                         UNITED STATES, Appellee

                                         v.

                   Josh R. HARCROW, Lance Corporal
                     U.S. Marine Corps, Appellant

                                  No. 07-0135
                        Crim. App. No. 200401923

       United States Court of Appeals for the Armed Forces

                         Argued November 6, 2007

                          Decided March 13, 2008

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

                                     Counsel

For Appellant: Major Brian L. Jackson, USMC (argued); Major
Jeffrey S. Stephens, USMC (on brief).

For Appellee: Captain James W. Weirick, USMC (argued); Major
Brian K. Keller, USMC, and Captain Roger E. Mattioli, USMC (on
brief); Commander Paul C. LeBlanc, JAGC, USN, and Lieutenant
Jessica M. Hudson, JAGC, USN.


Military Judges:    E. W. Loughran and Leslie K. Burnette



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Harcrow, No. 07-0135/MC


    Judge ERDMANN delivered the opinion of the Court.

    After entering mixed pleas, Lance Corporal Harcrow was

convicted of numerous drug related offenses, failing to obey a

lawful order, escaping custody, and unauthorized absence.     He

was sentenced to confinement for six years, reduction to E-1,

and a bad-conduct discharge.   The convening authority approved

the sentence and suspended all unexecuted confinement for a

period of twelve months from the date of his action.

     On appeal, the United States Navy-Marine Corps Court of

Criminal Appeals dismissed the disobedience charge and one of

the drug specifications but affirmed the remainder of the

findings and the sentence.   United States v. Harcrow, No. NMCCA

200401923, 2006 CCA LEXIS 285, at *26-*27, 2006 WL 4572853, at

*9-*10 (N-M. Ct. Crim. App. Oct. 30, 2006) (unpublished).

     In the course of its review, the Court of Criminal Appeals

considered whether the military judge erred in admitting two

laboratory reports prepared by the Virginia Division of Forensic

Science.   Harcrow, 2006 CCA LEXIS 285, at *15-*18, 2006 WL

4572853, at *5-*6.   The laboratory reports reflected the

presence of heroin and cocaine residue on items seized from

Harcrow’s residence.   Harcrow argued, inter alia, that the

laboratory reports constituted testimonial hearsay under

Crawford v. Washington, 541 U.S. 36 (2004), and their admission

violated his Sixth Amendment right to confrontation.    Harcrow,


                                 2
United States v. Harcrow, No. 07-0135/MC


2006 CCA LEXIS 285, at *16, 2006 WL 4572853, at *5.    The lower

court found that the reports were nontestimonial hearsay and

admissible under Military Rule of Evidence (M.R.E.) 803(6) as

business records.   Harcrow, 2006 CCA LEXIS 285, at *17, 2006 WL

4572853, at *6.

     We granted review of this case to consider whether the

lower court erred by finding that the state forensic laboratory

reports were nontestimonial hearsay under Crawford.    65 M.J. 284

(C.A.A.F. 2007).    We hold that the laboratory reports in this

case were testimonial evidence.   Applying a plain error

analysis, we conclude that the error was plain and obvious but

the admission of this evidence was harmless beyond a reasonable

doubt and therefore did not violate a substantial right.   See

Article 59(a), Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 859(a) (2000); United States v. Brewster, 61 M.J. 425,

432 (C.A.A.F. 2005).   Accordingly, we affirm the findings of

guilty and the sentence as set out in the decision of the Court

of Criminal Appeals.

                             BACKGROUND

     Harcrow was suspected of manufacturing methamphetamine at

his residence and was arrested by the Naval Criminal

Investigative Service in 2001.    He was ordered into pretrial

confinement in February 2002, but escaped while being escorted

to the brig.   On March 2, 2002, deputies from the Stafford


                                  3
United States v. Harcrow, No. 07-0135/MC


County Sheriff’s office in Virginia arrested Harcrow at his home

for desertion and other unrelated state charges.    At the time of

his arrest, sheriff’s deputies seized drug paraphernalia from

Harcrow’s residence.   The seized items were sent to the Virginia

Division of Forensic Science for analysis.   That Division issued

two laboratory reports documenting the presence of cocaine and

heroin on several of these items.

