United States v. Danny Turner

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3109

U NITED STATES OF A MERICA,

Plaintiff-Appellee,

v.

D ANNY T URNER,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 08 CR 22—Barbara B. Crabb, Judge.

On Rem and from

The Suprem e Court of the United States

S UBMITTED A UGUST 21, 2012—D ECIDED M ARCH 4, 2013

2 No. 08-3109

Before R OVNER and E VANSΠ, Circuit Judges, and

V AN B OKKELEN, District Judge. ŒŒ

R OVNER, Circuit Judge. Defendant-appellant Danny

Turner was charged with three counts of distributing

cocaine base premised on multiple sales of crack cocaine

he made to an undercover police officer. See 21 U.S.C.

§ 841(a)(1); DePierre v. United States, 131 S. Ct. 2225, 2237

(2011). Amanda Hanson, the crime laboratory chemist

who analyzed the substances that Turner distributed to

the officer and confirmed that they contained cocaine

base, was on maternity leave at the time of Turner’s

trial. Over Turner’s objection, the supervisor who peer

reviewed her work, Robert Block, testified as an expert,

opining based on the data produced by Hanson that

the substances contained cocaine base. R. 60 at 51. Impor-

tantly, Block also testified that Hanson had followed

standard testing procedures in analyzing the substances

and that he reached the same conclusion that Hanson

had as to the nature of those substances. R. 60 at 50, 51. The

jury convicted Turner on all three distribution charges,

and the district court ordered him to serve a prison term

of 210 months.

Three years ago, we affirmed Turner’s conviction,

rejecting his argument (among others) that Block’s testi-

Œ

Circuit Judge Evans died on August 10, 2011, and did not

participate in the decision of this case on remand from the

Supreme Court. The case is now being resolved by a quorum

of the panel pursuant to 28 U.S.C. § 46(d).

ŒŒ

Of the United States District Court for the Northern District

of Indiana, sitting by designation.

No. 08-3109 3

mony regarding another chemist’s analysis violated the

Confrontation Clause of the Sixth Amendment. See

United States v. Turner, 591 F.3d 928, 932-34 (7th Cir.

2010). Turner thereafter filed a petition for a writ of

certiorari, renewing his Sixth Amendment argument.

That petition remained pending until the Supreme

Court rendered its decision last summer in Williams v.

Illinois, 132 S. Ct. 2221 (2012). The Court then granted

Turner’s petition for certiorari, vacated our decision,

and remanded for reconsideration in light of Williams.

Turner v. United States, 133 S. Ct. 55 (2012).

We begin by noting that the 4-1-4 division of the Justices

in Williams, with one Justice—Justice Thomas—concurring

in the result but no portion of the plurality’s reasoning,1

makes it somewhat challenging to apply Williams to the

facts of this case. As the dissenting opinion in Williams

observes, the divergent analyses and conclusions of the

plurality and dissent sow confusion as to precisely what

limitations the Confrontation Clause may impose when

an expert witness testifies about the results of testing

performed by another analyst, who herself is not

called to testify at trial. See 132 S. Ct. at 2277 (Kagan, J.,

dissenting).

At the least, however, the Williams decision (which

we discuss in more detail below) casts doubt on

1

Justice Breyer also wrote a concurrence in Williams, but in

contrast to Justice Thomas, he joined the plurality’s opinion in

full. See 132 S. Ct. at 2244-45, 2252 (Breyer, J., concurring).

For ease of discussion, when we refer to the concurrence in

Williams, we are referring to Justice Thomas’s concurrence.

4 No. 08-3109

using expert testimony in place of testimony from an

analyst who actually examined and tested evidence

bearing on a defendant’s guilt, insofar as the expert is

asked about matters which lie solely within the testing

analyst’s knowledge. Consequently, to the extent Block

testified about anything that Hanson, the absent chemist,

did or concluded in testing the substances that Turner

distributed to the undercover officer, his testimony

may have violated Turner’s rights under the Confronta-

tion Clause.

