UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          COOK, GALLAGHER AND HAIGHT
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                     Private E2 BRANDON M. ANDERSON
                         United States Army, Appellant

                                   ARMY 20110504

                             Fort Campbell Installation
                        Timothy Grammel, Military Judge
        Lieutenant Colonel Joseph B. Morse, Staff Judge Advocate (pretrial)
       Lieutenant Colonel Jeff A. Bovarnick, Staff Judge Advocate (post-trial)


For Appellant: Major Richard E. Gorini, JA; Captain James P. Curtin, JA (on brief).

For Appellee: Pursuant to A.C.C.A Rule 15.2, no response filed.


                                  14 November 2012

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


Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of wrongful use of cocaine and assault consummated by a
battery  in violation of Articles 112a and 128 of the Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. §§ 912a and 928. The military judge
sentenced appellant to a bad-conduct discharge, confinement for one year, forfeiture
of all pay and allowances, and reduction to the grade of E-1. The convening
authority approved the sentence and credited appellant with six days of confinement
against the sentence to confinement. This case is before us for review pursuant to
Article 66, UCMJ.



 Appellant was found not guilty of rape, Article 120, UCMJ, but guilty of the lesser-
included offense of assault consummated by a battery in violation of Article 128,
UCMJ.
ANDERSON— ARMY 20110504

        Appellant did not raise any assignments of error before this court. However,
at trial, appellant objected to the admission of a specimen custody document, DD
Form 2624, arguing that admission of the form would violate his Sixth Amendment
right to confront a witness against him. Over appellant’s objection, the military
judge admitted the document as evidence of appellant’s wrongful use of cocaine.
For the reasons below, we set aside appellant’s conviction for wrongful use of
cocaine, affirm the remaining finding,  and return the record of trial for a rehearing.
       
                                        FACTS

       Appellant provided a urine specimen during a random ten-percent unit-
urinalysis inspection. Appellant’s specimen was tested at the Fort Meade Forensic
Toxicology Drug Testing Laboratory (FTDTL) in Maryland. During the testing of
appellant’s specimen, several documents were created at the FTDTL which were
admitted into evidence, including a specimen custody document. The specimen
custody document in appellant’s case contains a handwritten notation indicating that
appellant’s specimen tested positive for cocaine. It also contains a certification, in
Block H, by Mr. Ronald Thompson, a laboratory certifying official, that “the
laboratory results indicated on this form were correctly determined by proper
laboratory procedures, and they are correctly annotated.”

       At trial, appellant contested the specification alleging wrongful use of
cocaine. During the merits phase of his court-martial, the specimen custody
document was offered through the government’s forensic toxicology and drug testing
expert, Captain (CPT) Lynn Wagner, the Deputy Commander of the Fort Meade
FTDTL. Captain Wagner worked at Fort Meade FTDTL but was not directly
involved in the testing of appellant’s specimen. Mr. Thompson, the laboratory
certifying official, was not called as a prosecution witness. Appellant objected to
admission of the specimen custody document on Confrontation Clause, authenticity,
and hearsay bases. The Confrontation Clause objection was that Mr. Thompson’s
certification and positive result annotation were testimonial. The military judge
overruled this objection, holding that those specific statements were not testimonial
because the urinalysis was random and the certifying official’s entries on the
specimen custody document were made prior to any request for litigation
information. The military judge also overruled appellant’s objections based on
authenticity and hearsay and the specimen custody document was admitted into
evidence. Thereafter, appellant was found guilty of wrongful use of cocaine in
violation of Article 112a, UCMJ.

                              LAW AND DISCUSSION

       The Sixth Amendment provides: “In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.” U.S.
C ONST . amend. VI, cl. 2. Accordingly, no testimonial hearsay may be admitted
against a criminal defendant unless (1) the witness is unavailable, and (2) the


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ANDERSON— ARMY 20110504

witness was subject to prior cross-examination. Crawford v. Washington, 541 U.S.
36, 53–54 (2004). 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.” United States v. Sweeney, 70 M.J. 296, 301
(C.A.A.F. 2011) (quoting United States v. Blazier (Blazier I), 68 M.J. 439, 442
(C.A.A.F. 2010)). Whether portions of the specimen custody document in this case
are testimonial, and whether their admission therefore violated the Confrontation
Clause, is a question of law that we review de novo. United States v. Harcrow, 66
M.J. 154, 158 (C.A.A.F. 2008) (citing United States v. Gardinier, 65 M.J. 60, 65
(C.A.A.F. 2007)). “In the context of constitutional error, the burden is on the
Government to establish that the [error was] harmless beyond a reasonable doubt.”
United States v. Flores, 69 M.J. 366, 369 (C.A.A.F. 2011) (internal citations and
quotations omitted). In “assessing harmlessness in the constitutional context, the
question is not whether the evidence was legally sufficient to uphold a conviction
without the erroneously admitted evidence.” Sweeney, 70 M.J. at 306 (quoting
United States v. Blazier (Blazier II), 69 M.J. 218, 226-27 (C.A.A.F. 2010)). Instead,
“the question is whether there is a reasonable probability that the evidence
complained of might have contributed to the conviction.” Id. (internal citations
omitted).

