Cocaine Defendant Objects to Chemist's Testimony

defendant-appellant. force officers learned that danny turner was selling crack which are specific to each and every individual drug. the panel thanks hari santhanam of kirkland & ellis for reasonable precautions to preserve the original con- (def.'s appendix at 22.) did not do away with federal rule of evidence 703. and the standard for the admission of exhibits into evi- [h]e testified as an expert, not as a fact witness. when in cuong, the defendant, a doctor, was charged with believes that the district court should not have admitted because we find that the district court did not commit 129 s.ct. 2527 (2009). in melendez-diaz, the prosecution came to the same conclusion based on the information came to the same conclusion based on the infor- opinion the drugs were medically unnecessary and that the certificates were testimonial statements and the in the similar situation as in moon where the government's presenting his own conclusions about the substances in performed on the chunky materials within chemist did not perform the tests himself. instead, the lab 2008), mandates that his conviction be vacated. counts of the indictment. the district court sentenced q. so are you able--were you able to form an opinion turner further argues that the district court violated bought from turner. among other things, block testified done the lab work himself." id. v. specific test. by specific, it means the results that are contamination or carryover from previous testing. clude all possibilities of tampering with the evidence. were not admitted into evidence. turner's contention notes, machine test results, and her final report were witness who had personal knowledge of hanson's han- who did not appear at trial unless he was unavailable to (citations and quotation marks omitted). (def.'s appendix at 22.) 10 no. 08-3109 testimonial, without first demonstrating that she was a. my opinion based upon the examinations that were ment right to confront hanson, the forensic chemist we address below--that having peer-reviewed hanson's no. 08-3109 13 outstanding doctor, who is also a lawyer and president tampered with the evidence, but speculation is not concurrently. frontation clause of the sixth amendment to the united tested through gas chromatography, mass spectrometry, 14 no. 08-3109 analysis, he reached the same conclusion as hanson convicted by a jury of three counts of dealing crack about the nature of the substances she tested. the at the pretrial motion hearing, the district court set a testimonial in nature and that block's reliance of these q. my opinion based upon the examinations that were ii. analysis tunity to cross-examine her. no such problem exists. government officials who had custody of the hanson--introduced at trial as exhibits 1, 2, and at the close of the government's case, turner moved with the exception of block's passing comment--which id. at 361. we also held that instrument readouts were mand that a chemist or other testifying expert have in addition, the government does not have to ex- frontation clause." burgos, 539 f.3d 641, 643 (7th cir. prior to the report leaving the laboratory, every report that each of these items in 1, 2, and 3 contain calling a different expert witness--hanson's supervisor, brief mention of her conclusion was made in reference to would have been harmless under any standard. block's accuracy of the tests, and about agreeing with hanson district court was correct in both instances, and we testify, and the defendant had had a prior opportunity agent purchased from turner. on may 8, however, the van bokkelen, district judge. danny turner was was the same as hanson's, the error was harmless. b. the sixth amendment neither hanson's lab report, nor her notes, nor the 2008) (quoting crawford, 541 u.s. at 51). testimony as to how she handled the drugs during exhibits 1, 2, and 3, along with my experience, is 6 no. 08-3109 context of explaining the procedures for processing and cocaine base. no. 08-3109 motion and, in turn, assured the district court that block "the defendant [was] subjected to the testimony of a 2 no. 08-3109 undercover agent purchased from him. the district to allow exhibits 1, 2, and 3 into evidence, we decline defendant's sixth amendment right to confrontation officer bought from him. he contends that nothing is mation gathered and produced by a lab employee who cution's case." id. at 2532 n.1. moreover, melendez-diaz arguments, the jury returned guilty verdicts on all three no support in law: "the sixth amendment does not de- testimony unequivocally establishes that his opinion court, justice scalia explicitly stated that "we do not robert block--because hanson was on maternity leave. ments and his own conclusion that those readings the fourth circuit reversed the district court because exhibits 1, 2, and 3, we affirm the judgment of the chunky material in exhibits 1, 2, and 3, reviewing dition of the evidence. does not control this case. the testing. was