United States v. Moore, Percy E.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2183

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PERCY E. MOORE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 03 CR 50018—Philip G. Reinhard, Judge.

____________

ARGUED NOVEMBER 10, 2004—DECIDED OCTOBER 13, 2005

____________

Before COFFEY, RIPPLE, and SYKES, Circuit Judges.

COFFEY, Circuit Judge. On August 28, 2003, Percy E.

Moore was convicted in the United States District Court for

the Northern District of Illinois of three counts of knowingly

and intentionally distributing cocaine hydrochloride

(cocaine powder) and cocaine base, in violation of 21 U.S.C.

§ 841(a)(1). On April 23, 2004, he was sentenced to a term

of 175 months. On appeal, Moore argues for reversal of his

conviction, alleging that the district court erred by (1)

refusing to allow the introduction of Social Security Admin-

istration records to confirm Moore’s inability to understand

the conversations with a confidential informant; (2) admit-

ting expert witness testimony without the foundational

testimony required by Rule 702 of the Federal Rules of

2 No. 04-2183

Evidence; (3) ruling that the government had proved Moore

guilty beyond a reasonable doubt in light of inconsistent

and contradictory testimony by a confidential informant;

and (4) concluding that Moore was competent to be sen-

tenced. We affirm.

I. Background

Percy Moore was charged with three counts of know-

ingly and intentionally distributing cocaine and cocaine

base to Rosa Flemons, a Drug Enforcement Administration

(“DEA”) confidential informant. While investigating Moore,

the DEA sought the assistance of Flemons, who had been

convicted three times of drug offenses, once in federal court

for conspiracy to distribute cocaine and twice in state court

for possession of a controlled substance. In exchange for

reducing by half the low end of the federal sentence that

she was facing, Flemons agreed to serve as a confidential

source for the DEA.

On September 13, 2002, Flemons and her husband,

Robert, met with DEA Special Agent Douglas Hopkins

and Rockford Police Detective Brian Skaggs in preparation

for her first attempt to purchase drugs from Moore. Accord-

ing to the trial transcript, Flemons had never purchased

drugs from Moore prior to September 13, 2002.1 Due to

concerns for her safety, Flemons requested that she not be

required to wear audio recording equipment during the

initial buy, and her supervising agents agreed to her

request. According to Flemons and the agents, before

Flemons and her husband set off to meet Moore, the agents

1

Flemons’ friend “Kathy” had introduced her to Moore two

days earlier; Flemons testified that during their first encounter,

she asked Moore if she could purchase drugs from him and he

agreed.

No. 04-2183 3

in charge searched Flemons, her husband, and their car for

cash and contraband, and none was found. Agent Hopkins

gave Flemons $250 to purchase a quarter ounce of cocaine.

At approximately 5:00 p.m., Flemons and her husband

drove to Moore’s home on the 100 block of South Central in

Rockford, Illinois, and found him standing in the front yard

with a man and a woman. After the man left, Flemons

approached Moore and told him that she wanted to buy a

“quarter.” According to her testimony, Moore and the

unidentified woman went inside the house for a couple of

minutes and returned with a plastic bag filled with a white

powder. At this time, the woman accompanying Moore

handed the plastic bag to Flemons, and Flemons attempted

to hand her the $250. The woman pointed to Moore, and

Flemons proceeded to hand him the money. Flemons

testified that before she left, she asked Moore how much a

larger amount of cocaine would cost, and he advised her

that a kilo would cost $21,000. She returned to the car and

drove to a predetermined location to meet the handling

officers. When she arrived, she gave the plastic bag with the

white substance to Agent Hopkins, and, once again, he

searched her and her husband for money and contraband.

According to Agent Hopkins, he followed the Flemonses

until they were near the 100 block of South Central and

then transferred surveillance duties to Officer Robert

Swank of the Winnebago Sheriff’s Department, who was

stationed in a school parking lot across the street from

Moore’s home. According to Officer Swank, he had an

unobstructed view of Moore’s house. At approximately

5:00 p.m., he observed a small white vehicle with the

Flemonses arrive at Moore’s home. During his testimony at

trial, Officer Swank described the transaction, as depicted

by Flemons in her testimony, up until Moore and the

unidentified woman returned from inside the house; at that

point, he was unable to observe the exchange of money and

contraband because it took place behind a vehicle with its

hood raised, obstructing his view.

4 No. 04-2183

Flemons’ next meeting with Moore took place on Septem-

ber 23, 2002. Flemons contacted Moore by telephone, and,

during their recorded conversation, she asked Moore if she

could stop by to talk. Moore told her to “come on over.” Prior

to departing for her meeting with Moore, Flemons and her

husband were again searched for contraband and money

and were given $250 to purchase the narcotics. She wore a

concealed recording device to this second meeting, and

Officer Swank filmed the encounter. When Flemons arrived

at Moore’s home, Moore informed her that he was “dry.”

