United States v. Washington , 498 F.3d 225 ( 2007 )

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge TRAXLER joined. Judge MICHAEL wrote a dissenting.

OPINION

NIEMEYER, Circuit Judge:

Dwonne Washington was convicted of driving on the Baltimore-Washington Parkway, in the territorial jurisdiction of the United States in Prince George’s County, Maryland, while under the influence of alcohol or drugs, in violation of 36 C.F.R. § 4.23(a)(1), and of unsafe operation of a vehicle, in violation of 36 C.F.R. § 4.22.

At trial, the government offered, over Washington’s objection, the expert testimony of Dr. Barry Levine, the Director of the Forensic Toxicology Laboratory of the Armed Forces Institute of Pathology, to prove that a blood sample, taken from Washington the night of his arrest and tested at Dr. Levine’s lab, contained phen-cyclidine (“PCP”) and alcohol and that Washington’s conduct and unsafe driving during the night of his arrest were attributable to the presence of PCP and alcohol in Washington’s blood. In Washington’s view, the raw data generated by the forensic lab’s diagnostic machines and relied on by Dr. Levine to give his testimony amounted to testimonial hearsay statements of the lab technicians who operated the machines. As a result, Washington claims that Dr. Levine’s testimony was not admissible, as Washington had a right to confront the technicians and cross-examine them by reason of the Sixth Amendment’s Confrontation Clause. See Davis v. Washington, -U.S. -, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The magistrate judge overruled Washington’s objection, admitted Dr. Levine’s testimony, and found Washington guilty of the charges.

On appeal, Washington continues to maintain that the machine-generated data amounted to testimonial hearsay statements of the machine operators, and that at trial, Dr. Levine merely restated the hearsay statements of the operators, in violation of the Confrontation Clause and the hearsay rule. See Fed.R.Evid. 802.

Without deciding whether Dr. Levine’s testimony actually introduced into evidence the raw data on which he relied to give his testimony, we nonetheless conclude that the data on which Dr. Levine relied (1) did not constitute the statements of the lab technicians; (2) were not hearsay statements; and (3) were not testimonial. Accordingly, we conclude that the magistrate judge did not abuse his discretion in admitting the testimony of Dr. Levine and affirm.

I

At 3:30 a.m. on January 3, 2004, Officer Gary Hatch of the United States Park Police was patrolling the Baltimore-Washington Parkway when he saw a car going approximately 30 miles per hour in an area posted with a speed limit of 55 miles per hour. Officer Hatch stated that it was “as though [the car] was almost standing still.” Officer Hatch turned on his siren and flashing lights to pull the car over to find out “why they were going so slow,” but the car did not stop. Accelerating and decelerating, pulling off onto the shoulder, and then back onto the road, the car continued to meander along the parkway as Officer Hatch pursued it with his siren and flashing lights. Only with the assistance of another park police officer, who maneuvered in front of the car, was Officer Hatch able to force the car to stop.

Officer Hatch approached the car and saw Dwonne Washington in the driver’s seat staring disaffectedly straight ahead. Washington did not respond to Officer Hatch’s directives to show his hands or to open the car door. According to Officer Hatch’s experience, when someone is completely unresponsive to commands or his surroundings, he is usually under the “influence of some type of narcotic or strong influence of alcohol.” When Officer Hatch opened the door, he caught a “very strong smell of POP.”

Officer Hatch removed Washington from the car, placed him in handcuffs, and again asked him “basic questions to see if he would start responding to anything.” Washington did not respond to any of Officer Hatch’s questions, “including simply what his name was,” although Washington did say that he had “smoked a little something earlier.” Based on the strong POP odor and Washington’s flat, unresponsive demeanor, Officer Hatch took Washington to a hospital where Washington agreed to give a blood sample for testing. The blood sample was sent for analysis to the Armed Forces Institute of Pathology, a branch of the Department of Defense, which performs alcohol and drug testing for Walter Reed Hospital as well as for military and civilian court cases. Officer Hatch requested that the sample be tested for “ethanol” and for “other drugs.”

