UNITED STATES, Appellee 

v. 

Joseph A. SWEENEY, Chief Legalman 

United States Navy, Appellant 

No. 10-0461 

Crim. App. No. 200900468 

United States Court of Appeals for the Armed Forces 

Argued May 17, 2011 

Decided August 30, 2011 

RYAN, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and ERDMANN, J., joined. BAKER, J., filed a separate 

opinion concurring in part and dissenting in part, in which 

STUCKY, J., joined. 

Counsel

For Appellant: Major Kirk Sripinyo, USMC (argued); Lieutenant 

Michael E. Maffei, JAGC, USN. 

For Appellee: Lieutenant Ritesh K. Srivastava, JAGC, USN 

(argued); Colonel Louis J. Puleo, USMC, Lieutenant Commander 

Sergio F. Sarkany, JAGC, USN, and Brian K. Keller, Esq. (on 

brief). 

Military Judge: David L. Bailey 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Sweeney, 10-0461/NA 

2

Judge RYAN delivered the opinion of the Court. 

Contrary to his pleas, Appellant was convicted by special 

court-martial of one specification of failure to go to his 

appointed place of duty, one specification of absence without 

leave, one specification of making a false official statement, 

and one specification of wrongful use of cocaine. Articles 86, 

107, 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 

886, 907, 912a (2006). He was sentenced to confinement for 

thirty days and a bad-conduct discharge. The convening 

authority approved the adjudged findings and sentence, and the 

United States Navy-Marine Corps Court of Criminal Appeals 

(NMCCA) affirmed. United States v. Sweeney, No. NMCCA 

200900468, slip op. at 4 (N-M. Ct. Crim. App. Apr. 29, 2010). 

 In the Blazier cases,1

 we set forth a straightforward path 

for analyzing the admissibility of drug testing reports under 

the Confrontation Clause. Prior to announcing our decision in 

Blazier II, we granted Appellant’s petition for review as a 

Blazier trailer to determine whether Appellant was denied his 

right of confrontation under the Sixth Amendment.2

 Applying the 

 

1

 United States v. Blazier (Blazier II), 69 M.J. 218, 222 

(C.A.A.F. 2010); United States v. Blazier (Blazier I), 68 M.J. 

439 (C.A.A.F. 2010). 

2

 On September 10, 2010, we granted the petition for review on 

two issues: 

I. WHETHER, IN LIGHT OF THE UNITED STATES SUPREME COURT’S 

RULING IN MELENDEZ-DIAZ v. MASSACHUSETTS, 557 U.S. __, 
United States v. Sweeney, 10-0461/NA 

3

principles we set forth in those cases as well as prior and 

subsequent Supreme Court precedent to the particular facts 

before us, we hold that Appellant was denied his right to 

confront the witnesses against him, and we remand to the court 

below for consideration of whether the error was harmless beyond 

a reasonable doubt. 

 

129 S. CT. 2527 (2009), THE ADMISSION INTO EVIDENCE OF 

THE NAVY DRUG SCREENING LABORATORY URINALYSIS 

DOCUMENTS VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT 

TO CONFRONT THE WITNESSES AGAINST HIM. 

II. WHETHER TRIAL DEFENSE COUNSEL’S OBJECTION TO THE DRUG 

LABORATORY REPORT CONSTITUTED A VALID CRAWFORD

OBJECTION. IF NOT, THEN WHETHER TRIAL DEFENSE COUNSEL 

WAIVED OR FORFEITED THE CONFRONTATION CLAUSE ISSUE, 

AND, IF FORFEITED, WHETHER ADMISSION OF THE REPORT 

CONSTITUTED PLAIN ERROR. 

On February 23, 2011, we specified an additional issue: 

WHETHER THE COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF 

LAW IN DECLINING TO APPLY MELENDEZ-DIAZ v. MASSACHUSETTS, 

129 S. CT. 2527 (2009), IN ASSERTING THAT UNITED STATES v. 

MAGYARI, 63 M.J. 123 (C.A.A.F. 2006), “FOUND DRUG 

LABORATORY REPORTS TO BE NON-TESTIMONIAL IN NATURE,” AND IN 

HOLDING (1) THAT DRUG LABORATORY DOCUMENTS WERE 

NONTESTIMONIAL IN NATURE, (2) THAT THE LAB REPORT WAS A 

RECORD OF A REGULARLY CONDUCTED ACTIVITY OF THE NAVY DRUG 

SCREENING LABORATORY THAT QUALIFIED AS A BUSINESS RECORD 

AND FIRMLY ROOTED HEARSAY EXCEPTION UNDER M.R.E. 803(6), 

AND (3) THAT THERE WAS NOTHING TO SUGGEST THAT THE LAB 

REPORT WAS GENERATED FOR COURT-MARTIAL USE. SEE UNITED 

STATES v. BLAZIER, 69 M.J. 218 (C.A.A.F. 2010); UNITED 

STATES v. BLAZIER, 68 M.J. 439 (C.A.A.F. 2010); AND UNITED 

STATES v. HARCROW, 66 M.J. 154 (C.A.A.F. 2008). 
United States v. Sweeney, 10-0461/NA 

4

I. BACKGROUND 

A. Facts

In February 2008, Appellant reported to the Navy 

Mobilization Processing Site (NMPS), Norfolk, after his 

unauthorized absence following his return from Iraq. NMPS 

policy required any member returning from an unauthorized 

absence of twenty-four hours or more to submit to a urinalysis. 

Thus, the Officer-in-Charge (OIC) ordered Appellant to provide a 

urine sample for testing, which Appellant did.3

 

 The Navy Drug Screening Laboratory (NDSL) tested 

Appellant’s sample. According to the Government’s expert 

witness, Mr. Albert Marinari, a NDSL employee, NDSL is a 

“forensic” laboratory whose “mission” is to “provid[e] 

urinalysis drug testing that is scientifically valid and 

forensically acceptable as evidence in courts of law,” and which 

employs certain procedures “to ensure that the integrity of . . 

. the evidence has been . . . preserved.” 

 

3

 Although the drug testing report’s specimen custody document 

indicates that the sample was submitted voluntarily, the 

military judge found, based on the OIC’s testimony, that 

Appellant submitted the sample pursuant to the OIC’s order. The 

military judge made this finding in the course of ruling on 

Appellant’s motion in limine to suppress the urinalysis results 

as the fruit of an unlawful search not justified by Military 

Rule of Evidence (M.R.E.) 313. The military judge denied that 

motion. Appellant has not appealed that ruling, and the issue 

is not before this Court. 
United States v. Sweeney, 10-0461/NA 

5

NDSL determined that Appellant’s sample was presumptively 

positive for cocaine and codeine in two immunoassay screen tests 

conducted on March 5, 2008. Thereafter, NDSL conducted a gas 

chromatograph/mass spectrometry (GC/MS) confirmation test for 

cocaine on March 7 and another one for codeine on March 12. All 

testing was complete by March 12. 

NDSL’s drug testing report includes chain of custody 

documents and machine-generated printouts of machine-generated 

data produced in the course of testing. It also contains “data 

review” sheets for each test, signed by various officials on the 

date of the test. The data review sheets for the cocaine and 

codeine GC/MS confirmation tests contain handwritten notations 

of the results. 

In addition to these documents, the report includes a 

“specimen custody document” signed by laboratory official “R. 

Flowers” on March 13 stating that the sample arrived with the 

package and bottle seals intact, indicating that the sample 

tested positive for cocaine and codeine, and certifying (unlike 

a typical chain of custody document) additional substantive 

information: that the “laboratory results indicated on this 

form were correctly determined by proper laboratory procedures, 

and they are correctly annotated.” Finally, the report includes 

a cover memorandum addressed to the Region Legal Service Office 

(RLSO) signed by Robert Sroka by direction, certifying that the 
United States v. Sweeney, 10-0461/NA 

6

immunoassay screens and GC/MS confirmation tests detected 

cocaine metabolites and opiate compounds in excess of Department 

of Defense (DOD) cutoffs. The cover memorandum is dated 

September 26 -- three weeks after Appellant was charged.4 

 Appellant’s special court-martial began on November 3, 

2008, and ended on May 6, 2009.5 The Government sought to preadmit the entire drug testing report (PE 13), as well as an 

unsigned “report summary” (PE 17) indicating that Appellant’s 

sample tested positive for cocaine and codeine. Defense counsel 

objected to pre-admitting the documents, citing “proper 

foundation” and “chain of custody.” Although the military judge 

commented that there would be “a Crawford objection” if the 

Government failed to call the “critical witnesses” and “lay the 

foundation for the documents,” defense counsel continued to 

focus on “foundation” and did not argue that any of the 

documents were testimonial. The military judge pre-admitted the 

documents subject to the Government “carrying out its 

obligations.” 

