US v. Otis Drayton, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:13-cr-00251-PWG-1. Copies to all parties and the district court. [999505035]. [14-4531]

Appeal: 14-4531

Doc: 22

Filed: 01/06/2015

Pg: 1 of 4

UNPUBLISHED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. (8:13cr-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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-4531

Doc: 22

Filed: 01/06/2015

Pg: 2 of 4

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.

probation.

He

was

sentenced

to

eighteen

months

of

Drayton appealed his convictions to the district

court, which affirmed the criminal judgment.
this court.

He now appeals to

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

assessing

a

of

review

district

applied

court

by

a

court

conviction.”

of

appeals
States

United

Bursey, 416 F.3d 301, 305 (4th Cir. 2005).

in
v.

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.
the

tests

laboratory

were

performed

technicians

who

using

Zarwell testified that:
calibrated

conducted

the

instruments;

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
2

analysis;

and,

based

on

his

Appeal: 14-4531

Doc: 22

Filed: 01/06/2015

Pg: 3 of 4

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

performed the tests on his blood.
Clause

objection

to

the

the

technicians

who

We review a Confrontation

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.”
marks omitted).
instruments
expert

are

See id. at 230-31 (internal quotation

Because the raw data generated by laboratory
not

testimony

testimonial

using

those

hearsay
data

statements,

did

not

Zarwell’s

violate

the

testimony

was

Confrontation Clause.
Drayton

also

contends

that

Zarwell’s

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

Appeal: 14-4531

Doc: 22

for plain error.

Filed: 01/06/2015

Pg: 4 of 4

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