UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                                KERN, MAGGS, and MARTIN
                                  Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Specialist JIMMY RODRIGUEZ
                            United States Army, Appellant

                                      ARMY 20110153

     Headquarters, 25th Infantry Division and United States Division – Center
                                Camp Liberty, Iraq
            Kwasi L. Hawks and Thomas M. Kulish, Military Judges
               Colonel George R. Smawley, Staff Judge Advocate


For Appellant: Lieutenant Colonel Norman R. Zamboni, JA; Mr. Emmanuel V.
Tipon, Esquire (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA;
Captain Sean P. Fitzgibbon, JA (on brief).


                                         22 May 2013

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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MAGGS, Judge:

      A military judge sitting as a special court-martial convicted appellant,
contrary to his pleas, of failure to go to his appointed place of duty and wrongful use
of cocaine, in violation of Articles 86 and 112a, Uniform Code of Military Justice,
10 U.S.C. §§ 886, 912a (2006) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence to a bad-conduct discharge. We affirm.

                                      BACKGROUND

        Appellant raises five assignments of error. Three of these address his
conviction for cocaine use and merit discussion, but not relief. At trial, witnesses
testified that during a 100% urinalysis in his unit, appellant was observed giving his
urine sample; appellant signed a form verifying that he gave the sample; the sample
RODRIGUEZ—ARMY 20110153

was hand-delivered from the site of collection to an on-post clinic; and the sample
was hand-delivered to a laboratory for testing. The custodian of records at the
laboratory testified that the sample was given an identifying “Laboratory Accessions
Number” (LAN), that the sample identified by this LAN tested positive for a cocaine
metabolite, and that two subsequent tests confirmed this result.

       Appellant raises issues on appeal concerning the admission into evidence of
Prosecution Exhibit (Pros. Ex.) 7 and Pros. Ex. 14. Prosecution Exhibit 7 is a
machine-generated document containing numerical results from three tests done on a
urine sample identified by LAN T10G0338037. Two of the tests used an
immunoassay screening methodology and one of the tests used a gas
chromatography/mass spectrometry methodology. Prosecution Exhibit 7 does not
contain statements or opinions made by any person. The military judge admitted
Pros. Ex. 7 without objection.

       Prosecution Exhibit 14 is a redacted document. Prior to redaction, the
document contained a computer generated listing of the social security numbers of
the members in appellant’s unit and stickers showing corresponding LANs for their
urine samples. The stickers were added by a laboratory technician when the samples
were received at the laboratory, before the samples were tested. As redacted, the
document contains appellant’s social security number and a sticker bearing the LAN
T10G0338037. The military judge admitted Pros. Ex. 14 over appellant’s objection
as a business record under Military Rule of Evidence [hereinafter Mil. R. Evid.]
803(6). The technician who prepared the document did not testify.

                              LAW AND DISCUSSION

                                Confrontation Clause

       In his first assignment of error, appellant contends that the admission of Pros.
Ex. 7 and Pros. Ex. 14 violated his Sixth Amendment right to confront the witnesses
against him. He relies on Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), and
other recent decisions holding that the prosecution cannot introduce documents
containing “testimonial” statements unless the accused has the opportunity to cross-
examine the persons who prepared the documents. We conclude that appellant’s
contention lacks merit because neither Pros. Ex. 7 nor Pros. Ex. 14 contain
testimonial statements.

       Our superior court has very recently observed that “[t]he language used by the
Supreme Court to describe whether and why a statement is testimonial is far from
fixed.” United States v. Tearman, 72 M.J. 54, 58–59 (C.A.A.F. 2013) (quoting
differently phrased tests in Williams v. Illinois, 132 S. Ct. 2221 (2012); Bullcoming
v. New Mexico, 131 S. Ct. 2705 (2011); Melendez-Diaz v. Massachusetts, 557 U.S.
305 (2009); Davis v. Washington, 547 U.S. 813 (2006); and Crawford v.



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RODRIGUEZ—ARMY 20110153

Washington, 541 U.S. 36, 52 (2004)). While recognizing minor variations on the
precise formulation of the definition, our superior court continues to employ the test
that a “statement is testimonial if ‘made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use
at a later trial.’” Tearman, 72 M.J. at 58 (quoting United States v. Sweeney, 70 M.J.
296, 301 (C.A.A.F. 2011) (citing United States v. Blazier, 68 M.J. 439, 442
(C.A.A.F. 2010))) (some internal quotation marks omitted). We will also use this
definition. As in Tearman, we conclude that “under any of the various formulations
of testimonial statements,” id. at 59, the result would be the same for the documents
at issue here.

