United States v. Summers

192 Arvizu, 266, 273, v.

Unitеd States Shelby’s suspicion 534 U.S. Officer may Powell (2002). 744, 122 151 L.Ed.2d 740 S.Ct. dangerous.4 have been armed and Conse- doing, underlying so the facts Officer Shel- quently, ample justification there was by’s patdown weapons per- of Powell for Shelby’s patdown Officer of Powell for suade me that the district court’s decision weapons, ensuring safety thus deny suppression entirely proper. was officers and the vehicle occupants. Indeed, this case is informed the Su- respectfully I dissent. Pennsylvania v. preme Court’s decision in Mimms, police stopped where officers expired plate

vehicle with an license step

asked the driver to outside the car. 106, 107, 330,

See U.S. 98 S.Ct. (1977).

L.Ed.2d 331 When one of the offi-

cers noticed a “large bulge” under the

driver’s patted he the driver down may in fear that bulge weapon, be a America, UNITED STATES of which it was. Id. The Court held that the Plaintiff-Appellee, 112, Id. patdown justified. 330. Tyrellе SUMMERS, Kevin The facts of this case are even more Defendant-Appellant. compelling. previously Powell had been arrested for robbery, police armed and the No. 06-5009. radio computer broadcast of the spe- data cifically present advised all three officers United States Appeals, Court of of the Powell “caution Additionally, data.” Fourth Circuit. Powell indicated that he had a valid license Argued: Sept. 2011. presented

but suspend- officers license, ed and he was a passenger Decided: Dec. 2011. vehicle where neither the driver nor the

other passenger possessed a valid license. result,

As a the officers were entitled—

using their common sense—to believe that being

Powell was untruthful pur- when he

ported license, to have a valid and that he

engaged in “less than abiding law con- Pack,

duct.” See United States v. (5th Cir.2010)

F.3d (observing usually “licenses are suspended for conduct”).

less than abiding law The fore- circumstances,

going together, pro- taken

vided an objectively reasonable basis for unnecessary against It is (concluding to сonsider suspect’s intervening illegal Powell that, patdown evidence after the during impermissible decision patdown provided acts made, sought Shelby’s pat- arrest). Neither, he independent grounds to evade course, weapons by dropping down for to his knees have I considered the fact a 9mm seeking and then to flee. Ruger handgun, United States v. drugs, as well as were then Cf. Sprinkle, Cir.1997) 106 F.3d seized. Case,

ARGUED: Lauren Elizabeth Of- Defender, fice of the Federal Public Greenbelt, Maryland, Appellant. Sujit for Raman, Office of the United States Attor- Baltimore, ney, Maryland, Appellee. for ON BRIEF: Wyda, James Federal Public fled, Barrett, men at the intersection. Both Defender, Assistant Denise C. Defender, sprinting down Glacier Avenue Office of Summers Public Federаl Defender, Baltimore, past Ma- undercover Chad Schmick detectives Federal Public Rosenstein, Morris, parked Rod J. Kevin who were ryland, Appellant. Giblin, Bryan through a Attorney, M. curb. Summers detoured cou- United States Attorney, backyards Avenue ple Kayak Office before Assistant United States Baltimore, then, Attorney, surrendering By Morris. howev- the United States er, wearing Maryland, Appellee. longer Summers was no jacket. SHEDD, FLOYD, KING, Before Hampson found a and Schmick black Judges. Circuit jacket Face of the atop North one houses Hampson opinion. Judge along flight path. Summers’s by published Affirmed jacket contents —a opinion, Judge placed in which and its Hi- KING wrote the handgun, Model Judge FLOYD an Point C 9mm eleven joined. SHEDD wrote from concurring judgment. in the rounds ammunition unloaded clip, pistol’s large packet containing and a OPINION than ninety grams more of crack cocaine— separate bags transport inside evidence KING, Judge: Circuit Hampson in his cruiser. filled out proper- Tyrelle appeals drug Kevin Summers his ty receipts catalog on items to them convictions, en- trafficking and firearm and to direct examination. forensic Maryland tered in District of in accor- 2005, 7, March On Summers indict- jury’s dance with the verdict. Summers to possession ed for with intent ‍‌‌‌‌​‌​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌​​‌​‌‌​‌‌‌​​​​​​​‌​‌​‍distribute court contends that the district erroneous- 841(a)(1) crack, § in violation of 21 U.S.C. jacket a ly admitted into evidence recov- (“Count One”), of a possession and firearm vicinity of his He ered from the arrest. felоn, § by contravening U.S.C. 922(g) that the court compounded asserts further (“Count Two”). A superseding indictment exclude, declining error to its on Con- 4,May 2006, charged Summers with the expert grounds, frontation evidence Clause of a possession additional offense of fire- testing performed concerning DNA on the drug during arm and in relation to traf- jacket, together with evidence document- crime, ficking proscribed conduct jacket’s ing handling custody dur- Three”). (“Count 924(c) § U.S.C. no ing testing process. Discerning error, affirm. reversible we indictment, Following the federal jacket county police sent a black