In their Circuit Rule 54 statements, the parties have

taken divergent positions as to what course of action

this court should follow in view of the Williams decision.

The government continues to argue that the admission

of Block’s testimony did not violate Turner’s rights

under the Confrontation Clause, even when the Williams

decision is taken into account. Primarily, however, the

government contends that any conceivable Confronta-

tion Clause error was harmless, such that we should

again affirm Turner’s conviction. Turner, not sur-

prisingly, sees Williams as support for his contention

that the admission of Block’s testimony violated the

Confrontation Clause. He contends that the error

requires us to vacate his conviction and to remand for

a new trial.

For the reasons set forth below, we conclude that any

Confrontation Clause error that occurred during Block’s

testimony was harmless beyond a reasonable doubt.

Only two aspects of Block’s testimony potentially pre-

sent a Confrontation Clause problem: Block’s testimony

No. 08-3109 5

that Hanson followed standard procedures in testing

the substances that Turner distributed to the under-

cover officer, and his testimony that he reached the

same conclusion about the nature of the substances

that Hanson did. In both respects, Block necessarily was

relying on out-of-court statements contained in Hanson’s

notes and report. These portions of Block’s testimony

strengthened the government’s case; and, conversely,

their exclusion would have diminished the quantity and

quality of evidence showing that the substances Turner

distributed comprised cocaine base in the form of crack

cocaine. However, apart from Block’s testimony, there

was other evidence indicating that the substances were

crack cocaine, and Turner himself did not contest that

they were, in fact, crack cocaine. We are therefore con-

fident that any error did not affect the outcome of the trial.

To begin, we note that the bulk of Block’s testimony

was permissible. Block testified as both a fact and an

expert witness. In his capacity as a supervisor at the state

crime laboratory, he described the procedures and safe-

guards that employees of the laboratory observe in han-

dling substances submitted for analysis. He also noted

that he reviewed Hanson’s work in this case pursuant

to the laboratory’s standard peer review procedure. As

an expert forensic chemist, he went on to explain for

the jury how suspect substances are tested using

gas chromatography, mass spectrometry, and infrared

spectroscopy to yield data from which the nature of

the substance may be determined. He then opined, based

on his experience and expertise, that the data Hanson

had produced in testing the substances that Turner dis-

6 No. 08-3109

tributed to the undercover officer—introduced at trial as

Government Exhibits 1, 2, and 3—indicated that the

substances contained cocaine base.

Q. So are you able—were you able to form any opinion

as to the nature of the substance in those three exhib-

its?

A. Yes, I was.

Q. And what’s your opinion?

A. My opinion based on the examinations that were

performed on the chunky materials within Exhibits 1,

2, and 3, along with my experience, is that each

of these items in 1, 2, and 3 contain cocaine base.

R. 60 at 51.

As we explained in our prior decision, an expert

who gives testimony about the nature of a suspected

controlled substance may rely on information gathered

and produced by an analyst who does not himself tes-

tify. 591 F.3d at 932 (citing United States v. Moon, 512

F.3d 359, 362 (7th Cir. 2008)). Pursuant to Federal Rule

of Evidence 703, the information on which the expert

bases his opinion need not itself be admissible into evi-

dence in order for the expert to testify. Id. (quoting and

citing Moon, 512 F.3d at 361-62). Thus, the government

could establish through Block’s expert testimony what

the data produced by Hanson’s testing revealed con-

cerning the nature of the substances that Turner distrib-

uted, without having to introduce either Hanson’s docu-

mentation of her analysis or testimony from Hanson her-

self. Id. And because the government did not introduce

Hanson’s report, notes, or test results into evidence, Turner

No. 08-3109 7

was not deprived of his rights under the Sixth Amend-

ment’s Confrontation Clause simply because Block relied

on the data contained in those documents in forming

his opinion. Id. at 932-33.

