498 F.3d 225 (4th Cir. 2007), 05-4883, United States v. Washington

Docket Nº:05-4883.
Citation:498 F.3d 225
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Dwonne A. WASHINGTON, Defendant-Appellant.
Case Date:August 22, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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498 F.3d 225 (4th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,


Dwonne A. WASHINGTON, Defendant-Appellant.

No. 05-4883.

United States Court of Appeals, Fourth Circuit.

August 22, 2007

Argued: March 13, 2007.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (CR-05-63)

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Lauren Elizabeth Case, Staff Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.

Hollis Raphael Weisman, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.


James Wyda, Federal Public Defender, Lisa W. Lunt, Assistant Federal Public Defender,

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OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.

Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.

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


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 phencyclidine ("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.


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

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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 PCP."

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 PCP 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, cannabinoids, 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 quantitated by gas chromatograph/spectrometry." 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 PCP and alcohol on human behavior." In his

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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.


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