Flemons continued to contact Moore by telephone over the

next couple of weeks. The conversations were recorded.

Flemons testified that during each conversation, Moore

conveyed to her, using various terms and metaphors, that

he presently had no contraband in his possession. Finally,

on October 9, 2002, Flemons made another recorded

telephone call to Moore, during which Moore told her that

he was “all right.” Moore then instructed her to come to the

thrift store next to his house. Before leaving for the meeting

with Moore, the agents searched Flemons, her husband, and

their vehicle for cash or contraband and provided Flemons

with $800 in cash and a concealed, activated audio recorder.

Agent Hopkins again followed the Flemonses until they

were near Moore’s house, at which point Officer Nick

Cunningham of the Winnebago County Sheriff’s Depart-

ment, who was parked across the street from Moore’s house,

picked up the surveillance. When Flemons arrived at the

thrift store, Moore stated that he needed additional time to

obtain the contraband. The Flemonses left and traveled to

a nearby house to contact Agent Hopkins. Thereafter, they

drove to a local fast-food restaurant to eat lunch before

returning to the thrift shop. Upon their return, Moore

motioned for Flemons to follow him into the back room of

the store. According to Flemons, he directed her to a cup

located on the floor in the back room. Flemons approached

the cup and observed a plastic bag within, which she

No. 04-2183 5

believed contained an ounce of crack cocaine. Flemons

picked up the cup, handed Moore $800 for the drugs, and

departed. The video surveillance showed Flemons exiting

the store with the cup in her hand. After Flemons left the

store, the Flemonses met with their handling agents, gave

them the cup containing the cocaine, and submitted to a

search of their persons and vehicle. Hopkins placed the cup

containing the cocaine into an evidence bag.

Flemons again contacted Moore on October 17, 2002. She

told him in a recorded telephone conversation that she

wanted “two of them, the hard.” Moore advised her to come

over. Before leaving for Moore’s house, Flemons, her

husband, and their car were again searched, and Flemons

was given an audio recorder and $1,600 to purchase two

ounces of crack cocaine. When Flemons arrived at Moore’s

house, he had only two small amounts of crack cocaine to

sell. Flemons explained that she wanted two ounces, not

two “rocks,” and Moore told her he needed additional time.

The Flemonses left Moore’s house and went to meet Agent

Hopkins. Approximately twenty to thirty minutes later,

Flemons called Moore, and he instructed her to meet him at

210 Howard Avenue in Rockford, Illinois. The Flemonses

drove to that location, and Moore led her into a house.

Agent Hopkins and Officer Brian Skaggs of the Rockford

Police Department followed the Flemonses to the Howard

Avenue location and maintained surveillance of the house.

A short time later, the officers observed Moore walk out of

the residence to a fence surrounding the property and

disappear from view. Flemons, who was still inside the

house, testified that she observed Moore through the

windows walk along the side of the house to the fence where

he bent over and retrieved two plastic bags. According to

Flemons, Moore brought the two bags back into the house

and sold them to her for $1,600. Flemons testified that each

bag contained what appeared to be one ounce of crack

cocaine. After the transaction was complete, Flemons

6 No. 04-2183

departed and returned to her handlers. Agent Hopkins took

possession of the two plastic bags and the audio recorder

and sealed the drugs in a heat sealed evidence bag. The

Flemonses were again searched for additional cash or

contraband, but none was found.

The substances that Flemons turned over to Agent

Hopkins on September 13, October 9, and October 17, 2002,

were analyzed by Jennifer Yezek, a DEA forensic chemist.

According to Yezek’s testimony during trial, the three

substances she received were each individually sealed in

evidence bags bearing a sticker with the signature of Agent

Hopkins. She received the three evidence bags from an

unidentified evidence technician. Yezek opened each bag

and proceeded to inspect, weigh, and analyze the sub-

stances. She performed the following tests on each of the

three samples: (1) a cobalt thiocyanate test; (2) a gas

chromatography mass spectrometry test; and (3) an infrared

spectrometry test. Based on her analysis, Yezek concluded

that the substances gathered on September 13, October 9,

and October 17, 2002, consisted of 6.6 ounces of cocaine

powder, 26.9 grams of cocaine base, and 53.8 grams of

cocaine base, respectively. During trial, the substances were

introduced and admitted as government exhibits 16 (the 6.6

ounces of cocaine powder), 17 (the 26.9 grams of cocaine

base), and 18 (the 53.8 grams of cocaine base).

On February 27, 2003, Moore was arrested by federal

authorities on the basis of a complaint, filed by Agent

Hopkins, which alleged that he had violated 21 U.S.C.

§ 841(a)(1) by knowingly and intentionally distributing

powder and crack cocaine to one or more confidential

sources. On March 11, 2003, the grand jury indicted Moore

on the same three offenses.

On August 22, 2003, a final pre-trial conference was held

before United States District Court Judge Philip G.

