UNITED STATES of America, Plaintiff-Appellee, v. Danny TURNER, Defendant-Appellant.
No. 08-3109.
United States Court of Appeals, Seventh Circuit.
Decided March 4, 2013.
Rehearing and Rehearing En Banc Denied April 30, 2013.
709 F.3d 1187
Submitted Aug. 21, 2012.
Hari Santhanam, Kirkland & Ellis LLP, Chicago, IL, for Defendant-Appellant.
Before ROVNER and EVANS*, Circuit Judges, and VAN BOKKELEN, District Judge.**
On Remand from The Supreme Court of the United States
ROVNER, Circuit Judge.
Defendant-appellant Danny Turner was charged with three counts of distributing cocaine base premised on multiple sales of crack cocaine he made to an undercover police officer. See
Three years ago, we affirmed Turner‘s conviction, rejecting his argument (among others) that Block‘s testimony regarding another chemist‘s analysis violated the Confrontation Clause of the Sixth Amendment. See United States v. Turner, 591 F.3d 928, 932-34 (7th Cir.2010). Turner thereafter filed a petition for a writ of certiorari, renewing his Sixth Amendment argument. That petition remained pending until the Supreme Court rendered its decision last summer in Williams v. Illinois, — U.S. —, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). The Court then granted Turner‘s petition for certiorari, vacated our decision, and remanded for reconsideration in light of Williams. Turner v. United States, — U.S. —, 133 S.Ct. 55, 183 L.Ed.2d 698 (2012).
We begin by noting that the 4-1-4 division of the Justices in Williams, with one Justice—Justice Thomas—concurring in the result but no portion of the plurality‘s reasoning,1 makes it somewhat challenging to apply Williams to the facts of this case. As the dissenting opinion in Williams observes, the divergent analyses and conclusions of the plurality and dissent sow confusion as to precisely what limitations the Confrontation Clause may impose when an expert witness testifies about the results of testing performed by another analyst, who herself is not called to testify at trial. See 132 S.Ct. at 2277 (Kagan, J., dissenting). At the least, however, the Williams decision (which we discuss in more detail below) casts doubt on using expert testimony in place of testimony from an analyst who actually examined and tested evidence bearing on a defendant‘s guilt, insofar as the expert is asked about matters which lie solely within the testing analyst‘s knowledge. Consequently, to the extent Block testified about anything that Hanson, the absent chemist, did or concluded in testing the substances that Turner distributed to the undercover officer, his testimony may have violated Turner‘s rights under the Confrontation Clause.
In their Circuit Rule 54 statements, the parties have taken divergent positions as to what course of action this court should follow in view of the Williams decision. The government continues to argue that the admission of Block‘s testimony did not violate Turner‘s rights under the Confrontation Clause, even when the Williams decision is taken into account. Primarily, however, the government contends that any conceivable Confrontation Clause error was harmless, such that we should again affirm Turner‘s conviction. Turner, not surprisingly, sees Williams as support for his contention that the admission of Block‘s testimony violated the Confrontation Clause. He contends that the error requires us to vacate his conviction and to remand for a new trial.
For the reasons set forth below, we conclude that any Confrontation Clause error that occurred during Block‘s testimony was harmless beyond a reasonable doubt. Only two aspects of Block‘s testimony potentially present a Confrontation Clause problem: Block‘s testimony that Hanson followed standard procedures in testing the substances that Turner distributed to the undercover officer, and his testimony
To begin, we note that the bulk of Block‘s testimony was permissible. Block testified as both a fact and an expert witness. In his capacity as a supervisor at the state crime laboratory, he described the procedures and safeguards that employees of the laboratory observe in handling substances submitted for analysis. He also noted that he reviewed Hanson‘s work in this case pursuant to the laboratory‘s standard peer review procedure. As an expert forensic chemist, he went on to explain for the jury how suspect substances are tested using gas chromatography, mass spectrometry, and infrared spectroscopy to yield data from which the nature of the substance may be determined. He then opined, based on his experience and expertise, that the data Hanson had produced in testing the substances that Turner distributed to the undercover officer—introduced at trial as Government Exhibits 1, 2, and 3—indicated that the substances contained cocaine base.