     At a general court-martial composed of a military judge

sitting alone, Harcrow entered mixed pleas to numerous drug-

related and other charges.   Relevant to this appeal are the

specifications contained in Additional Charge II which arose

from the items seized in the search of Harcrow’s house during

his arrest and the subsequent laboratory reports.    Contrary to

his pleas, Harcrow was found guilty of three of these

specifications:   wrongful possession of cocaine, wrongful

possession of heroin, and wrongful use of cocaine.   On appeal,

the Court of Criminal Appeals held that the specification for

wrongful possession of cocaine was multiplicious for findings

with wrongful use of cocaine.    Harcrow, 2006 CCA LEXIS 285, at

*3-*4, 2006 WL 4572853, at *1.   The lower court dismissed the

specification for wrongful possession of cocaine and affirmed

the findings of guilty as to wrongful use of cocaine and

wrongful possession of heroin.   Harcrow, 2006 CCA LEXIS 285, at




                                  4
United States v. Harcrow, No. 07-0135/MC


*3-*4, *26, 2006 WL 4572853, at *1, *9.    This appeal involves

only these two specifications.

     At trial, the prosecution offered both laboratory reports

into evidence during the testimony of an arresting officer.

With respect to the first report the military judge asked the

defense, “Have you seen this?”   Defense counsel replied, “I have

no objections, your Honor.”    In response to the proposed

admission of the second laboratory report, defense counsel again

stated, “No objections, your Honor.”    Both laboratory reports

were admitted into evidence.

     Before the Court of Criminal Appeals, Harcrow argued that

the laboratory reports were testimonial hearsay under Crawford,

which was issued by the Supreme Court after the court-martial

concluded and while the case was pending on direct review.

Citing this court’s decision in United States v. Magyari, 63

M.J. 123, 125 (C.A.A.F. 2006), the lower court concluded that

the laboratory reports were nontestimonial and admissible under

the business records hearsay exception, M.R.E. 803(6).   Harcrow,

2006 CCA LEXIS 285, at *17, 2006 WL 4572853, at *6.   We granted

review of this issue.

                               WAIVER

     The facts surrounding admission of the laboratory reports

raise a threshold issue as to whether Harcrow waived the

opportunity to argue on appeal that the laboratory reports


                                  5
United States v. Harcrow, No. 07-0135/MC


constituted testimonial evidence under Crawford, or merely

forfeited the issue making this appeal a matter for plain error

review under M.R.E. 103(d).   See United States v. Olano, 507

U.S. 725, 733-34 (1993) (noting that waiver, unlike forfeiture,

extinguishes error).1

     The Supreme Court has addressed the difference between

waiver and forfeiture under Fed. R. Crim. P. 52(b) on which

M.R.E. 103(d) is partially based:

          The first limitation on appellate authority under
     Rule 52(b) is that there indeed be an “error.”
     Deviation from a legal rule is “error” unless the rule
     has been waived. . . .

          Waiver is different from forfeiture. Whereas
     forfeiture is the failure to make the timely assertion
     of a right, waiver is the “intentional relinquishment
     or abandonment of a known right.” Johnson v. Zerbst,
     304 U.S. 458, 464 (1938). Whether a particular right
     is waivable; whether the defendant must participate
     personally in the waiver; whether certain procedures
     are required for waiver; and whether the defendant’s
     choice must be particularly informed or voluntary, all
     depend on the right at stake. Mere forfeiture, as
     opposed to waiver, does not extinguish an “error”
     under Rule 52(b).

Olano, 507 U.S. at 732-33 (citations omitted); see also United

States v. Powell, 49 M.J. 460, 462-63 (C.A.A.F. 1998)


1
  This court’s cases have frequently addressed “waiver” but
rarely in the context of extinguishing error and depriving the
court of an opportunity for review. Rather, this court more
often addresses “waiver” in the context of plain error review.
See, e.g., Rule for Court-Martial (R.C.M.) 920(f). As addressed
below, under the terminology used by the Supreme Court in Olano,
this more lenient version of waiver is labeled “forfeiture” and
it is the Olano terminology that we are using here.

                                 6
United States v. Harcrow, No. 07-0135/MC


(discussing the relationship between Fed. R. Crim. P. 52(b) and

M.R.E. 103(d)); 1 Steven A. Saltzburg et al., Military Rules of

Evidence Manual § 103.02[7][c], at 1-37, 1-38 (6th ed. 2006)

(discussing the interplay of waiver, forfeiture and plain error

in military law and quoting Olano, 507 U.S. at 733-34).