Nothing in the Supreme Court’s Williams decision

undermines this aspect of our decision. On the contrary,

Justice Alito’s plurality opinion in Williams expressly

endorses the notion that an appropriately credentialed

individual may give expert testimony as to the sig-

nificance of data produced by another analyst. 132

S. Ct. at 2233-35. 2 Nothing in either Justice Thomas’s

concurrence or in Justice Kagan’s dissent takes issue

with this aspect of the plurality’s reasoning. Moreover,

as we have indicated, Block in part testified in his

capacity as Hanson’s supervisor, describing both the

procedures and safeguards that employees of the state

laboratory are expected to follow and the steps that he

took to peer review Hanson’s work in this case.

Block’s testimony on these points, which were within

his personal knowledge, posed no Confrontation

Clause problem.3

2

See, e.g., 132 S. Ct. at 2233 (“It has long been accepted that an

expert witness may voice an opinion based on facts con-

cerning the events at issue in a particular case even if the

expert lacks first-hand knowledge of those facts.”).

3

We stated in our previous decision that because Block was a

laboratory supervisor whose job was to review Hanson’s

work, he could properly testify that, as a result of his review of

Hanson’s test results in this case, he agreed with her conclu-

(continued...)

8 No. 08-3109

But the Williams decision arguably casts doubt on the

two aspects of Block’s testimony that we flagged above.

Because it was Hanson who actually tested the sub-

stances that Turner distributed to the undercover

officer, only she could testify as to the process she

followed in testing those substances and as to the

results of her own analysis. As we have noted, Hanson’s

notes, test results, and written report were not admitted

into evidence, and so this case does not present the par-

ticular type of Confrontation Clause problem that

the Supreme Court addressed in Bullcoming v. New

Mexico, 131 S. Ct. 2705 (2011), and Melendez-Diaz v. Massa-

3

(...continued)

sion as to the nature of the substances that Turner distributed.

591 F.3d at 933. We went on to note that even if it was error to

allow Block to mention that he reached the same conclusion

that Hanson had, the error was harmless: Block only men-

tioned Hanson’s conclusion in passing; and it was clear that

Block independently arrived at his own conclusion as to

the nature of the tested substances. Id.

It is worth reiterating here that this portion of Block’s testi-

mony was quite brief. Moreover, even if Block had not refer-

enced Hanson’s conclusion, the jury might well have inferred

from Block’s legitimate testimony about the peer review he

conducted of Hanson’s work that he concurred in her conclu-

sion as to the nature of the substances.

Nonetheless, in order to give Turner the benefit of every

doubt, we proceed from the premise that this aspect of

Block’s testimony was impermissible under the Confronta-

tion Clause.

No. 08-3109 9

chusetts, 557 U.S. 305, 129 S. Ct. 2527 (2009), where,

by contrast, the analysts’ reports were introduced at

trial. But Block himself did effectively repeat the out-of-

court statements made by Hanson in these written mate-

rials when he testified that Hanson had followed

standard procedures in testing the substances and that

he reached the same conclusion based on the resulting

data that Hanson had—i.e., that the substances con-

tained cocaine base. Block had no firsthand knowledge

of either of these points; he was relying on what

Hanson had written about her analysis. R. 60 at 50-51.

In this way, Block’s testimony put Hanson’s out-of-

court statements before the jury, and the jury

was invited to consider these statements for their

truth: that Hanson had followed standard procedures

in analyzing the substances, and that she, like Block, had

determined the substances to contain cocaine base.

The ramifications of introducing such out-of-court

statements through an expert is the subject that so

sharply divided the Court in Williams. The statement at

issue in Williams was an expert witness’s assertion that

a DNA profile produced by a private laboratory had

been derived from swabs of biological material taken

from a sexual assault victim. The witness, an expert

in forensic biology and DNA analysis, was called

primarily to opine that the DNA profile produced by

the laboratory matched the defendant’s DNA profile.

She had not played any role in deriving a DNA profile

from the material taken from the assault victim, and

thus had no personal knowledge of what that DNA

profile was based on; she could only have been relying

on the out-of-court statements set forth in the report of

10 No. 08-3109

the laboratory which prepared the profile. Notably,

the analyst who prepared that report never testified.

