                       UNITED STATES, Appellee

                                    v.

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

                              No. 09-0441

                         Crim. App. No. 36988

       United States Court of Appeals for the Armed Forces

                       Argued January 26, 2010

                        Decided March 23, 2010

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


                                 Counsel

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

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


Military Judge:   Joseph S. Kiefer




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Blazier, No. 09-0441/AF


       Judge RYAN delivered the opinion of the Court.

       Appellant was convicted, contrary to his pleas, of

dereliction of duty and wrongful use of controlled substances,

in violation of Articles 92 and 112a, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 892, 912a (2006).    The members

sentenced him to a bad-conduct discharge, forty-five days of

confinement, and reduction to the grade of E-3.    The convening

authority approved the adjudged sentence.

       This case presents the question whether the admission of

“drug testing reports” over defense objection violated

Appellant’s rights under the Sixth Amendment’s Confrontation

Clause.1    The antecedent question, whether certain admitted

evidence was testimonial, we answer affirmatively, and contrary

to the decision of the United States Air Force Court of Criminal

Appeals (CCA), United States v. Blazier, 68 M.J. 544 (A.F. Ct.

Crim. App. 2008).    The disposition of the case, however,

presents issues neither considered by this Court before nor


1
    We granted review of the following issue:

       WHETHER, IN LIGHT OF CRAWFORD v. WASHINGTON, 541 U.S. 36
       (2004), APPELLANT WAS DENIED MEANINGFUL CROSS-EXAMINATION
       OF GOVERNMENT WITNESSES IN VIOLATION OF HIS SIXTH AMENDMENT
       RIGHT OF CONFRONTATION WHEN THE MILITARY JUDGE DID NOT
       COMPEL THE GOVERNMENT TO PRODUCE ESSENTIAL BROOKS LAB
       OFFICIALS WHO HANDLED APPELLANT’S URINE SAMPLES AND INSTEAD
       ALLOWED THE EXPERT TOXICOLOGIST TO TESTIFY TO NON-
       ADMISSIBLE HEARSAY. SEE MELENDEZ-DIAZ v. MASSACHUSETTS,
       557 U.S. ___, 129 S. CT. 2527 (2009).


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


addressed by the parties.   Having resolved the threshold

question, and given the ubiquity of drug testing within the

military, we conclude that additional briefing is warranted

prior to final disposition of the case.

                                 I.

     Appellant provided a urine sample for random urinalysis

pursuant to the Air Force Drug Testing Program on June 5, 2006

(June test).    This sample was tested at the Air Force Institute

for Operational Health, Drug Testing Division, also known as the

“Brooks Lab.”   The sample tested positive for d-amphetamine, d-

methamphetamine, methylenedioxyamphetamine, and

methylenedioxymethamphetamine at concentrations above the

Department of Defense (DoD) cutoff level.   In early July 2006,

the results were forwarded to Appellant’s command.

     As a result, the Air Force Office of Special Investigations

(AFOSI) Detachment at Luke Air Force Base requested that

Appellant’s First Sergeant “bring [Appellant] over” for an

interview; this interview was conducted on July 10.   Appellant

denied knowingly ingesting illegal substances.    The AFOSI agents

then asked Appellant if he would consent to providing another

urine sample, which he agreed to do.   This sample (July test)

was also sent to the Brooks Lab, where it was tested later in

July; it tested positive for THC, a metabolite of marijuana, at

a concentration above the DoD cutoff level.   The positive result


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


was transmitted to Appellant’s command.

       On August 15, 2006, the military justice paralegal from

Appellant’s command sent a memorandum to the Brooks Lab

requesting “the drug testing reports and specimen bottles” for

the two urine samples, noting that the information was “needed

for court-martial use.”