    In this case, the right at stake is the Sixth Amendment

right to confrontation.   In addressing waiver of constitutional

rights, the Supreme Court long ago emphasized the same

definition of waiver quoted above from Olano, stating that there

is “a presumption against the waiver of constitutional rights,

see, e.g., Glasser v. United States, 315 U.S. 60, 70-71, and for

a waiver to be effective it must be clearly established that

there was ‘an intentional relinquishment or abandonment of a

known right or privilege.’”   Brookhart v. Janis, 384 U.S. 1, 4

(1966) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

Yet the Supreme Court has also acknowledged that “counsel may,

under some conditions, where the circumstances are not

‘exceptional, preclude the accused from asserting constitutional

claims.’”   Id. at 7 (quoting Henry v. Mississippi, 379 U.S. 443,

451 (1965)).   That is to say, in certain circumstances, defense

counsel may waive constitutional rights on behalf of their

clients.

     In this context, a number of United States Circuit Courts

of Appeal have considered whether defense counsel may waive a


                                 7
United States v. Harcrow, No. 07-0135/MC


client’s Sixth Amendment right of confrontation by stipulating

to the admission of evidence.   Several circuits have held that

counsel may do so “so long as the defendant does not dissent

from his attorney’s decision, and so long as it can be said that

the attorney’s decision was a legitimate trial tactic or part of

a prudent trial strategy.”   United States v. Cooper, 243 F.3d

411, 418 (7th Cir. 2001) (citation and quotation marks omitted);

Hawkins v. Hannigan, 185 F.3d 1146, 1155 (10th Cir. 1999);

United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980);

see also United States v. Plitman, 194 F.3d 59, 64 (2d Cir.

1999) (holding that “counsel may waive a defendant’s Sixth

Amendment right to confrontation where the decision is one of

trial tactics or strategy that might be considered sound”).

     Before this court Harcrow relies on Crawford and its

progeny to support his argument that the laboratory reports were

testimonial hearsay and the admission of those documents

violated the Sixth Amendment right to confrontation under

Crawford.   At the time of the court-martial, admissibility of

out-of-court statements, such as the laboratory reports at

issue, was generally governed by Ohio v. Roberts, 448 U.S. 56

(1980).   Under Roberts, hearsay statements could be admitted if

they carried an adequate indicia of reliability.   Id. at 66; see

also Magyari, 63 M.J. at 125.   Under M.R.E. 803(6), forensic

laboratory reports were characterized as “normally admissible,”


                                 8
United States v. Harcrow, No. 07-0135/MC


generally meeting the criteria for a business records exception

to the hearsay rule.

     After the court-martial concluded and while this case was

on direct review, the Supreme Court issued Crawford, which

changed the analytical framework set out in Roberts for

determining the admissibility of testimonial hearsay statements.

As we stated in Magyari, Crawford “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.    The lynchpin of the Crawford decision . . .

is its distinction between testimonial and nontestimonial

hearsay. . . .”   63 M.J. at 125-26 (citations and quotation

marks omitted).   In Whorton v. Bockting, 127 S. Ct. 1173, 1180,

1184 (2007), the Supreme Court held that Crawford announced “a

‘new rule’ of criminal procedure,” which under Griffith v.

Kentucky, 479 U.S. 314 (1987), is retroactive on direct appeal.

     At the time of trial, admissibility of the laboratory

reports found support in M.R.E. 803(6) and Roberts.    In that

context, counsel’s strategic decision may well have been

prudent.   Crawford, however, opened the door for a colorable

assertion of the right to confrontation where it was not

previously available, and which under Bockting is now applicable

on direct review.   In this legal and factual context, defense

counsel’s trial strategy could not be considered an “intentional


                                  9
United States v. Harcrow, No. 07-0135/MC

“intentional relinquishment or abandonment” of Harcrow’s right

to confront the laboratory personnel under Crawford.     Cf. United

States v. Stines, 313 F.3d 912, 917 (6th Cir. 2002) (reasoning

that there was no waiver because it “would have been impossible

for the defendants to have intentionally relinquished or

abandoned the Apprendi based claims considering Apprendi was

decided after they were sentenced”).

