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United States v. Barber

United States Court of Appeals, Seventh Circuit

August 27, 2019

United States of America, Plaintiff-Appellee,
Michael S. Barber, Defendant-Appellant.

          Argued May 15, 2019

          Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:l7-CR-67(1) - Robert L. Miller, Jr., Judge.

          Before Wood, Chief Judge, and Easterbrook and Hamilton, Circuit Judges.

          WOOD, CHIEF JUDGE.

         On the evening of February 9, 2017, Michael Barber and his friend Anthony Chipps used a crowbar to break into Dutchman Hunting Supplies in Shipshewana, Indiana, and steal 15 handguns. The authorities had little trouble nabbing them: they set off the alarm during the robbery, and they were easily identified by shop employees, because they had scouted out Dutchman earlier that same day. On top of that, Barber was foolish enough to discuss the robbery on Facebook Messenger.

         In due course, Barber was indicted on charges of stealing firearms from a federally licensed firearms dealer, possessing firearms as a felon, and possessing stolen firearms. See 18 U.S.C. §§ 922(u), (g)(1), and (j). Chipps decided to cooperate with the government and testified at trial against Barber. In addition, the government introduced both the Facebook messages and cell-location data for Barber's phone. The latter evidence put him near Dutchman at the time of the robbery. The jury convicted him on all charges, and the court then sentenced him to 210 months' imprisonment. That sentence reflected a two-level enhancement in his offense level for obstruction of justice.

         Barber appeals both his conviction and sentence. He argues that the district court should not have admitted the Facebook records, cell-location data, and a certificate indicating that Dutchman had a firearms license. He also contends that his advisory sentencing guidelines should not have included the obstruction enhancement. Finding no reversible error, we affirm.


         We begin with the evidence presented at trial. Rule 103(a)(1) of the Federal Rules of Evidence requires litigants to make their objections to evidence at trial specific and timely. Where Barber followed this command, we review the district court's rulings for abuse of discretion. We disregard any error that was harmless. See Fed. R. Crim. P. 52(a); United States v. Boone, 628 F.3d 927, 932 (7th Cir. 2010). We review points that he raises for the first time on appeal for plain error, at best. See Fed. R. Crim. P. 52(b).


         Barber first objects to the admission of the evidence the government used to prove that the dealer from whom he stole the guns was federally licensed. It submitted Dutchman's license, or "Blue Ribbon Certificate, ” along with accompanying authenticating documents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Those documents included a License Registration Report, which shows the date the license was issued, expiration date, and its status as active, as well as two signed statements from ATF officials representing that Dutchman was licensed during the period when the robbery took place. None of those officials appeared at trial. Barber objected to this evidence at trial, claiming that the statements from the ATF officials are testimonial under the line of cases beginning with Crawford v. Washington, 541 U.S. 36, 50 (2004). See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 564 U.S. 647 (2011). Barber argues that his inability to cross-examine the agents violated his Sixth Amendment right to confrontation. He renews this objection on appeal; our review is for abuse of discretion.

         In Melendez-Diaz, the Supreme Court addressed the line between regularly-kept records that are admissible without testimony from a custodian, and evidence that is admissible under the Confrontation Clause only if the creator of the document testifies. 557 U.S. at 321-23. At issue there were certificates reporting the results of testing that some forensic analysts had conducted on evidence. When the defendant objected to the admission of those certificates without affording him the opportunity to cross-examine the analysts, the government countered that the certificates were not testimonial for Sixth Amendment purposes. The Supreme Court sided with the defendant, and in so doing discussed what it takes to make a record (or statements about it) "testimonial."

         The Melendez-Diaz Court considered and rejected the argument that the analysts' certificates should be treated in the same way as "a clerk's certificate authenticating an official record-or a copy thereof-for use as evidence, ” and thus be admitted without a live witness. Id. at 322. In doing so, the Court emphasized that the analysts' work creating a record was quite different from the clerk's narrow role in authenticating a copy of a record. While a clerk, the Court said, was "permitted 'to certify to the correctness of a copy of a record kept in his office,' [he] had 'no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.'" Id. (quoting State v. Wilson, 141 La. 404, 409 (1917)).

         The Supreme Court returned to this issue in Bullcoming, where the question presented was whether "the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification-made for the purpose of proving a particular fact-through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification." 564 U.S. at 652. Emphasizing that the report (a blood-alcohol test) contained more than a simple transcription of a machine-generated number, and noting that the state had made no effort to show why the analyst who performed the test was unavailable (not to mention that the defendant had not had an opportunity to cross-examine that analyst), the Court held that the defendant's Sixth Amendment confrontation rights had been violated. Id. at 663. Although there was disagreement among the Justices about the limits of this ...

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