 

4

 Although Appellant initially was charged with wrongful use of 

both cocaine and codeine, the specification relating to codeine 

was subsequently dismissed. This appeal concerns only the 

specification charging wrongful use of cocaine. 

5

 The Supreme Court would not decide Melendez-Diaz until more 

than a month later, on June 25, 2009. And this Court would not 

decide the Blazier cases until 2010. At the time of trial, the 

Supreme Court had decided Crawford v. Washington, 541 U.S. 36 

(2004), and this Court had decided Magyari and Harcrow. 
United States v. Sweeney, 10-0461/NA 

7

In an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006), 

session, defense counsel objected to admission of “the lab 

things,” specifically naming a bottle and arguing that “under 

Crawford the individual that actually handled the bottle and had 

a piece in the process needs to be here too.” When the military 

judge asked why the bottle was “testimonial,” defense counsel 

began by stating, “it’s the urinalysis in general, sir, all of 

the documents, sir.” The military judge then focused defense 

counsel’s attention on the bottle. Defense counsel argued that 

the individual who signed the bottle label was providing 

testimony that that individual handled the bottle correctly. 

After the military judge rejected this argument and admitted the 

bottle,6 defense counsel stated that he had no further issues he 

wished to raise. 

 During the trial, the Government did not call either 

Flowers or Sroka as witnesses but instead called Mr. Marinari as 

an expert in forensic chemistry urinalysis testing and 

interpretation. Although Mr. Marinari signed both the cocaine 

confirmation test data review sheet as the “final lab certifying 

official” (FLCO)7

 and one of the chain of custody documents, he 

 

6

 Appellant has not appealed this ruling and does not argue that 

this colloquy constituted a Crawford objection to the drug 

testing report or report summary. 

7

 According to Mr. Marinari, his role as FLCO did not involve 

participation in or observation of the testing, but simply 

involved certifying the results of the GC/MS cocaine test after 
United States v. Sweeney, 10-0461/NA 

8

did not sign either the cover memorandum or the specimen custody 

document. Moreover, he testified that he did not perform any of 

the tests and was “not present when . . . any of the technicians 

did any of . . . their work,” including the collection, 

shipping, packaging, inspecting, or testing of the sample. When 

the Government sought to have Mr. Marinari discuss the NDSL drug 

testing report and publish it to the members, defense counsel 

again objected citing the “proper foundation” and “chain of 

custody” of the bottle. The military judge again overruled the 

objection, and defense counsel agreed that there was no issue 

with respect to the drug testing report. The military judge 

permitted the report to be introduced in its entirety. 

Mr. Marinari then testified as to the contents of the drug 

testing report. At various points in his direct examination, he 

testified that the report showed the presence of cocaine and 

codeine, at one point referencing the specimen custody document, 

and later referencing a machine-generated printout. Although he 

presented his opinions as his own, the Government introduced the 

entire drug testing report into evidence. On cross-examination, 

defense counsel sought to impeach the reliability of the tests. 

 

reviewing “all the chain of custody documents, and all the test 

data” and determining that the test “met all requirements 

established by DOD.” 
United States v. Sweeney, 10-0461/NA 

9

B. NMCCA Decision 

 The NMCCA found no error in the admission of the laboratory 

documents.8 Sweeney, No. NMCCA 200900468, slip op. at 3. The 

court relied entirely upon Magyari, which it characterized as 

holding that “drug laboratory documents [are] non-testimonial in 

nature.” Id. The court also found that, unlike the cover 

memorandum that this Court had by then deemed testimonial in 

Blazier I, “there is nothing to suggest that the lab report 

[here] was generated for court-martial use.” Id. at 3 n.1. 

Finally, the court applied the indicia of reliability test set 

forth in Ohio v. Roberts, 448 U.S. 56, 65-66 (1980), and 

concluded that the entire report was admissible pursuant to the 

“firmly rooted hearsay exception” for “business record[s].” 

Sweeney, No. NMCCA 200900468, slip op. at 3. 

II. LAW 

 “In all criminal prosecutions, the accused shall enjoy the 

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

U.S. Const. amend. VI.9

 Accordingly, testimonial hearsay may not 

 

8

 Despite finding that Appellant “waive[d]” his objection to the 

laboratory documents, Sweeney, No. NMCCA 200900468, slip op. at 

3 (citing Rule for Courts-Martial (R.C.M.) 905(e), Manual for 

Courts-Martial, United States (2008 ed.) (MCM)), the court 

nonetheless analyzed whether the admission of those documents 

was erroneous and did not apply the plain error test. 

9

 The “text of the Sixth Amendment” does not contain exceptions 

for the military. But see United States v. Sweeney, __ M.J. __ 

(3) (C.A.A.F. 2011) (Baker, J., dissenting). And our case law 

has more than once applied the Confrontation Clause to documents 
United States v. Sweeney, 10-0461/NA 

10

come into evidence without cross-examination of the declarant 

unless (1) the declarant is unavailable, and (2) the declarant 

was subject to prior cross-examination on the hearsay. Blazier

II, 69 M.J. at 222; see also Bullcoming v. New Mexico, 131 S. 

Ct. 2705, 2710 (2011) (“The accused’s right is to be confronted 

with the analyst who made the certification, unless that analyst 

is unavailable at trial, and the accused had an opportunity, 

pretrial, to cross-examine that particular scientist.”); accord

Cavitt, 69 M.J. at 414; United States v. Dollar, 69 M.J. 411, 

412 (C.A.A.F. 2011). 

 Although “reasonable minds may disagree about what 

constitutes testimonial hearsay,” Blazier II, 69 M.J. at 222, 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.” Blazier

I, 68 M.J. at 442 (quoting Crawford, 541 U.S. at 51-52) 

(quotation marks omitted). Thus, “[a] document created solely 

 

generated in the military urinalysis program. See United States 

v. Cavitt, 69 M.J. 413, 413 (C.A.A.F. 2011); Blazier II, 69 M.J. 

at 222. This case does not involve a statute, presidential 

rule, or judicial decision purporting to diminish the 

protections afforded by the Confrontation Clause in the military 

urinalysis context; nor has the Government attempted to 

demonstrate a military exigency requiring diminished protection. 

See, e.g., United States v. Jacoby, 11 C.M.A. 428, 433, 29 

C.M.R. 244, 249 (1960). Accordingly, we have no cause in this 

case to depart from Blazier II, in which we applied the 

Confrontation Clause according to the usual principles 

established by Supreme Court precedent. 
United States v. Sweeney, 10-0461/NA 

11

for an evidentiary purpose . . . made in aid of a police 

investigation, ranks as testimonial.” Bullcoming, 131 S. Ct. at 

2717 (quotation marks and citation omitted). We have held that 

testimonial statements include a formalized certification of 

results contained in a drug testing report requested by the 

prosecutor. Blazier I, 68 M.J. at 443; see also Bullcoming, 131 

S. Ct. at 2717; Melendez-Diaz, 129 S. Ct. at 2532. In Blazier 

II, we further observed that it “is well-settled that under both 

the Confrontation Clause and the rules of evidence, machinegenerated data and printouts are not statements and thus not 

hearsay -- machines are not declarants -- and such data is 

therefore not ‘testimonial.’” Blazier II, 69 M.J. at 224; cf.

Bullcoming, 131 S. Ct. at 2714 (noting that the 

“representations” contained in the testimonial statement at 

issue were “not revealed in raw, machine-produced data”). 