The Institute’s Forensic Toxicology Laboratory subjected the blood sample to “headspace gas chromatography” to identify whether ethanol was in the blood and to “immunoassay or chromatography” to screen for the presence of amphetamine, barbiturates, benzodiazepines, cannabi-noids, cocaine, opiates, and phencyclidine, using a Hewlett Packard HP 6890 Series gas chromatograph machine and computers with HP ChemStation software. After lab technicians subjected the blood sample to testing, the instruments printed out some 20 pages of data and graphs. Based on the data, the director of the lab and its chief toxicologist, Dr. Barry Levine, issued a report to the United States Park Police, stating that the blood sample “contained 27 mg/dL of ethanol” and that the sample tested positive for phencyclidine, containing “0.04 mg/L of phencyclidine as quanti-tated by gas chromatograph/spectrome-try.” While Dr. Levine did not see the blood sample and did not conduct any of the tests himself, three lab technicians operating under his protocols and supervision conducted the tests and then presented the raw data from the tests to him.

The raw data were mechanical computer printouts with each page headed by the date of the test, the machine operator, an identification of the sample, its dilution factor, and other similar information, and containing computer-generated graphs and data reporting the results produced by the chromatograph machine.

Based on Dr. Levine’s report, the government charged Washington by citation with driving under the influence of alcohol or drugs, unsafe operation of a vehicle, and other Class B misdemeanors relating to his driving and arrest.

At trial, the court accepted Dr. Levine as an expert witness and admitted his testimony under Rules 702 and 703 of the Federal Rules of Evidence, concluding that Dr. Levine was (1) “somebody who is qualified to give his opinion as to the results of the tests performed on blood samples in this particular case,” and (2) “as an expert toxicologist as to the toxic effects of POP and alcohol on human behavior.” In his testimony, Dr. Levine summarized his report, stating that the tests showed that Washington’s blood ethanol concentration was 27 milligrams per deciliter and his phencyclidine concentration was .04 milligrams per liter. Dr. Levine also gave his expert opinion that the presence of PCP and alcohol in Washington’s blood was consistent with “the behavior of somebody who was non-responsive to a police officer on the side of a road,” as Officer Hatch had reported in this case about Washington.

Washington objected to Dr. Levine’s testimony insofar as he stated that Washington’s blood sample contained PCP and alcohol, arguing that Dr. Levine never personally saw his blood sample nor personally performed the testing. Washington argued that Dr. Levine’s reliance upon the raw data obtained by his lab technicians from the diagnostic machines violated his rights under the Confrontation Clause of the Sixth Amendment. In Washington’s view, he was entitled to confront the lab technicians who actually saw his blood and placed it in the testing machines.

The magistrate judge overruled Washington’s objections and admitted Dr. Levine’s testimony. At the conclusion of the two-day trial, the magistrate judge found Washington guilty of the crimes charged and sentenced him to 60 days’ imprisonment. The district court affirmed, and this appeal followed, raising solely the question of the admissibility of Dr. Levine’s testimony.

II

Washington begins his argument with the observation that “Dr. Levine did not participate in any of the testing on the blood sample in this case.” Rather, he notes, Dr. Levine relied upon data generated by the lab’s diagnostic machines, operated by various lab technicians. He then argues that these “reports” of raw data were hearsay “testimonial statements,” as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), of the various lab technicians. Because the technician-witnesses were not unavailable, Washington concludes that it was a violation of his rights under the Confrontation Clause not to have the technicians in the courtroom and instead to admit their hearsay statements — i.e., the machine-generated reports of raw data — through Dr. Levine’s testimony.

The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. YI. In Crawford, the Supreme Court held that the Confrontation Clause bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 541 U.S. at 53-54, 124 S.Ct. 1354 (emphasis added). Only “testimonial statements” “cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Davis v. Washington, — U.S. -, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006) (citation omitted).