Q. So are you able—were you able to form any opinion as to the nature of the substance in those three exhibits?
A. Yes, I was.
Q. And what‘s your opinion?
A. My opinion based on the examinations that were performed on the chunky materials within Exhibits 1, 2, and 3, along with my experience, is that each of these items in 1, 2, and 3 contain cocaine base.
R. 60 at 51.
As we explained in our prior decision, an expert who gives testimony about the nature of a suspected controlled substance may rely on information gathered and produced by an analyst who does not himself testify. 591 F.3d at 932 (citing United States v. Moon, 512 F.3d 359, 362 (7th Cir.2008)). Pursuant to
Nothing in the Supreme Court‘s Williams decision undermines this aspect of our decision. On the contrary, Justice Alito‘s plurality opinion in Williams expressly endorses the notion that an appropriately credentialed individual may give expert testimony as to the significance of
But the Williams decision arguably casts doubt on the two aspects of Block‘s testimony that we flagged above. Because it was Hanson who actually tested the substances that Turner distributed to the undercover officer, only she could testify as to the process she followed in testing those substances and as to the results of her own analysis. As we have noted, Hanson‘s notes, test results, and written report were not admitted into evidence, and so this case does not present the particular type of Confrontation Clause problem that the Supreme Court addressed in Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), where, by contrast, the analysts’ reports were introduced at trial. But Block himself did effectively repeat the out-of-court statements made by Hanson in these written materials when he testified that Hanson had followed standard procedures in testing the substances and that he reached the same conclusion based on the resulting data that Hanson had—i.e., that the substances contained cocaine base. Block had no firsthand knowledge of either of these points; he was relying on what Hanson had written about her analysis. R. 60 at 50-51. In this way, Block‘s testimony put Hanson‘s out-of-court statements before the jury, and the jury was invited to consider these statements for their truth: that Hanson had followed standard procedures in analyzing the substances, and that she, like Block, had determined the substances to contain cocaine base.
The ramifications of introducing such out-of-court statements through an expert is the subject that so sharply divided the Court in Williams. The statement at issue in Williams was an expert witness‘s assertion that a DNA profile produced by a private laboratory had been derived from
Under our Confrontation Clause precedents, this is an open-and-shut case. The State of Illinois prosecuted Sandy Williams for rape based in part on a DNA profile created in Cellmark‘s laboratory. Yet the State did not give Williams a chance to question the analyst who produced that evidence. Instead, the prosecution introduced the results of Cellmark‘s testing through an expert witness who had no idea how they were generated. That approach—no less (perhaps more) than the confrontation-free methods of presenting forensic evidence we have formerly banned—deprived Williams of his Sixth Amendment right to “confron[t] ... the witnesses against him.”
Id. at 2265; see also id. at 2245 (Breyer, J., concurring).
Much the same could be said in this case. The government prosecuted Turner based in part on the Wisconsin Crime Laboratory‘s analysis of the substances that Turner distributed to the undercover officer. Yet, the government did not give Turner an opportunity to question the chemist, Hanson, who produced the data indicating that the substances contained cocaine base. Instead, the government introduced the result of Hanson‘s analysis through an expert witness, Block, and allowed him to vouch for the reliability of Hanson‘s work notwithstanding the fact that he did not participate in the handling and analysis of the substances and thus had no direct knowledge of what Hanson did or did not do. If there was a weakness in the work that Hanson performed, Turner was deprived of the opportunity to air it. See Bullcoming, 131 S.Ct. at 2715.
We must also acknowledge that at least two aspects of this case distinguish it from Williams, in ways that add force to the argument that a Confrontation Clause violation occurred.
First, whereas the purpose of the laboratory DNA profile at issue in Williams was not, in the plurality‘s view, “to accuse petitioner or to create evidence for use at trial,” 132 S.Ct. at 2243, that was indeed the purpose of the analysis that Hanson performed. The substances that Hanson analyzed had been taken from a known individual, Turner, as part of an undercover investigation that targeted him; Turner already had been arrested and charged by the time Hanson tested the substances;
Second, this case was tried to a jury rather than to the bench, increasing the odds that the jury might have relied on the out-of-court statements embedded within Block‘s testimony for their truth. See 132 S.Ct. at 2236 (plurality) (noting that “[t]he dissent‘s argument would have force if petitioner had elected to have a jury trial“).