However, admission of and expert testimony about such documents, 

graphs, and charts may nevertheless implicate the rules of 

evidence. Blazier II, 69 M.J. at 224 (“Because machinegenerated printouts of machine-generated data are not hearsay, 

expert witnesses may rely on them, subject only to the rules of 

evidence generally, and M.R.E. 702 and M.R.E. 703 in 

particular.”). 

 What we have not previously decided is what precisely 

remains of Magyari after Melendez-Diaz, Blazier I, Blazier II, 
United States v. Sweeney, 10-0461/NA 

12

and Bullcoming. Answering that question here makes resolution 

of this case relatively straightforward. 

III. APPLICABILITY OF MAGYARI

 At the time of Appellant’s trial, the leading case applying 

Crawford to the admission of drug testing reports within the 

military justice system was Magyari because Melendez–Diaz, 

Bullcoming, Blazier I, and Blazier II had not yet been decided. 

Handicapped by the Supreme Court’s failure to give clear 

guidance as to how to determine whether hearsay was testimonial, 

see Crawford, 541 U.S. at 68 (“We leave for another day any 

effort to spell out a comprehensive definition of 

‘testimonial.’”), Magyari held that a drug testing report was 

nontestimonial in toto if those conducting the tests “were not 

engaged in a law enforcement function, a search for evidence in 

anticipation of prosecution or trial” and were “merely 

cataloguing the results of routine tests.” Magyari, 63 M.J. at 

126-27. Magyari concluded that drug tests initiated by a unit 

sweep are nontestimonial because “[t]here [was] no indication 

that any of [the laboratory technicians] had reason, or were 

under pressure, to reach a particular conclusion about [the 

accused’s] sample . . . or that they had reason to distinguish 

[the accused’s sample] from the other thousands of samples 

routinely screened and tested by batch at the laboratory.” Id.

at 127. Conversely, drug testing reports were testimonial 
United States v. Sweeney, 10-0461/NA 

13

“where the testing [was] initiated by the prosecution to 

discover incriminating evidence.” Id. (emphasis added); see

also Harcrow, 66 M.J. at 159 (holding that where the testing was 

initiated by the prosecution to discover incriminating evidence, 

the laboratory documents were testimonial). As a result, even 

after Melendez-Diaz, Blazier I, and Blazier II, the Courts of 

Criminal Appeals have continued to cite Magyari without further 

analysis as the basis for finding no error in the admission of 

all portions of a drug test report except the cover memorandum 

where the impetus behind the initial urinalysis was unit 

inspection, rather than law enforcement.10 

 But decisions of this Court and the Supreme Court since 

Magyari dictate that further analysis is required. First, it is 

emphatically not the case that a statement is automatically 

nontestimonial by virtue of it being a “routine” statement of 

 

10 See, e.g., United States v. Lusk, No. ACM S31624, 2010 CCA 

LEXIS 367, at *7-*8, 2010 WL 4068922, at *3 (A.F. Ct. Crim. App. 

Oct. 14, 2010); United States v. Dunn, No. ACM S31584, 2010 CCA 

LEXIS 169, at *27, 2010 WL 3981682, at *9 (A.F. Ct. Crim. App. 

Aug. 31, 2010); United States v. Weeks, No. ACM S31625, 2010 CCA 

LEXIS 193, at *6-*7, 2010 WL 4069035, at *3 (A.F. Ct. Crim. App. 

July 26, 2010); United States v. Burton, No. ACM S31632, slip. 

op. at 4 (A.F. Ct. Crim. App. June 18, 2010); United States v. 

Stewart, No. ACM S31685, 2010 CCA LEXIS 255, at *8-*9, 2010 WL 

4068947, at *3 (A.F. Ct. Crim. App. June 8, 2010); United States 

v. Nutt, No. ACM S31600, 2010 CCA LEXIS 198, at *11, 2010 WL 

2265272, at *4 (A.F. Ct. Crim. App. May 6, 2010); United States 

v. Robinson, No. NMCCA 200800827, 2010 CCA LEXIS 8, at *10-*12, 

2010 WL 31686, at *4 (N-M. Ct. Crim. App. Jan. 28, 2010); United 

States v. Skrede, No. 2009-09, 2009 CCA LEXIS 443, at *6 (A.F. 

Ct. Crim. App. Nov. 23, 2009). 
United States v. Sweeney, 10-0461/NA 

14

“unambiguous factual matters.”11 Magyari, 63 M.J. at 126 

(citations omitted). Indeed, “[m]ost witnesses . . . testify to 

their observations of factual conditions or events, e.g., ‘the 

light was green,’ ‘the hour was noon.’” Bullcoming, 131 S. Ct. 

at 2714. But this does not render such observations 

nontestimonial.12 Id. at 10-11. But see Magyari, 63 M.J. at 

126-27; Brief of Appellee at 20-24, United States v. Sweeney, 

No. 10-0461 (C.A.A.F. Nov. 23, 2010). 

 Second, Magyari and the dissent notwithstanding, see

Sweeney, __ M.J. at __ (9-11) (Baker, J., dissenting), more 

recent case law demonstrates that the focus has to be 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. The relevant question 

 

11 Magyari’s reasoning to the contrary relied, like the Supreme 

Judicial Court of Massachusetts in Melendez-Diaz, upon 

Commonwealth v. Verde, 827 N.E.2d 701 (Mass. 2005). The Supreme 

Court has specifically rejected Verde’s reasoning. See

Melendez-Diaz, 129 S. Ct. at 2532. 

12 That a statement is “routine” is relevant only to whether that 

statement is made in the “ordinary course of business” -- which 

of course does not determine whether the statement is 

testimonial. Blazier II, 69 M.J. at 226 n.8 (citing MelendezDiaz, 129 S. Ct. at 2538-40). Moreover, that “factual matters” 

may be “unambiguous” means only that a declarant need not be 

competent to perceive them; it does not mean the declarant was 

honest in reporting them -- an equal concern of the 

Confrontation Clause. See Bullcoming, 131 S. Ct. at 2715 

(noting that the purpose of cross-examining the declarant is to 

probe “incompetence, evasiveness, or dishonesty”) (emphasis 

added); Melendez-Diaz, 129 S. Ct. at 2537 (noting that the 

purpose of confrontation is to probe the witness’s competence 

and honesty). 
United States v. Sweeney, 10-0461/NA 

15

is thus whether the statement is “made under circumstances which 

would lead an objective witness reasonably to believe that the 

statement would be available for use at a later trial.” Blazier

I, 68 M.J. at 442 (quoting Crawford, 541 U.S. at 51-52) 

(quotation marks omitted). Asked another way, would it be 

reasonably foreseeable to an objective person that the purpose 

of any individual statement in a drug testing report is 

evidentiary? See Blazier I, 68 M.J. at 442 (noting that “fine 

distinctions based on the impetus behind the testing and the 

knowledge of those conducting laboratory tests” are “relevant” 

but not dispositive in determining whether the purpose of a 

“statement” is evidentiary). 

 Although those performing initial drug tests may well be 

“independent scientist[s]” carrying out “non-adversarial public 

dut[ies],” that does not mean that their statements are not 

produced to serve as evidence. See Bullcoming, 131 S. Ct. at 

2717 (quotation marks and citation omitted); Melendez-Diaz, 129 

S. Ct. at 2536-37. Where, 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 certifications13

 

13 As reflected in Bullcoming, the formality of a document 

generated by a forensic laboratory is a factor to be considered 
United States v. Sweeney, 10-0461/NA 

16

on official forms attesting to the presence of illegal 

substances, to the proper conducting of the tests, and to other 

relevant information.14 This is all the more evident where, as 

here, the Government expert testifies that the forensic 

laboratory’s “mission” is to “provid[e] urinalysis drug testing 

that is scientifically valid and forensically acceptable as 

evidence in courts of law.”15 

 

when determining whether a document is testimonial. See

Bullcoming, 131 S. Ct. at 2717 (holding that “the formalities 

attending the ‘report of blood alcohol analysis’ are more than 

adequate to qualify [the witness’s] assertions as testimonial”); 

see also Melendez-Diaz, 129 S. Ct. at 2543 (Thomas, J., 

concurring) (“I continue to adhere to my position that ‘the 

Confrontation Clause is implicated by extrajudicial statements 

only insofar as they are contained in formalized testimonial 

materials, such as affidavits, depositions, prior testimony, or 

confessions.’” (quoting White v. Illinois, 502 U.S. 346, 365 

(1992) (Thomas, J., concurring in part and concurring in the 

judgment))). 

