UNITED STATES, Appellee 

v. 

Henry A. MAGYARI, Draftsman First Class 

U.S. Navy, Appellant 

No. 05-0300 

Crim. App. No. 9801499 

United States Court of Appeals for the Armed Forces 

Argued January 11, 2006 

Decided May 10, 2006 

BAKER, J., delivered the opinion of the Court, in which GIERKE, 

C.J., and EFFRON and ERDMANN, JJ., joined. CRAWFORD, J., filed 

a separate opinion concurring in the result. 

Counsel

For Appellant: Captain Richard A. Viczorek, USMC (argued). 

For Appellee: Lieutenant Craig A. Poulson, JAGC, USNR (argued); 

Commander C. N. Purnell, JAGC, USN (on brief). 

Military Judge: Peter J. Straub 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Magyari, No.05-0300/NA 

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Judge BAKER delivered the opinion of the Court. 

Appellant was attached to the Commander, Submarine Force, 

U.S. Pacific Fleet (COMSUBPAC), in Pearl Harbor, Hawaii. On 

February 12, 1998, the Navy Drug Screening program randomly 

generated Appellant’s name for urinalysis testing at the Navy 

Base in Pearl Harbor. At the orders of COMSUBPAC command, 

Appellant, a petty officer, along with thirty-five to forty 

other servicemembers, provided a urine sample to the urinalysis 

coordinators. Appellant’s sample and eleven other samples from 

COMSUBPAC were received by the Navy Drug Screening Laboratory in 

San Diego, California, six days later. Appellant’s sample, 

identified with lab accession number S9802132117, was 

subsequently combined in a batch of 200 samples. Appellant’s 

sample tested positive for methamphetamine. Between receipt of 

the sample and release of the test results, approximately twenty 

lab personnel handled and/or tested Appellant’s sample. 

After a contested special court-martial before members, 

Appellant was convicted of wrongful use of methamphetamine, a 

schedule III controlled substance, in violation of Article 

112(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 

912(a) (2000). He was sentenced to a reduction to pay grade E-3 

and a bad-conduct discharge. His sentence was approved as 

adjudged by the convening authority, and except for the badconduct discharge, was ordered executed. 
United States v. Magyari, No.05-0300/NA 

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The United States Navy-Marine Corps Court of Criminal 

Appeals affirmed in an unpublished opinion, United States v. 

Magyari, No. NMCCA 9801499, 2000 CCA LEXIS 131, 2000 WL 703572 

(N-M. Ct. Crim. App. May 13, 2000). Upon Appellant’s petition, 

we granted review of the following issue: 

WHETHER, IN LIGHT OF CRAWFORD v. WASHINGTON, 541 U.S. 

36 (2004), APPELLANT WAS DENIED HIS SIXTH AMENDMENT 

RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHERE THE 

GOVERNMENT’S CASE CONSISTED SOLELY OF APPELLANT’S 

POSITIVE URINALYSIS. 

We answer in the negative and affirm the decision of the NavyMarine Corps Court of Criminal Appeals. As spelled out below, 

in the context of random urinalysis screening, where the lab 

technicians do not equate specific samples with particular 

individuals or outcomes, and the sample is not tested in 

furtherance of a particular law enforcement investigation, the 

data entries of the technicians are not “testimonial” in nature. 

Nonetheless, the lab results and reports must satisfy the 

standard for reliability established in Ohio v. Roberts, 448 

U.S. 56, 66 (1980). 

BACKGROUND 

Appellant testified at his court-martial that he was aware 

of the Navy’s zero tolerance policy on drug use and that he had 

never knowingly violated it. No witness testified to ever 

seeing Appellant use unlawful drugs in his fifteen years of 

naval service. 
United States v. Magyari, No.05-0300/NA 

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The Government’s case against Appellant consisted of a lab 