I. jacket FBI’s field office. The Baltimore agency’s evening of was then forwarded to the labora- During the November 2004, Summers, tory Quantico, arriving wearing Virginia, a black North “ECU”) (the Control on Face-branded stood another Evidence Unit jacket May 2005. The ECU routed man near the corner of Glacier Avenue 1, where, Heights, Maryland. Analysis according to DNA Unit Capitol Fable Street Hampson, log, to an internal it was delivered stor- Corporal Patrick uniformed May 13, log shows George’s County age Prince on 2005. The detective with the jacket analysts FBI of the emerged possession his took Department, Police from 18, 2005, testing, DNA exchange May perform an on pair cruiser to ask the about 26,May on storage shuttled gunfire shortly had occurred before then it back bility for eventual return to the ECU of a random match equal to or less October 2005. than one in 280 billion. See J.A. 524-25. signed report, Shea and no other lab trial, jacket At a black was marked for employee was named therein or testified at identification as Government’s Exhibit 1. trial. The was admitted into evi- exhibit, recognized Asked whether he dence as Government’s Exhibit 25. Hampson answered that “[i]t looks like the black Northface coat defendant was government presented The no evidence wearing.” J.A. 73.1 Schmick and Morris jacket’s whereabouts from the time were rather equivocal. less Schmick con- Corporal Hampson placed it in his cruiser firmed that Exhibit 1 “the coat that until it arrived at the FBI laboratory. recovered,” 152, and, we id. at ques- when jacket lab, While the was at the the inter- jacket tioned whether the in the courtroоm nal log documented its movement within was the one that Summers wore while log Unit reflects that four lab em- fleeing, “Yes, responded Morris simply, it ployees signed custody for and took was,” id. at 267. jacket at different times. Based on the The government’s case-in-chief other- varying legibility signatures, of their some wise expert featured the testimony of employees’ of the identities are more sus- Shea, Brendan a forensic examiner at the ceptible than being others of ascertained. Quantico laboratory supervises who Unit clear, however, It is that none of them analysts l’s perform directs them to Shea, were though he did initial log particular tests on evidence. After identi- right its bottom corner. See J.A. 200. fying Government’s Exhibit 1 as thе coat log The was admitted into evidence as lab, submitted to the explained Shea that of Defendant’s Exhibit 3. he had directed his analysts subordinate cross-examination, On Shea acknowl- conduct two methods of polymerase chain edged that he could not confirm that the based, reaction repeat short tandem typing jacket he tested was the one Hamp- jacket. on the The performed lab also son Though recovered. verifying au- typing DNA on buccal swabs taken from thenticity log, only Shea could speak Summers’s mouth. compared Shea generalities concerning jacket’s safe- data, typing testifying that although DNA keeping during the time it was housed from at least four people differеnt was lab, at the testifying jacket that the found on the Summers was the have subjected been to the standard rout- major contributor. ing and inventory process. Arguing to the Shea documented the typing results and jury at closing, defense empha- counsel his conclusions in a three-page report. sized Shea’s concession: “Brendan Shea The report contained a table juxtaposing you, months, told six or seven I don’t know the numerical identifiers of the allele found happened what jacket. to that I can’t tell at corresponding loci of the DNA extract- you jacket that that jacket is the same jacket ed swabs, from the and the buccal allegedly pulled off of Kevin Sum- revealing an exact match. Shеa stated “to mers.” J.A. 504-05. degree reasonable certainty” scientific that Summers major was the DNA con- argument Counsel’s ultimately failed to tributor, statistically calculating proba- persuade jury, which found Summers _” 1. Citations herein to "J.A. parties refer to the appeal. to this Appendix contents of the by Joint filed