14 Here, for example, the initial screen and re-screen tests were 

conducted on March 5, prompting a confirmation test for cocaine 

on March 7. Both the cover memorandum and specimen custody 

document were completed and signed after all testing was 

completed. 

15 The fact that a commander, as a matter of command prerogative, 

may forgo court-martial proceedings against an alleged wrongdoer 

and instead impose nonjudicial punishment, see, e.g., Article 

15(b), UCMJ, 10 U.S.C. § 815(b) (2006) (granting the commanding 

officer the discretion to “impose one or more . . . disciplinary 

punishments for minor offenses without the intervention of a 

court-martial”), cannot change the reality that the document 

was, on its face, created to serve as evidence. A different 

case might arise if the prosecution offers evidence at trial 

that raises an issue as to whether a particular document was not 

created to serve as evidence. Given the posture of this case, 

where the defense did not object to the admission of the 

documents on Confrontation Clause grounds, no such issue was 

raised or developed in this case. 
United States v. Sweeney, 10-0461/NA 

17

 In short, recent case law from this Court and the Supreme 

Court requires an examination of individual statements that goes 

beyond Magyari. We now turn to that examination. 

IV. PLAIN ERROR 

 In light of the above, and for the reasons set forth below, 

we hold that Appellant’s failure to object to the admission of 

the NDSL drug testing report on Confrontation Clause grounds was 

forfeited rather than waived in light of Magyari. In addition, 

we hold that testimonial hearsay was erroneously admitted; that 

the testimony of Mr. Marinari (who was not the declarant of the 

testimonial hearsay) did not satisfy the Confrontation Clause; 

and that these errors were plain and obvious. We remand to the 

Navy-Marine Corps Court of Criminal Appeals to determine whether 

these plain and obvious errors were harmless beyond a reasonable 

doubt. 
United States v. Sweeney, 10-0461/NA 

18

A. Waiver/Forfeiture16

 “Whereas forfeiture is the failure to make the timely 

assertion of a right, waiver is the ‘intentional relinquishment 

or abandonment of a known right.’” United States v. Olano, 507 

U.S. 725, 732 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 

464 (1938)); see also Harcrow, 66 M.J. at 156. “[T]here is a 

presumption against the waiver of constitutional rights, and for 

a waiver to be effective it must be clearly established that 

there was an intentional relinquishment of a known right or 

privilege.” Harcrow, 66 M.J. at 157 (quotation marks and 

citation omitted). To determine whether a failure to object was 

waiver or mere forfeiture, we look to the state of the law at 

the time of trial, and we will not find waiver where subsequent 

case law “opened the door for a colorable assertion of the right 

 

16 On appeal, Appellant challenges the testimony of Mr. Marinari 

and the admission of the drug testing report and results report 

summary as violating his right of confrontation. Brief of 

Appellant at 9, United States v. Sweeney, No. 10-0461 (C.A.A.F. 

Oct. 8, 2010). To challenge evidence, an accused must “stat[e] 

the specific ground of objection, if the specific ground was not 

apparent from the context.” M.R.E. 103(a)(1). At trial, 

Appellant did not object to the documents on Confrontation 

Clause grounds. Instead, as described above, all of Appellant’s 

objections were either that the documents lacked proper 

“foundation” or that a laboratory bottle not at issue here was 

testimonial. None of these objections was to the laboratory 

documents on Confrontation Clause grounds. See United States v. 

Mashek, 606 F.3d 922, 929-30 (8th Cir. 2010) (applying plain 

error review where the accused had not raised a Confrontation 

Clause objection although the judge had admitted evidence 

subject to the prosecution establishing proper foundation). 
United States v. Sweeney, 10-0461/NA 

19

to confrontation where it was not previously available.” Id. at 

157-58. 

 At the time of Appellant’s trial, he had no “colorable 

objection” and therefore did not voluntarily relinquish a 

“known” right of confrontation. Because Appellant’s urinalysis, 

like the urinalysis testing in Magyari, was not initiated at the 

outset by law enforcement, any objection by Appellant would have 

been overruled under Magyari -- as evidenced by the continued 

use of Magyari in the Courts of Criminal Appeals as the basis 

for finding no error in the admission of such tests, even in the 

aftermath of Melendez-Diaz, Blazier I, and Blazier II. See

supra note 10. And, tellingly, the CCAs have relied on Magyari

as the basis for reversing trial court judges who refused to 

admit drug testing reports without the testimony of the 

declarants of testimonial hearsay. See, e.g., Skrede, 2009 CCA 

LEXIS 443, at *6. Failing to make what would have been a 

meritless objection under Magyari’s interpretation of Crawford

cannot possibly signal either a strategic trial decision or a 

voluntary relinquishment of a “known” right, see Harcrow, 66 

M.J. at 158, in the context of the military justice system. We 

therefore review for plain error. 

B. Plain Error 

 Under plain error review, this Court will grant relief only 

where (1) there was error, (2) the error was plain and obvious, 
United States v. Sweeney, 10-0461/NA 

20

and (3) the error materially prejudiced a substantial right of 

the accused. Id. Where, as here, the alleged error is 

constitutional, the prejudice prong is fulfilled where the 

Government cannot show that the error was harmless beyond a 

reasonable doubt. Id. at 160. 

 We find plain and obvious error in the admission of two 

statements from the NDSL report. First, it was plain and 

obvious error to admit the cover memorandum results 

certification. The laboratory made the memorandum after 

Appellant had been charged, addressed it to the RLSO, and 

included the formulaic language for authenticating a business 

record -- language one would expect to find only on a document 

made for an evidentiary purpose. In all material respects, this 

formal, affidavit-like certification of results resembles those 

we found testimonial in Blazier I, and the declarant, Robert 

Sroka, was not subject to cross-examination. See Bullcoming, 

131 S. Ct. at 2715-17 (finding error in admitting a formalized 

certification of results through a surrogate witness without 

confrontation of the declarant); Blazier II, 69 M.J. at 223-24 

(finding error in admitting the Blazier I cover memoranda 

through a surrogate witness and without confrontation of the 

declarant). 

 Second, it was also plain and obvious error to admit the 

specimen custody document certification. This certification is 
United States v. Sweeney, 10-0461/NA 

21

a formal, affidavit-like statement of evidence that not only 

presented the machine-generated results, but also indicated 

“that the laboratory results . . . were correctly determined by 

proper laboratory procedures, and that they are correctly 

annotated.” See Bullcoming, 131 S. Ct. at 2715 (holding that 

the out-of-court declarant “certified to more than a machinegenerated number” when the statements included affirmations 

regarding accuracy and compliance with laboratory protocol). 

Such a formal certification has no purpose but to function as an 

affidavit. Because the declarant, “R. Flowers,” was not subject 

to cross-examination, admission of the specimen custody document 

plainly and obviously violated the Confrontation Clause. 

Furthermore, this violation was compounded when Mr. Marinari 

testified that the specimen custody document showed the presence 

of cocaine and codeine. See Blazier II, 69 M.J. at 226 (finding 

a violation of the Confrontation Clause where an expert witness 

repeated the substance of testimonial hearsay).17

 

17 Contrary to the dissent, this case does not involve any of the 

circumstances Justice Sotomayor mentioned in Bullcoming. First, 

“this is not a case in which the State suggested an alternate 

purpose, much less an alternate primary purpose, for the 

[specimen custody document].” See Bullcoming, 131 S. Ct. at 

2722 (Sotomayor, J., concurring in part) (emphasis in original). 