The four-member plurality posited that the expert, in

speaking to the source of the DNA, was merely stating

an assumption underlying her opinion that one DNA

profile matched the other, rather than repeating, for its

truth, the laboratory’s out-of-court statement as to

where the DNA profile it produced came from. 132 S. Ct. at

2236. But this view did not command a majority of

the Court’s Justices. Both the concurrence and the

dissent maintained that the expert’s testimony as to the

source of the DNA tested by the laboratory was

admitted for its truth, thus depriving the defendant of his

rights under the Confrontation Clause. See id. at 2256-59

(Thomas, J., concurring in the judgment); id. at 2266-70

(Kagan, J., dissenting). The dissent made the case suc-

cinctly:

Under our Confrontation Clause precedents, this is

an open-and-shut case. The State of Illinois pros-

ecuted Sandy Williams for rape based in part on a

DNA profile created in Cellmark’s laboratory. Yet the

State did not give Williams a chance to question

the analyst who produced that evidence. Instead, the

prosecution introduced the results of Cellmark’s

testing through an expert witness who had no idea

how they were generated. That approach—no less

(perhaps more) than the confrontation-free methods

of presenting forensic evidence we have formerly

banned—deprived Williams of his Sixth Amendment

right to “confron[t] . . . the witnesses against him.”

Id. at 2265; see also id. at 2245 (Breyer, J., concurring).

No. 08-3109 11

Much the same could be said in this case. The govern-

ment prosecuted Turner based in part on the Wisconsin

Crime Laboratory’s analysis of the substances that

Turner distributed to the undercover officer. Yet, the

government did not give Turner an opportunity to

question the chemist, Hanson, who produced the data

indicating that the substances contained cocaine base.

Instead, the government introduced the result of

Hanson’s analysis through an expert witness, Block,

and allowed him to vouch for the reliability of

Hanson’s work notwithstanding the fact that he did

not participate in the handling and analysis of the sub-

stances and thus had no direct knowledge of what

Hanson did or did not do. If there was a weakness in

the work that Hanson performed, Turner was deprived

of the opportunity to air it. See Bullcoming, 131 S. Ct. at 2715.

We must also acknowledge that at least two aspects of

this case distinguish it from Williams, in ways that add

force to the argument that a Confrontation Clause viola-

tion occurred.

First, whereas the purpose of the laboratory DNA

profile at issue in Williams was not, in the plurality’s

view, “to accuse petitioner or to create evidence for use

at trial,” 132 S. Ct. at 2243, that was indeed the purpose

of the analysis that Hanson performed. The substances

that Hanson analyzed had been taken from a known

individual, Turner, as part of an undercover investiga-

tion that targeted him; Turner already had been

arrested and charged by the time Hanson tested the sub-

stances; and Hanson’s analysis was commissioned in

12 No. 08-3109

order to establish Turner’s guilt of distributing crack

cocaine. This places Hanson’s out-of-court statements

squarely within the heartland of Confrontation Clause

jurisprudence.

Second, this case was tried to a jury rather than to the

bench, increasing the odds that the jury might have

relied on the out-of-court statements embedded within

Block’s testimony for their truth. See 132 S. Ct. at 2236

(plurality) (noting that “[t]he dissent’s argument would

have force if petitioner had elected to have a jury trial”).

There is a third circumstance which, in Turner’s view,

further distinguishes the facts of this case from those

of Williams: Hanson’s report—a one-page summary of

her findings—was certified. By contrast, the DNA report

at issue in Williams was not certified; and this was a

point that Justice Thomas found dispositive. The fact

that the report was neither sworn nor certified, in his

view, indicated that the report lacked sufficient

formality and solemnity to make the report testimonial,

and therefore the statements in the report did not

implicate the Confrontation Clause. 132 S. Ct. at 2260

(Thomas, J., concurring); see id. at 2259 (“[t]he text of the

Confrontation Clause . . . applies to witnesses against

the accused—in other words, those who bear testi-

mony”) (quoting Crawford v. Washington, 541 U.S. 36, 51,

124 S. Ct. 1354, 1364 (2004) (internal quotation marks

deleted)). By contrast, when an analyst certifies his

report, he is formally attesting that the findings set

forth in the report, and any statements as to what steps

he took to reach those findings, accurately reflect the

No. 08-3109 13

testing process he followed and the results he obtained.