In the case before us, the “statements” in question are alleged to be the assertions that Washington’s blood sample contained PCP and alcohol. But those statements were never made by the technicians who tested the blood. The most the technicians could have said was that the printed data from their chromato-graph machines showed that the blood contained PCP and alcohol. The machine printout is the only source of the statement, and no person viewed a blood sample and concluded that it contained PCP and alcohol. Yet, the very same data that would have permitted the lab technicians to say that the blood contained PCP and alcohol were also seen and interpreted by Dr. Levine. Moreover, those data were the only basis upon which Dr. Levine stated in court that the blood sample contained PCP and alcohol. In short, the inculpating “statement” — that Washington’s blood sample contained PCP and alcohol — was made by the machine on printed sheets, which were given to Dr. Levine. The technicians could neither have affirmed or denied independently that the blood contained PCP and alcohol because all the technicians could do was to refer to the raw data printed out by the machine. Thus, the statements to which Dr. Levine testified in court — the blood sample contained PCP and alcohol — did not come from the out-of-court technicians, and so there was no violation of the Confrontation Clause.

Moreover, there would be no value in cross-examining the lab technicians on their out-of-court statements about whether the blood sample tested positive for PCP and alcohol because they made no such statements. They would only be able to refer to the machine’s printouts, which Dr. Levine also had. The value of cross-examination might relate to authentication or to a description of the machines or to the chain of custody, but none of these were issues at trial, nor are they issues on appeal. Whether the machines properly reported PCP or alcohol is determined by the raw data that the machines generated, and its truth is dependent solely on the machine.

Thus, we reject the characterization of the raw data generated by the lab’s machines as statements of the lab technicians who operated the machines. The raw data generated by the diagnostic machines are the “statements” of the machines themselves, not their operators. But “statements” made by machines are not out-of-court statements made by declarants that are subject to the Confrontation Clause.

A “statement” is defined by Federal Rule of Evidence 801(a) as an “(1) oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.”¹ (Emphasis added). Obviously, the lab technicians made no statements of any kind, and they did not say or write the information generated by the machines. The machines generated data by manipulating blood through a common scientific and technological process. The lab technicians’ role was simply to operate the machines. The “statement” that Washington’s blood contained PCP and alcohol is a conclusion drawn only from the machines’ data, and its source was independent of human observation or reporting. Only the machine, through its diagnostic and technical process, could provide facts about the chemical composition of Washington’s blood. Accordingly, the raw data generated by the machines were not the statements of technicians.²

Additionally, this raw data generated by the machines were not hearsay statements as implicated by the Confrontation Clause. Hear-say is understood to be “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.Evid. 801(c) (emphasis added). “A de-clarant is a person who makes a statement.” Fed.R.Evid. 801(b) (emphasis added). And a “statement,” to repeat, is an “(1) oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” Fed.R.Evid. 801(a) (emphasis added). Only a person may be a declarant and make a statement. Accordingly, “nothing ‘said’ by a machine ... is hear-say.” 4 Mueller & Kirkpatrick, Federal Evidence, § 380, at 65 (2d ed.1994). See United States v. Hamilton, 413 F.3d 1138, 1142-43 (10th Cir.2005) (concluding that the computer-generated header information accompanying pornographic images retrieved from the Internet was not a hearsay statement because there was no “person” acting as a declar-ant); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir.2003) (concluding that an automatically generated time stamp on a fax was not a hearsay statement because it was not uttered by a per-son); People v. Holowko, 109 Ill.2d 187, 93 Ill.Dec. 344, 486 N.E.2d 877, 878-79 (1985) (concluding “that the printout of results of computerized telephone tracing equipment is not hearsay evidence” but rather “a self-generated record of its operations”) (citations omitted).