197 lysts actually typ- conducted the DNA possession who drug firearm guilty of conclusions ing upon expert which Shea’s underlying Count One and Count charges on jury acquitted premised. were The Summers Two. not, Three, concluding that he did

Count doubt, possess beyond a reasonable A. drug to a during and relation firearm Washington, v. 541 U.S. Crawford The en- crime. district court trafficking 1354, 158 (2004), S.Ct. L.Ed.2d verdict, sen- judgment jury’s tered unanimously ruled that the Supreme Court prison, to 262 tеncing months Summers rights Confrontation defendant’s Clause years re- by supervised five followed into violated the admission had been timely appeal, this noted lease. Summers nontestifying of his wife’s state evidence jurisdiction to 28 possess pursuant and we police. ment to § 1291. U.S.C. Court, Scalia, authored over Justice Roberts, v. ruled Ohio 448 U.S. II. (1980), 65 L.Ed.2d 597 which S.Ct. review for abuse of discretion We statements of unavailable permitted had ad concerning the a trial court’s decision at trial insofar as witnesses be admitted States missibility of evidence. See United “adequate reliability,” they bore indicia Cir.2009). F.3d Myers, they “firmly root meaning satisfied to have adjudge the court We will hearsay exception” or were otherwise ed ruling its abused its discretion unless by “particularized of guarantees bolstered United “arbitrary and irrational.” See Roberts, 66, at trustworthiness.” 448 U.S. (4th 602, Haney, 914 607 States v. F.2d 100 S.Ct. 2531. Cir.1990). novo, however, review We de evidentiary ruling implicating an the Con changed the law to condi Crawford v. See States frontation Clause. United tion admission such statements Cir.2011). (4th Williams, 129, F.3d 632 132 (1) trial, being at the witness unavailable a of discretion Finally, we review abuse (2) having prior the defendant had the an eviden court’s determination that trial cross-examine to the witness. opportunity suf tiary custody item’s chain of has been applies whenever “testimonial Crawford v. States ficiently established. See United 68, at 124 is at issue.” 541 U.S. evidence (4th Cir.1995). Ricco, 58, 52 F.3d 61 Inasmuch was the result S.Ct. 1354. as it police the evidence interrogation, of formal