Id. at 2260. In Justice Thomas’s view, making attestations

of that nature render a sworn or certified report more

similar to affidavits, depositions, and other formalized

statements that traditionally have been treated as testi-

monial for purposes of the Confrontation Clause. Id.

at 2260-61. No other member of the Court attached sig-

nificance to this factor; indeed, the four dissenting

Justices expressly rejected the notion that something

like a DNA report must be certified before the

statements contained in the report may be treated as

testimonial statements for purposes of the Confrontation

Clause. Id. at 2276-77 (Kagan, J., dissenting). Nonetheless,

it seems clear that if the report at issue in Williams had been

certified, Justice Thomas would have voted with the

dissenting Justices to reverse the conviction, and the

outcome of the case would have been different. Turner thus

argues that certification ought to affect the outcome here.

Yet, although Hanson’s report was certified, it was not

certified in the sense that Justice Thomas deemed rele-

vant. A designee of the Wisconsin Attorney General

simply certified the report “to be a true and correct

report of the findings of the State Crime Laboratory on

the items examined as shown by this report.” Turner’s

Separate Appendix (filed Jan. 16, 2009) at 49. Hanson

herself did sign the report, and Block placed his

initials above her signature, but in doing so neither

Hanson nor Block certified anything. By contrast, in

Bullcoming, when the forensic laboratory analyst who

had tested the defendant’s blood sample certified his re-

port documenting the defendant’s blood-alcohol level,

14 No. 08-3109

he expressly affirmed that “[t]he seal of th[e] sample

was received intact and broken in the laboratory, that

the statements in [the analyst’s block of the report] are

correct, and that he had followed the procedures set out

on the reverse of th[e] report.” 131 S. Ct. at 2710 (internal

quotation marks omitted). Additionally, the examiner

who had reviewed the testing analyst’s work certified

that the analyst “was qualified to conduct the [blood-

alcohol concentration] test, and that the established proce-

dure for handling and analyzing Bullcoming’s sample ha[d]

been followed.” Id. at 2711. Here, Block did initial the

report, but as with Hanson, he did not purport to make

any comparable certification by doing so.

That said, Hanson’s report was both official and signed,

it constituted a formal record of the result of the

laboratory tests that Hanson had performed, and it was

clearly designed to memorialize that result for purposes

of the pending legal proceeding against Turner, who

was named in the report. In those respects, the report

arguably is the functional equivalent of the report at

issue in Bullcoming. See Williams, 132 S. Ct. at 2276 (dis-

sent) (criticizing concurrence’s reliance on lack of certif-

ication as a basis for distinguishing Bullcoming); see also

Bullcoming, 131 S. Ct. at 2717 (discussing why signed

but unsworn report can still qualify as testimonial for

purposes of Confrontation Clause).

Recognizing that the divided nature of the Williams

decision makes it difficult to predict how the Supreme

Court would treat Hanson’s report, and in order to

give Turner the benefit of the doubt, we shall assume

No. 08-3109 15

that the nature of the report, particularly insofar as it

formally documented Hanson’s findings for purposes

of the criminal case against Turner, is sufficiently testi-

monial to trigger the protections of the Confrontation

Clause. We shall therefore assume that Block’s testimony

in fact did violate Turner’s confrontation rights to the

extent he disclosed that Hanson had determined

the tested substances to contain cocaine base, as memo-

rialized in her report.

