USA v. Danny Turner

Filing

Filed opinion of the court by Judge Rovner. AFFIRMED. Ilana Diamond Rovner, Circuit Judge; Terence T. Evans*, Circuit Judge and Joseph S. Van Bokkelen**, District Court Judge. *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). ** Of the United States District Court for the Northern District of Indiana, sitting by designation. [6468338-1] [6468338] [08-3109]--[Edited 03/04/2013 by CD to reflect footnotes.]

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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

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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. Importantly, 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.

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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.

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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 Confrontation 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 Confrontation Clause error was harmless, such that we should
again affirm Turner’s conviction. Turner, not surprisingly, 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 present a Confrontation Clause problem: Block’s testimony

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that Hanson followed standard procedures in testing
the substances that Turner distributed to the undercover 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 confident 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 safeguards that employees of the laboratory observe in handling 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-

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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 exhibits?
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 testify. 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 evidence 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 concerning the nature of the substances that Turner distributed, without having to introduce either Hanson’s documentation of her analysis or testimony from Hanson herself. Id. And because the government did not introduce
Hanson’s report, notes, or test results into evidence, Turner

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was not deprived of his rights under the Sixth Amendment’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 significance 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 concerning 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...)

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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 substances 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 particular 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 mentioned 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 testimony was quite brief. Moreover, even if Block had not referenced 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 conclusion 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 Confrontation Clause.

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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-ofcourt statements made by Hanson in these written materials 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 contained 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-ofcourt 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

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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 succinctly:
Under our Confrontation Clause precedents, this is
an open-and-shut case. The State of Illinois prosecuted 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).

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Much the same could be said in this case. The government 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 substances 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 violation 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 investigation that targeted him; Turner already had been
arrested and charged by the time Hanson tested the substances; and Hanson’s analysis was commissioned in

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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 testimony”) (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

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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 testimonial for purposes of the Confrontation Clause. Id.
at 2260-61. No other member of the Court attached significance 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 relevant. 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 report documenting the defendant’s blood-alcohol level,

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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 [bloodalcohol concentration] test, and that the established procedure 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 (dissent) (criticizing concurrence’s reliance on lack of certification 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

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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 testimonial 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 memorialized 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 suggestion 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 Confrontation 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

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could be questioned about the statements in those documents. 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 procedures 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 testimony was cumulative, the presence or absence of corroborating 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 quotation marks and citations omitted).
The only aspect of the case affected by the asserted
Confrontation Clause error was the proof that the substances Turner distributed to undercover Officer Kim
Meyer contained cocaine base. When Block relied on
Hanson’s out-of-court statements to testify that she followed 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

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flaws in her analysis. In short, because he could not question 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 substance 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 consistent with that of [crack] cocaine; the covert nature
of the sale; on-the-scene remarks by a conspirator iden-

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tifying the substance as a drug; lay-experience based
on familiarity through prior use, trading, or law enforcement; 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 considerable 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 conducted 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 occasions. 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 conversations with Turner, and the recordings of those conversations 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

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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 purchased from Turner were therefore a bit less than an eightball quantity. R. 70 at 47. Meyer added that she had a
conversation with Turner following the second transaction 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 transactions and on each occasion took custody of the substance she had purchased from Turner, described the
substances involved in the first two transactions as “offwhite” 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

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in evidence, so the jury itself was able to observe the
substances and confirm that they appeared as the witnesses had described them.
Fourth, Hughes testified that he conducted a presumptive 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 permissible 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 substance, to Meyer.4

4

We note that Turner previously raised a chain-of-custody
argument, contending that the district court improperly admitted 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...)

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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 something other than crack cocaine to Meyer. Turner’s trial
counsel never explored this possibility during cross-examination of any government witness, including Block, nor
did he make this suggestion in his opening statement 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 testimony 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 substances 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 substances 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.

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Turner as the individual from whom she had purchased 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 outstanding 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 cocaine. 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 evidence otherwise indicating that what Turner distributed to Meyer was crack cocaine (and thus cocaine base),
and given the focus of the defense case at trial, any Confrontation Clause error in allowing Block to testify
(briefly) as to the process Hanson followed and the conclusion she reached in examining the substances was
entirely harmless; it is clear that the jury would have

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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 judgment. We thank Turner’s appointed attorneys for their
vigorous and conscientious efforts on Turner’s behalf.

3-4-13