        Accordingly, we conclude that there was no waiver in this

case.    Rather defense counsel’s “no objection” statements are

appropriately treated as forfeitures, which require further

analysis under the plain error rule.    M.R.E. 103(d).

            ANALYSIS OF CRAWFORD UNDER THE PLAIN ERROR RULE

        In order to prevail under a plain error analysis, Harcrow

must demonstrate that:    “‘(1) there was an error; (2) it was

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

substantial right.’”    Magyari, 63 M.J. at 125 (quoting United

States v. Tyndale, 56 M.J. 209, 217 (C.A.A.F. 2001)).     Because

Crawford is retroactively applicable to this direct appeal, we

address the first prong by considering whether the laboratory

reports in this case constitute inadmissible hearsay under

Crawford, which is a question of law that we review de novo.

See United States v. Gardinier, 65 M.J. 60, 65 (C.A.A.F. 2007).

        The Confrontation Clause of the Sixth Amendment states:

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


                                  10
United States v. Harcrow, No. 07-0135/MC

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

U.S. Const. amend VI.   Under Crawford, the Confrontation Clause

bars the admission of testimonial statements of a witness who

did not appear at trial unless the witness was unavailable to

testify and the defendant had a prior opportunity for cross-

examination.   541 U.S. at 53-54.    As we have recognized in past

cases, Crawford “‘set forth various formulations of the core

class of testimonial statements’” without articulating a

comprehensive definition of “testimonial.”    Gardinier, 65 M.J.

at 65 (quoting Davis v. Washington, 547 U.S. 813, 126 S. Ct.

2266, 2273 (2006)).   These include:   (1) ex parte in-court

testimony; (2) extrajudicial statements contained in formalized

trial materials; 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.’”   United States v. Rankin, 64 M.J. 348, 351

(C.A.A.F. 2007) (quoting Crawford, 541 U.S. at 51-52).     We do

not consider these formulations to constitute an exhaustive list

of testimonial statements, but we have recognized that they

sometimes serve as a useful baseline to begin analysis of the

testimonial quality of the statements in question.    Gardinier,

65 M.J. at 65.

     In this case, Harcrow contends that the laboratory reports

fall into the third category, arguing that the statements were


                                11
United States v. Harcrow, No. 07-0135/MC

made under circumstances which would lead an objective witness

reasonably to believe that the statements would be available for

use at a later trial.   In Rankin, we identified several

nonexclusive factors that could be considered when

distinguishing between testimonial and nontestimonial hearsay

under these circumstances.   These factors include:   (1) whether

the statement was elicited by or made in response to law

enforcement or prosecutorial inquiry; (2) whether the statement

involved more than a routine and objective cataloging of

unambiguous factual matters; and (3) whether the primary purpose

for making, or eliciting, the statement was the production of

evidence with an eye toward trial.   Rankin, 64 M.J. at 352.     In

taking this approach, “our goal is an objective look at the

totality of the circumstances surrounding the statement to

determine if the statement was made or elicited to preserve past

facts for a criminal trial.”   Gardinier, 65 M.J. at 65 (citing

Davis, 547 U.S. 813, 126 S. Ct. at 2273-74).

     We have no difficulty reaching the conclusion that these

laboratory reports constitute testimonial statements.    Here the

laboratory analysis was conducted at the behest of the sheriff’s

office after arresting Harcrow for suspected drug use.     The

laboratory reports pertain to items seized from Harcrow’s home

at the time of the arrest and the reports expressly identify

Harcrow as a “suspect.”


                                12
United States v. Harcrow, No. 07-0135/MC

      The facts of this case contrast notably with the facts

underlying our holding in Magyari, where we held that random

urinalysis entries in the Navy Drug Screening Laboratory

database were not testimonial.   63 M.J. at 126-27.   In Magyari,

the laboratory technicians worked with batches of urine samples

that each contained about two hundred individual samples.       Id.

at 126.   The laboratory technicians could not equate a

particular sample with a particular person but rather assigned

identification numbers to the samples in a batch.     Id.     The vast

majority of samples would not test positive for illegal drugs

and not all positive results would end in prosecution.       Id.   The

laboratory personnel in Magyari had no reason to anticipate that

any particular sample would test positive and be used at trial

and therefore were not “engaged in a law enforcement function, a

search for evidence in anticipation of prosecution or trial.”

Id.