There is a third circumstance which, in Turner‘s view, further distinguishes the facts of this case from those of Williams: Hanson‘s report—a one-page summary of her findings—was certified. By contrast, the DNA report at issue in Williams was not certified; and this was a point that Justice Thomas found dispositive. The fact that the report was neither sworn nor certified, in his view, indicated that the report lacked sufficient formality and solemnity to make the report testimonial, and therefore the statements in the report did not implicate the Confrontation Clause. 132 S.Ct. at 2260 (Thomas, J., concurring); see id. at 2259 (“[t]he text of the Confrontation Clause ... applies to witnesses against the accused—in other words, those who bear testimony“) (quoting Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004) (internal quotation marks deleted)). By contrast, when an analyst certifies his report, he is formally attesting that the findings set forth in the report, and any statements as to what steps he took to reach those findings, accurately reflect the testing process he followed and the results he obtained. Id. at 2260. In Justice Thomas‘s view, making attestations of that nature render a sworn or certified report more similar to affidavits, depositions, and other formalized statements that traditionally have been treated as testimonial for purposes of the Confrontation Clause. Id. at 2260-61. No other member of the Court attached significance to this factor; indeed, the four dissenting Justices expressly rejected the notion that something like a DNA report must be certified before the statements contained in the report may be treated as testimonial statements for purposes of the Confrontation Clause. Id. at 2276-77 (Kagan, J., dissenting). Nonetheless, it seems clear that if the report at issue in Williams had been certified, Justice Thomas would have voted with the dissenting Justices to reverse the conviction, and the outcome of the case would have been different. Turner thus argues that certification ought to affect the outcome here.
Yet, although Hanson‘s report was certified, it was not certified in the sense that Justice Thomas deemed relevant. A designee of the Wisconsin Attorney General simply certified the report “to be a true and correct report of the findings of the State Crime Laboratory on the items examined as shown by this report.” Turner‘s Separate Appendix (filed Jan. 16, 2009) at 49. Hanson herself did sign the report, and Block placed his initials above her signature, but in doing so neither Hanson nor Block certified anything. By contrast, in Bullcoming, when the forensic laboratory analyst who had tested the defendant‘s blood sample certified his report documenting the defendant‘s blood-alcohol level, he expressly affirmed that “[t]he seal of th[e] sample was received intact and broken in the laboratory, that the statements in [the analyst‘s block of the report] are correct, and that he had followed the procedures set out on the reverse of th[e] report.” 131 S.Ct. at 2710 (internal quotation marks omitted). Additionally, the examiner who had reviewed the testing analyst‘s work certified that the analyst “was
That said, Hanson‘s report was both official and signed, it constituted a formal record of the result of the laboratory tests that Hanson had performed, and it was clearly designed to memorialize that result for purposes of the pending legal proceeding against Turner, who was named in the report. In those respects, the report arguably is the functional equivalent of the report at issue in Bullcoming. See Williams, 132 S.Ct. at 2276 (dissent) (criticizing concurrence‘s reliance on lack of certification as a basis for distinguishing Bullcoming); see also Bullcoming, 131 S.Ct. at 2717 (discussing why signed but unsworn report can still qualify as testimonial for purposes of Confrontation Clause).
Recognizing that the divided nature of the Williams decision makes it difficult to predict how the Supreme Court would treat Hanson‘s report, and in order to give Turner the benefit of the doubt, we shall assume that the nature of the report, particularly insofar as it formally documented Hanson‘s findings for purposes of the criminal case against Turner, is sufficiently testimonial to trigger the protections of the Confrontation Clause. We shall therefore assume that Block‘s testimony in fact did violate Turner‘s confrontation rights to the extent he disclosed that Hanson had determined the tested substances to contain cocaine base, as memorialized in her report.
Apart from Hanson‘s final report, we know next to nothing about the nature of her notes, raw test results, and any other documents that Block reviewed in forming his opinion that the substances contained cocaine base. Those documents are neither in the record nor reproduced in the briefing; all we have is a copy of Hanson‘s final, one-page report. There is no suggestion that either Hanson‘s notes or any other document she produced was sworn, certified, or in any other way formalized in a way that might make the statements set forth therein testimonial for purposes of the Confrontation Clause. The case for treating them as such, therefore, may have less force than the argument that the contents of Hanson‘s report were testimonial. These additional materials are nonetheless significant in the sense that they document what steps Hanson took in testing the substances that Turner distributed to the undercover officer; and they no doubt were the basis for Block‘s testimony that Hanson had followed standard testing processes in performing her analysis. However informal they may have been, then, Turner had a keen interest in having Hanson herself testify so that she could be questioned about the statements in those documents. See Williams, 132 S.Ct. at 2267-68 (dissent); Bullcoming, 131 S.Ct. at 2715-16 & n. 7.