       The “drug testing reports” requested are multipage

documents.    Each report includes:   (a) a cover memorandum

describing and summarizing both the tests the urine samples were

subjected to and the illegal substances discovered; and (b)

attached records, including, inter alia, raw, computer-generated

data; chain-of-custody documents; and occasional handwritten

annotations.    The cover memorandum for each drug testing report

is stamped “AUG 16 2006” at the top and states, among other

things:    “The specimen was determined to be presumptive positive

by the ‘screen’ and the ‘rescreen’ immunoassay procedures.     The

specimen was then confirmed positive by Gas Chromatography/Mass

Spectrometry (GC/MS).”    Each memorandum then lists the

concentrations of the specimens tested and the corresponding DoD

cutoff levels, followed by the signature of a “Results Reporting

Assistant, Drug Testing Division”:    Marina Jaramillo for the

June test, Andrea P. Lee for the July test.2    The bottom portion

of each memorandum is a signed and sworn declaration by Dr.

2
    Neither individual testified at trial.

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


Vincent Papa, the “Laboratory Certifying Official,” confirming

the authenticity of the attached records and stating that they

were “made and kept in the course of the regular conducted

activity” at the Brooks Lab.   For the June test, Dr. Papa’s

declaration was executed on August 17, 2006; for the July test,

it was executed on August 16, 2006.

     Prior to trial, civilian defense counsel filed a motion

requesting that the military judge either (a) preclude the

Government from presenting the drug testing reports and from

calling its forensic toxicologist (Dr. Papa himself) to provide

expert testimony about urinalysis screenings at the Brooks Lab,

or (b) in the alternative, compel the Government to produce the

laboratory personnel “who had the most important actions

involved in the samples.”   The defense did not specify which

personnel needed to be produced.

     Trial counsel introduced Dr. Papa for testimony on the

motion.   As a forensic toxicologist and laboratory certifying

official, Dr. Papa stated his job at the lab was to “certify

data for both positive and negative tests for scientific and

forensic reliability.”   Dr. Papa certified the authenticity and

“business-record” nature of the records attached to the drug

testing report cover memoranda and reviewed the bottle label for

the June test sample, but he did not otherwise personally




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


observe either the testing or reviews of Appellant’s samples.3

He testified about testing procedures at the Brooks Lab,

explained some of the documents included in the drug testing

reports, and stated that the purpose of the lab was “[t]o

produce forensically defensible results for the military to use

in legal proceedings.”

     The military judge denied the defense’s motion, concluding

that the statements in the drug testing reports were

nontestimonial under Crawford v. Washington, 541 U.S. 36 (2004),

and United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006).

Regarding the June test, the military judge stated that

personnel at the Brooks Lab did not associate the sample with a

particular individual and that the sample, collected in the

course of a random urinalysis, was not processed in furtherance

of a particular law enforcement investigation; thus it was not

testimonial.

     Regarding the July test, which was obtained by consent, the

military judge determined that the request for consent on July

10, 2006, was “more akin to a shot in the dark than pursuit of a

specific law enforcement objective.”   He reasoned that while

AFOSI “may have generally suspected that the accused was


3
  Dr. Papa also testified at the trial itself, “as an expert in
the field of pharmacology area of drug testing and forensic
toxicology.” His testimony at trial was similar to that on
motion, but more detailed. No one else from the lab testified.

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


involved in drug use, they likely did not have sufficient cause

to obtain a search authorization on 10 July,” and that “the

character of a consent urinalysis is different from a probable

cause authorization.”   The military judge held that both drug

testing reports were nontestimonial hearsay admissible under the

business records exception, Military Rule of Evidence (M.R.E.)

803(6).    The CCA affirmed.   Blazier, 68 M.J. at 546.

                                   II.

     The Confrontation Clause of the Sixth Amendment provides

that “[i]n all criminal prosecutions, the accused shall enjoy

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

. . . .”   U.S. Const. amend VI.    This gives defendants the right

to question not only witnesses providing oral, in-court

testimony, but also the declarant of any hearsay that is

“testimonial.”   Crawford, 541 U.S. at 50-52.4   Before such

testimonial hearsay may be admitted, the Confrontation Clause


4
  The Supreme Court in Crawford provided a non-exclusive list of
examples of what constitutes “testimonial” hearsay: (1) “ex
parte in-court testimony or its functional equivalent -- that
is, material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably
expect to be used prosecutorially”; (2) “extrajudicial
statements . . . contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or
confessions”; and (3) “statements that 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.” 541 U.S. at 51-52 (citations and quotation marks
omitted).

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


requires that the accused have been afforded a prior opportunity

to cross-examine the witness and that the witness be

unavailable.      Id. at 53-54, 68.