Apart from Hanson’s final report, we know next to

nothing about the nature of her notes, raw test results,

and any other documents that Block reviewed in

forming his opinion that the substances contained

cocaine base. Those documents are neither in the record

nor reproduced in the briefing; all we have is a copy of

Hanson’s final, one-page report. There is no sugges-

tion that either Hanson’s notes or any other document

she produced was sworn, certified, or in any other way

formalized in a way that might make the statements

set forth therein testimonial for purposes of the Con-

frontation Clause. The case for treating them as such,

therefore, may have less force than the argument that

the contents of Hanson’s report were testimonial. These

additional materials are nonetheless significant in the

sense that they document what steps Hanson took in

testing the substances that Turner distributed to the

undercover officer; and they no doubt were the basis for

Block’s testimony that Hanson had followed standard

testing processes in performing her analysis. However

informal they may have been, then, Turner had a keen

interest in having Hanson herself testify so that she

16 No. 08-3109

could be questioned about the statements in those docu-

ments. See Williams, 132 S. Ct. at 2267-68 (dissent);

Bullcoming, 131 S. Ct. at 2715-16 & n.7.

Assuming for all of these reasons that the district

court did err in allowing Block to testify about the pro-

cedures Hanson followed and as to what she concluded,

we must nonetheless affirm Turner’s conviction if the

Confrontation Clause violation was harmless beyond a

reasonable doubt. 28 U.S.C. § 2111; Fed. R. Crim. P. 52(a);

Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431,

1436 (1986); Chapman v. California, 386 U.S. 18, 24, 87 S. Ct.

824, 828 (1967); see also United States v. Dickerson, 2013

WL 238725, at *6 (7th Cir. Jan. 23, 2013). “Whether an

error is harmless beyond a reasonable doubt depends

upon factors such as the importance of the witness’s

testimony in the prosecution’s case, whether the testi-

mony was cumulative, the presence or absence of cor-

roborating or contradictory evidence and the overall

strength of the prosecution’s case.” United States v.

Walker, 673 F.3d 649, 658 (7th Cir. 2012) (internal quota-

tion marks and citations omitted).

The only aspect of the case affected by the asserted

Confrontation Clause error was the proof that the sub-

stances Turner distributed to undercover Officer Kim

Meyer contained cocaine base. When Block relied on

Hanson’s out-of-court statements to testify that she fol-

lowed standard procedures in testing the substances

and reached the same conclusion that he did as to what

the data meant, Turner was deprived of the opportunity

to probe Hanson’s methodology and to expose potential

No. 08-3109 17

flaws in her analysis. In short, because he could not ques-

tion Hanson herself, Turner lacked the opportunity

to challenge her conclusion, and for that matter Block’s

conclusion (which was based on Hanson’s data), that

the substances contained cocaine base.

Yet, expert analysis and testimony are not invariably

necessary to establish the identity of the controlled sub-

stance which the defendant is charged with distributing. See

United States v. Sanapaw, 366 F.3d 492, 496 (7th Cir. 2004);

United States v. Hardin, 209 F.3d 652, 661-62 (7th Cir. 2000),

overruled on other grounds by United States v. Nance, 236

F.3d 820 (7th Cir. 2000); United States v. Dominguez, 992

F.2d 678, 681 (7th Cir. 1993); United States v. Marshall,

985 F.2d 901, 905 (7th Cir. 1993); United States v. Manganellis,

864 F.2d 528, 541 (7th Cir. 1988); United States v. Lawson, 507

F.2d 433, 438-39 (7th Cir. 1974), overruled on other grounds by

United States v. Hollinger, 553 F.2d 535 (7th Cir. 1977); see

also United States v. Sweeney, 688 F.2d 1131, 1145-46 (7th

Cir. 1982). “Just as with any other component of the crime,

the existence of and dealing with narcotics may be proved

by circumstantial evidence; there need be no sample

placed before the jury, nor need there be testimony by

qualified chemists as long as the evidence furnished

ground for inferring that the material in question was

narcotics.” Lawson, 507 F.2d at 438 (quoting United

States v. Agueci, 310 F.2d 817, 828 (2d Cir. 1962)); see also

Hardin, 209 F.3d at 662; Dominguez, 992 F.2d at 681;

