                      UNITED STATES, Appellee

                                      v.

                     Shannon L. DOLLAR, Airman
                United States Air Force, Appellant

                               No. 11-0019

                       Crim. App. No. S31607

    United States Court of Appeals for the Armed Forces


                    Decided February 25, 2011

                                PER CURIAM

                                  Counsel


For Appellant: Lieutenant Colonel Gail E. Crawford and
Major Reggie D. Yager.


For Appellee:    Gerald R. Bruce, Esq.


Military Judge:    Maura T. McGowan




         THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Dollar, No. 11-0019/AF


       PER CURIAM:

       We consider whether the preadmission of two drug

testing reports 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 his pleas, Appellant was convicted of one

specification of adultery.    Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2006).      Contrary

to his pleas, he was convicted of four specifications of

wrongful use of cocaine.    Article 112a, UCMJ, 10 U.S.C. §

912a (2006).    The drug testing reports at issue ––

preadmitted over defense objection to prove the cocaine

charges –– each consists of a cover memorandum stating the

tests and results, a specimen custody document, chain of


1
    We grant the following issue:

       WHETHER THE AFCCA ERRED, AFTER FINDING
       TESTIMONIAL EVIDENCE HAD BEEN IMPROPERLY
       ADMITTED AT TRIAL, BY CONCLUDING APPELLANT’S
       CONFRONTATION RIGHTS WERE NEVERTHELESS
       SATISFIED BY THE TESTIMONY OF AN EXPERT
       WITNESS, OR ALTERNATIVELY, THAT THE TRIAL
       ERROR WAS HARMLESS BEYOND A REASONABLE
       DOUBT.

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United States v. Dollar, No. 11-0019/AF


custody documents, and machine-generated printouts of

machine-generated data.   The declarants who made statements

on the cover memoranda did not testify.   The first drug

test was conducted pursuant to random inspection, and the

second test was conducted as a follow-up when the first

test yielded positive results.

     The AFCCA originally found that admission of the two

drug testing reports did not violate the Confrontation

Clause.   United States v. Dollar, No. ACM S31607, 2010 CCA

LEXIS 141, at *18, 2010 WL 4069014, at *7 (A.F. Ct. Crim.

App. Mar. 22, 2010).   After this Court announced its

decision in United States v. Blazier, 68 M.J. 439 (C.A.A.F.

2010) (Blazier I), the AFCCA issued a new opinion finding

that although the cover memoranda contained testimonial

hearsay, “the Confrontation Clause was satisfied by the

testimony of the government’s expert witness,” Dr. David A.

Turner.   United States v. Dollar, No. ACM S31607 (f rev),

2010 CCA LEXIS 166, at *9, 2010 WL 4069031, at *3 (A.F. Ct.

Crim. App. July 21, 2010).   The AFCCA went on to hold that

“even if [Dr. Turner’s] testimony does not satisfy the

Confrontation Clause, the introduction of testimonial

evidence was harmless beyond a reasonable doubt because

[Dr. Turner] provided his opinion based upon his

independent review of the [drug testing reports] without


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United States v. Dollar, No. 11-0019/AF


relying upon the cover memorand[a].”   Id. at *10-*11, 2010

WL 4069031, at *4.

     In light of Blazier II, the AFCCA’s decision was

erroneous for two reasons.    First, it was error to admit

the cover memoranda through a surrogate witness.     See

Blazier, 69 M.J. at 223-24.    Second, in finding that any

error was harmless beyond a reasonable doubt, the AFCCA

incorrectly found that Dr. Turner did not rely upon the

cover memoranda in his testimony.   See id. at 225

(“[N]either the rules of evidence nor the Confrontation

Clause permit an expert witness to act as a conduit for

repeating testimonial hearsay.”) (emphasis in original).

The record reveals that Dr. Turner frequently referred to

the cover memoranda, and at one point read verbatim from a

cover memorandum in response to being asked, “[W]hat can

you conclude from the results?”

     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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