report from the Navy Drug Screening Laboratory in San Diego that 

showed Appellant’s urine sample tested positive for 

methamphetamine. The Government called four witnesses to 

introduce the evidence contained in the lab report. The 

Government called three witnesses stationed at COMSUBPAC in 

Hawaii, who were involved in the initial collection of 

Appellant’s urine sample. These witnesses included: Sonar 

Technician Chief Michael S. Szymonik, the urinalysis 

coordinator, Chief Operations Specialist Steve Hapeman, the 

designated urinalysis coordinator at the time of Appellant’s 

testing, and Fire Control Technician Chief David R. Chadwick, 

who observed the Appellant fill his sample bottle in the men’s 

head. One witness was called from the Navy Drug Screening 

Laboratory in San Diego, Mr. Robert J. Czarny, a civilian 

quality assurance officer. Mr. Czarny testified about how urine 

samples are handled and how results are generated at the 

Laboratory. Mr. Czarny signed off on Appellant’s report upon 

its release, but he was not personally involved in the handling 

or testing of Appellant’s sample. The Government did not call 

any of the lab technicians at the Navy Drug Screening Laboratory 

whose names appeared on the lab report and chain of custody 

documents, and who reviewed Appellant’s paperwork, tested his 

urine sample, or prepared the lab report. 
United States v. Magyari, No.05-0300/NA 

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Appellant’s defense counsel cross-examined Mr. Czarny, but 

did not call any of the other lab personnel who handled or 

tested Appellant’s urine sample. Appellant now argues that his 

constitutional right to confront the witnesses against him was 

violated and that any statements contained in the lab report 

that indicated his urine tested positive for the presence of 

methamphetamine were inadmissible testimonial hearsay and could 

not be used against him at trial. 

DISCUSSION 

When an error is not objected to at trial, plain error 

analysis applies. United States v. Gilley, 56 M.J. 113, 122 

(C.A.A.F. 2001). To prevail under a plain error analysis, 

Appellant must show that: (1) “there was an error; (2) it was 

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

substantial right.” United States v. Tyndale, 56 M.J. 209, 217 

(C.A.A.F. 2001). If Appellant meets his burden of showing plain 

error, the burden shifts to the Government to prove that any 

constitutional error was harmless beyond a reasonable doubt. 

United States v. Brewer, 61 M.J. 425, 430 (C.A.A.F. 2005). 

The Confrontation Clause of the Sixth Amendment states that 

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

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

U.S. Const. amend. VI. In Crawford v. Washington, the Supreme 

Court held that in order for the prosecution to introduce 
United States v. Magyari, No.05-0300/NA 

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“testimonial” out-of-court statements into evidence against an 

accused, the Confrontation Clause requires that the witness who 

made the statement be unavailable, and that the accused have had 

a prior opportunity to cross-examine the witness. 541 U.S. 36, 

53-54 (2004). 

Prior to Crawford, the admissibility of out-of-court 

statements was controlled by Ohio v. Roberts. Under Roberts, 

the statements of an out-of-court witness could be admitted 

against an accused if the statements carried adequate indicia of 

reliability. Roberts, 448 U.S. at 66. 

The Crawford Court departed from the Roberts framework for 

admitting out-of-court hearsay statements, and 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. Crawford, 541 U.S. at 51. “‘The 

lynchpin of the Crawford decision . . . is its distinction 

between testimonial and nontestimonial hearsay . . . .’” United 

States v. Scheurer, 62 M.J. 100, 104-05 (C.A.A.F. 2005) (quoting 

United States v. Hendricks, 395 F.3d 173, 179 (3rd Cir. 2005)). 

Where nontestimonial statements are at issue, the statements do 

not fall within Crawford’s scope and may be exempted from 

Confrontation Clause scrutiny altogether. Crawford, 541 U.S. at 

68. 
United States v. Magyari, No.05-0300/NA 

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However, the Crawford Court did not “spell out a 

comprehensive definition of ‘testimonial,’” leaving to lower 

courts the responsibility to determine which statements qualify 

as “testimonial” and fall within its scope. Id. Nevertheless, 

the Court identified three forms of “core” testimonial evidence. 

They include: (1) ex parte in-court testimony; (2) 

extrajudicial statements in formalized trial materials; and (3) 

statements made under circumstances that would cause a 

reasonable witness to believe they could be used at trial. Id.

at 51-52. Further, the Court identified examples of testimonial 

hearsay, including “prior testimony at a preliminary hearing, 

before a grand jury, or at a former trial; and . . . police 

interrogations.” Id. at 68. 