       Prosecution Exhibit 7 does not contain testimonial statements because it was
generated by a machine. As our superior court has concluded, “under both the
Confrontation Clause and the rules of evidence, machine-generated data and
printouts are not statements and thus not hearsay . . . and such data is therefore not
‘testimonial.’” Sweeney, 70 M.J. at 301 (citations omitted). Appellant disputes this
point, asserting that Pros. Ex. 7 is testimonial in that it contains the result of not just
one but, instead, three tests on his urine sample. Appellant’s theory appears to be
that once the first positive result was achieved, the laboratory technicians using the
machines to perform the second and third tests must have understood that the
additional data generated would be used for criminal prosecution purposes. This
contention is invalid. Although the test for whether a “statement” is testimonial
focuses on whether the statement was made for the purpose of prosecution,
numerical data generated by a machine are not statements. Their admission,
therefore, does not implicate the Confrontation Clause.

       Nor does Pros. Ex. 14 contain any testimonial statements. The LAN sticker
was added to Pros. Ex. 14 before the sample was tested. The document was prepared
to link the samples to persons who produced them, not for the purpose of preparing
evidence for law enforcement. It was “made under circumstances, which, taken as a
whole, establish that [it was] made for an administrative rather than an evidentiary
purpose.” Tearman, 72 M.J. at 60. Appellant disagrees with this conclusion for two
reasons. First, appellant asserts that by adding the sticker, “the laboratory assistant
was in effect making the statement, ‘this social security number correctly
corresponds with this LAN.’” While this observation is correct, it merely shows that
the document contains hearsay. It does not show that the document is testimonial
for the purpose of the Confrontation Clause. Moreover, even if the document is
hearsay, it is still admissible under the business records exception to the hearsay
rule. Mil. R. Evid. 803(6). Second, appellant contends that Pros. Ex. 14 is a
document that was redacted for the purpose of admission at trial. We fail to see how
the redaction makes Pros. Ex. 14 testimonial. The redaction did not alter in any way
what Pros. Ex. 14 indicates about the link between the LAN and appellant’s social
security number; rather, it merely protected the personal information of other
soldiers in the unit.



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RODRIGUEZ—ARMY 20110153

                          Chain of Custody of Urine Sample

       In his second assignment of error, appellant makes two separate but related
contentions. First, appellant argues that Pros. Ex. 14 was improperly admitted as a
business record because it was redacted and it is not the “routine course of business”
for the laboratory to create redacted versions of the document. Appellant has cited
no support for the proposition that a business record ceases to be a business record if
portions of it are redacted for the purpose of trial. We observe that other courts
have admitted redacted documents as business records. See, e.g., SEC v. Sabhlok,
495 Fed. Appx. 786, 787 (9th Cir. 2012); United States v. Strother, 49 F.3d 869, 876
(2d Cir. 1995). We conclude that the document is still a business record even
though portions were omitted or blacked out. Appellant does not contend that
redaction in any way made the document misleading or inaccurate.

      Second, appellant asserts that because of the redactions to Pros. Ex. 14, the
government failed to present written evidence of the complete chain of custody of
appellant’s urine sample. We find no error. The chain of custody of the sample was
proved by the testimony of several witnesses. The government did not have to prove
the chain of custody through written documents. In addition, gaps in the chain of
custody “normally go to the weight of the evidence rather than its admissibility.”
Melendez-Diaz, 557 U.S. at 311 n.1.

                                Lay Opinion Evidence

      The records custodian at the drug testing laboratory in her testimony linked
appellant’s social security number to LAN T10G033807. Appellant objected that the
records custodian could not testify as a lay witness about this matter because she did
not have personal knowledge regarding the placement of the LAN sticker on the
document. In his third assignment of error, appellant argues that the military judge
abused his discretion when he overruled this objection. This argument lacks merit.

        The record custodian was personally aware of how the document at issue was
routinely filled out and what the sticker on the document indicated. She therefore
could testify about these matters. She further could offer her opinion that, based on
her review of the document, the LAN on the sticker corresponded to appellant’s
social security number. Military Rule of Evidence 701 authorizes lay witnesses to
give opinion testimony that is rationally based on the witness’s perception, is helpful
to determining a fact, and is “not based [on] scientific, technological, or other
specialized knowledge within the scope of [Mil. R. Evid.] 702.” Pursuant to this
rule, lay witnesses may provide opinions about the meaning of words, phrases, or
numbers in documents with which they are familiar. See, e.g., United States v.
Garcia, 291 F.2d 127, 139 (2d Cir. 2002) (lay witness may explain coded language
used by drug dealers). Here, the witness permissibly testified that the LAN




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RODRIGUEZ—ARMY 20110153

corresponded to appellant’s social security number based on the placement of the
sticker and her familiarity with the preparation of the form at the laboratory.

                                  CONCLUSION

      On consideration of the entire record, we hold the findings of guilty and
sentence as approved by the convening authority correct in law and fact.
Accordingly, the findings of guilty and sentence are AFFIRMED.

      Senior Judge KERN and Judge MARTIN concur.

                                       FOR THE
                                           THECOURT:
                                               COURT:




                                       MALCOLM H.
                                       MALCOLM       H.SQUIRES,
                                                        SQUIRES,JR.JR.
                                       Clerk of
                                       Clerk  ofCourt
                                                 Court




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