Reinhard in the Northern District of Illinois, Western

No. 04-2183 7

Division. During the hearing, Moore’s counsel represented

that, although he had previously filed a motion to have

Moore examined for competency, he presently felt that

Moore was competent to stand trial.2 He also represented to

the court that Moore was not alleging “in any way, shape,

or form that [he] was legally insane at the time of the

offense.” However, counsel did advise the court

that according to the Social Security Administration

(“SSA”), Moore had been found to be totally mentally

disabled for the past nine years and had been receiving

social security disability in the amount of $1,200 per month.

Moore’s counsel further advised the court for the first time

that he had been trying to obtain records from the SSA

documenting his disability but had not yet received them.

Upon hearing defense counsel’s representations about

Moore’s mental capacity, the government moved the district

court to bar Moore from presenting a diminished capacity

defense. Prior to the start of trial, the court granted the

government’s motion, stating, “There shall not be mention

of diminished capacity as any defense nor can there be any

expert testimony raised as to the issue of if he has a mental

disability for Social Security purposes because there’s been

no such disclosure.” However, the judge also told the parties

that although he was barring Moore from presenting a

diminished capacity defense, he would not rule out the

introduction of the SSA records: “Subject to hearing what

the questions are that are posed to the defendant, should he

take the stand, I will allow that just to show as to his

basic intelligence.” The only other mention of the SSA

records occurred at the end of the first day of trial when

government counsel informed the court that he still had not

2

Prior to the final pre-trial conference, Moore’s counsel had

moved to withdraw the motion for a competency examination, and,

at the time of the final pre-trial conference, the motion was no

longer pending.

8 No. 04-2183

received a copy of the records. Moore’s counsel explained

that he had not produced the records because he still had

not received them. He then suggested that he would not

be introducing the records because “the judge has basi-

cally ruled that they’re not relevant.” The district court

responded by stating, “I’ve essentially ruled that he

can probably testify [to] his mental condition—if he wants

to tell us what his IQ is or something like that, he can do it,

and if he can tell he’s under a disability, I’ll allow that, but

that’s about it.”

The jury trial continued from August 26, 2003, through

August 28, 2003. Moore did not testify at trial nor did

he present any witnesses in his defense. He did not move

the court to admit his SSA records. The government called

Flemons, Agent Hopkins, and Officers Swank and

Cunningham to testify as to the transactions and conversa-

tions between Flemons and Moore. In addition, the govern-

ment presented the testimony of Jennifer Yezek, the

forensic chemist, Joseph Ambrozich, a DEA fingerprint

analyst, and Steven Johnson, a veteran police officer with

the Rockford Police Department who testified as an expert

in the area of narcotics distribution investigation. On

August 28, 2003, the jury found Moore guilty on all three

counts, and the court entered judgment on each of the

verdicts. On September 10, 2003, Moore filed a motion for

judgment of acquittal and, in the alternative, a request for

a new trial. Judge Reinhard denied each request in a

minute order dated September 12, 2003. On October 10,

Moore filed a motion for an examination to determine his

competency for sentencing, and Judge Reinhard granted the

motion. After the competency review conducted under the

supervision of the United States Bureau of Prisons in

Butner, North Carolina, the court held an evidentiary

hearing on March 25, 2004, to determine Moore’s compe-

tency. During the hearing, Dr. Adam Wooten, the psychia-

trist who evaluated Moore while he was at Butner, testified

No. 04-2183 9

as to his examinations of Moore. Wooten testified that

although Moore suffered from depression, he believed that

Moore’s medication, Zoloft, successfully controlled his

depression. He further opined that Moore appeared able to

understand the nature of the proceedings against him and

to assist his counsel during the sentencing phase. Defense

counsel then called Moore’s fiancee, Meighan Fitzgerald, to

testify. Fitzgerald testified that Moore constantly asked her

the same questions during a single visit and that he had

stopped writing her letters. After hearing the arguments of

counsel, Judge Reinhard determined that Moore was

competent to proceed with sentencing, stating:

I’ve had the opportunity to read the forensic

evaluation by Dr. Wooten thoroughly, and I’ve also

had the opportunity to view his testimony both on

cross examination and direct examination. I’ve also

had the opportunity to read the presentence investi-

gation report and to view Mr. Moore throughout the

trial, and he actually was on videotape during

portions of the evidence that were used by the

government against him.

The court concludes . . . that I have a qualified

psychiatric opinion that has not been rebutted,

except by some lay testimony, which in certain

circumstances could overcome expert testimony.

But under these circumstances, having listened to

the psychiatrist testify and having read the history

taken by Dr. Wooten, the examination that he had

of the defendant over a period of time, his observa-

tion over a period of time, also the psychological

testing that confirms aspects of depression, but also

while it may state some conclusions about that [sic]

he was hallucinating, it does not in any way nega-

tive, in my opinion, the medical opinion by Dr.

Wooten that the defendant is not suffering from a

mental disease or defect rendering him mentally

10 No. 04-2183

incompetent to the extent he’s unable to under-

stand the nature and consequences of the proceed-

ings against him or properly assist Mr. Phillips in

his own defense.