In addition, the Crawford Court linked its analysis to the 

legal policies underpinning the right to confrontation. It 

noted that the focus of the Confrontation Clause is to protect 

criminal defendants from prosecutorial abuse and the 

“[i]nvolvement of government officials in the production of 

testimony with an eye towards trial.” Id. at 56. Thus, the 

application of Crawford not only depends on the meaning of 

“testimonial,” but on the circumstances and context in which 

out-of-court statements are generated, and whether the out-ofcourt statements were made under circumstances that would lead 

an objective witness reasonably to believe that the statement 
United States v. Magyari, No.05-0300/NA 

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would be available for use at a later trial by the government. 

Id. at 52. 

The question before this Court is whether the data entries 

in Appellant’s urinalysis lab report made by the Navy Drug 

Screening Laboratory technicians constituted testimonial 

statements, or whether in the alternative, they represented 

nontestimonial hearsay, subject to the indicia of reliability 

analysis under Roberts. 

The Appellant contends that the data recorded in the lab 

reports are statements by the lab technicians and that these 

statements fall under the third category of core testimonial 

evidence identified in Crawford because the lab technicians 

would have anticipated that the lab report would be used against 

him at trial. The Government argues that the lab reports are 

business records and therefore are by definition nontestimonial 

in nature and fall outside Crawford’s scope. 

On the one hand, technicians working in government 

laboratories screening and testing urine samples are surely 

aware that a sample testing positive for a controlled substance 

may be used to prosecute the provider of the sample. On the 

other hand, not all urine samples test positive, and not all 

positive results end in prosecution. The record in this case 

reflects that the lab technicians work with batches of urine 

samples containing about 200 samples each. The technicians do 
United States v. Magyari, No.05-0300/NA 

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not equate a particular sample with a particular person; 

instead, they assign identification numbers to every sample. 

The vast majority of samples analyzed do not test positive for 

illegal substances. The lab technicians handling samples work 

in a nonadversarial environment, where they conduct routine 

series of tests requiring virtually no discretionary judgments. 

The lab technicians handling Appellant’s particular sample had 

no reason to suspect him of wrongdoing, and no reason to 

anticipate that his sample, out of all the 200 samples in the 

batch, would test positive and be used at a trial. 

In this context, the better view is that these lab 

technicians were not engaged in a law enforcement function, a 

search for evidence in anticipation of prosecution or trial. 

Rather, their data entries were “simply a routine, objective 

cataloging of an unambiguous factual matter.” United States v. 

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

State v. Dedman, 2004-NMSC-37, ¶ 30, 136 N.M. 561, 569, 102 P.3d 

628, 636 (finding that a blood alcohol report was prepared in a 

nonadversarial setting). Because the lab technicians were 

merely cataloging the results of routine tests, the technicians 

could not reasonably expect their data entries would “bear 

testimony” against Appellant at his court-martial. See

Commonwealth v. Verde, 827 N.E.2d 701, 704 (Mass. 2005) (drug 

tests are nontestimonial if they are “mere[ ] records of 
United States v. Magyari, No.05-0300/NA 

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primary fact, with no judgment or discretion on the part of the 

analysts”). This conclusion is consistent with the Crawford

Court’s policy concerns that might arise where government 

officers are involved “in the production of testimony with an 

eye toward trial” and where there is “unique potential for 

prosecutorial abuse” and overreaching. Crawford, 541 U.S. at 

56. 

Approximately twenty different people conducted tests, made 

clerical data notations in Appellant’s records, or at one time 

had physical custody of Appellant’s urine sample while it was at 

the Navy Drug Screening Laboratory. There is no indication that 

any of these individuals had reason, or were under pressure, to 

reach a particular conclusion about Appellant’s sample, number 

S9802132117, or that they had reason to distinguish sample 

number S9802132117 from the other thousands of samples routinely 

screened and tested by batch at the laboratory. 