      Our reasoning in Magyari 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 [a]ppellant at his court-martial”

does not apply here.   Id. at 127 (citation omitted).       Here the

laboratory tests were specifically requested by law enforcement

and the information relayed on the laboratory reports pertained

to items seized during the arrest of an identified “suspect.”


                                 13
United States v. Harcrow, No. 07-0135/MC

     Indeed, in reaching our conclusion in Magyari, we rejected

the government’s argument that laboratory reports will always be

nontestimonial and noted that “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.”      Id.   As

these circumstances are present in this case, we conclude that

the laboratory results are testimonial and subject to exclusion

under the Confrontation Clause.

     Because we find error, the next question is whether the

error is plain or obvious.   As we discussed above in relation to

waiver, prior to Crawford, laboratory reports of this nature

were generally admissible under M.R.E. 803(6) and Roberts.

Crawford, however, changed the analytical framework set out in

Roberts for determining the admissibility of testimonial hearsay

statements marking a clear shift away from the test that was

grounded in indicia of reliability.     See supra pp. 8-9.

     The Supreme Court has stated that “where the law at the

time of trial was settled and clearly contrary to the law at the

time of appeal -- it is enough that an error be ‘plain’ at the

time of appellate consideration.”      See Johnson v. United States,

520 U.S. 461, 468 (1997) (applying this standard to plain error

analysis under Fed. R. Crim. P. 52(b)).     In undertaking our

plain error analysis in this case, we therefore consider whether


                                  14
United States v. Harcrow, No. 07-0135/MC

the error is obvious at the time of appeal, not whether it was

obvious at the time of the court-martial.

     We believe our decision in Magyari compels the conclusion

that plain or obvious error has been established.    As discussed

above, in Magyari we rejected the government’s contention that

laboratory reports are inherently nontestimonial just because

they are business and public records.   63 M.J. at 127.     We

recognized that this type of record may be prepared at the

“behest of law enforcement in anticipation of a prosecution,

which may make the reports testimonial.”    Id.   And we made clear

that laboratory reports could be testimonial “where a defendant

is already under investigation, and where the testing is

initiated by the prosecution to discover incriminating

evidence.”   Id.   These circumstances have been squarely

presented here.    Accordingly, under Magyari this error was plain

and obvious.2


2
  Courts in several other jurisdictions have also held that
laboratory reports showing the presence of drugs on items seized
from a defendant at the time of his or her arrest were
testimonial. See, e.g., Hinojos-Mendoza v. People, 169 P.3d
662, 666-67 (Colo. 2007); Thomas v. United States, 914 A.2d 1,
12-14 (D.C. 2006); State v. Laturner, 163 P.3d 367, 375-76 (Kan.
Ct. App. 2007); State v. Caulfield, 722 N.W.2d 304, 308-09
(Minn. 2006); State v. March, 216 S.W.3d 663, 665-66 (Mo. 2007);
State v. Miller, 144 P.3d 1052, 1058 (Or. Ct. App. 2006). But
see, e.g., Pruitt v. State, 954 So. 2d 611, 617 (Ala. Crim. App.
2006); Commonwealth v. Verde, 827 N.E.2d 701, 704-06 (Mass.
2005). In light of Magyari’s clear direction on this issue,
holdings such as those from the Alabama and Massachusetts state
courts do not impact our plain error determination.

                                 15
United States v. Harcrow, No. 07-0135/MC

     Having found plain and obvious error, we turn to prejudice

and consider whether the admission of the laboratory reports

materially prejudiced a substantial right.    Because this case

involves constitutional error, the question is whether the

Government has shown that the error was harmless beyond a

reasonable doubt.   Brewster, 61 M.J. at 432.    We determine that

the Government has met its burden.

     During questioning, Harcrow admitted to using cocaine

earlier on the night of his arrest.    He also admitted that a

jeweler’s bag in his home contained cocaine and a hypodermic

syringe contained heroin.   It was these admissions, rather than

the laboratory reports, which constituted the primary evidence

against Harcrow on the drug-related charges.

     Harcrow’s admissions, however, can only be used as evidence

if they are independently corroborated.    M.R.E. 304(g).3   The

standard for corroboration is “very low.”    United States v.