In short, the raw data generated by the machines do not constitute “statements,” and the machines are not “declarants.” As such, no out-of-court statement implicating the Confrontation Clause was admitted into evidence through the testimony of Dr. Levine.

Any concerns about the reliability of such machine-generated information is addressed through the process of authentication not by hearsay or Confrontation Clause analysis. When information provided by machines is mainly a product of “mechanical measurement or manipulation of data by well-accepted scientific or mathematical techniques,” 4 Mueller & Kirkpatrick, supra § 380, at 65, reliability concerns are addressed by requiring the proponent to show that the machine and its functions are reliable, that it was correctly adjusted or calibrated, and that the data (in this case, the blood) put into the machine was accurate (i.e., that the blood put into the machine was the defendant’s). In other words, a foundation must be established for the information through authentication, which Federal Rule of Evidence 901(b)(9) allows such proof to be authenticated by evidence “describing [the] process or system used to produce [the] result” and showing it “produces an accurate result.” But none of these concerns were issues below, nor are they issues in this appeal.³

Finally, the supposed “hearsay statements” made by the machines were not “testimonial” in that they did not involve the relation of a past fact of history as would be done by a witness. See Davis, 126 S.Ct. at 2276-77. In Davis, the Court concluded that the transcript of a 911 call, in which the caller identified the defendant as one who was assaulting her, did not contain “testimonial statements,” requiring the prosecution to present the declarant in court. “Rather than describing past events,” the statements by the 911 caller were “speaking about events as they were actually happening,” made for purposes of addressing an ongoing emergency. 126 S.Ct. at 2276. At bottom, the Court observed that the 911 call took place “to meet an ongoing emergency” and that the caller was not testifying as a “witness,” in a form that would be a “weaker substitute for live testimony” about events witnessed. Id. at 2277. Similarly, the reports generated by the machines were not testimonial in that they were not relating past events but the current condition of the blood in the machines. To the extent that they contain assertions of fact, they say simply that “this blood sample that has been put into the machine tests positive for PCP and alcohol.” The machine’s “statement” relates solely to the present condition of the blood, without making any links to the past. While Dr. Levine did provide “testimony” connecting the blood sample with Washington’s past behavior, this testimony was presented in court in conformity with the Confrontation Clause, was properly authenticated, and is not challenged on appeal.

As the machine’s output did not “establish or prove past events” and did not look forward to “later criminal prosecution”— the machine could tell no difference between blood analyzed for health-care purposes and blood analyzed for law enforcement purposes — the output could not be “testimonial.” Davis, 126 S.Ct. at 2273-74.

Because raw data printed out by the machines are not testimonial hearsay statements, Dr. Levine’s testimony using those data did not violate the Confrontation Clause, nor the hearsay rule, and the magistrate judge did not err in admitting the testimony of Dr. Levine.

Accordingly, the judgment of the district court is

AFFIRMED.

1 . While the hearsay rules of the Federal Rules of Evidence do not formally demarcate the scope of "statements” for Confrontation Clause purposes, we take this definition to be uncontroversial, especially since the Sixth Amendment provides the right to confront (human) "witnesses.”

2 . Contrary to the dissent’s assertion, which makes no distinction between a chromato-graph machine and a typewriter or telephone, the chromatograph machine's output is a mechanical response to the item analyzed and in no way is a communication of the operator. While a typewriter or telephone transmits the communicative assertion of the operator, the chromatograph machine transmits data it derives from the sample being analyzed, independent of what the operator would say about the sample, if he or she had anything to say about it.

3 . The dissenting opinion universally mixes authentication issues with its argument about "statements" from the machine that the blood contains PCP and alcohol. Obviously, if the defendant wished to question the manner in which the technicians set up the machines, he would be entitled to subpoena into court and cross-examine the technicians. But once the machine was properly calibrated and the blood properly inserted, it was the machine, not the technicians, which concluded that the blood contained PCP and alcohol. The technicians never make that determination and accordingly could not be cross-examined on the veracity of that “statement.”