Manganellis, 864 F.2d at 541. “Circumstantial evidence

establishing identification may include a sales price con-

sistent with that of [crack] cocaine; the covert nature

of the sale; on-the-scene remarks by a conspirator iden-

18 No. 08-3109

tifying the substance as a drug; lay-experience based

on familiarity through prior use, trading, or law enforce-

ment; and behavior characteristic of drug sales.” Dominguez,

992 F.2d at 681 (citing Manganellis, 864 F.2d at 541).

A review of the trial record reveals that there was con-

siderable evidence beyond the objectionable portions

of Block’s testimony indicating that the substance that

Turner distributed to Officer Meyer was crack cocaine,

a form of cocaine base. See DePierre v. United States, supra,

131 S. Ct. at 2237.

First, Meyer described the substance that Turner gave

to her during each of the three transactions she con-

ducted with him as being crack cocaine or “suspect” crack

cocaine. E.g., R. 70 at 41, 46, 54. Meyer, who had been

a police officer for three years, had been working with

the Dane County Narcotics and Gang Task Force for

approximately eighteen months. In her capacity as an

undercover officer, one of her tasks was to purchase

narcotics, which she had done on more than fifty occa-

sions. R. 70 at 34, 36. She was thus well suited to

know what crack cocaine looked like. Moreover,

although Meyer did not testify in detail as to her con-

versations with Turner, and the recordings of those con-

versations were not offered into evidence at trial,

the import of Meyer’s testimony was that she contacted

Turner—who went by the street name of “Face”—for

the express purpose of buying crack cocaine from him.

E.g., R. 70 at 43.

Second, the testimony indicated that the price of

$100 Meyer paid Turner on each of the three occasions

No. 08-3109 19

she dealt with him was consistent with the prices

charged for crack cocaine. Meyer was familiar with the

street price of crack cocaine, R. 70 at 35, testifying that an

“eight-ball” of crack cocaine, which would be a quantity

of approximately three and one-half grams, would

normally sell for $150; the $100-quantities that she pur-

chased from Turner were therefore a bit less than an eight-

ball quantity. R. 70 at 47. Meyer added that she had a

conversation with Turner following the second transac-

tion about buying additional amounts from him. She

asked him how much he would charge her for “two,”

meaning two eight-ball quantities, and he told her “two

and a half,” which she took to mean $250. R. 70 at 46.

Third, the witnesses’ description of the substances that

Turner distributed to Meyer was consistent with the

appearance of crack cocaine. Detective Kevin Hughes,

who worked with Meyer during each of the three transac-

tions and on each occasion took custody of the sub-

stance she had purchased from Turner, described the

substances involved in the first two transactions as “off-

white” and “chalky,” R. 60 at 12, 14, which is consistent

with the appearance of crack cocaine. As for the third

transaction, Meyer described the substance that Turner

gave her on the occasion of the third transaction as a

“chunk,” R. 70 at 54, which is also consistent with the

character of crack cocaine. Likewise Block, in describing

the appearance of Government Exhibits 1 through 3,

which contained the narcotics that Turner distributed to

Meyer during the three purchases, indicated that all three

exhibits contained “an off-white chunky material.” R. 60 at

49. And, of course, Government Exhibits 1 through 3 were

20 No. 08-3109

in evidence, so the jury itself was able to observe the

substances and confirm that they appeared as the wit-

nesses had described them.

Fourth, Hughes testified that he conducted a presump-

tive field test of the substance that Turner distributed to

Meyer during the first transaction in order to detect the

presence of cocaine base; and he indicated that the test

was positive. R. 60 at 12. Hughes did not elaborate on

the nature of the field test, but his testimony on

that point tends to verify, apart from the laboratory’s

independent, confirmatory analysis, that the substance

contained cocaine base.