III. in Crawford met plainly at issue criterion, to although affords a Court’s elected The Sixth Amendment day any spell to right “the ... to “leave for another effort criminal defendant against comprehensive a of ‘testimo with the witnesses out definition confronted ” Const, distinguish nial.’ Id. Court did him.” U.S. amend. VI. Summers however, noting hearsay,” that he was convicted “nontestimonial maintains approach exempted not “an such testimony of witnesses he was whom s cross-examine, from Confrontation Clause permitted derogation to statement in According scrutiny altogether” to would be consistent Clause. the Confrontation Id.; Summers, the Framers’ intent. United government was constitu with cf. Cabrera-Beltran, v. 660 F.3d tionally compelled produce to at trial States Cir.2011) (4th (hоlding in that border laboratory signed the 753 employees who not for trial are crossing ana- records created log, along with the subordinate ternal public testimony. under dialogue” resembling and admissible malized nontestimonial rule). (Thomas, J., See exception hearsay to id. S.Ct. 2266 records concurring in the judgment part in The distinction between testimonial and dissenting part). in came statements to the nontestimonial year Supreme About after the Court’s Washington, 547 U.S. forefront ‍‌‌‌‌​‌​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌​​‌​‌‌​‌‌‌​​​​​​​‌​‌​‍Davis Washington, decision Davis v. we had 165 L.Ed.2d (2006), apply to its in United teachings had occasion which the trial court admit- Washington, States v. recording from a woman F.3d ted of 911 call Cir.2007). In the an prove, proceeding, latter the absence of woman’s defendant, aрpeal driving from federal criminal con- testimony, that her former victions, the district court admitted the boyfriend, had her. The Su- assaulted expert of a lab director with preme unanimously Court ruled that the (which respect his not woman’s statement was nontestimonial. record) evidentiary again through gas of the chromato- spoke The Court Justice graph performed tests on the defendant’s Scalia: blood, though operat- the technicians who Statements are nontestimonial when diagnostic ed appear machines did not police interroga- made the course of convictions, at trial. We affirmed the con- objectively tion under in- circumstances cluding revealing the test data dicating that primаry purpose presence of alcohol and PCP in the defen- interrogation police is to enable assis- dant’s were blood the technicians’ ongoing emergency. tance meet an statements, but instead ‘state- were “the They are testimonial the circum- when ments’ of the machines themselves.” objectively stances that there indicate is Washington, (emphasis 498 F.3d at 230 such ongoing emergency, no and that deleted). Judge Niemeyer, writing for the primary purpose interrogation panel majority, explained that such “raw prove po- establish or past events data,” being “independent of human obser- tentially prose- relevant to later criminal reporting,” susceptible vation or however, .... imply, cution This is not to cross-examination impli- and thus did not that statements in made the absence of cate the Confrontation Clause. Id. any interrogation necessarily are non- testimonial .... course And of even Next, in Melendez-Diaz v. Massachu- exists, interrogation when it is in the setts, 2527, 557 U.S. 129 174 S.Ct. statements, analysis final the declarant’s (2009), L.Ed.2d 314 Supreme Court interrogator’s not the questions, that the whether considered sworn certificates requires Confrontation Clause us to analysts, from forensic admitted attest evaluate. that the substance seized from the defen- Davis, 547 cocaine, U.S. at 822 & n. 126 S.Ct. dant was were “testimonial” for assumed, The Court the sake of for Confrontation Clause purposes. The vote, argument, questions posed by Court, aby 5-4 in affirma- held оperator eliciting incriminating 911 re- tive vacated the defendant’s convic- sponses police, tion, were the acts of the consti- with Justice Scalia for observing tuting “interrogation.” at 823 n. majority See id. “func- certificates were S.Ct. 2266. Notably, live, Thomas tionally Justice identical to testimo- in-court only partially judgment, concurred in the ny, doing ‘precisely what a does witness on ” Melendez-Diaz, concluding responses that the were admis- direct examination.’ they Davis, sible because were not of a “for- (quoting S.Ct. at 2532 at 547 U.S. 2266). testimony to bar apply pointed The Court 830, 126 S.Ct. Crawford is used as little more of the affidavits “where the witness purpose that “the sole out for facie evidence a conduit or transmitter testimo prima than provide towas weight of expert and the net a true quality, hearsay, rather than as composition, nial substance,” and that could analyzed opinion light sheds whose considered analysts were “that the safely assumed be factual situation.” Id. specialized some evidentiary pur- affidavits’ aware of the Thus, use of testimonial hear expert’s “an (internal marks omit- quotation Id. pose.” degree.” Judge Id. say is a matter ted). have analysts could Because distinguished Melen opinion Wilkinson’s (or, least, testify at there been available Johnson, dez-Diaz, that, in observing contrary) and be- showing to the was no at trial and experts appeared government’s opportunity had been no cause there See id. at 636. were cross-examined. cross-examined, de- them to be Crawford Court is recently, Supreme Most the defendant’s conviction manded that in v. opinion Bullcoming sued its New Thomas, providing Justice overturned.2 — Mexico, U.S. -, 131 S.Ct. vote, wrote a con- fifth the determinative (2011). Bullcoming was an L.Ed.2d 610 noting his adherence to the opinion curring case, other 5-4 and this time Justice Gins im- extrajudicial statements position Court, burg delivered “only in- Clause the Confrontation plicate the concurrence of Justice which attracted in formalized they are contained sofar as in but Part IV and everything Thomas affidavits, materials, such testimonial “pri (reiterating footnote 6 Justice Scalia’s testimony, or confes- prior depositions, evaluating in mаry purpose” test Davis (Thomas, J., concur- at 2543 sions.” Id. testimonial). Bull- a statement is whether ring). drunk-driving trial coming involved thereafter, we decided United long Not a lab which the state introduced Johnson, F.3d 625 Cir. States of a blood-alcohol certifying the results 2009). case, the trial court admit In that taken from the performed sample test on a testimony police officers expert ted analyst did not signatory The defendant. telephone code words used decipher very recently put on testify, “having [been] drug traffickers. conversations between (altera leave,” 2711-12 unpaid upon was based experts’ The analyst famil original), but another tion general, together experience their procedures lab’s did. iar with the the in knоwledge gleaned from particular testifying analyst participated had not Judge authored vestigation. Wilkinson test, defendant’s blood or observed the “in out that opinion, pointing our Crawford however. from prevents expert witnesses way no vacated the defen- Supreme Court judgments independent offering their rule, a if an out-of- dant’s conviction: “As in judgments were merely those because nature, in it court statement is testimonial exposure to by their part some informed the accused may against not introduced evidence.” John otherwise inadmissible hand, the witness who made at trial unless son, at 635. On the other 587 F.3d Melendez-Diaz, cautioned, however, 129 S.Ct. at that "we tion's case.” 2. Justice Scalia Rather, case, hold, uр prosecu- to the anyone "[i]t 2532 n. 1. not the not and it is do steps in the chain of tion to decide what testimony may in establish- be. relevant whose evidence; require custody are so crucial as to custody, authenticity ing of the chain of (if device, testimony is introduced must testing but what accuracy sample, of the or live.” Id. objects) be introduced prosecu- defendant person part of the appear in must foundation) quate custody statement is unavailable and the accused chain raw prior opportunity a to confront conjunc- has had in generated data a machine Bullcoming, that witness.” 131 S.Ct. at testimony tion with the an expert wit- 2713. The Court stressed that the first ness.” Id.