There is lay testimony, as I indicated, from Ms.

Fitzgerald, which are observations of him. I think

they are not inconsistent with somebody who is

depressed awaiting sentence, and there’s no indica-

tion by her testimony, in my opinion, that he’s

unable to understand legal concepts. Assuming that

her testimony is accurate that he sometimes re-

peats questions, that, in my opinion, does not

overcome the testimony [of Dr. Wooten].

I saw him in person and on videotapes, and

there’s no doubt—at least throughout the entire

trial, in my opinion, he was competent, and any

depression that he may have is not unusual for a

person who is now facing a sentence after being

convicted and being out on bond.

On April 23, 2004, Judge Reinhard sentenced Moore

to a term of 175 months in the custody of the United States

Bureau of Prisons. On April 29, 2004, Moore filed a Notice

of Appeal for his conviction and his sentence.

II. Analysis

Moore raises four issues on appeal. First, he claims

that the district court prevented him from presenting

evidence that he did not understand the narcotics terminol-

ogy used in his conversations with Rosa Flemons. Specifi-

cally, he argues that the court precluded him from introduc-

ing SSA records which he claims would have revealed his

limited ability to understand coded narcotics terminology.

Next, he argues that the government failed to lay the

proper foundation for the expert testimony of Jennifer

No. 04-2183 11

Yezek, the DEA forensic chemist, as required by Rule 702

of the Federal Rules of Evidence. He also contends that the

court erred when it denied his post-trial motion and ruled

that the government had proved him guilty beyond a

reasonable doubt despite inconsistent and contradictory

testimony from Flemons. Finally, Moore argues that the

district court erred when it ruled that he was competent to

be sentenced.

A. Introduction of Evidence

Moore claims that the district court erred in precluding

him from introducing his SSA records. Prior to and dur-

ing trial, defense counsel made it clear to the district

court that he did not intend to introduce the records as

evidence in support of a legally insane or diminished

capacity defense; rather, Moore argues that the records

would have provided evidence that he was mentally incapa-

ble of understanding his conversations with Flemons in

which both parties used coded drug language. The govern-

ment contends that despite his suggestion to the contrary,

Moore never sought to introduce the SSA records, and the

district court never precluded Moore from presenting those

records to the jury.

Federal Rule of Evidence 103(a)(2) states, “Error may not

be predicated upon a ruling which admits or ex-

cludes evidence unless a substantial right of the party is

affected, and . . . [i]n case the ruling is one excluding

evidence, the substance of the evidence was made known to

the court by offer or was apparent from the context within

which questions were asked.” Fed. R. Evid. 103(a)(2). This

rule effectively requires a defendant to present his eviden-

tiary arguments to the trial court in order to preserve the

issue for appeal. Although this circuit does not require

litigants to make formal offers of proof when evidence is

excluded, “the record must show the equivalent: grounds for

12 No. 04-2183

admissibility, the proponent must inform the court and

opposing counsel what he expects to prove by the excluded

evidence, and he must demonstrate the significance of the

excluded testimony.” United States v. King, 75 F.3d 1217,

1223 (7th Cir. 1996) (citing United States v. Peak, 856 F.2d

825, 832 (7th Cir. 1988)).

Prior to the start of trial, the district court briefly ad-

dressed the admissibility of the SSA records in ruling on the

government’s motion in limine to preclude Moore from

presenting a diminished capacity defense.3 Although Judge

Reinhard granted the government’s motion in limine, his

ruling allowed Moore to seek leave of court to introduce the

records for a limited purpose: “Subject to hearing what the

questions are that are posed to the defendant, should he

take the stand, I will allow that just to show as to his basic

intelligence.” During trial, Moore never sought leave to

introduce the SSA records and made no attempt at an offer

of proof. Defense counsel suggested that Moore would not

introduce the records because “the judge has basically ruled

that they’re not relevant.” However, immediately after

defense counsel’s statement, Judge Reinhard clarified his

ruling, stating, “I’ve essentially ruled that he can probably

testify [to] his mental condition—if he wants to tell us what

his IQ is or something like that, he can do it, and if he can

tell he’s under a disability, I’ll allow that, but that’s about

it.” Although the district court left the door open to offer the

SSA records, Moore’s counsel never sought to introduce the

3

The court notes that unlawfully distributing cocaine in violation

of 21 U.S.C. § 841(a)(1) is a general intent crime, see United States

v. Manganellis, 864 F.2d 528, 539 (7th Cir. 1988), and diminished

capacity is a defense only to specific intent crimes, see United

States v. Fazzini, 871 F.2d 635, 641 (7th Cir. 1989) (citing United

States v. Twine, 853 F.2d 676, 679 (9th Cir. 1988)). Thus, a

diminished capacity defense was not available to Moore.