     In this case, the military judge admitted two complete

“drug testing reports” on the ground that they were not

testimonial and therefore not subject to the requirements of

Crawford.    While this Court reviews a military judge’s decision

to admit or exclude evidence for an abuse of discretion, United

States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009), the

antecedent question here -- whether evidence that was admitted

constitutes testimonial hearsay -- is a question of law reviewed

de novo.    Id.

     In attempting to answer that question, the military judge,

the parties, and the CCA focused on the impetus behind the June

and July urinalyses and, relatedly, the subjective expectations

of those conducting the various tests.    But while fine

distinctions based on the impetus behind the testing and the

knowledge of those conducting laboratory tests at different

points in time are relevant in determining whether a “statement”

was “made under circumstances which would lead an objective

witness reasonably to believe that the statement would be

available for use at a later trial,” Crawford, 541 U.S. at 51-52

(citations and quotation marks omitted), that does not end the

inquiry here.     The Court considered those facts dispositive in


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


Magyari and United States v. Harcrow, 66 M.J. 154 (C.A.A.F.

2008), but the circumstances of this case are different from the

circumstances in those cases.

     In Magyari, the focus was on “whether the data entries in

Appellant’s urinalysis lab report made by the Navy Drug

Screening Laboratory technicians,” resulting from a random, non-

investigative urinalysis screening, were “testimonial,” and

concluded that such entries were not testimonial when such

samples are not equated with particular individuals.    Magyari,

63 M.J. at 125-26.   The Court reasoned that “[b]ecause the lab

technicians were merely cataloging the results of routine tests,

the technicians could not reasonably expect their data entries

would ‘bear testimony’ against [the] Appellant at his court-

martial.”   Id. at 127 (citation omitted).   Harcrow involved

laboratory reports generated from evidence seized during arrest.

66 M.J. at 158-59.   The Court concluded that the reports were

testimonial because they were completed at the behest of the

sheriff’s office, pertained to items seized from the accused’s

home at the time of arrest, and expressly identified the accused

as “a ‘suspect.’”    Id.   Each case depended on its specific

facts.   See Harcrow, 66 M.J. at 159; Magyari, 63 M.J. at 127.

But whatever the rationale for conducting the urinalyses or the




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

subjective belief of the testers in this case,5 the drug testing

report cover memoranda of August 16 for both the June and July

tests are themselves testimonial.

     When the Government requested both drug testing reports on

August 15, 2006, it explicitly stated that the information was

“needed for court-martial use.”    The cover memorandum analyzing

and summarizing the contents of each report cannot be analyzed

under, or by analogy to, the facts in Magyari.6      Cf. Harcrow, 66

M.J. at 159 (“[I]n reaching our conclusion in Magyari, we

rejected the government’s argument that laboratory reports will

always be nontestimonial . . . .”); Magyari, 63 M.J. at 127

(“[T]he 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.”).       For while the drug tests

themselves occurred in June and July, the top portion of the

cover memorandum of each report -- dated “AUG 16 2006,”


5
  We note that despite the fact that Appellant was under
investigation when the consent urinalysis was obtained,
both the military judge and the CCA focused on whether
there was sufficient evidence of drug use to obtain a
probable cause urinalysis. But whether there was probable
cause is not the test, because Appellant was surely under
investigation. As we recently emphasized, “‘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.’” Harcrow, 66 M.J. at 159 (quoting
Magyari, 63 M.J. at 127).
6
  We need not address, at this point, the application of Crawford
or Magyari to the other documents.

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

detailing the tests taken and summarizing the results -- 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.”

     Given these circumstances, the top portions of the drug

testing report cover memoranda -- which summarize and clearly

set forth the “accusation” that certain substances were

confirmed present in Appellant’s urine at concentrations above

the DOD cutoff level -- are clearly testimonial.