analyst’s than “reported certificatiоn more number,” machine-generated

a in that it B. also verified that the lab had received the intact, sample sample blood that the was in Against backdrop of Crawford defendant’s, fact analyst per- that the it, subsequent and the applying authorities particular formed a test in accordance with we evaluate first the Confrontation Clause a specific protocol, process and that implications, any, if of the absence of trial compromised. had not been Id. at 2714. testimony employees from the FBI lab Although the in report was this case un- signed log who the internal documenting sworn, yet it was testimonial because it custody jacket. may Justice Scalia solely ‘evidentiary pur- was “creаted for an things log well have had like the in mind ” pose,’ (quoting id. at 2717 Melendez- in spoke when he Melendez-Diaz of evi “ Diaz, 2532), at S.Ct. and was ‘formal- “may dence that be relevant in establish document,” in signed ized’ (quoting id. ing custody, the chain of authenticity of Davis, at n. U.S. 126 S.Ct. 2266 sample, accuracy or testing de (Thomas, J., in concurring judgment 1; vice.” 129 at supra S.Ct. 2532 n. see part dissenting part)). Although note 2. government is re Writing separately, Sotomayor Justice Melendez-Diaz, quired, after provide pointed out that Bullcoming “is not a case testimony live if it deems evidence of cer in which the person testifying is a supervi- “steps tain custody” the chain of to be sor, reviewer, or someone with per- else crucial, see 129 S.Ct. at 2532 n. no such sonal, albeit limited connection to the sci- requirement ‍‌‌‌‌​‌​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌​​‌​‌‌​‌‌‌​​​​​​​‌​‌​‍chain-of-custody inheres when entific test at issue.” 131 S.Ct. at 2722 defense, evidence is introduced see J., (Sotomayor, concurring part). Ac- Verdini, (1st Evans v. 466 F.3d cording Sotomayor, to Justice “[i]t Cir.2006) (declining to find Sixth Amend if, be a different example, case a super- ment violation question where defendant’s visor who observed an analyst conducting ing of opened witness door to rebuttal a test testified about the results or re- subject to cross-examina port addition, about such results.” Id. tion). Bullcoming “is not a case which an case, In this log Summers caused the expert witness was indepen- asked for his be admitted as of Defendant’s Exhibit dent about underlying testimonial Thus, to the extent there could reports that were not themselves admitted points have been to be scored with into (citing evidence.” Id. Fed.R.Evid. 703). jury by challenging Finally, handling Sotomayor Justice noted jacket lab, the FBI Bullcoming perhaps in was incumbent contrast — upon the the to subpoena situation we in defense the lab confronted United em- ployees. Melendez-Diaz, States v. Washington, supra not a 129 S.Ct. at Cf. —“is case in (recognizing, situation, which the 2540 in only contrasting State introduced results, machine-generated print- prosecution ignores such as a where duty pro- its to out from a gas witnesses, chromatograph,” necessary and that vide defendant’s sub- the Court did not poena decide “whether ... a power “is no right substitute for the confrontation”). State (assuming could introduce аn ade- of