Seay, 60 M.J. 73, 80 (C.A.A.F. 2004).     “‘Corroborating evidence

must raise only an inference of truth as to the essential facts

admitted.’”   Id. at 79 (quoting United States v. Cottrill, 45

M.J. 485, 489 (C.A.A.F. 1997)).    “This inference may be drawn


3
  Under M.R.E. 304(g), “[a]n admission or a confession of the
accused may be considered as evidence against the accused on the
question of guilt or innocence only if independent evidence,
either direct or circumstantial, has been introduced that
corroborates the essential facts admitted to justify
sufficiently an inference of their truth.”

                                  16
United States v. Harcrow, No. 07-0135/MC

from a quantum of corroborating evidence that this Court has

described as very slight.”   United States v. Arnold, 61 M.J.

254, 257 (C.A.A.F. 2005) (citation and quotation marks omitted).

The laboratory reports served as corroborating evidence, but the

Government argues that there was sufficient evidence independent

of the laboratory reports to corroborate Harcrow’s admissions.

We agree.

     One of the arresting deputies, relying on his experience

and a six-month training course at a criminal justice academy,

testified that Harcrow appeared under the influence of an

illegal narcotic at the time of the arrest.   The other arresting

deputy, also relying on his training and experience, testified

that he observed cocaine residue on a metal spoon and heroin in

a syringe.   This testimony from the law enforcement officers

provided sufficient corroboration of Harcrow’s admissions.

     Furthermore, Harcrow has not demonstrated what, if

anything, he would have done at trial if he had been given the

opportunity to confront laboratory personnel about their

reports.    For these reasons, the Government has met its burden

of demonstrating that any error was harmless beyond a reasonable

doubt and Harcrow has failed to demonstrate that such an error

materially prejudiced a substantial right.




                                 17
United States v. Harcrow, No. 07-0135/MC

                               DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




                               18
United States v. Harcrow, No. 07-0135/MC


     RYAN, Judge (concurring):

     I concur with the majority opinion, but write separately on

two small points.

     First, Appellant is entitled to avail himself of the plain

error doctrine here only because Crawford v. Washington, 541

U.S. 36 (2004), announced a “new rule” while his case was on

direct review -- not because the military judge in this case did

anything wrong.   See Whorton v. Bockting, 127 S. Ct. 1173, 1180-

81 (2007) (describing Crawford as creating a new, non-watershed,

rule); United States v. Ziskind, 491 F.3d 10, 14 (1st Cir. 2007)

(applying the plain error standard on direct review to a case

tried before Crawford was decided); Thomas v. United States, 914

A.2d 1, 20 (D.C. 2006) (applying Crawford retroactively using

the plain error standard to a case on direct review).

     This case illustrates the curious outcome flowing from the

confluence of the retroactivity rule and the plain error

doctrine.   See Griffith v. Kentucky, 479 U.S. 314, 322-23

(1987); United States v. Olano, 507 U.S. 725, 733-34 (1993).

Such a posture requires us to accept, and act upon, three

fictions:   (1) that Crawford had been decided at the time of

Appellant’s trial; (2) that, had Appellant’s trial counsel known

about Crawford, he would not have forfeited his objection to the

lab reports; and (3) that the military judge would have, despite
United States v. Harcrow, No. 07-0135/MC


Crawford, erroneously allowed the reports to be admitted.1    See

United States v. Harcrow, __ M.J. ___ (6-7) (C.A.A.F. 2008).     It

is apparent that it is at least a misnomer to suggest that the

military judge committed error at trial here.   And it remains

the case that a military judge is not required to probe,

inquire, or otherwise do anything when there is a lack of

objection to evidence that might be objected to.    See, e.g.,

Huddleston v. United States, 485 U.S. 681, 690 n.7 (1988)

(noting that it is not the duty of the trial judge to sua sponte

prevent the admission of objectionable evidence).

     Second, evidence that qualifies under Military Rule of

Evidence 803(6)’s business record exception is nontestimonial

evidence.   Crawford, 541 U.S. at 56 (noting that business

records “by their nature [are] not testimonial”); see also id.

at 76 (Rehnquist, C.J., joined by O’Connor, J., concurring in

the judgment) (noting with approval the majority’s exclusion of

business records from the definition of testimonial evidence);


1
  Of course, Crawford had not been decided. Further, I doubt
anyone seriously believes that the defense counsel would have
preferred having the laboratory technicians “testify” and be
subject to cross-examination in this case: Where there is no
suggestion that there was any laboratory error, any reasonable
attorney would presumably prefer an anemic paper exhibit to live
testimony and the exhibit. And I further question whether the
military judge, faced with a Crawford objection to the
laboratory reports, would have overruled it, or, if he had
granted it, that the Government would not have requested a
recess and brought the requisite witnesses to testify.