     This is evident in light of Melendez-Diaz v. Massachusetts,

129 S. Ct. 2527 (2009).   For while not exactly the same, the top

portions of the drug testing report cover memoranda at issue

here at least resemble the “drug certificates” at issue in

Melendez-Diaz, 129 S. Ct. at 2532-33 (holding that, under a

“rather straightforward application of our holding in Crawford,”

drug analyst affidavits were testimonial).   There, drugs were

seized pursuant to an arrest and “certificates of analysis” were

admitted at trial “pursuant to state law as ‘prima facie

evidence of the composition, quality, and the net weight of the

narcotic . . . analyzed.’”   Id. at 2530-31 (omission in

original; citation omitted).   Noting that “under Massachusetts

law the sole purpose of the affidavits was to provide ‘prima

facie evidence of the composition, quality, and the net weight’


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

of the analyzed substance,” the Supreme Court stated that “[w]e

can safely assume that the analysts were aware of the

affidavits’ evidentiary purpose, since that purpose -- as stated

in the relevant state-law provision -- was reprinted on the

affidavits themselves.”   Id. at 2532.

     Similar to the sworn certificates of analysis in Melendez-

Diaz, the top portion of the drug testing report cover memoranda

in this case identify the presence of an illegal drug and

indicate the quantity present.   And the evidentiary purpose of

those memoranda was apparent, as they not only summarize and

digest voluminous data but were generated in direct response to

a request from the command indicating they were needed for use

at court-martial.   This is true regardless of the impetus behind

the testing, the knowledge of those conducting laboratory tests

at different points in time, or whether the individual

underlying documents are themselves testimonial.

     In another respect, however, the cases are distinct.     In

Melendez-Diaz, the certificates were introduced as evidence

without more:   no one was subject to cross-examination about the

testing, procedures, or quality control, for example, with

respect to the results upon which the certificates were based.




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

See id. at 2531.7   Here, while Dr. Papa did not personally

perform or observe the testing (other than reviewing the bottle

label for the first sample) or author the cover memoranda, he

was the certifying official for the drug testing reports and was

recognized as an expert in “the field of pharmacology area of

drug testing and forensic toxicology,” without defense

objection.   Neither party has addressed the relevance of these

facts to the disposition of this case.

                               III.

     Given the ubiquity of drug testing within the military, and

absent extraordinary circumstances not present here, the better

course is for this Court to seek the views of the parties and

permit them to advance their arguments, rather than to address

these issues sua sponte.   Cf. Greenlaw v. United States, 128 S.

Ct. 2559, 2564 (2008) (noting that “‘[o]ur adversary system is

designed around the premise that the parties . . . are

responsible for advancing the facts and arguments entitling them

to relief’” (quoting Castro v. United States, 540 U.S. 375, 381-

83 (2003) (Scalia, J., concurring in part and concurring in the

judgment))).

     Thus, while we hold that at least the top portion of the

drug testing report cover memoranda of August 16 for both the

7
  We note that the Supreme Court has stated that not “everyone
who laid hands on the evidence must be called.” Melendez-Diaz,
129 S. Ct. at 2532 n.1.

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

June and July tests -- signed by the results reporting

assistants -- were testimonial, we order briefing from the

parties, and invite briefing from the government and defense

appellate divisions from the other services, on the following:

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

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

     (b) if Dr. Papa’s testimony did not itself satisfy the
Confrontation Clause, was the introduction of testimonial
evidence nevertheless harmless beyond a reasonable doubt under
the circumstances of this case if he was qualified as, and
testified as, an expert under M.R.E. 703 (noting that “[i]f of a
type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject, the facts or
data [upon which the expert relied] need not be admissible in
evidence in order for the opinion or inference to be admitted”)?
Compare, e.g., United States v. Turner 591 F.3d 928, 933-34 (7th
Cir. 2010), and United States v. Moon, 512 F.3d 359, 362 (7th
Cir. 2008), with United States v. Mejia, 545 F.3d 179, 197-98
(2d Cir. 2008).

     Appellant will file a brief on the above issues no later

than thirty days after the date of this opinion.   Appellee will

file a brief no later than thirty days after the filing of

Appellant’s brief.   Appellant may file a reply no later than ten

days after the filing of Appellee’s brief.   If the government

and defense appellate divisions of the other services file

amicus curiae briefs on the above issues in support of a party,



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

such briefs may be filed no later than ten days after that party

has filed its brief.   Pending receipt of the briefs, the case

will remain on the docket for final decision.




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