Assuming for all of these reasons that the district court did err in allowing Block to testify about the procedures Hanson followed and as to what she concluded, we must nonetheless affirm Turner‘s conviction if the Confrontation Clause violation was harmless beyond a reasonable doubt.
The only aspect of the case affected by the asserted Confrontation Clause error was the proof that the substances Turner distributed to undercover Officer Kim Meyer contained cocaine base. When Block relied on Hanson‘s out-of-court statements to testify that she followed standard procedures in testing the substances and reached the same conclusion that he did as to what the data meant, Turner was deprived of the opportunity to probe Hanson‘s methodology and to expose potential flaws in her analysis. In short, because he could not question Hanson herself, Turner lacked the opportunity to challenge her conclusion, and for that matter Block‘s conclusion (which was based on Hanson‘s data), that the substances contained cocaine base.
Yet, expert analysis and testimony are not invariably necessary to establish the identity of the controlled substance which the defendant is charged with distributing. See United States v. Sanapaw, 366 F.3d 492, 496 (7th Cir.2004); United States v. Hardin, 209 F.3d 652, 661-62 (7th Cir.2000), overruled on other grounds by United States v. Nance, 236 F.3d 820 (7th Cir.2000); United States v. Dominguez, 992 F.2d 678, 681 (7th Cir.1993); United States v. Marshall, 985 F.2d 901, 905 (7th Cir.1993); United States v. Manganellis, 864 F.2d 528, 541 (7th Cir.1988); United States v. Lawson, 507 F.2d 433, 438-39 (7th Cir.1974), overruled on other grounds by United States v. Hollinger, 553 F.2d 535 (7th Cir.1977); see also United States v. Sweeney, 688 F.2d 1131, 1145-46 (7th Cir.1982). “Just as with any other component of the crime, the existence of and dealing with narcotics may be proved by circumstantial evidence; there need be no sample placed before the jury, nor need there be testimony by qualified chemists as long as the evidence furnished ground for inferring that the material in question was narcotics.” Lawson, 507 F.2d at 438 (quoting United States v. Agueci, 310 F.2d 817, 828 (2d Cir.1962)); see also Hardin, 209 F.3d at 662; Dominguez, 992 F.2d at 681; Manganellis, 864 F.2d at 541. “Circumstantial evidence establishing identification may include a sales price consistent with that of [crack] cocaine; the covert nature of the sale; on-the-scene remarks by a conspirator identifying the substance as a drug; lay-experience based on familiarity through prior use, trading, or law enforcement; and behavior characteristic of drug sales.” Dominguez, 992 F.2d at 681 (citing Manganellis, 864 F.2d at 541).
A review of the trial record reveals that there was considerable evidence beyond the objectionable portions of Block‘s testimony indicating that the substance that Turner distributed to Officer Meyer was crack cocaine, a form of cocaine base. See DePierre v. United States, supra, 131 S.Ct. at 2237.
First, Meyer described the substance that Turner gave to her during each of the three transactions she conducted with him as being crack cocaine or “suspect” crack cocaine. E.g., R. 70 at 41, 46, 54. Meyer, who had been a police officer for three years, had been working with the Dane County Narcotics and Gang Task Force for approximately eighteen months. In her capacity as an undercover officer, one of her tasks was to purchase narcotics, which she had done on more than fifty occasions. R. 70 at 34, 36. She was thus well suited to know what crack cocaine looked like. Moreover, although Meyer
Second, the testimony indicated that the price of $100 Meyer paid Turner on each of the three occasions she dealt with him was consistent with the prices charged for crack cocaine. Meyer was familiar with the street price of crack cocaine, R. 70 at 35, testifying that an “eight-ball” of crack cocaine, which would be a quantity of approximately three and one-half grams, would normally sell for $150; the $100 quantities that she purchased from Turner were therefore a bit less than an eight-ball quantity. R. 70 at 47. Meyer added that she had a conversation with Turner following the second transaction about buying additional amounts from him. She asked him how much he would charge her for “two,” meaning two eight-ball quantities, and he told her “two and a half,” which she took to mean $250. R. 70 at 46.
