United States v. David Shanton, Sr. ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4617
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID WILBERT SHANTON, SR.,
Defendant - Appellant.
On Remand from the United States Supreme Court. (S. Ct. No. 11-
10599)
Submitted: February 26, 2013 Decided: March 4, 2013
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Lauren E. Case, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Michael C. Hanlon,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, David Wilbert Shanton, Sr., was
convicted of two counts of armed bank robbery and related
firearm offenses. On appeal, Shanton argued that (1) the
district court erred under the Confrontation Clause of the Sixth
Amendment admitting the testimony of a DNA expert without also
requiring the testimony of those persons involved in conducting
the DNA testing, and (2) the court erred by ordering that he
serve a consecutive ten year sentence for the first of his two
18 U.S.C. § 924(c) (2006) convictions. After placing this
appeal in abeyance for United States v. Summers, 666 F.3d 192
(4th Cir. 2011), cert. denied, 133 S. Ct. 181 (2012), this Court
affirmed. See United States v. Shanton, No. 09-4617, 2012 WL
165029 (4th Cir. Jan. 20, 2012) (unpublished). On October 1,
2012, the Supreme Court granted Shanton’s petition for a writ of
certiorari, vacated the judgment and remanded for further
consideration in light of Williams v. Illinois, 132 S. Ct. 2221
(2012). In Williams, the Supreme Court addressed a similar
Confrontation Clause issue and affirmed the lower court’s
judgment. After considering Williams, we affirm. *
*
Shanton’s sentencing issue, which is independent of his
Confrontation Clause issue, will not be discussed.
2
In Williams, an expert witness from the Illinois State
Police Laboratory testified at a bench trial regarding a DNA
match that incriminated the defendant. The Illinois State
Police sent Cellmark, an independent laboratory, a vaginal swab
and directed Cellmark to conduct DNA analysis. Cellmark
returned the vaginal swab and a report containing the DNA
analysis. The expert witness testified that the DNA profile
obtained by Cellmark from the vaginal swab matched the
defendant’s DNA profile, which was obtained from the state’s
forensic database. The expert witness did not have any first
hand knowledge of how Cellmark handled the vaginal swab, what
tests were actually run on the swab or the manner in which the
tests were conducted. However, she was permitted to testify
that the DNA taken from the vaginal swab matched to a reasonable
degree of medical certainty the defendant’s DNA.
Justice Alito authored the plurality opinion joined by
three other justices. In the plurality opinion it was found
that there was no Confrontation Clause violation because the
statements from the Cellmark report were not being used for the
truth of the matter asserted. The plurality concluded that the
statements from the Cellmark report were used as a premise from
which the expert was able to arrive at her
opinion. See Williams, 132 S. Ct. at 2233-37 (plurality
opinion).
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Justice Thomas authored an opinion concurring in the
judgment. He concluded that there was no violation of the
Confrontation Clause because the statements at issue, while
being admitted for the truth of the matter asserted, lacked the
formality and solemnity associated with testimonial
evidence. See Williams, 132 S. Ct. at 2255 (Thomas, J.,
concurring in the judgment). The dissent, authored by Justice
Kagan and joined by the remaining three justices, found that the
statements were offered for the truth of the matter and did
violate the Confrontation Clause. See Williams, 132 S. Ct. at
2265 (Kagan, J., dissenting).
We have considered Williams in conjunction with our
decision in Summers, and conclude that the district court’s
judgment should still be affirmed. If this case were to go
before the Supreme Court again, we believe five justices would
affirm: Justice Thomas on the ground that the statements at
issue were not testimonial and Justice Alito, along with the
three justices who joined his plurality opinion, on the ground
that the statements were not admitted for the truth of the
matter asserted.
After Williams, Summers still has precedential value
in this court and in that case we affirmed a Confrontation
Clause issue that rose from a similar factual scenario. In
fact, Summers presented a slightly more riskier scenario because
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the expert witness submitted a written report, seen by the jury,
that contained some of the non-testifying analysts’ raw data.
In this case, the Government did not introduce the expert
witness’ report into evidence, nor was there any testimony on
direct examination regarding the actual raw data the expert used
to reach her opinion.
Accordingly, we affirm the convictions and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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