                                 2
United States v. Harcrow, No. 07-0135/MC


United States v. Magyari, 63 M.J. 123, 127 (C.A.A.F. 2006)

(concluding that laboratory evidence was admissible because it

was not made in anticipation of litigation and was a “record of

‘regularly conducted’ activity”); United States v. Washington,

498 F.3d 225, 229 (4th Cir. 2007) (admitting laboratory reports

over a Confrontation Clause challenge); United States v. Ellis,

460 F.3d 920, 924 (7th Cir. 2006) (recognizing that statements

embodied in business records are nontestimonial); United States

v. Baker, 458 F.3d 513, 519 (6th Cir. 2006) (holding that

“business records are nontestimonial and therefore do not

implicate the Confrontation Clause concerns of Crawford”);

United States v. Hagege, 437 F.3d 943, 958 (9th Cir. 2006)

(holding “[b]usiness records fall outside the core class of

‘testimonial evidence,’ and thus are not subject to the absolute

requirement of confrontation established in Crawford”).

     But evidence is not admissible as a business record if it

is made in anticipation of litigation.   Compare United States v.

Feliz, 467 F.3d 227, 236 (2d Cir. 2006) (holding that an autopsy

report was admissible as a business record because it was not

made in anticipation of litigation), and United States v.

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

“that [a] warrant of deportation is nontestimonial because it

was not made in anticipation of litigation, and because it is

simply a routine, objective, cataloging of an unambiguous


                                3
United States v. Harcrow, No. 07-0135/MC


factual matter”), with Palmer v. Hoffman, 318 U.S. 109, 113

(1943) (holding that an accident report prepared by a railroad

did not qualify as business record because it was prepared in

anticipation of litigation); United States v. Blackburn, 992

F.2d 666, 670 (7th Cir. 1993) (holding that a report was

inadmissible because it “was not kept in the course of a

regularly conducted business activity, but rather was specially

prepared at the behest of the FBI and with the knowledge that

any information it supplied would be used in an ongoing criminal

investigation”), and United States v. Stone, 604 F.2d 922, 925-

26 (5th Cir. 1979) (holding that an affidavit prepared by a

United States Treasury Department official was inadmissible

because it was prepared in anticipation of litigation).

     In this case, the laboratory reports were made by

laboratory technicians who almost certainly knew:   (1) the

reports were being prepared at the request of law enforcement;

(2) the evidence was gathered during an arrest; and (3) the

reports were being generated in anticipation of a specific

prosecution.   See Harcrow, ___ M.J. ___ (12-13).   On these facts

there remains a question in my mind as to whether the reports

were admissible under the business record exception to the

hearsay rule either before or after Crawford.




                                 4
United States v. Harcrow, No. 07-0135/MC


     STUCKY, Judge, with whom EFFRON, Chief Judge, joins

(concurring in the result):

     I concur in the result, but write separately to emphasize

that any error in the admission of the laboratory reports, if

error at all, cannot be plain error because the state of the law

at issue here was (until today) thoroughly unsettled.

     This case was tried in 2002, under the Confrontation Clause

regime of Ohio v. Roberts, 448 U.S. 56 (1980), where the sine

qua non was whether the out-of-court statement bore “adequate

indicia of reliability -- i.e., falls within a ‘firmly rooted

hearsay exception’ or bears ‘particularized guarantees of

trustworthiness.’”   Crawford v. Washington, 541 U.S. 36, 42

(2004) (quoting Roberts, 448 U.S. at 66).   Laboratory reports

were normally admissible as business records under Military Rule

of Evidence (M.R.E.) 803(6), a firmly rooted hearsay exception.

See United States v. Rankin, 64 M.J. 348, 353 (C.A.A.F. 2007);

United States v. Magyari, 63 M.J. 123, 128 (C.A.A.F. 2006).