201 jacket to the North wore forgo decision Face Summers the prosecutor’s The chain-of-custody respect night with he arrested. The officers’ testi- any evidence was government suggests mony put the that the more than to jacket enough to the to be jury, that of its case some in coun- considered issue before the which heard government’s thing testimony than crucial. cross-ex- less terbalance Shea’s to regard appears in this have strategy he had where amination that no idea the vindicated, notwithstanding the risk been by to jacket prior receipt had been its the jurors watch and mov who television following lab six or seven months Sum- revealing evidence the may expect ies arrest, mers’s or whether it had been tam- providing a custody, chain of tenacious de pered During with. the defense’s closing exploit the to lawyer opportunity fense argument, emphasized counsel ad- Shea’s by prosecution expectation peppering missions; any affirmative absent evidence the questions probing with omis witnesses however, tampering, jury simply of the Nonetheless, of custody sion. chain “[t]he importance declined to attribute much to is when a witness identifies not relevant imperfections government’s the the doc- object the the actual about which object as circumstances, the umentation. Under Phillips, v. he testified.” United States not district court did abuse discretion in its (7th Cir.1981). F.2d ruling jacket of that admissiоn into 901(a) evidence satisfied Rule thresh- jacket deciding whether old. admissible, only district court needed “improbable satisfy itself it was C. original exchanged that the item had been tampered or otherwise with.” another Jones, v. 356 F.3d United States pre question more substantial is ? (4th 901(a) Cir.2004); see Fed.R.Evid. by sented the absence at trial of the ana (“The requirement of authentication or lysts responsible conducting the DNA precedent identification as condition jacket, the tests on the results of which admissibility is satisfied evidence suffi provided the basis Shea’s support finding cient matter report. preparation and his We claims.”). question proponent is what its difficulty perceive little with the admission Establishing custody a strict chain of “is testimony, givеn predomi Shea’s requirement, not an and the fact iron-clad subjec his independent, nance therein of a missing prevent link does opinion judgment and relative to tive evidence, real so long admission of objective lesser accorded the emphasis raw proof there that the is sufficient evidence generated by analysts. data See Fed. and has not purports what been (instructing R.Evid. that facts or data any respect.” altered material United expert opinion an an or upon which bases (4th Ricco, 61-62 States v. F.3d inference, type reasonably if of a relied on Cir.1995). The district court’s role is “need experts, similar not be admissible for the merely gatekeeper jury, to act as evidence order for the or proponent of the evidence need admitted”). inference to be only showing prima make a facie of its authenticity. See United States Vida stand, painstaking- On the witness Shea Cir.2009). cak, 344, 349 553 F.3d he, explained process whereby ly trial, Schmick, alone, Hampson, At and he the data to reach the Morris evaluated that, degree Exhibit 1 conclusion reasonable each identified Government’s as certainty, actually scientific Summers was the ma- who tested the seized substance. jor Turner, contributor of the DNA from recovered See United States v. 591 F.3d 928 (7th Cir.2010). jacket. respect, Turner, In that the Shea’s testi- supervisor different, mony pro- no and no more essentially peer-reviewed his subordinate’s blеmatic, in police than that of the officers report, which was not admitted into evi- being Far from “a conduit or dence, testified, Johnson. and then based on his own of what ana- transmitter” his subordinate training experience, and that the substance lysts had concluded about produced at trial was crack. The court of “original product” Shea’s was an rejected appeals the defendant’s Confron- (and was) readily that could be “tested challenge, relying tation Clause on another Johnson, through cross-examination.” case, drug trafficking United States F.3d at 635. Moon, Cir.2008). 512 F.3d 359 The held, court in in agreement Moon with our extent, To a considerable much decision in Washington, United States v. the same can be said about Shеa’s written pure instrument read-outs are not report, which more or less mirrored his Moon, 362; testimonial. See 512 F.3d at testimony. trial appearance The of the Turner, see also F.3d within, however, analysts’ testing results Indeed, gives pause Washington precedent us insofar our as the table detail con- ing trols in those results the result Summers’s promi constituted more case. The nent numerical report than identifiers of the underlying DNA allele here, they data did of insofar testimony. nothing are This is not to more imply machine, than produced by the data raw data unimportant are opinion, indistinguishable Shea’s for of gas course it was crucial. character from the The chromatograph difference is that while data in Washington Shеa’s testimo and ny upon chromatograph spectrometer focused and conclusions he drew re- data, from the report ju sults Moon and Turner. Undoubtedly, invited the rors’ attention to the more practice the data’s sound numerical would have been report evidence, identifiers. Admission of exclude Shea’s report pre from sented an the same unnecessary jury risk that fashion that the foundational re- improperly ports were in Washington evaluate the DNA treated evi and Turner, dence lay jury’s based on its but perceptions of what access to during the data meant way rather than on deliberations no Shea’s ex detracts pertise any Moon, from the potential validity and of its verdict. inaccuracies See his 512 F.3d at might (opining conclusions developed non-testify- ing expert’s cross-examination. Fed.R.Evid. “own conclusions based on the Cf. (“Facts or data data that are should have been kept otherwise inadmis out of evi- dence,” sible shall not be but jury declining disclosed to the ... to disturb conviction unless plain the court error in pro light determines that their of testifying ex- bative in assisting pert’s value “live jury availability to evalu cross-examination”). ate expert’s opinion substantially out effect.”). weighs prejudicial their Supreme Court’s decisions in Me- situation, Presented with an analogous lendez-Diaz in Bullcoming do not the Seventh Circuit affirmed the defen- compel a different result. The notarized dant’s conviction for trafficking in crack analysis certificates of at issue in Melen- cocaine, notwithstanding that the head of dez-Diaz revealed considerably more than the lab unit in place data; testified analyst raw they concluded that the sub- pos- displays peaks a series of different-colored to the defendant’s attributed stance documenting “the al- heights,” of different found to contain: Cocaine.” session “was sure, location or To be Shea’s lele values each chromosomal at 2531. court, According on the loci.” Id. at 541. to the the statement report also contained profile was “the ma- “the DNA is statement issue that Summers ultimate analyst essentially says: ‘This is the the DNA obtained from” jor contributor of ” (endnote omitted), profile person.’ but DNA for this Id. at 549. J.A. explanation, per- and not that of Based on the court’s we that was Shea’s statement profile” “DNA it held to any merely and event ceive that the analysts, was closely corresponds testimonial statement permissible of his trial testimo- duplicative to we have called in this case the ny.3 what “numerical identifiers of DNA allele.” distinguishable because it Bullcoming is not, Sotomayor To the extent Derr ascribes testi- as patently was Justice significance machine-generated to stressed, monial contesting the Sixth a case results —a conclusion that cannot be machine-gen- implications Amendment squared precedent— with our own circuit results. Summers has nonetheless erated reasoning unpersuasive. we find its Me- recently attention to a case directed our Bullcoming each lendez-Diaz and involved Appeals of Ma- by Court published expert’s one or more absent “certification” State, 29 A.3d ryland, Derr v. Md. respect meaning to the of the under- with (2011). in Derr reversed The court data, lying raw and no such certification is judgment of conviction the defendant’s only at issue here. evidence inter- offenses and remanded multiple sexual preting provided by the raw data was Shea trial, had holding that the trial court a new testimony, report via his and live and he by run of the Confrontation Clause afoul strenuously by cross-examined the de- tes- prosecution’s expert to permitting fense. analyses crime tify regarding DNA on by performed years past scene evidence cognizant are of the concerns We others, testify respect to with to analysts excusing attendant and techni by sample analysis undertaken