Although military readiness may be an “alternate purpose” of the 

testing, Mr. Marinari’s testimony makes clear that the formal, 

affidavit-like certification on the specimen custody document 

itself was made for an evidentiary purpose and not, as the 

dissent claims, to “assure[] commanders as well as members of 

the Armed Forces -- including those who have not engaged in 
United States v. Sweeney, 10-0461/NA 

22

 In finding that no testimonial hearsay was admitted, the 

NMCCA made several errors. First, the court cited Magyari for 

the proposition that all drug testing reports are 

nontestimonial. Sweeney, No. NMCCA 200900468, slip op. at 3. 

Second, in considering the admissibility of the drug testing 

report, the court overlooked the fact that while no request 

specified that the cover memorandum be made “for court-martial 

use,” the memorandum was requested by the RLSO after testing was 

complete, thus rendering the purpose for the memorandum facially 

evidentiary. See id. at 3 n.1. Third, it considered the drug 

testing report in toto without examining the admissibility of 

particular statements within the report. Finally, the court’s 

 

unlawful conduct -- that the program is being administered as 

intended” or to “assure[] commanders that they have an accurate 

understanding of the degree, if any, of controlled substance use 

(authorized and unauthorized) in their unit.” Sweeney, __ M.J. 

at __ (10) (Baker, J., dissenting). As noted supra note 15, it 

could be a different case had the Government presented any 

evidence of an alternate purpose of the documents at issue. 

Second, as described supra, Mr. Marinari testified that he was 

not present for any stage of the testing; he is therefore not “a 

supervisor who observed an analyst conducting a test [and who] 

testified about the results or a report about such results.” 

See Bullcoming, 131 S. Ct. at 2722 (Sotomayor, J., concurring in 

part). Third, “this is not a case in which an expert witness 

was asked for his independent opinion about underlying 

testimonial reports that were not themselves admitted into 

evidence.” See id. (Sotomayor, J., concurring in part). The 

specimen custody document was admitted into evidence. Finally, 

as the dissent acknowledges, “this is not a case in which the 

[Government] introduced only machine-generated results, such as 

a printout from a gas chromatograph.” See id. (Sotomayor, J., 

concurring in part). Bullcoming commands our decision in this 

case; it does not undermine it. 
United States v. Sweeney, 10-0461/NA 

23

reliance on Roberts and “firmly rooted hearsay exception[s]” to 

assess the admissibly of the report in light of the requirements 

of the Confrontation Clause is obsolete. Cavitt, 69 M.J. at 

414. Once these errors are corrected, it is plain and obvious 

that the cover memorandum and specimen custody document are 

testimonial. 

However, we do not find that the stamps, signatures, and 

other notations on the chain of custody documents and data 

review sheets, or the results report summary are “plainly and 

obviously” testimonial in the context of review for plain error. 

Although we are concerned in particular about the admission of 

the cocaine confirm data review sheet and results report summary 

-- both of which summarize test results -- these documents are 

not “plainly and obviously” testimonial as they are neither 

formalized, affidavit-like statements, see, e.g., Bullcoming, 

131 S. Ct. at 2717; Melendez-Diaz, 129 S. Ct. at 2532; Blazier 

I, 68 M.J. at 443, nor statements made in a formal setting, see, 

e.g., Hammon v. Indiana, 547 U.S. 813, 830 (2006) (holding that 

statements made during a police interrogation which took place 

in a formal setting rendered the statements “inherently 

testimonial”).18 Moreover, assuming arguendo these two documents 

 

18 While formality may not be the exclusive means of deciding 

whether a statement is testimonial, but see Michigan v. Bryant, 

131 S. Ct. 1143, 1167 (2011) (Thomas, J., concurring), the 

informal stamps, signatures, notations, and numbers are not so 
United States v. Sweeney, 10-0461/NA 

24

were testimonial, the error still would not be “plain and 

obvious”: one of the declarants of the data review sheet was 

Mr. Marinari himself, who testified. And because the results 

report summary does not name a declarant and was not discussed 

at trial, it is by no means plain and obvious that its declarant 

did not testify. 

An objection at trial, followed by more extensive 

development of the evidence and argument on its nature, might 

tip the balance the other way in an appropriate case. On this 

point, we agree with the dissent that “there is yet room for 

litigation over the underlying nature of military urinalysis 

documents.” Sweeney, __ M.J. at __ (14) (Baker, J., 

dissenting). Here, however, there was no objection, and the 

admission of the chain of custody documents, data review sheets, 

and results report summary did not constitute plain error. 

C. Prejudice 

 We grant relief for Confrontation Clause errors only where 

they are not harmless beyond a reasonable doubt. Delaware v. 

Van Arsdale, 475 U.S. 673, 684 (1986). Among other factors, we 

consider the importance of the unconfronted testimony in the 

prosecution’s case, whether that testimony was cumulative, the 

 

clearly testimonial as to meet the heightened “plain and 

obvious” standard applied on plain error review. 
United States v. Sweeney, 10-0461/NA 

25

existence of corroborating evidence, the extent of confrontation 

permitted, and the strength of the prosecution’s case. Id.

 We explained the harmless error inquiry in the context of 

the erroneous admission of testimonial hearsay in Blazier II: 

[The expert witness] could have arrived at an expert 

opinion based on training, education, experience and 

admissible evidence alone, and considered, but not 

repeated, inadmissible evidence in arriving at an 

independent expert opinion. Such expert opinion and 

admissible evidence together could have been legally 

sufficient to establish the presence of drug metabolite in 

the urine tested. See United States v. Barrow, 45 M.J. 

478, 479 (C.A.A.F. 1997). But 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. See Fahy v. 

Connecticut, 375 U.S. 85, 86 (1963). Rather, “‘[t]he 

question is whether there is a reasonable probability that 

the evidence complained of might have contributed the 

conviction.’” Chapman [v. California], 386 U.S. [18], 23 

(quoting Fahy, 375 U.S. 86-87). This determination is made 

on the basis of the entire record, and its resolution will 

vary depending on the facts and particulars of the 

individual case. 

Blazier II, 69 M.J. at 226-27. Here, as in Blazier II, the 

expert witness’s independent opinion combined with the 

admissible machine-generated printouts could have provided 

legally sufficient evidence to convict Appellant under Barrow

and Jackson v. Virginia, 443 U.S. 307 (1979). However, we 

remand to the Court of Criminal Appeals to determine the 

altogether different question whether the inadmissible succinct 

summaries and expert’s repetition of inadmissible hearsay were 

harmless beyond a reasonable doubt. 
United States v. Sweeney, 10-0461/NA 

26

V. CONCLUSION 

 Because the cover memorandum and specimen custody document 

contained in the NDSL report were plainly and obviously 

testimonial, the decision below is reversed, and the case is 

remanded to the United States Navy-Marine Corps Court of 

Criminal Appeals for consideration of whether the erroneous 

admission of testimonial hearsay was harmless beyond a 

reasonable doubt. 
United States v. Sweeney, No. 10-0461/NA 

BAKER, Judge, joined by STUCKY, Judge (concurring in part 

and dissenting in part): 

INTRODUCTION 

The majority reaches two conclusions. First, it concludes 

that it was plain and obvious error to admit the cover 

memorandum reporting the results of the urinalysis. United 

States v. Sweeney, __ M.J. __ (20) (C.A.A.F. 2011). This 

conclusion is supported by the holding in United States v. 

Blazier (Blazier II), 69 M.J. 218 (C.A.A.F. 2010), with which I 

concur. A cover memo drafted specifically for use at a courtmartial reporting urinalysis test results is testimonial and 

falls squarely within the Supreme Court’s Crawford v. Washington1

line of cases. 

Second, the majority concludes that it was also plain error 

to admit the specimen custody document certification, also known 

as Department of Defense (DD) Form 2624. Sweeney, __ M.J. __ at 

(20). This is the Department of Defense’s basic chain of 

custody form for running its urinalysis program, for purposes of 

military readiness as well as for purposes of military justice.2

 

 

1

 541 U.S. 36 (2004). 

2

 Among other things, the form records the accession numbers of 

up to twelve servicemembers, as well as a unit identification 

code and the batch number in which the specimen was tested, the 

substances tested for, and the result (negative or in the case 

of a positive, the drug involved, e.g., “cocaine”). The back of 

the form includes unit identification coding for the Army, Navy, 
United States v. Sweeney, No. 10-0461/NA 

2

I would not find plain error with respect to the admission of 

this document or any other urinalysis documents. 