No. 04-2183 13

documents during trial.4 By failing to make an offer of

proof, Moore forfeited the issue. Thus, we will review the

exclusion of this evidence only for plain error.5 See Fed. R.

Evid. 103(d) (“Nothing in this rule precludes taking no-

tice of plain errors affecting substantial rights although

they were not brought to the attention of the court.”); Fed.

R. Crim. P. 52(b) (“A plain error that affects substantial

rights may be considered even though it was not brought to

the court’s attention.”).

The Supreme Court has established a four-part plain

error standard. See United States v. Cotton, 535 U.S. 625,

631-32 (2002); Olano, 507 U.S. at 732. Before an appellate

court can correct an error not raised at trial, there must

be “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] sub-

stantial rights.’ ” Cotton, 535 U.S. at 631 (quoting Johnson

4

Part of Moore’s argument is that since he did not have the

SSA records in his possession, he could not seek to introduce them

during trial. As conceded by Moore’s counsel during oral argu-

ment, the first mention of the SSA records to the district court

occurred at the final pre-trial conference on the Friday prior to the

start of trial. While Moore’s counsel advised the court that he had

filled out a request but had not yet received the records, he did not

request the court’s assistance in securing those records during the

final pre-trial conference nor at any time thereafter. See, e.g., Fed.

R. Crim. P. 17(c) (governing subpoenas for the production of

documents). Moreover, he did not request a continuance of the

trial in order to secure those documents. For these reasons, this

court is unpersuaded by Moore’s argument that he could not

introduce the documents because he did not have them.

5

“Forfeiture” is “the failure to make the timely assertion of a

right”, as opposed to “waiver,” which is “the intentional relin-

quishment or abandonment of a known right.” United States v.

Olano, 507 U.S. 725, 733 (1993); United States v. Davis, 15 F.3d

1393, 1407 n.4 (7th Cir. 1994). “Waiver precludes appellate

review, but forfeiture permits review for plain error.” United

States v. Jaimes-Jaimes, 406 F.3d 845, 847 (7th Cir. 2005).

14 No. 04-2183

v. United States, 520 U.S. 461, 466-67 (1997)). If all three

requirements are met, an appellate court may review a

forfeited error, “but only if (4) the error seriously affect[s]

the fairness, integrity, or public reputation of judicial

proceedings.” Cotton, 535 U.S. at 631-32 (alteration in

original) (quoting Johnson, 520 U.S. at 467).

Moore’s argument fails to clear the steep hurdle imposed

by the plain error standard. In his appellate brief, Moore

suggests that the SSA records were necessary to demon-

strate “his deficient mental condition to explain to the jury

why the words he used during these conversations [with

Flemons] did not refer to cocaine and were not ‘code’ for

cocaine as alleged by the Government.” However, Moore

fails to explain how the SSA records would have established

that he was mentally incapable of understanding the coded

drug language. The records would not have said anything

about Moore’s understanding of the particular conversa-

tions in question. Moreover, they would not have said

anything about Moore’s ability to comprehend coded

narcotics terminology. The records alone would not demon-

strate that Moore did not understand any of the specific

conversations he had with Flemons. At most, the records

would have demonstrated that the SSA had determined

that he suffered from a mental disability and was entitled

to disability benefits under the Social Security Act. Moore

would have then needed to call an expert to interpret the

records and explain the effect his mental disability had

on his ability to understand language; however, Moore

never obtained, or indicated that he wanted to obtain, an

expert to testify about his alleged mental impairment.

Furthermore, Moore did not testify at trial, which

would have been the logical way to present evidence con-

No. 04-2183 15

cerning his history of mental illness.6 On numerous occa-

sions the trial court stated that it would not prohibit Moore

from testifying that he did not understand the narcotics

terminology used in his conversations with Ms. Flemons.

Similarly, his counsel did not even see fit to question the

government’s law enforcement expert about how an individ-

ual with mental disabilities would have been confused by

the drug terminology used during the drug sales. The

court’s decision to bar the SSA records did not preclude

Moore’s theory of the defense because he had sufficient

means to present that theory to the jury but chose not to do

so. See King, 75 F.3d at 1222.

Furthermore, any erroneous exclusion of Moore’s SSA

records was harmless in light of the overwhelming evidence

of Moore’s guilt. Moore was convicted for actually selling

cocaine, not merely discussing a sale of the illegal sub-

stance. Regardless of what was said between Moore and

Flemons, the government presented more than ample

evidence during trial of the actual sale of narcotics by

Moore to Flemons. On three separate occasions Flemons

went to a location prescribed by Moore (his home or his

mother’s thrift store) and each time she returned with

cocaine. Before each visit she, her husband, and their car

were searched and found clean of drugs, and, during

each visit, she was monitored by law enforcement per-

sonnel. Considering the totality of evidence presented

at trial, we are convinced that even if we were to deter-

mine that the district court had committed an error in

dealing with the admissibility of the SSA records, we would

deem it to be harmless error.

6

As set forth earlier, Moore also failed to make an offer of

proof at any time during the trial.