entitled to analyze the data gathered by the lab `precisely what a witness does on direct examination,' " id. presented to the jury in the form of a sworn affidavit, a. yes, i was. united states v. prieto, 549 f.3d 513, 524 (7th cir. 2008). in-court testimony to show that the substance recovered "presumption of regularity," presuming that the turner argues that the district court abused its dis- ment introduced any statements from hanson that were did not abuse its discretion in admitting into evidence 1994), is misplaced. again, this is the second specific test, the results of (appellant's br. at 33.) a. issues for appeal rently. turner appeals, arguing that the district court valid conviction should not be set aside if the constitu- before rovner and evans, circuit judges, and sworn to before a notary public by analysts at the state cocaine in madison, wisconsin. on january 17, 2008, 3--contained cocaine base: duce into evidence "testimonial statements of a witness his findings "were essentially the same" as the findings laboratory: required to call every witness who handled an exhibit exhibits? (def.'s appendix at 26.) block also explained how suspected substances are the drugs alleged in the indictment. hanson was the testing the evidence at the laboratory. this was not a case provided that each of these items contained the defendant had had an opportunity to cross-examine him. employee who tested the drugs, the employee's "own court denied turner's motion. 548 f.3d 584, 587 (7th cir. 2008). condition as when the crime was committed. in showing that a witness was unavailable and that the regularity does not apply in testing suspected substances block's own opinion more believable. therefore, turner's the [supreme] court held, it is only that type of state- of the medical society, agrees with him." id. appeal from the united states district court defendant objected to the expert's testimony about agency three weeks before trial. the chemist based his dr. stevenson but the judge let it in. before that exhibit may be admitted into evidence: in lieu of hanson's testimony, would violated the con- infrared spectroscopy will generate a spectrum, and to the weight of the evidence, not its admissibility. used by the lab to prevent the commingling and for a directed verdict. he argued that the government affirmed. dling and testing of the substances the undercover 1-12-10 and . . . is well thought of in northern virginia," and who reliance on united states v. cuong, 18 f.3d 1132 (4th cir. we found that there was no problem with the chemist's (id.) generated are unique to that drug and no others. 2. whether the district court abused its discretion by danny turner, no. 3:08-cr-22-bbc--barbara b. crabb, chief judge. of imprisonment on each count, to be served concur- mation provided that each of these items contained statements in question are `testimonial'--because, as decision in united states v. moon, 512 f.3d 359 (7th cir. 4 no. 08-3109 of wisconsin indicted turner on three counts of distrib- "functionally identical to live, in-court testimony, doing no. 08-3109 5 in moon, a dea chemist testified at trial that the sub- q. so are you able--were you able to form an opinion stance seized from the defendant was cocaine. the would testify about his own conclusions, not hanson's, 8 no. 08-3109 expert witnesses. on may 1, the government notified cretion in admitting exhibits 1, 2, and 3 into evidence we review the district court's evidentiary rulings, 1. whether the district court violated his sixth amend- evidence, without an objection, the employee's report, enough to reverse the district court's evidentiary rul- the honorable joseph s. van bokkelen, united states district united states of america, about the nature of the exhibits; nothing from hanson's district court's admission of the employee's report. testify about hanson's tests. turner claims that hanson's including matters concerning chain of custody for that blank samples are run between each test to avoid turner chose not to present any evidence. after closing spectrum for a drug that has been extracted. this is a of the united states decided melendez-diaz v. massachusetts, son purposes. the mass spectrometer will print out a no. 08-3109 7 uting cocaine base (crack cocaine), in violation of 21 chemist did not himself test those exhibits. turner also stand. turner's argument is faulty. in writing for the condition as when he received them from officer amend. vi. accordingly, the government may not intro- illegally prescribing painkillers. the government called unit head, he peer-reviewed hanson's tests in this case: that would be indicative of the presence of a drug or away with this principle in the context of laboratory united states court of appeals and lab notes. in addition, the government entered into of regularity applies. turner presents no case law to the turner that it intended to call as an expert witness inference to be admitted." fed. r. evid. 703. so if the back door or to bolster her conclusion in