reference under such circum cians from trials subordinates, supervisor’s without the her stances, being such concerns best ex participation personal or observ- active colleague late pressed, perhaps, our ance. in dissent in States Judge Michael United Washington: ruling, the Derr court concluded so procedures and method testing that “the Finally, majority say not for the it is created, DNA employed, profile that “there would be no value cross- that there is a match are the conclusion the lab technicians.” A de- examining nature,” the result that right witnesses testimonial fendant’s confront obliged produce depend him prosecution against ‍‌‌‌‌​‌​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌​​‌​‌‌​‌‌‌​​​​​​​‌​‌​‍does whether actually the test- analysts performed a court believes that cross-examination who decision profile strategic at 537. The DNA would be useful. The ing. 29 A.3d a laborato- is derived from an of whether to cross-examine referenced the court is, for the defendant to ry technician is one “graph electropherogram, sufficiently satisfy Justice "formalized” to conclude that the numerical 3. Because we report definition of a testimonial statement are not statements Thomas's identifiers Shea's Clause, pro- concurring opinion expressed in his implicating we the Confrontation deciding viding vote in expert’s need not consider whether an Melendez-Diaz. reports make.... Forensic test are not Summers’s contention that he was entitled trial, always Testing analysts accurate. to confront the lab errors are his by inexper- sometimes technician conviction need not be disturbed if the caused ience, contamination, purported beyond error was harmless sample failure to reasonable doubt. laboratory protocols, Chapman follow or See Cali- breaks 18, 24, fornia, 386 U.S. custody.... the chain of way The best (1967). L.Ed.2d 705 previously We have expose to errors or falsification test- that report mentiоned admission of Shea’s ing through is cross-examination of the wholly was almost cumulative of Shea’s laboratory technician. testimony, live circumstance casts (Michael, J., dissenting). 498 F.3d at 235 upon substantial doubt importance the of heartily agree with Judge We Michael that report the in establishing guilt. Summers’s evidence, handling calibration of however, fundamentally, More we can- equipment, and the like can be fertile help government’s but note cross-examination, ground for but we must decision to introduce DNA evidence de- temper agreement our practical with the jacket from rived had the unintended observation that a challenge pro- serious to collateral effect of rendering straightfor- cessing likely only defects is to arise infre- ward significantly case more complex. quently. When the issue is palpable, it is respect proving With ownership of the up to the defense to prosecution advise the the evidence introduced through in good faith such that the attendance scarcely Shea was more than the thin appropriate may be witnesses secured. glaze on a dense cake baked to doneness Moon, (“A See 512 F.3d at 361 defendant largely the officers’ unshakable testimo- sincerely who wants live should (1) ny that: Summers was wearing the demand, make the so that the declarant (2) jacket ran; before he he was not wear- produced. can be The lack of a demand jacket ing the caught; when hе was testimony by an available declarant (3) jacket was found in the immediate leads to the conclusion that appellate vicinity flight path. of his Although we argument strategic is rather than sin- suppose that jury could have been cere.”); Washington, 498 F.3d at 230 cf. impressed Quantico weighed in on the (“The value of might cross-examination re- issue, hardly we think that government late to authentication or to a description of rely needed to power the FBI’s star the machines or to the chain of custody, prevail in open-and-shut its case. Even trial.”). but none of these were issues at had the district court’s admission of Shea’s course, duty Of to produce necessary error, constituted surely and, follows, witnesses it necessarily beyond harmless a reasonable doubt. consequences absence, of their always prosecution. assumed See Melen- IV. dez-Diaz, 129 S.Ct. at 2540 (declaring that Pursuant to foregoing, we affirm the “the Confrontation imposes Clause a bur- entry district court’s judgment on the prosecution den on the present its wit- jury’s verdict. nesses, not on the defendant bring those AFFIRMED court”). adverse witnesses into FLOYD, Judge, Circuit concurring judgment: persuaded

