Appeal from the United States District Court for the Western District of Wisconsin. No. 10-CR-133--William M. Conley, Chief Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge.
Before MANION, KANNE, and WILLIAMS, Circuit Judges.
Eric Garvey was convicted of four counts of distributing methamphetamine. The gov- ernment's evidence at trial included testimony from a crime lab analyst, John Nied, who testified that four plastic bags recovered from controlled buys at Garvey's apartment contained methamphetamine. Nied was not, however, the same analyst who actually conducted lab tests on the white substance found in the bags--that analyst had left to take another job, and the government did not call him as a witness. Nied was a supervisor at the same lab and had peer reviewed the analyst's work, so he testified instead. Garvey did not object to Nied's testimony at trial. On appeal, Garvey argues that allowing Nied to testify about the test results violated his rights under the Confrontation Clause of the Sixth Amendment. Because Garvey cannot demonstrate that any alleged error affected his substantial rights, we affirm his conviction.
In January 2008, Wisconsin law enforcement began working with Sherry Benjamin, a confidential informant. In exchange for leniency relating to a number of pending prosecutions, Benjamin tipped off police about the dealers who were selling her drugs. Later that year, she told officers that she could purchase methamphet- amine from Garvey, an acquaintance of her brother. Law enforcement agents set up a total of four con-trolled buys for her to purchase methamphetamine from Garvey, each taking place one to three weeks apart.
Law enforcement agents conducted a similar set up for each of the four controlled buys. First, the agents had Benjamin call Garvey to arrange the purchase of four to five hundred dollars worth of methamphetamine, recording each conversation. The agents would then search Benjamin for contraband, place a recording device on her, and have her meet Garvey in his apart- ment to buy the drugs, while the agents conducted sur- veillance from nearby. After each completed purchase, Benjamin would turn the drugs over to the agents, who would again search her for contraband. The agents would then place the drugs in a sealed bag, initialing the bag before sending it to a laboratory for testing.
Garvey was subsequently indicted on four counts of distributing a substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The government's evidence at trial included Benjamin's recorded conversa- tions and phone calls with Garvey--describing their negotiations over the quantity and price of the drugs--as well as testimony from Benjamin and law enforcement agents about the four controlled buys. Additionally, the government introduced into evidence four exhibits con- taining a crystalline material recovered from the con- trolled buys, each exhibit corresponding to a different controlled buy. John Nied, a controlled-substance analyst and technical unit leader at the Wisconsin State Crime Laboratory, testified that the substance re- covered from the buys contained methamphetamine.
But Nied did not perform any lab tests on the exhibits prior to testifying. The analyst who actually performed the tests was Andrew Schleis, and the government did not call him as a witness because he no longer worked at the lab. Instead, the government planned to have Nied testify in his place because Nied was a supervisor at the same lab and had peer reviewed Schleis's work. Prior to trial, the government gave notice that it intended to call Nied instead of Schleis, and that Nied would testify as to the results of Schleis's analysis and the methods employed at the lab. Garvey's counsel made no objection to the substitution.
At trial, Nied first testified that it was common practice for experts in his field to rely on tests performed by other analysts in order to render an opinion. He then gave his opinion regarding the composition of the crystal- line material contained in each of the government's four exhibits. Testifying about one of the exhibits, for example, Nied stated that "[a]fter reviewing [Schleis's] data, I conclude that crystalline material in this item contains methamphetamine." (Trial Tr. at 1-P-141.) Nied also stated the quantities of the methamphetamine con- tained in each exhibit, referring explicitly to Schleis's report when doing so. Testifying about the same exhibit, Nied read from the report and determined that "[t]he quantity that [Schleis] reported total was 2.592 grams." Id. Nied made similar statements regarding the presence of methamphetamine and the weight of the substance for each of the four exhibits. Again, Garvey did not object to the testimony.
Without presenting any evidence or calling a witness, Garvey rested his case. The jury found Garvey guilty on all four counts, and the district court sentenced him to forty-two months' imprisonment.
On appeal, Garvey argues that allowing Nied to testify about the results of tests performed by Schleis violated his Sixth Amendment rights under the Confrontation Clause. The Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . to be confronted with the witnesses against him." U.S. Const. amend. VI. Under the Confrontation Clause, testimonial statements of witnesses absent from trial may be admitted only if the declarant is unavailable and the defendant had a prior opportunity to cross-exam- ine. Crawford v. Washington, 541 U.S. 36, 59 (2004).
Because Garvey made no objection to Nied's testimony at trial, we review only for plain error. See United States v. Irby, 558 F.3d 651, 655 (7th Cir. 2009). "Under the plain error standard, the party asserting the error must establish (1) that there was in fact an error; (2) that the error was plain; and (3) that the error affects substantial rights." United States v. Halliday, 672 F.3d 462, 467 (7th Cir. 2012). Even where plain error is found, a defendant is not entitled to relief; rather, "the decision to remedy the error is discretionary, and we should not exer- cise that discretion unless the error seriously affects the fairness, integrity or public reputation of judicial pro- ceedings." United States v. Sykes, 614 F.3d 303, 312 (7th Cir. 2010) (internal quotation marks and brackets omit- ted) (quoting ...