. 2008).   In treating Magyari

as the only case governing the admissibility of “machine-

generated printouts, chain of custody forms, and the two

intra-laboratory memos,” Cavitt, No. ACM S31637, slip. op.

at 4, the AFCCA failed to examine whether the facts of the

case really supported application of Magyari.   We note that


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United States v. Cavitt, No. 11-0210/AF


Appellant, unlike Magyari, was not randomly selected for

urinalysis.

     Third, and finally, the AFCCA’s cursory finding that

the expert witness gave “his opinion,” Cavitt, No. ACM

S31637, slip. op. at 4 (emphasis in original), takes no

account of the fact that the expert witness’s testimony

produced at least one additional Confrontation Clause

violation -- the testimony drawing attention to and

repeating portions of the testimonial hearsay contained on

the cover memorandum.   See Blazier, 69 M.J. at 226.

     In light of these errors, we reverse and remand for

reconsideration of the harmless error issue in light of

Blazier II.




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