As discussed below, Bullcoming v. New Mexico, 131 S. Ct. 

2705 (2011), delimits the reach of Crawford, as did Davis v. 

Washington, 547 U.S. 813 (2006), before. Among other things, 

Bullcoming requires lower courts to consider the primary purpose 

behind documents, and the statements therein, at the time they 

were created. 131 S. Ct. at 2717. Justice Sotomayor’s decisive 

concurring vote also suggests that an alternate purpose for 

creating the document and the statements therein may change the 

analysis as well. Id. at 2720. (Sotomayor, J., concurring in 

part). 

What the primary purpose was for filling out the DD 2624 at 

issue in this case at the time it was filled out, as well as the 

statements it contains if any, has not been litigated but can 

only be inferred at this point. However, clearly, there was an 

alternate purpose to the urinalysis document at issue in this 

case as well as the information it contained. This is manifest 

in Department of Defense regulations. It is manifest in the 

 

Marine Corps, and Air Force as well as spaces for persons 

handling the batch to document their custody. It also includes 

in block H the following “certification”: “I certify that I am 

a laboratory official, that the laboratory results indicated on 

this form were correctly determined by the proper laboratory 

procedures, and they are correctly annotated.” In this case, 

the certifying official is R. Flowers, who did not testify at 

Appellant’s trial. 
United States v. Sweeney, No. 10-0461/NA 

3

mission statement of the testing laboratory. And it is manifest 

from the testimony at trial. To the extent that the Supreme 

Court’s guidance is clear as to how it would apply in a military 

context, it is clear only with respect to the cover memorandum 

expressly prepared for trial as in Blazier II and in this case. 

As a separate matter, neither Bullcoming nor any other of the 

Supreme Court’s Crawford cases addresses the distinct and 

specific constitutional questions raised in the context of a 

military urinalysis program addressed to military readiness as 

well as military justice. Nor do these cases address the 

possible implications of other constitutional principles that 

might impact the analysis, including the President’s authority 

as Commander-in-Chief, Congress’s “Rules and Regulations” 

authority under Article I of the United States Constitution,3

 and 

exceptions contained within the text of the Sixth Amendment4

applied to members of the armed forces.5

 Whether the 

 

3

 U.S. Const. art I, § 8, cl. 14. 

4

 U.S. Const. amend. VI. 

5

 We know that the First Amendment, U.S. Const. amend I, may 

apply differently in the military context. Parker v. Levy, 417 

U.S. 733 (1974). Most importantly, we know that the Fourth 

Amendment, U.S. Const. amend. IV, may apply differently in 

military context, including military readiness inspections. 

Comm. For G. I. Rights v. Callaway, 518 F.2d 466, 474 (D.C. Cir. 

1975). In Comm. For G. I. Rights, the United States Court of 

Appeals for the District of Columbia Circuit upheld the 

constitutionality of an “administrative search exception” to the 
United States v. Sweeney, No. 10-0461/NA 

4

constitutional rights of military persons will be implicated in 

the same ways as civilians in the context of the Confrontation 

Clause6 and urinalysis has not been litigated or addressed by the 

Supreme Court or this Court.7 At a minimum, before this area of 

 

Fourth Amendment with regard to random drug testing of military 

personnel, reasoning: 

To strike the proper balance between legitimate 

military needs and individual liberties we must 

inquire whether “conditions peculiar to military life” 

dictate affording different treatment to activity 

arising in a military context. 

Id. at 476 (citing Carlson v. Schlesinger, 511 F.2d 1327, 1331 

(D.C. Cir. 1975)). The court held that the state’s strong 

public interest to ensure military readiness outweighs the 

privacy interests of servicemembers who already serve under 

considerably diminished Fourth Amendment rights. As the written 

statement, known as a circular, at issue in the case stated: 

Search and seizure restrictions do not limit the 

commander’s authority to conduct inspections. An 

inspection does not presuppose a criminal offense and 

is not a search for evidence. It may be used for the 

purpose of examining the clothing, equipment, and arms 

of a unit to determine its fitness and readiness to 

perform its mission, or to seek out contraband (e.g., 

illegal weapons, explosives, drugs). 

Id. at 474-75. 

6

 U.S. Const. amend. VI, cl. 3. 

7

 As the Comm. For G. I. Rights court recounted: 

[A] number of cases . . . have recognized the 

differences between military and civilian life and the 

constitutional standards to be applied to each. See, 

e.g., Parker v. Levy, 417 U.S. 733, 94 S. Ct. 2547, 41 

L. Ed. 2d 439 (1974); Secretary of the Navy v. Avrech, 

418 U.S. 676, 94 S. Ct. 3039, 41 L. Ed. 2d 1033 

(1974); Schlesinger v. Councilman, 420 U.S. 738, 95 S. 
United States v. Sweeney, No. 10-0461/NA 

5

law is set, the issues should be fully litigated and adjudicated 

at the appellate level before this Court. Contrary to the 

majority view, the issue that divides the majority and the 

dissent is not whether the confrontation clause applies but how. 

Until these issues are addressed, this Court should 

interpret Crawford and Bullcoming with a high degree of 

contextual caution. Moreover, without addressing these 

questions it is not clear how we can find plain error in the 

admission of urinalysis documents that are generated not for a 

specific trial, but as part of the military’s worldwide 

urinalysis program. Nevertheless, it appears unlikely that the 

drug testing report, other than the cover memorandum, is 

testimonial under Supreme Court precedent, especially given the 

circumstances of this case. 

 

Ct. 1300, 43 L. Ed. 2d 591 (1975); and Carlson v. 

Schlesinger, 511 F.2d 1327 (1975). While reaffirming 

the general principle that the members of the Armed 

Forces are entitled to constitutional protections, 

these cases stress that “the different character of 

the military community and of the military mission 

require a different application of those protections. 

The fundamental necessity for obedience, and the 

consequent necessity for imposition of discipline, may 

render permissible within the military that which 

would be constitutionally impermissible outside of 

it.” 

518 F.2d at 474 (citing Parker v. Levy, 417 U.S. at 758). 
United States v. Sweeney, No. 10-0461/NA 

6

DISCUSSION 

I. From Crawford to Bullcoming

In Crawford, 541 U.S. at 61, the Supreme Court held that 

the Sixth Amendment’s Confrontation Clause is not a guarantee of 

“amorphous notions of ‘reliability.’” It is not a substantive 

but a procedural right to “testing in the crucible of crossexamination” before admitting prior testimonial statements of 

witnesses who are unavailable at trial. Id. Further, the Court 

held that “even if the Sixth Amendment is not solely concerned 

with testimonial hearsay, that is its primary object, and 

interrogations by law enforcement officers fall squarely within 

that class.” Id. at 53; see Davis, 547 U.S. at 823. 

In Melendez-Diaz v. Massachusetts, the Supreme Court held 

that the Confrontation Clause required more than unsupplemented 

“affidavits,” and a witness must testify where the documents 

were “made for the purpose of establishing or proving some fact 

. . . [and were] functionally identical to live, in-court 

testimony.” 129 S. Ct. 2527, 2532 (2009). 

The Court subsequently refined and to a certain extent 

delimited Crawford. In Davis, for example, the Court introduced 

a “primary purpose” test holding that a 911 call was not 

testimonial because the statements were “made in the course of 

police interrogation under circumstances objectively indicating 

that the primary purpose of the interrogation is to enable 
United States v. Sweeney, No. 10-0461/NA 

7

police assistance to meet an ongoing emergency.” 547 U.S. at 

822. On the other hand, where the “primary purpose of the 

interrogation is to establish or prove past events potentially 

relevant to later criminal prosecution,” the statements are 

testimonial. Id. In Michigan v. Bryant, the Court applied the 

primary purpose test to hold admissible the statements of a man 

who had been shot, under an “ongoing emergency” primary purpose 

test: 

Because the circumstances of the encounter as well as 

the statements and actions of [the declarant] and the 

police objectively indicate that the primary purpose 

of the interrogation was to enable police assistance 

to meet an ongoing emergency, [the declarant’s] 

identification and description of the shooter and the 

location of the shooting were not testimonial hearsay. 

