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United States of America v. Vernon Thornton

June 16, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
VERNON THORNTON, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Wisconsin. No. 09 CR 92-Barbara B. Crabb, Judge.

The opinion of the court was delivered by: Rovner, Circuit Judge.

ARGUED NOVEMBER 1, 2010

Before ROVNER, WOOD and TINDER, Circuit Judges.

A jury convicted Vernon Thornton of possessing ammunition after having been previously convicted of a felony in violation of 18 U.S.C. § 922(g)(1), attempting to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possessing with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Thornton to twenty-one months of imprisonment on each count, to run concurrently. Thornton appeals his convictions and we affirm.

I.

On February 26, 2009, several agents of the Dane County Narcotics and Gang Task Force executed a search warrant on a package that had been flagged by FedEx as suspicious. The agents examined the package and determined that it contained marijuana. The packaging itself was very distinct. The marijuana had been encased in layers of plastic wrap with a colored fluid between some of the layers. That assembly was surrounded by foam packing chips. Lining the inside of the box were linoleum floor tiles. After resealing the package, the agents delivered it to the address listed. Although it was addressed to "Joanne Anderson," a woman named Kim Carrillo took delivery of the package, and the agents then sought her cooperation. She told the agents that she had agreed to accept the parcel for a friend named Staci Amato in exchange for $100. Carrillo claimed not to know what the package contained, and she showed the agents where Amato lived.

Amato had asked her long-time friend to accept the package because she had previously received two other boxes of marijuana at her home and did not wish to draw further attention to herself. Amato knew the three packages contained marijuana and she had agreed to accept them in exchange for cash. After receiving shipments, Amato had twice before delivered marijuana to a man she knew by the name of "Black." Amato vividly recalled the first delivery, shortly before Christmas of 2008, because she was unemployed and needed the money. Delivering marijuana made her nervous and she wrapped the parcel like a Christmas present to avoid suspicion. The supplier had offered her a pound of marijuana as payment, but she preferred cash and so Black sold the pound for her and gave her $350 in cash. Amato received a similar package in February 2009, approximately one week before her arrest. As she had done before, she delivered the package to Black. On each occasion, Black paid her for the marijuana and she then wired the money to a person in Texas. Several days after delivering the first package, Black paid her $9,000. For the second package, he paid her between $2,000 and $3,000. She also received payment for taking delivery of the marijuana and passing it along to Black.

At least some of the marijuana in the third package was intended for Black. On February 26, 2009, the agents arrested Amato as she was on her way to Carrillo's apartment to pick up the package. Amato agreed to cooperate with the agents and set up a meeting with Black to deliver the latest shipment to him. Black did not want the entire package and he requested that Amato deliver only two pounds to him. The package contained more than nine pounds of marijuana. After making a series of phone calls to Black monitored by the drug task force agents, Amato and the agents proceeded to the agreed-upon meeting place, a nearby Dollar Tree store. Other agents went to Black's home and followed him to the Dollar Tree store. When Black arrived and pulled up along-side Amato's car, they arrested him. In court, Amato identified Thornton as the man she knew as "Black." Thornton was driving a pickup truck at the time of his arrest. From the bed of the pickup truck, the agents recovered a second box which also contained foam packing chips and what appeared to be marijuana residue. The agents noted that, like the box Amato was delivering that day, the box in the truck bed was lined with linoleum tiles. Thornton agreed to talk to the agents and the conversation was recorded. Excerpts were later played for the jury. Thornton admitted in that conversation that he had more marijuana and also am-munition in his home. The agents then executed a*fn1 search warrant at Thornton's home where they recovered a duffle bag containing ten separate packages of marijuana weighing between 12.24 grams and 38.01 grams, for a total of approximately eight and a half ounces. They found a digital scale near the packets of marijuana. They also recovered three different calibers of ammunition.

Thornton was charged with being a felon in possession of ammunition, possessing with intent to distribute the marijuana found in his home, and attempting to possess with intent to distribute the marijuana that Amato was trying to deliver to him on the day of his arrest. A magistrate judge handled all pre-trial proceedings. When Thornton's lawyer filed a motion for disclosure of any experts the government intended to present at trial, the magistrate granted the motion but set no deadline for the disclosure. See Fed. R. Crim. P. 16(a)(1)(G). Approximately ten days before the start of the trial, the prosecutor, who had overlooked the court's disclosure order, sent the curriculum vitae ("CV") of its drug expert to defense counsel, along with a note stating that she was providing the CV even though defense counsel had not requested expert witness disclosures. She also provided copies of expert reports from the government's drug expert, and from the firearms expert who was to testify about the ammunition found in Thornton's home. The prosecutor was incorrect, of course, as she candidly admitted in the district court, in the government's brief on appeal, and during oral argument. The defense had in fact requested expert disclosures and the court had ordered them provided, but defense counsel chose not to correct the prosecutor's misimpression. He believed (correctly) that it was not his duty to remind the government of its obligations under the court's orders. By the day the trial was scheduled to begin, defense counsel had seen the reports from the drug and firearms experts and the CV of one of the experts. The magistrate conducted jury selection proceedings and the trial began the next day in the district court.

At the start of trial, Thornton moved to exclude all of the government's expert witnesses. Defense counsel argued that even in the case of the government's drug expert, David Hannon, whose CV and report were provided before the trial, the CV and report were too thin to establish the witness's expertise. The court offered to delay the trial so that the government could provide adequate disclosures of any law enforcement officers it intended to present as experts. The government decided to forego presenting any experts other than Hannon and ATF Agent William Baudhuin. Baudhuin's report had already been provided and the government provided his CV to defense counsel on the morning of trial. The court allowed a long lunch break for the defense to review the materials, and also allowed defense counsel to conduct voir dire of Baudhuin during his testimony. The court overruled Thornton's objections to the adequacy of the materials presented by the government, and asked defense counsel to submit in writing the case law on which he was relying for the proposition that the CVs or reports were inadequate. Defense counsel did not submit anything in writing but continued to make oral objections which the court overruled.

Hannon testified that the substances found in Thornton's home and in the package that Amato was delivering were in fact marijuana. Hannon described for the jury the various tests that were performed to make that determination. He also testified regarding the weight of the marijuana found at Thornton's home and the weight of the marijuana in the package Amato was delivering to Thornton on the day of his arrest. Baudhuin then testified that the ammunition found in Thornton's home was manufactured outside the state of Wisconsin. He based this testimony on the markings on the boxes of ammunition as well as on the ammunition itself, personal experience with ammunition, and catalogs produced by the manufacturers and maintained by the ATF. Thornton objected to Baudhuin's testimony in part because it relied on documents that could be considered hearsay. The court overruled the objection. The government presented other law enforcement officers as fact witnesses only, and also presented the testimony of Carrillo and Amato. During cross-examination of Amato, defense counsel sought to question Amato about the extent of her involvement in selling marijuana to persons other than Thornton. The court sustained the government's objections to this line of questioning as irrelevant to the charges. The jury convicted Thornton on all three counts and the court sentenced him to three concurrent terms of twenty-one months' imprisonment. Thornton appeals.

II.

On appeal, Thornton contends that the court abused its discretion when it limited his cross-examination of Staci Amato. He maintains that the court erred in allowing the testimony of Hannon and Baudhuin as experts because their CVs and reports were too thin to qualify them as experts. He also argues that the court erred in allowing the expert testimony of ATF Agent Baudhuin because the court failed to apply the Daubert framework to his testimony and allowed him to rely on hearsay documents that were created for ...


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