Fifth, Block permissibly testified that the substances

contained in Government Exhibits 1 through 3 had been

submitted to the state crime laboratory for testing, R. 60

at 47-48, and that the data produced by Hanson’s testing

of those substances indicated, in his expert opinion,

that they contained cocaine base, R. 60 at 51. These per-

missible aspects of Block’s testimony, coupled with

the other evidence we have noted, was more than

sufficient to show beyond a reasonable doubt that Turner

distributed crack cocaine, as opposed to some other sub-

stance, to Meyer.4

4

We note that Turner previously raised a chain-of-custody

argument, contending that the district court improperly ad-

mitted into evidence Government Exhibits 1 through 3

without testimony from Hanson as to how she handled the

substances comprising those exhibits. In our prior decision,

(continued...)

No. 08-3109 21

We note further that despite Turner having opposed

the admission of Block’s testimony, his defense at trial

in no way hinged on the notion that he distributed some-

thing other than crack cocaine to Meyer. Turner’s trial

counsel never explored this possibility during cross-exam-

ination of any government witness, including Block, nor

did he make this suggestion in his opening state-

ment or closing argument to the jury. Turner elicited no

independent evidence that the substances could have

been something other than crack cocaine. (Turner did

not put on a defense case.) Turner’s strategy instead was

to question the veracity of Meyer’s identification of

4

(...continued)

we stated that the government is not obliged to present testi-

mony from every witness who handled an exhibit before it

may offer the exhibit into evidence. 591 F.3d at 935. Rather,

the government need only show that it took appropriate

precautions to preserve the evidence in its original condition;

the district court otherwise grants the government the benefit

of a presumption that the officials who had custody of an

exhibit handled it appropriately. Id. (quoting United States v.

Prieto, 549 F.3d 513, 524-25 (7th Cir. 2008)). Any gaps in the

chain of custody established at trial in turn go to the weight

of the evidence rather than its admissibility. Id. (quoting

Prieto, 549 F.3d at 524-25). We pointed out that the sub-

stances Turner distributed to Meyer had remained in official

custody at all times, such that the presumption of regularity

applied; additionally, Hughes testified at trial that the sub-

stances appeared to be in the same condition as when he

received them from Meyer. Id. The district court therefore

committed no error in admitting these three exhibits. Id.

We adhere to that conclusion here.

22 No. 08-3109

Turner as the individual from whom she had pur-

chased crack cocaine, see R. 70 at 32-33, and to suggest,

based on certain inconsistencies in the evidence, that

the authorities had concocted the entire case against

Turner after he was arrested on a warrant for out-

standing child support payments and refused to

cooperate with them by giving them information about

a small quantity of marijuana found in his possession,

R. 60 at 70-72, 74, 77-78. “This is a trumped up charge

against a guy who didn’t want to help after he got

arrested on some child support warrant,” Turner’s

counsel argued to the jury. R. 60 at 71. In short, the

premise of the defense was that Turner did not distribute

anything to Meyer, not that he distributed something

other than crack cocaine.

Our point is not that Turner bore any burden with

respect to the identity of the narcotics or somehow

waived an argument that the evidence, apart from the

problematic aspects of Block’s testimony, was insufficient

to show that the substances in question were crack co-

caine. Turner, in fact, asked the district court to enter a

directed judgment on the ground that the government

had not proven the identity of the drugs in question. R. 60

at 58. Rather, our point is that, given the ample evi-

dence otherwise indicating that what Turner distrib-

uted to Meyer was crack cocaine (and thus cocaine base),

and given the focus of the defense case at trial, any Con-

frontation Clause error in allowing Block to testify

(briefly) as to the process Hanson followed and the con-

clusion she reached in examining the substances was

entirely harmless; it is clear that the jury would have

No. 08-3109 23

rendered the same verdict even if the harmless error

had not occurred.

For all of these reasons, after careful consideration of

the Supreme Court’s decision in Williams v. Illinois and a

fresh review of the trial record, we A FFIRM the judg-

ment. We thank Turner’s appointed attorneys for their

vigorous and conscientious efforts on Turner’s behalf.

3-4-13