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United States v. Turner

January 12, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DANNY TURNER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Wisconsin. No. 3:08-cr-22-bbc-Barbara B. Crabb, Chief Judge.

The opinion of the court was delivered by: Van Bokkelen, District Judge

ARGUED MAY 14, 2009

Before ROVNER and EVANS, Circuit Judges, and VAN BOKKELEN, District Judge.

"The Honorable Joseph S. Van Bokkelen, United States District Court Judge for the Northern District of Indiana, sitting by designation.

The panel thanks Hari Santhanam of Kirkland & Ellis for representing Danny Turner on the appeal in this case.

Danny Turner was convicted by a jury of three counts of dealing crack cocaine. The district court sentenced him to 210 months of imprisonment on each count, to be served concurrently. Turner appeals, arguing that the district court should not have allowed a chemist to testify at trial about the nature of the drug exhibits because the chemist did not himself test those exhibits. Turner also believes that the district court should not have admitted the drugs into evidence because the government did not establish a proper chain of custody. We conclude that the district court was correct in both instances, and we affirm its judgment.

I. Background

In early 2008, Dane County Narcotics and Gang Task Force officers learned that Danny Turner was selling crack cocaine in Madison, Wisconsin. On January 17, 2008, undercover officer Kim Meyer purchased crack cocaine from Turner, and again on January 25 and February 12. After the February 12 purchase, officers arrested Turner. A week later, a federal grand jury in the Western District of Wisconsin indicted Turner on three counts of distributing cocaine base (crack cocaine), in violation of 21 U.S.C. § 841(a)(1).

At the pretrial motion hearing, the district court set a May 5, 2008, deadline for government's disclosure of expert witnesses. On May 1, the government notified Turner that it intended to call as an expert witness Amanda Hanson, an analyst at the Wisconsin State Crime Laboratory, regarding the weight and identification of the drugs alleged in the Indictment. Hanson was the chemist who analyzed the substances the undercover agent purchased from Turner.On May 8, however, the government advised Turner that it would instead be calling a different expert witness-Hanson's supervisor, Robert Block-because Hanson was on maternity leave. Block is a senior forensic chemist and head of the drug identification unit at the crime laboratory in Madison.

On May 12, Turner moved in limine to exclude Block's expert testimony. Turner argued that Block's testimony, in lieu of Hanson's testimony, would violated the Confrontation Clause of the Sixth Amendment to the United States Constitution. The government objected to the motion and, in turn, assured the district court that Block would testify about his own conclusions, not Hanson's, about the nature of the substances she tested. The district court denied Turner's motion.

At trial, the government called Block as its expert witness to identify the substances the undercover officer bought from Turner. Among other things, Block testified about the crime lab's procedures for processing and testing the evidence. Block described the safeguards used by the lab to prevent the commingling and tampering of evidence. He testified that the instruments at the lab are calibrated each day that they are used and that blank samples are run between each test to avoid contamination or carryover from previous testing.

Block also explained how suspected substances are tested through gas chromatography, mass spectrometry, and infrared spectroscopy to generate graph data in order to determine the type of drug involved:

The gas chromatography will print out a set of peaks that would be indicative of the presence of a drug or a standard that is run on that instrument for comparison purposes. The mass spectrometer will print out a spectrum for a drug that has been extracted. This is a specific test. By specific, it means the results that are generated are unique to that drug and no others. Likewise the spectrum that is produced in the infrared spectroscopy will generate a spectrum, and again, this is the second specific test, the results of which are specific to each and every individual drug.

(Def.'s Appendix at 26.)

In addition, Block described how each chemist's analysis must undergo a peer review, and that, as the unit head, he peer-reviewed Hanson's tests in this case:

Prior to the report leaving the laboratory, every report must undergo a peer review by another qualified analyst within the unit. As the unit head, I perform the peer review of the other analysts within the drug identification section. I reviewed this report that Amanda Hanson generated for the analysis of the chunky material in Exhibits 1, 2, and 3, reviewing the handwritten notes and the generated data, and came to the same conclusion based on the information provided that each of these items contained the same material and I signed off on that peer review.

(Def.'s Appendix at 22.)

Ultimately, Block testified that the substances tested by Hanson-introduced at trial as Exhibits 1, 2, ...


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