16 No. 04-2183

B. Chain of Custody

Moore next claims that the district court erred in admit-

ting the testimony of the government’s forensic chemist,

Jennifer Yezek. Moore makes a fleeting Daubert challenge

to Yezek’s testimony, arguing that the government failed to

lay the proper foundation for her expert testimony as

required by Rule 702 of the Federal Rules of Evidence.

However, beyond referencing the standards set forth in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,

589-95 (1993), his only specific argument is that her

testimony was unreliable because the government failed to

establish a chain of custody for the drugs she analyzed.7

Moore argues that the government failed to establish that

its exhibits 16, 17, and 18 were actually the evidence

collected from Flemons after her encounters with Moore and

that the samples were not contaminated before they

reached Yezek. At trial, Moore’s counsel objected during

Yezek’s direct examination, arguing that she was speculat-

ing when she testified that she received the samples from

an evidence technician who had retrieved them from a

vault. The trial judge overruled the objection in part,

finding that Yezek could testify that she received the

samples from an evidence technician, but he sustained the

objection as to any testimony about where the samples were

before they came into her possession.

A district court’s evidentiary rulings, including matters

concerning the chain of custody, are reviewed for abuse

of discretion. United States v. Scott, 19 F.3d 1238, 1245 (7th

Cir. 1994). “ ‘The standard for the admission of exhibits into

7

Moore’s counsel also failed to object to the foundation of her

testimony at trial. After the government questioned Yezek about

her credentials and then tendered her as an expert, defense

counsel stated that he had no objection as to the foundation of her

testimony, and the district court accepted her as a qualified expert

in the field of chemistry and the analysis of narcotics.

No. 04-2183 17

evidence is that there must be a showing that the physical

exhibit being offered is in substantially the same condition

as when the crime was committed.’ ” United States v. Lott,

854 F.2d 244, 250 (7th Cir. 1988) (quoting United States v.

Aviles, 623 F.2d 1192, 1197 (7th Cir. 1980)). It is well

accepted in this circuit that “[a] perfect chain of custody is

not a prerequisite to admission,”United States v. Smith, 308

F.3d 726, 739 (7th Cir. 2002), as “gaps in the chain nor-

mally go to the weight of the evidence rather than its

admissibility,” Lott, 854 F.2d at 250. Furthermore, “the

government need only show that it took reasonable precau-

tions to preserve the original condition of the evidence, it

does not have to exclude all possibilities of tampering with

the evidence . . . . [a] presumption of regularity exists with

respect to official acts of public officers and, absent any

evidence to the contrary, the court presumes that their

official duties have been discharged properly.” Id. (internal

citations omitted); see also Aviles, 623 F.2d at 1198; United

States v. Lampson, 627 F.2d 62, 65 (7th Cir. 1980).

During his testimony, Agent Hopkins described the

procedure for handling the substances turned over to him

by Flemons. He stated that when he received the sub-

stances (all in clear bags) from Flemons, he put the bag and

its contents into an evidence bag,8 “heat-sealed” the top

opening of the evidence bag, and then placed an evidence

sticker with the date, the case number, and his signature on

the evidence bag. He stated that his department maintained

custody of the evidence bags at the DEA office in Rockford

until transferring the bags to the North Central Regional

Lab in Chicago. Yezek testified at trial that she weighed

government exhibits 16, 17, and 18 and analyzed the

contents for the presence of narcotics. She stated that she

8

Agent Hopkins testified that an evidence bag has three fac-

tory seals and an opening at the top through which he would place

the evidence.

18 No. 04-2183

obtained each of the exhibits from a DEA evidence techni-

cian in a heat-sealed evidence bag with a label bearing

Agent Hopkins’ signature. Yezek explained how she opened

each evidence bag, removed the substance from its original

packaging, and tested the substances. She sent the original

packaging for fingerprint analysis and identified each

exhibit she examined by a laboratory control number

unique to that exhibit.

Moore argues that the “missing links” in the chain of

custody include the government’s lack of specifics concern-

ing the transfer of the exhibits from the DEA field office

in Rockford to the North Central Regional Lab in Chicago

and the transfer of the exhibits from the laboratory techni-

cian at North Central to Yezek. See Lott, 854 F.2d at 250.

Although he has raised the possibility of tampering during

these transfers, Moore has failed to point to any evidence

that even suggests tampering or casts doubt on the authen-

ticity of the exhibits. Having reviewed all of the trial

testimony of Agent Hopkins and Yezek, the court is satis-

fied that the exhibits were at all times kept in official

custody; thus, the presumption of regularity attaches.

Moreover, according to Yezek’s trial testimony, the evidence

bags bearing Agent Hopkins’ signature were heat-sealed

when she received them and remained sealed until she

began her analysis. The chain of custody for each exhibit

was substantially complete, and, based on this record and

the relevant case law, we refuse to conclude that the district

court abused its discretion in admitting exhibits 16, 17, and

18 and allowing Ms. Yezek to testify as to those exhibits.