Third, the witnesses’ description of the substances that Turner distributed to Meyer was consistent with the appearance of crack cocaine. Detective Kevin Hughes, who worked with Meyer during each of the three transactions and on each occasion took custody of the substance she had purchased from Turner, described the substances involved in the first two transactions as “off-white” and “chalky,” R. 60 at 12, 14, which is consistent with the appearance of crack cocaine. As for the third transaction, Meyer described the substance that Turner gave her on the occasion of the third transaction as a “chunk,” R. 70 at 54, which is also consistent with the character of crack cocaine. Likewise Block, in describing the appearance of Government Exhibits 1 through 3, which contained the narcotics that Turner distributed to Meyer during the three purchases, indicated that all three exhibits contained “an off-white chunky material.” R. 60 at 49. And, of course, Government Exhibits 1 through 3 were in evidence, so the jury itself was able to observe the substances and confirm that they appeared as the witnesses had described them.
Fourth, Hughes testified that he conducted a presumptive field test of the substance that Turner distributed to Meyer during the first transaction in order to detect the presence of cocaine base; and he indicated that the test was positive. R. 60 at 12. Hughes did not elaborate on the nature of the field test, but his testimony on that point tends to verify, apart from the laboratory‘s independent, confirmatory analysis, that the substance contained cocaine base.
Fifth, Block permissibly testified that the substances contained in Government Exhibits 1 through 3 had been submitted to the state crime laboratory for testing, R. 60 at 47-48, and that the data produced by Hanson‘s testing of those substances indicated, in his expert opinion, that they contained cocaine base, R. 60 at 51. These permissible aspects of Block‘s testimony, coupled with the other evidence we have noted, was more than sufficient to show beyond a reasonable doubt that Turner distributed crack cocaine, as opposed to some other substance, to Meyer.4
We note further that despite Turner having opposed the admission of Block‘s testimony, his defense at trial in no way hinged on the notion that he distributed something other than crack cocaine to Meyer. Turner‘s trial counsel never explored this possibility during cross-examination of any government witness, including Block, nor did he make this suggestion in his opening statement or closing argument to the jury. Turner elicited no independent evidence that the substances could have been something other than crack cocaine. (Turner did not put on a defense case.) Turner‘s strategy instead was to question the veracity of Meyer‘s identification of Turner as the individual from whom she had purchased crack cocaine, see R. 70 at 32-33, and to suggest, based on certain inconsistencies in the evidence, that the authorities had concocted the entire case against Turner after he was arrested on a warrant for outstanding child support payments and refused to cooperate with them by giving them information about a small quantity of marijuana found in his possession, R. 60 at 70-72, 74, 77-78. “This is a trumped up charge against a guy who didn‘t want to help after he got arrested on some child support warrant,” Turner‘s counsel argued to the jury. R. 60 at 71. In short, the premise of the defense was that Turner did not distribute anything to Meyer, not that he distributed something other than crack cocaine.
Our point is not that Turner bore any burden with respect to the identity of the narcotics or somehow waived an argument that the evidence, apart from the problematic aspects of Block‘s testimony, was insufficient to show that the substances in question were crack cocaine. Turner, in fact, asked the district court to enter a directed judgment on the ground that the government had not proven the identity of the drugs in question. R. 60 at 58. Rather, our point is that, given the ample evidence otherwise indicating that what Turner distributed to Meyer was crack cocaine (and thus cocaine base), and given the focus of the defense case at trial, any Confrontation Clause error in allowing Block to testify (briefly) as to the process Hanson followed and the conclusion she reached in examining the substances was entirely harmless; it is clear that the jury would have rendered the same verdict even if the harmless error had not occurred.
For all of these reasons, after careful consideration of the Supreme Court‘s decision in Williams v. Illinois and a fresh review of the trial record, we AFFIRM the judgment. We thank Turner‘s appointed attorneys for their vigorous and conscientious efforts on Turner‘s behalf.