131 S. Ct. 1143, 1166-67 (2011) (citation and quotation 

marks omitted). 

Finally, in Bullcoming, the Court addressed a blood 

analysis report from the Scientific Laboratory Division of the 

New Mexico Department of Health -- a report created specifically 

and exclusively for a criminal trial in New Mexico. 131 S. Ct. 

at 2710. In that context, the majority concluded that the 

Confrontation Clause did not permit “the prosecution to 

introduce a forensic laboratory report containing a testimonial 

certification -- made for the purpose of proving a particular 

fact -- through the in-court testimony of a scientist who did 

not sign the certification or perform or observe the test 
United States v. Sweeney, No. 10-0461/NA 

8

reported in the certification.” Id. However, the majority also 

noted, “[t]o rank as ‘testimonial,’ a statement must have a 

‘primary purpose’ of ‘establish[ing] or prov[ing] past events 

potentially relevant to later criminal prosecution.” Id. at 

2714 n.6. 

Justice Sotomayor’s fifth and deciding vote delineates the 

opinion’s reach: 

First, this is not a case in which the State suggested 

an alternate purpose, much less an alternate primary

purpose, for the BAC report . . . . 

 

 Second, this is not a case in which the person 

testifying is a supervisor, reviewer, or someone else with 

a personal, albeit limited, connection to the scientific 

test at issue . . . . 

Third, this is not a case in which an expert witness 

was asked for his independent opinion about underlying 

testimonial reports that were not themselves admitted into 

evidence . . . . 

Finally, this is not a case in which the State 

introduced only machine-generated results, such as a 

printout from a gas chromatograph. . . 

Id. at 2722 (Sotomayor, J., concurring in part). 

II. Bullcoming Applied

The present case activates all but one of Justice 

Sotomayor’s caveats, placing into question how, if at all, 

Crawford applies to any of the underlying urinalysis documents 

in this case. However, one need look no further than the first 

of these caveats to determine that there was no plain error in 

this case with respect to the DD Form 2624 and the certification 
United States v. Sweeney, No. 10-0461/NA 

9

contained on it. Bullcoming clearly establishes a purpose test 

as a core element of the Crawford analysis. Indeed it suggests 

that the identification of an alternative purpose for the drug 

report and the information contained within it might change the 

analysis. Contrary to the majority opinion’s assertion, the 

sole purpose of military urinalysis testing in general, and 

particularly the information contained in the DD 2624 in this 

case, was not to “provid[e] urinalysis drug testing that is 

scientifically valid and forensically acceptable as evidence in 

courts of law,” employing “certain procedures ‘to ensure that 

the integrity of . . . the evidence has been . . . preserved.’” 

Sweeney, __ M.J. __ at (4) (alterations in original). That is 

relevant testimony, for sure. But it does not in fact address 

the question as to what, under Davis and Bullcoming, the primary 

purpose is behind military urinalysis testing in general, or 

more specifically what the primary purpose, or alternate purpose 

of the test and the information contained in the DD 2624 at 

issue in this case was at the time the form was filled out. 

Rather the quoted testimony responds to a line of questions 

about the reliability of urinalysis testing intended to give the 

members confidence in the result, not so that they can apply the 

Supreme Court’s analysis in Davis. 

Department of Defense regulations make it clear that, at 

minimum, there are alternate purposes for the creation of the 
United States v. Sweeney, No. 10-0461/NA 

10

custodial document, certification, and related attachments. The 

military drug testing program operates under Department of 

Defense regulations. Dep’t of Defense Dir. 1010.1, Military 

Personnel Drug Abuse Testing Program (Dec. 9, 1994) 

(incorporating Change 1, Jan. 11, 1999). This directive 

mandates three purposes for drug testing: (1) to deter military 

members and those entering active duty from abusing drugs; (2) 

“to permit commanders to detect drug abuse and assess the 

security, military fitness, readiness, good order, and 

discipline of their commands”; and (3) “as a basis to take 

action, adverse or otherwise (including referral for treatment), 

against a Service member based on a positive test result.” Id.

at para. 3.1. The certification at the bottom of the DD 2624 

therefore serves more than one purpose. It assures commanders 

as well as members of the armed forces -- including those who 

have not engaged in unlawful conduct -- that the program is 

being administered as intended. In other words, the 

certification helps to assure military members that they will 

not be victims of false positive tests. It also assures 

commanders that they have an accurate understanding of the 

degree, if any, of controlled substance use (authorized and 

unauthorized) in their unit. And, of course, the document can 

serve as a basis to initiate administrative, disciplinary, or 
United States v. Sweeney, No. 10-0461/NA 

11

criminal proceedings against a servicemember and provide a 

forensically sound basis for so doing.8

 

It is also noteworthy that the mission statement of the 

Navy Drug Screening Laboratory that created the Form DD 2624 at 

issue here includes a purpose distinct from the production of 

forensic evidence for prosecution. Indeed, the stated mission 

of the Navy Alcohol and Drug Abuse Prevention program under 

which the urinalysis testing is authorized, is to “support Fleet 

readiness by fighting alcohol abuse and drug use.”9

 Thus, it is 

clear that the laboratory has an alternate purpose for testing, 

documenting, and certifying laboratory reports. This readiness 

purpose is reflected in the Military Rules of Evidence (M.R.E.) 

as well. 

With the possible exception of a probable cause urinalysis, 

most urine collections are considered inspections under M.R.E. 

313. Under the rule, “[a]n ‘inspection’ is an examination of . 

. . a unit . . . as an incident of command the primary purpose 

of which is to determine and to ensure the security, military 

 

8

 The majority misapprehends the distinction between the majority 

and this dissent. The purpose of the drug testing is not 

determinative of the purpose behind any statements that may be 

testimonial that are contained in drug testing reports. 

However, the dissent believes that the purpose of the test may 

inform one’s judgment as to the purpose of any statement in the 

resulting report. 

9

 Navy Alcohol and Drug Abuse Prevention (OPNAV 135F), http:// 

www.public.navy.mil/bupers-npc/support/nadap/Pages/default2.aspx 

(last visited August 29, 2011). 
United States v. Sweeney, No. 10-0461/NA 

12

fitness, or good order and discipline of the unit.” M.R.E. 

313(b). It is unclear how one would assess the collection of 

M.R.E. 313(b) samples under the “primary purpose” test, 

including the test results documented on the DD 2624 in this 

case, because it has not been litigated and addressed. However, 

what is clear is that any documents and statements recording and 

validating the results of such an inspection, both positive and 

negative, would have as an alternate purpose, if not a primary 

purpose, the “military fitness, or good order and discipline of 

the unit.” This contrasts with the cover memorandum, which is a 

document generated after the results of an inspection became 

known, and after the decision to prosecute was taken for the 

sole purpose of presenting evidence at court-martial. 

Further, the record in this case suggests that the 

technicians conducting the lab testing would not necessarily 

anticipate the use of even positive results and their recording 

and validation of these results in criminal proceedings. Of 

course, questions were not posed to the witnesses at trial to 

explore this point of the Crawford analysis.10 However, civilian 

senior chemist Marinari testified that of the one million 

 

10 Whether this is important or not depends on how one reads the 

Crawford terminology: “statements . . . made under 

circumstances which would lead an objective witness reasonably 

to believe that the statement would be available for use at a 

later trial.” 541 U.S. at 52. 
United States v. Sweeney, No. 10-0461/NA 

13

samples tested in the Navy and Marine Corps that year, ninetynine percent were negative, which suggests that approximately 

ten thousand were screened positive. Given that there were 2966 

total cases tried by court-martial involving all offenses in the 

Navy and Marine Corps for that year,11 clearly not all positive 

urinalyses or their corresponding reports led to or were used at 

courts-martial. Indeed, it suggests that only a small 

percentage of such testing lead to courts-martial. In such a 

context, one would not expect a technician or lab supervisor to 

prepare a lab document with the assumption that it would be used 

for criminal prosecution. Moreover, the Army Health 

Promotion/Risk Reduction/Suicide Prevention Report (2010) (2010 

Report) confirms that a majority of positive test results do not 

go to criminal prosecution in the military.12 

This is not to say that the primary purpose, sole purpose, 

or an alternate purpose behind the use of the laboratory 

results, laboratory certifications, or laboratory forms in this 

 

11 Annual Report of the Code Committee on Military Justice 14 

(2007), reprinted in 67 M.J. LXXIII, CXXX (2008). 