See, e.g., United States v. Williams, 44 F.3d 614, 618 (7th

Cir. 1995) (finding a sufficient chain of custody despite the

lack of testimony regarding how drugs seized at a crime

scene were transferred to the drug analysis lab).

No. 04-2183 19

C. Insufficiency of the Evidence

Moore next argues that the evidence presented at trial

was insufficient to support his conviction for possession

with intent to distribute cocaine and cocaine base. “A party

challenging the sufficiency of the evidence supporting a jury

conviction faces a steep uphill battle.” United States v.

Graham, 315 F.3d 777, 781 (7th Cir. 2003). We have

previously stated that a challenge to the sufficiency of the

evidence poses a “nearly insurmountable hurdle.” United

States v. Frazier, 213 F.3d 409, 416 (7th Cir. 2000). In

evaluating a sufficiency of the evidence claim, we must

determine whether “ ‘after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.’ ” United States v. Ramirez, 796 F.2d

212, 214 (7th Cir. 1986) (quoting Jackson v. Virginia, 443

U.S. 307 (1979) (emphasis in original)). “An appellate court

will not weigh the evidence or assess the credibility of the

witnesses. ‘Only when the record contains no evidence,

regardless of how it is weighed, from which the jury could

find guilt beyond a reasonable doubt, may an appellate

court overturn the verdict.’ ” Ramirez, 796 F.2d at 214-15

(internal citations omitted) (quoting United States v. Peters,

791 F.2d 1270, 1308 (7th Cir. 1986)).

Moore argues that the government’s case depended

entirely on Flemons’ testimony, which he characterizes as

inconsistent, contradictory, and thus unreliable. Moore

points to trial testimony by Flemons in which she stated

that a conversation between them was not recorded, then

later changed her testimony and stated that the same

conversation was recorded.9 Moore also argues that the

9

As set forth in the factual background, Flemons did not wear a

recording device on September 13, 2002, the first time she

(continued...)

20 No. 04-2183

cocaine could have come from Flemons and not him. As

support for this argument, Moore highlights the fact that

neither of the Flemonses were given a body cavity search or

internal examination before their meetings with Moore.

Moore’s argument that Flemons’ testimony is unreli-

able amounts to an attack on her credibility. “Credibility is

for the jury, not this court, to determine.” United States v.

Mejia, 909 F.2d 242, 245 (7th Cir. 1990). This court will not

interfere “[w]hen a jury has chosen to credit crucial testi-

mony with full knowledge of the many faults of the witness

providing it . . . .” United States v. Woolfolk, 197 F.3d 900,

904 (7th Cir. 1999). During trial, Moore’s counsel took the

opportunity to thoroughly cross-examine Flemons regarding

her prior convictions, her inconsistent statements, and her

cooperation with the government in exchange for a reduced

sentence. After hearing Flemons’ testimony, including

defense counsel’s attempts to discredit her, the jurors

obviously determined that Flemons’ testimony was credible.

A review of the record reveals that her testimony, although

evincing minor inconsistencies, was by and large consistent

with the other evidence presented, including the testimony

of three officers who supervised the buys as well as the

audio and video surveillance. Because the record does not

reveal her testimony to be unreliable as a matter of law, the

jury was entitled to its credibility determination. See United

States v. Pagan, 196 F.3d 884, 889 (7th Cir. 1999) (“The

extent to which [the informant’s] personal failings and

motivations may have influenced his testimony was for the

jury to decide.”); United States v. Dunigan, 884 F.2d 1010,

1013 (7th Cir. 1989) (“Mere inconsistencies in the witness’

testimony do not render it legally incredible.”).

9

(...continued)

purchased cocaine from Moore. She did wear recording devices

during the encounters on October 9, 2002, and October 17, 2002.

No. 04-2183 21

Moreover, even if the jury had some misgivings about

Flemons, the government’s case did not rest solely on her.

The government certainly placed emphasis on the testimony

of Flemons, who met with Moore on three occasions (two of

which were recorded) and spoke to him on the telephone

several times. However, the government also presented a

plethora of other evidence, including but not limited to

audio and video tape recordings of the alleged drug transac-

tions, the testimony of three law enforcement officers who

organized, supervised, and observed the transactions, the

unchallenged expert testimony of a forensic chemist who

opined that the substances given to Hopkins by Flemons

contained cocaine and cocaine base, and the expert testi-

mony of Steven Johnson, an officer with twenty-six years of

law enforcement experience, who deciphered the coded

narcotics vocabulary used by Moore during his conversa-

tions with Flemons. The jury had the opportunity to view

video recordings of Moore meeting with Flemons during two

of the controlled drug buys arranged by law enforcement, to

listen to Flemons and Moore negotiate a sale—albeit in

coded language—and to hear the testimony from the officers

and forensic chemist concerning the substances she brought

back from her meetings with Moore. Based on the totality

of the evidence presented and the applicable case law, we

conclude that the jury could reasonably have inferred that

Moore possessed and intended to distribute cocaine and

cocaine base.

