UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4531
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OTIS M. DRAYTON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:13-
cr-00251-PWG-1)
Submitted: December 30, 2014 Decided: January 6, 2015
Before WILKINSON and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Greenbelt, Maryland;
Stephen A. Fogdall, SCHNADER HARRISON SEGAL & LEWIS LLP,
Philadelphia, Pennsylvania, for Appellant. Rod J. Rosenstein,
United States Attorney, Hollis Raphael Weisman, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Otis M. Drayton, Jr., was convicted by a magistrate
judge of driving under the influence of alcohol and PCP,
possession of a controlled substance, and unsafe operation of a
motor vehicle. He was sentenced to eighteen months of
probation. Drayton appealed his convictions to the district
court, which affirmed the criminal judgment. He now appeals to
this court. We affirm.
Under Fed. R. Crim. P. 58(g)(2)(D), a district court
reviewing a bench trial before a magistrate judge “utilizes the
same standards of review applied by a court of appeals in
assessing a district court conviction.” United States v.
Bursey, 416 F.3d 301, 305 (4th Cir. 2005). In turn, “our review
of a magistrate court’s trial record is governed by the same
standards as was the district court’s appellate review.” Id. at
305-306.
The chief issue before us pertains to the testimony of
John Zarwell, a forensic toxicologist who testified about test
results performed on Drayton’s blood. Zarwell testified that:
the tests were performed using calibrated instruments;
laboratory technicians who conducted the tests made no
conclusions as a result of the tests, but instead printed or
typed the raw data generated by the instruments and submitted
the data to a toxicologist for analysis; and, based on his
2
review of the raw data, Drayton’s blood contained .04 grams of
alcohol per 100 milliliters of blood and .01 milligrams of PCP
per liter of blood.
Drayton claims that Zarwell’s testimony violated the
Confrontation Clause, U.S. Const. amend. VI, because he did not
have the opportunity to cross-examine the technicians who
performed the tests on his blood. We review a Confrontation
Clause objection to the admissibility of evidence de novo.
United States v. Summers, 666 F.3d 192, 197 (4th Cir. 2011).
Having reviewed the appellate record and the parties’
briefs, we conclude that this case is controlled by our
decisions in Summers and United State v. Washington, 498 F.3d
225 (4th Cir. 2007). The raw data generated by the laboratory
instruments were not testimony by the technicians who ran the
tests. Nor did the data constitute hearsay statements as
contemplated by the Confrontation Clause because “nothing said
by a machine is hearsay.” See id. at 230-31 (internal quotation
marks omitted). Because the raw data generated by laboratory
instruments are not testimonial hearsay statements, Zarwell’s
expert testimony using those data did not violate the
Confrontation Clause.
Drayton also contends that Zarwell’s testimony was
admitted in violation of Fed. R. Evid. 602, 703 and 901(b)(9).
Because he did not raise this objection at trial, our review is
3
for plain error. See United States v. Bernard, 708 F.3d 583,
588 (4th Cir.), cert. denied, 134 S. Ct. 617 (2013). The record
discloses no such error.
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
4