     While direct appeal in this case was underway, the Supreme

Court overruled Ohio v. Roberts and established a new rule in

which the “testimonial” or “nontestimonial” nature of the out-

of-court statement determined whether the Confrontation Clause

affected its admissibility under the Sixth Amendment.   Crawford,

541 U.S. at 51.   While the Supreme Court later held Crawford not

to apply retroactively to judgments in criminal cases that were
United States v. Harcrow, No. 07-0135/MC


already final on direct review, see Whorton v. Bockting, 127 S.

Ct. 1173, 1181-84 (2007), the holding in Griffith v. Kentucky,

479 U.S. 314, 322-23 (1987), requires its application to cases,

like this one, that were on direct appeal at the time of the

decision.

      Error is “plain” when it is “obvious” or “clear under

current law.”   United States v. Olano, 507 U.S. 725, 734 (1993).

Johnson v. United States, 520 U.S. 461 (1997), held that “plain

error” is to be judged as of the time of appellate

consideration, taking into account changes in the law since the

trial.   Id. at 467-68.

      This case is not Johnson, however.   In Johnson, the law at

the time of trial was clear, but was later changed by an opinion

of the Supreme Court such that it was once again clear, but

contrary, at the time of appellate consideration.    Id. at 467-

68.   Here, the law was clear at the time of trial -- Ohio v.

Roberts -- but the Supreme Court’s decision in Crawford has

thrown it into doubt rather than either confirming it or clearly

changing it.

      Where the law was unsettled at the time of trial and

remained unclear at the time of appeal, a decision by a trial

court cannot be plain error.   28 James Wm. Moore et al., Moore’s

Federal Practice, § 652.04[3], at 652-22 n.34 (3d ed. 2007)



                                 2
United States v. Harcrow, No. 07-0135/MC


(citing cases from eleven of the twelve federal circuits).     It

would seem to follow, then, that where the court correctly

applied existing law at trial, but the law subsequently became

unsettled and was unsettled when the case was on appeal, there

could be no plain error.

     That the law on the admissibility of laboratory reports was

thrown into flux by Crawford is undeniable.   Compare United

States v. Ellis, 460 F.3d 920, 923-27 (7th Cir. 2006), People v.

Geier, 161 P.3d 104, 133-40 (Cal. 2007), State v. O’Maley, 932

A.2d 1, 9-15 (N.H. 2007), State v. Forte, 629 S.E.2d 137, 142-45

(N.C. 2006), Commonwealth v. Verde, 827 N.E.2d 701, 705-06

(Mass. 2005), State v. Dedman, 2004 NMSC 37, ¶¶ 24-32, 136 N.M.

561, 102 P.3d 628, People v. Meekins, 828 N.Y.S.2d 83, 85 (N.Y.

App. Div. 2006), Pruitt v. State, 954 So. 2d 611, 615-17 (Ala.

Crim. App. 2006) (all holding lab reports are nontestimonial),

with Hinojos-Mendoza v. People, 169 P.3d 662, 667 (Colo. 2007),

State v. March, 216 S.W.3d 663, 665-67 (Mo. 2007), Thomas v.

United States, 914 A.2d 1, 5 (D.C. 2006), cert. denied, 128 S.

Ct. 241 (2007), City of Las Vegas v. Walsh, 124 P.3d 203, 208

(Nev. 2005), State v. Laturner, 163 P.3d 367, 376 (Kan. Ct. App.

2007), State v. Moss, 160 P.3d 1143, 1148-49 (Ariz. Ct. App.

2007), State v. Smith, 2006-Ohio-1661, ¶ 16 (Ohio Ct. App.

2006), Johnson v. State, 929 So. 2d 4, 7 (Fla. Dist. Ct. App.



                                3
United States v. Harcrow, No. 07-0135/MC


2005) (all holding lab reports are testimonial).   A certiorari

petition raising the question is presently before the Supreme

Court.   Commonwealth v. Melendez-Diaz, 870 N.E.2d 676 (Mass. Ct.

App. 2007), petition for cert. filed, 76 U.S.L.W. 3255 (U.S.

Oct. 26, 2007) (No. 07-591).

     The majority relies on dictum in Magyari as the basis for

concluding that the error was plain.   I do not find that dictum

persuasive authority for such a holding.   As neither the Supreme

Court nor this Court (until today) had resolved the

admissibility of such criminal laboratory reports under

Crawford, and other courts are split on the issue, there can be

no plain error.   See United States v. Springer, 165 F. App’x

709, 715 (11th Cir. 2006).




                                 4