D. Competency to be Sentenced

Moore’s final argument is that the trial court erred in

finding him competent to be sentenced. Approximately

six weeks after the jury trial and prior to his sentencing,

Moore’s counsel informed the trial judge that Moore had

become disoriented and was no longer able to adequately

assist counsel in presenting his defense. Moore’s coun-

22 No. 04-2183

sel requested an examination to determine whether

Moore was competent to be sentenced. The trial court

granted Moore’s motion for a psychiatric examination

and Moore was sent to the United States Bureau of Prisons

in Butner, North Carolina, for evaluation. After Moore’s

evaluation at Butner, the court held a competency hearing

and determined that Moore was competent to proceed with

and assist counsel in preparing for the sentencing phase of

the trial proceeding.

When the trial court has held a hearing and made

findings about the competency of a defendant, as it did in

this instance, “we will overturn those findings only upon a

showing that they are clearly erroneous.” United States v.

Collins, 949 F.2d 921, 924 (7th Cir. 1991) (quoting United

States v. Garrett, 903 F.2d 1105, 1116 (7th Cir. 1990)). In

order for a defendant to be found incompetent, the evidence

must demonstrate that he did not understand the nature

and consequences of the proceedings against him and that

he was unable to assist in his own defense. See United

States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th

Cir. 1984).

Moore first argues that because his counsel raised and

supported his incompetency claim, his claim had more

merit. Moore cites several Seventh Circuit cases that

state that an attorney’s failure to raise the issue of compe-

tency is evidence of a defendant’s mental fitness. Moore

then argues that these cases also stand for the proposition

that an attorney’s request for a competency hearing makes

his client’s claim more meritorious. However, “[a] defense

motion for a competency hearing is not sufficient to create

‘reasonable cause’ for the judge to believe the defendant is

incompetent.” Collins, 949 F.2d at 925. Rather, a defen-

dant’s motion for a competency hearing “simply inform[s]

the court that the defendant, himself, put his competency in

issue.” Id. In other words, merely filing a motion to deter-

mine competency does not mean that the motion is meritori-

No. 04-2183 23

ous. Similarly, a trial judge’s decision to order a competency

hearing has no bearing on whether reasonable cause exists

to believe that a defendant was incompetent; rather, the

order simply demonstrates the judge’s decision to comply

with the dictates of the statute providing for competency

hearings. See id.

In finding Moore competent to be sentenced, Judge

Reinhard relied on Dr. Wooten’s psychiatric examination

and diagnosis as well as his own observations of Moore’s

behavior on the videotapes, during the trial, and prior to

the competency hearing. Although Dr. Wooten diagnosed

Moore as suffering from depression, he stated that

Moore’s medication appeared to control his depression.10 He

also testified that Moore had no difficulty accomplishing

daily activities, such as eating and tending to personal

hygiene, and that Moore understood the crimes he had been

charged with, the possible penalties he faced, the role of his

attorney, and the role of the trial judge. Furthermore,

nothing in the record demonstrates that during pre-trial or

trial proceedings, Moore acted in a manner that would even

suggest incompetence, and Moore has failed to identify any

questionable conduct during the trial or sentencing hearing

that would lead the court to doubt his competency. Instead,

Moore rests his claim on his attorney’s assertions and the

lay testimony of his fiancée that he became withdrawn and

disengaged after trial. This behavior, as pointed out by the

10

We have previously determined that depressive condition in and

of itself does not usually prevent a defendant from understanding

the proceedings against him or prohibit him from assisting in his

own defense. See United States v. Teague, 956 F.2d 1427, 1432

(7th Cir. 1992) (stating that “major depression, generalized

anxiety disorder and borderline personality disorder are not

psychiatric problems that would prevent a defendant from

understanding the proceedings against him and interfere with his

ability to confer with his attorney on his own behalf.”).

24 No. 04-2183

trial judge, is consistent with depression, which is not

unusual for a person facing a stiff sentence after conviction

and being out on bond. Furthermore, his fiancée did not

testify that he was unable to understand the charges

against him or the penalties he faced. Neither the lawyer’s

request for a hearing nor his fiancée’s testimony, without

any corroborating expert opinion, generates “a real, sub-

stantial, and legitimate doubt” as to Moore’s competence.

Collins, 949 F.2d at 927. Thus, the district court did not

clearly err in determining that Moore was competent to be

sentenced.

III. Conclusion

The district court did not err in excluding or admitting

the evidence referred to herein, and there was ample

evidence in the record for a jury to convict Moore on three

counts of knowingly and intentionally distributing cocaine

and cocaine base in violation of 21 U.S.C. § 841(a)(1).

Finally, the district court’s determination that Moore

was competent to be sentenced was not clearly erroneous.

The court AFFIRMS both the conviction and the sentence

of the district court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-13-05