        Our superior court considered the testimonial nature of a specimen custody
document in United States v. Sweeney, 70 M.J. at 298 n.2, 304. First, the Court of
Appeals for the Armed Forces (CAAF) clarified that the Confrontation Clause
analysis must focus “on the purpose of the statements in the drug testing report
itself, rather than the initial purpose for the urine being collected and sent to the
laboratory for testing.” Id. at 302. CAAF distinguished the specimen custody
document from the usual chain of custody form due to the results and certification
sections which they characterized as “additional substantive information.” Sweeney,
70 M.J. at 299. Second, CAAF found under the facts of Sweeney that the
government did not present “any evidence of an alternate purpose of the documents
at issue.” Id. at 304 n.17 (distinguishing the case from the circumstances Justice
Sotomayor mentioned in Bullcoming v. New Mexico, 564 U.S. ___, ___, 131 S.Ct.
2705, 2722 (2011) (Sotomayor, J., concurring in part)). The court reached this
finding due in part to the “formal, affidavit-like” character of the specimen custody
document. Id. at 304. Consequently, CAAF held the specimen custody document,
which presented more than machine-generated numbers and did so in an affidavit-
like certification, was plainly “made for an evidentiary purpose” and was therefore
testimonial. Id. at 304 & n.17 (citing Bullcoming, 564 U.S. at ___, 131 S.Ct. at
2715).

      The specimen custody document in appellant’s case is the same form as that
found to be testimonial in Sweeney. Portions of it were generated after appellant’s
specimen tested positive for cocaine, and it includes a certification that the testing
was properly completed and correctly annotated. In rejecting an analysis that turns



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ANDERSON— ARMY 20110504

on the purpose of the collection of the urine, CAAF held “[W]here, as here, an
accused’s sample tests positive in at least one screening test, analysts must
reasonably understand themselves to be assisting in the production of evidence when
they perform re-screens and confirmation tests and subsequently make formal
certifications on official forms attesting to the presence of illegal substances, to the
proper conducting of the tests, and to other relevant information.” Sweeney, 70 M.J.
at 302-03. In addition, the government did not present evidence of an alternate
purpose for the specimen custody document itself. Although the collection of
appellant’s specimen was to ensure unit fitness, the purpose of Mr. Thompson’s
formalized certification was for use as evidence. See id. Therefore, we conclude
that this specimen custody document is testimonial. Furthermore, Mr. Thompson,
who certified the specimen custody document, was not called to testify at appellant’s
court-martial. Even though CPT Wagner testified about the specimen custody
document, the use of a surrogate witness who did not sign the certification or
perform or observe the test in question is not a constitutional substitute for the
cross-examination of the declarant whose testimonial statement is actually admitted
into evidence. Blazier II, 69 M.J. at 223–24. Consequently, the admission of the
specimen custody document violated the Confrontation Clause.

       After reviewing the entire record before us, we are not convinced that the
admission of this document was harmless beyond a reasonable doubt. See Delaware
v. Van Arsdall, 475 U.S. 673, 684 (1986); Sweeney, 70 M.J. at 306. The government
expert, CPT Wagner, testified extensively as to what the certification official’s role
had been regarding appellant’s sample. Captain Wagner further testified the
certifying official had re-verified that the social security number (SSN), the
laboratory accession number (LAN), the unit identification code (UIC), and the base
area code were all correctly identified on the document as a check and balance to
ensure the positive result was associated with the correct bottle. Additionally, the
certifying official annotated and certified as correct that appellant’s specimen was
positive for the cocaine metabolite. Based on a combination of CPT Wagner’s
testimony and the military judge’s full consideration of the specimen custody
document as properly admitted evidence, there is a reasonable probability that the
specimen custody document might have contributed to appellant’s conviction.
Accordingly, we conclude that admission of the specimen custody document was not
harmless beyond a reasonable doubt.

                                   CONCLUSION

       For the reasons discussed above, we hold that admission of the specimen
custody document violated appellant’s Sixth Amendment right to confront the
witness against him. Furthermore, based on the particular facts of this case, we hold
this error was not harmless beyond a reasonable doubt.




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ANDERSON— ARMY 20110504

       The findings of guilty of the Specification of The Additional Charge and The
Additional Charge are set aside. The remaining findings of guilty are affirmed.
After setting aside the findings of the Specification of The Additional Charge and
The Additional Charge, we find that the sentencing landscape has dramatically
changed. See United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States
v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006) (Baker, J., concurring) (additional citations
omitted). The record of trial is returned to The Judge Advocate General for
submission to the same or a different convening authority. That convening authority
may order a rehearing on the Specification of The Additional Charge and The
Additional Charge and the sentence. If the convening authority determines that a
rehearing on that charge is impracticable, he may dismiss the charge and order a
rehearing on sentence only.


                                      FOR THE COURT:




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




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