order to make materials violated his right to confront a witness his rights under the sixth amendment confrontation had not established a sufficient chain of custody to an expert witness. block, on the other hand, was the the peer review of the other analysts within the drug likewise, we see no problem with block's expert testi- expert witness was properly allowed to rely on the infor- "has been president of medical society." id. at 1143. the should not have allowed a chemist to testify at trial identification section. i reviewed this report that a. i was. no. 08-3109 15 after the oral argument in this case, the supreme court peer review of the other analysts within the drug no. 08-3109 11 notes, machine test results, or her final report was intro- ployee's] report, this does not spoil [the chemist's] district court denied turner's motion. tional error was harmless beyond a reasonable doubt." from the defendant was cocaine. "the certificates were identification section. i reviewed this report that yet, even if it had been an error for block to describe how chunky material in exhibits 1, 2, and 3, reviewing error in allowing block's testimony at turner's trial and physical exhibits, under the abuse of discretion standard. duced into evidence. accordingly, we are faced with a analyst within the unit. as the unit head, i perform the even though the government did not present any when he signed off on her report. what is more, block's testing. turner only speculates that hanson might have turner argues that the district court violated his sixth contrary, and we find no compelling reason to do at the lab are calibrated each day that they are used and a standard that is run on that instrument for compari- amanda hanson generated for the analysis of the order to determine the type of drug involved: witness] bolstered his testimony by claiming that an accordingly, we find that, even if it was an error for performed on the chunky materials within about exhibits 1, 2, and 3 was his own: testimony. i. background of evidence (as doubtless they would have been, had did not testify at trial. be vacated. turner suggests that the presumption of by designation. establish a proper chain of custody. we conclude that the witness whom he may not cross-examine, and [the expert at 362. court judge for the northern district of indiana, sitting instead, the government need only show that it took representing danny turner on the appeal in this case. id. (citing chapman v. california, 386 u.s. 18, 24 (1967)). prosecutions, the accused shall enjoy the right . . . to be testing process of the suspected substances: he was strictly testimony because complex and often prone to error, bias, and prejudice." the expert testifies, "the facts or data need not be ment that makes a declarant a `witness' under the con- may 5, 2008, deadline for government's disclosure of the same material and i signed off on that peer review. tampering of evidence. he testified that the instruments maries, which contained some testimonial statements, of trying to introduce hanson's opinion through the on may 12, turner moved in limine to exclude block's about the nature of the drug exhibits because the public health." id. at 2531. the supreme court held that testing the evidence. block described the safeguards amendment right to confrontation by permitting block to analysis must undergo a peer review, and that, as the cocaine base. testing scientist--were not put before the jury. and the "we review evidentiary rulings implicating a making this determination, the district court makes a exhibits discharged their duties properly." the chain as to the nature of the substance in those three have rationally based its decision. united states v. tatum, affirm its judgment. conclusions based on the data should have been kept out district court. hold, and it is not the case, that anyone whose testi- mony may be relevant in establishing the chain of the drugs into evidence because the government did not laboratory supervisor whose job was to personally check prior to the report leaving the laboratory, every report exhibit being offered is in substantially the same the evidence. turner thus argues that there is a gaping a week later, a federal grand jury in the western district prosecution could not prove its case without first q. and what's your opinion? the handwritten notes and the generated data, and data charts were introduced into evidence. as we have stated before, the government is not not "statements" and, thus, could not be testimonial. id. report was not admitted into evidence, let alone because the substances purchased from turner confronted with the witnesses against him." u.s. const. remained in official custody at all times, the presumption we will not reverse a trial judge unless the record turner as a career offender to 210 months of impris- but in this regard moon is different from turner's case. the district court to allow block to state that his opinion meyer. finding no error in the district court's decision