12 The Medical Review Officer “clearance rate,” defined as “the 

percentage of excused positive tests” for warriors using 

prescription drugs in 2009 was 90%. 2010 Report at 44-45. 

Moreover, in 2009 there were 1,415 illicit drug use positives 

(excluding marijuana) not reported to law enforcement, and 

“consider[ing] the fact that 25% of all investigated drug cases 

lead to multiple subjects, this number could be closer to 2,000 

drug related subjects.” 2010 Report at 60. 
United States v. Sweeney, No. 10-0461/NA 

14

or any other case are, or are not, covered by Crawford. The 

point is that while there is yet room for litigation over the 

underlying nature of military urinalysis documents, there was no 

obvious and clear error in this case beyond the admission of the 

cover memorandum. The majority dismisses the existence of 

alternate purposes behind military drug testing by stating that 

the Government did not prove that there were any such purposes. 

However, this is a plain error case. Thus, the burden is on 

Appellant to demonstrate plain and obvious error not on the 

Government to demonstrate the lack of plain error. As to 

whether further Crawford error might lurk within the confines of 

additional urinalysis documents is a matter that has not been 

fully litigated before or after Bullcoming affected Crawford’s 

reach.13 It is tempting to create clarity with a blanket rule 

 

13 Justice Sotomayor’s second and third concurring caveats are 

also in play, but are not essential to the outcome of this case. 

Second, it is not clear after Bullcoming whether or not the 

testimony of Mr. Marinari as a lab supervisor is adequate under 

Crawford to satisfy the confrontation clause with respect to the 

underlying tests and materials. Justice Sotomayor’s concurrence 

does not answer this question, but puts it into play. “It would 

be a different case if, for example, a supervisor who observed 

an analyst conducting a test testified about the results or a 

report about such results.” 131 S. Ct. at 2722 (Sotomayor, J., 

concurring in part). Is Mr. Marinari such an official? Is he 

such an official for the purposes of Form DD 2624? These 

questions were not litigated at trial for the purposes of 

Bullcoming and the parties have not had the opportunity to make 

their arguments on this point. 

Justice Sotomayor’s third caveat is implicated as well, though 

less directly. That is because this is a case where the expert 

witness was asked for his independent opinion about underlying 
United States v. Sweeney, No. 10-0461/NA 

15

that reaches beyond Crawford and Bullcoming. But the issues 

involved are too important and the impact is too significant to 

apply Crawford in a robotic manner without first fully 

litigating and exploring the nuances that the Supreme Court 

identified in Bullcoming, as well as the military context in 

which these issues are raised. 

III. The Military Context Has Not Been Addressed 

There is an additional problem in applying Crawford in a 

mechanical manner without further litigation: the Supreme 

Court’s Crawford cases do not address military-specific 

distinctions at all. That should be done by this Court, in the 

first instance. At least three significant distinctions are in 

play, in addition to those identified by Justice Sotomayor. 

First, while the Supreme Court’s analysis adopts a primary 

 

testimonial reports; however, the underlying testimonial reports 

were themselves admitted into evidence. Thus, Bullcoming does 

not speak directly to this case on this point, but it can be 

read to suggest that where the reports themselves are admitted 

there may be a Crawford problem. In any event, Blazier II has 

already addressed the basic point: an expert witness may, 

pursuant to M.R.E 703, offer an independent opinion about 

underlying testimonial reports. 69 M.J. at 224; see United 

States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009) (“Crawford

forbids the introduction of testimonial hearsay as evidence in 

itself, but it in no way prevents expert witnesses from offering 

their independent judgments merely because those judgments were 

in some part informed by their exposure to otherwise 

inadmissible evidence”). The harder and more contextual 

question is whether the admission of such expert testimony can 

render harmless the admission of Crawford-triggering report 

testimony. Our cases have not been litigated at the appellate 

level with this issue in mind. 
United States v. Sweeney, No. 10-0461/NA 

16

purpose test, and perhaps an alternate purpose test, the Supreme 

Court’s discussion of alternative purposes is directed to 

medical or administrative purposes, but not a context where the 

alternate or primary purpose is military readiness. Whether 

that would or should change the analysis is not settled, and the 

issue has not been litigated or decided at any appellate level. 

That also means that the Crawford cases do not address 

circumstances where there are potentially competing or 

countervailing constitutional principles found in Articles I and 

II. The constitutional issue in each of the Crawford cases is 

directed solely to the Confrontation Clause. Therefore, the 

question is open as to whether the analysis or interpretation 

might be different if, for example, additional constitutional 

authorities are implicated. If the President expressly 

authorized a urinalysis program for the purpose of military 

readiness, would that change the analysis? The question has not 

been litigated or addressed. To be clear, the issue is not 

whether the Confrontation Clause applies. It does. The 

question is how. However, if the analysis in the military 

context were that simple, we should simply cite the text of the 

Confrontation Clause and remand. Moreover, if it were that 

plain and obvious, then it should be clear which of the other 

underlying documents admitted constitute plain error. 
United States v. Sweeney, No. 10-0461/NA 

17

Third, and least important, the practical impact of its 

ruling in Bullcoming was important enough to the Supreme Court 

that it was included in the Court’s majority opinion and 

dissent. Therefore, it should be fully litigated and addressed 

in the military context as well. For example, the majority and 

dissenting opinions in Bullcoming address the administrative 

impact of the decision on the ability of state authorities and 

state laboratories to comply with Crawford, including the 

potential distances a lab technician might have to travel. 131 

S. Ct. at 2728 (Kennedy, J., dissenting). However, the opinion 

clearly is not intended to address the impact of Crawford on 

running a national and even worldwide military laboratory 

testing program. Thus, the Bullcoming Court did not contemplate 

the potential for travel to Afghanistan, Iraq, or such other 

worldwide locations where a court-martial might occur, or the 

potential operational consequences of compelling commanders to 

withdraw servicemembers from the field for courts-martial in the 

continental United States to avoid the difficulties of procuring 

extensive travel for a laboratory technician. Neither is it 

clear what the implications to military readiness, if any, will 

be if this Court applies Crawford as proposed by the majority. 

For example, will this Court’s application of Crawford cause the 

government to revise the checks and balances currently used to 

ensure the military’s urinalysis program is a reliable tool of 
United States v. Sweeney, No. 10-0461/NA 

18

military readiness and discipline by limiting or avoiding the 

use of certifications? Such issues should be explored as part 

of or parallel to any sweeping Crawford pronouncements. 

Conclusion

Based on the foregoing reasons, I would not find plain 

error in this case with respect to any of the urinalysis 

documents other than the cover memorandum. I would not reach 

further. Given the importance of the Crawford line of cases in 

upholding an accused’s right to confrontation and given the 

importance of the urinalysis program to military readiness and 

not just discipline -- in short, the larger importance of 

performing drug tests and ensuring their accuracy -- such 

conclusions should await the full litigation of the issues 

identified above. 

Whether the admission of the cover memorandum was harmless 

beyond a reasonable doubt is a question of prejudice that this 

Court is well situated to address. A remand on this point could 

be reasonable in light of the expertise of Courts of Criminal 

Appeals in assessing trial impact. However, in this uncertain 

and changing context, this Court should take the lead in 

addressing prejudice in this case. It is this Court and perhaps 

ultimately the Supreme Court, and not the Courts of Criminal 

Appeals, that will determine which of the underlying documents, 
United States v. Sweeney, No. 10-0461/NA 

19

marks, and measurements are “testimonial” and what weight such 

testimony bears.