To be clear, we reach this conclusion based on the facts of 

this case. The Government’s contention that lab reports are 

inherently not testimonial because they are business and public 

records goes too far. For sure, Appellant’s lab report is a 

business record. Military Rule of Evidence (M.R.E.) 803(6) 

implies that lab reports are included in the definition of 

business records because forensic laboratories are impartial 

examining centers and a laboratory report is a record of 
United States v. Magyari, No.05-0300/NA 

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“regularly conducted” activity. At trial, the Government 

elicited ample testimony verifying that Appellant’s report was 

completed in the normal course of the Navy Drug Screening 

Laboratory’s business. Further, lab results, DNA analyses, and 

hospital records, are oftentimes prepared in the course of 

routine, “regularly conducted” business. 

Nonetheless, the 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. See State 

v. Norman, 125 P.3d 15, 19 (Or. Ct. App. 2005) (concluding that 

the Sixth Amendment was not implicated where technicians did not 

function “as the proxy of the police investigation concerning 

[the] defendant”). Thus, 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. For example, 

cross-examination may be appropriate where a particular 

defendant is accused of rape and law enforcement conducts and 

seeks to admit the results from a blood or DNA test. See People

v. Rogers, 780 N.Y.S.2d 393, 397 (N.Y. App. Div. 2004). Crossexamination may also be necessary where a suspect is believed to 

have operated a vehicle under the influence of drugs or alcohol 

and a record or affidavit is prepared by hospital personnel for 

the prosecution’s use at trial. See Las Vegas v. Walsh, 91 P.3d 
United States v. Magyari, No.05-0300/NA 

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591, 595 (Nev. 2004), modified by 100 P.3d 658 (Nev. 2004). But 

these factors are not at play in the case addressed today and we 

need not and do not determine in what other contexts Crawford

might apply. 

Having determined the data entries in the lab report are 

not testimonial under Crawford, and that there was no plain 

error, we must still determine whether the lab reports were 

properly admitted as evidence at trial. In Scheurer, this Court 

held that when the Crawford framework does not apply, the “Ohio 

v. Roberts requirement for particularized guarantees of 

trustworthiness continues to govern confrontation analysis for 

nontestimonial statements.”1 62 M.J. at 106 (internal footnote 

omitted). 

This Court therefore analyzes Appellant’s claim under the 

Roberts framework, which provides that if “the declarant is 

unavailable to be cross-examined, the Confrontation Clause 

permits the admission of a hearsay statement in a criminal trial 

only if: (1) the statement ‘falls within a firmly rooted 

hearsay exception,’ or (2) it bears other ‘particularized 

guarantees of trustworthiness.’” Id. at 107 (quoting Roberts, 

448 U.S. at 66). 

 

1

 “Where nontestimonial hearsay is at issue, it is wholly consistent with the 

Framers’ design to afford the States flexibility in their development of 

hearsay law . . . .” Crawford, 541 U.S. at 68. 
United States v. Magyari, No.05-0300/NA 

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The first Roberts condition is satisfied here because the 

lab report was simply a record of “regularly conducted” activity 

of the Navy Drug Screening Laboratory that qualifies as a 

business record under M.R.E. 803(6), a firmly rooted hearsay 

exception. As the Supreme Court emphasized in Roberts, 

“[p]roperly administered the business and public records 

exceptions would seem to be among the safest of the hearsay 

exceptions.’” Roberts, 448 U.S. at 66 n.8 (internal quotation 

marks omitted). See also United States v. Bridges, 55 M.J. 60, 

63 (C.A.A.F. 2001) (business record exception is firmly rooted). 

The Roberts analysis is disjunctive, we need not determine 

whether the lab report at issue in this case carried other 

particularized guarantees of trustworthiness. Consequently, we 

conclude there was no error and that the lab report satisfies 

the requirements of the Roberts test for nontestimonial evidence 

and the statements contained in the lab report were properly 

admitted as evidence at Appellant’s trial. 

DECISION 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed. 
United States v. Magyari, No. 05-0300/NA 

 CRAWFORD, Judge (concurring in the result): 

 I respectfully concur in the result and note that “[t]he 

plain error issue is not unique to military practice . . . . 

[and] we should apply Supreme Court precedent in determining 

whether we correct an error not raised at trial.” United States 

v. Cary, 62 M.J. 277, 279 (C.A.A.F. 2006) (Crawford, J., 

concurring in the result).