dence is that there must be a showing that the physical hanson's test results. as such, he could testify about his the sixth amendment guarantees that "[i]n all criminal therefore, we must first determine if the govern- analyst within the unit. as the unit head, i perform about exhibits 1, 2, and 3 were the same as hanson's. ing. moreover, detective hughes testified at trial turner points to language in moon that, while the expert for cross-examination." united states v. crawford, 541 u.s. exhibits 1, 2, and 3, along with my experience, is 12 no. 08-3109 no. 08-3109 9 known about how hanson handled the drugs, whether clause when it allowed block to testify that his conclusions the expert witness in moon was not involved in the inherently unreliable and requires that his conviction turner submitted a supplemental brief, claiming that ultimately, block testified that the substances tested by which contained both the readings taken from the instru- she followed appropriate procedures or tampered with in early 2008, dane county narcotics and gang task block is a senior forensic chemist and head of the drug most importantly, unlike in melendez-diaz, hanson's at 2532. instead, block testified as an expert witness after the february 12 purchase, officers arrested turner. personal involvement in the testing process, about the exhibits? custody, authenticity of the sample, or accuracy of the at 362. on appeal, the defendant challenged the about the crime lab's procedures for processing and laboratory institute of the massachusetts department of a gas chromatograph as well as the employee's report de novo." united states v. burgos, 539 f.3d 641, 643 an expert witness to testify about the defendant's practice hanson was unavailable for trial. turner insists that our testimony on the output of an infrared spectrometer and at trial, the government called block as its expert (def.'s appendix at 22.) the peer review process applied in this case, the error explaining how the peer review process works at the states constitution. the government objected to the in addition, block described how each chemist's question to the jury. accordingly, melendez-diaz who tested the drugs; and that each of these items in 1, 2, and 3 contain admitting the drugs into evidence without hanson's expert testimony. turner argued that block's testimony, as to the nature of the substance in those three the gas chromatography will print out a set of peaks (7th cir. 2008). if any error is to be found, "an otherwise- defendant objected)." id. iii. conclusion van bokkelen, district judge. melendez-diaz stands for the proposition that he should amanda hanson generated for the analysis of the no. 08-3109 3 u.s.c. § 841(a)(1). amanda hanson, an analyst at the wisconsin state crime argued may 14, 2009--decided january 12, 2010 for the seventh circuit of prescribing the drugs. the expert testified that in his laboratory, regarding the weight and identification of chemist who analyzed the substances the undercover of custody need not be perfect; gaps in the chain go that block could not rely on hanson's work product has statement was a passing reference to hanson in the introduced certificates of analysis as a substitute for onment on each count of the indictment, to be served confrontation clause precludes admitting [the em- unavailable for trial and without giving turner an oppor- testing device, must appear in person as part of the prose- must undergo a peer review by another qualified meant the tested substance was cocaine. moon, 512 f.3d turner's request to vacate his conviction. likewise the spectrum that is produced in the plaintiff-appellee, witness to identify the substances the undercover officer of his close friend, dr. stevenson, who "is also a lawyer, for the western district of wisconsin. unlike in cuong, the qualifications of hanson--the that the drugs appeared to be in substantially the same the handwritten notes and the generated data, and and infrared spectroscopy to generate graph data in because the job of a laboratory chemist is "exceptionally same material and i signed off on that peer review. identification unit at the crime laboratory in madison. undercover officer kim meyer purchased crack cocaine from turner, and again on january 25 and february 12. because the government had not demonstrated that contains no evidence on which the trial court could hole in the chain of custody which makes the evidence c. chain of custody admissible in evidence in order for the opinion or 36, 53-54 (2004). "the critical inquiry is whether the cocaine. the district court sentenced him to 210 months must undergo a peer review by another qualified government advised turner that it would instead be turner's appeal raises two issues: work had been done by another employee who left the have been able to confront hanson on the witness united states v. prieto, 549 f.3d 513, 524-25 (7th cir. 2008) prove that the drugs tested were the same substances the mony, especially in light of the fact that hanson's sum-