Even were we not our Washington precedent controls Although the re I concur in the judgment, I case, sult in this effectively rebutting respectfully disagree majority’s with the Clause to reach Confrontation decision

issue. Southern recognized As we Norfolk Alexandria, 608 City

Railway v.Co. Of (4th Cir.2010), principle “the

F.3d 150 requires ... avoidance

constitutional rendering to strive to avoid

federal courts absolutely rulings unless

constitutional “It not the at 156-57. is

necessary.” Id. of a questions to decide

habit of the Court absolutely nec nature unless

constitutional the case.” Ashwan

essary to a decision of Auth., 297 U.S. Valley v. Tenn.

der (1936) L.Ed. 688 (internal

(Brandéis, J., quota concurring) omitted).

tion marks

Here, any error majority states viola- to a Clause regards Confrontation beyond a reasonable

tion is harmless this determination. agree I

doubt.

Hence, I am of the because thorny issue unnecessary ‍‌‌‌‌​‌​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌​​‌​‌‌​‌‌‌​​​​​​​‌​‌​‍to resolve a evolving an area of as this in what is

such law, I decline to ad-

constitutional vio- alleged Confrontation Clause

dress the

lation. TECHNOLOGY, OAK

WYE

INCORPORATED,

Plaintiff-Appellee, IRAQ, OF Defendant-

REPUBLIC

Appellant.

No. 10-1874. Appeals,

United States Court

Fourth Circuit.

Argued: Oct. 29, 2011.

Decided: Dec.

Case Details

Case Name: United States v. Summers

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Dec 16, 2011

Citation: 666 F.3d 192

Docket Number: 06-5009

Court Abbreviation: 4th Cir.