United States v. Moon, George ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 05-4506 & 06-1840
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GEORGE MOON and ANTHONY ALEXANDER,
Defendants-Appellants.
____________
Appeals from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:04-CR-71—Rudy Lozano, Judge.
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ARGUED SEPTEMBER 13, 2007—DECIDED JANUARY 3, 2008
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Before EASTERBROOK, Chief Judge, and CUDAHY and
SYKES, Circuit Judges.
EASTERBROOK, Chief Judge. Anthony Alexander and
George Moon have been convicted of distributing co-
caine and of some ancillary crimes. See 21 U.S.C. §841.
Alexander received a sentence of life imprisonment and
Moon of 190 months. The principal question on appeal is
whether a chemist violated the Confrontation Clause of
the Sixth Amendment when testifying that the sub-
stance seized from defendants was cocaine.
James DeFrancesco, a chemist employed by the Drug
Enforcement Agency, testified that the substance was
cocaine. He based this conclusion on the output of
2 Nos. 05-4506 & 06-1840
two machines: an infrared spectrometer and a gas
chromatograph. DeFrancesco did not perform the tests
himself; the lab work had been done by Ragnar Olson, a
chemist who left federal employment three weeks
before trial. Olson had just started at law school and did
not want to interrupt his legal education. So DeFrancesco
testified, using the instruments’ output, a report that
Olson had prepared, and Olson’s lab notes (which per-
suaded DeFrancesco that Olson had prepared the
samples and run the tests correctly). Defendants did not
object to DeFrancesco’s testimony, or the introduction
into evidence of Olson’s report, other than on the ground
that the tested samples’ chain of custody was faulty. On
appeal, however, they abandon the chain-of-custody
point and contend that using Olson’s work in any way
violates the Confrontation Clause. The lack of an objec-
tion means that appellate review is limited to plain error.
Crawford v. Washington, 541 U.S. 36 (2004), holds that
the Confrontation Clause entitles defendants in criminal
cases to block the use of testimonial statements by persons
who are not available for cross-examination at trial.
Phrasing Crawford’s rule as an entitlement, rather than
an unconditional command to the court, is important.
Hearsay usually is weaker than live testimony, and
defendants may prefer the hearsay version rather than
making an objection that would compel the prosecution
to produce a stronger witness. If a confrontation-clause
objection had been made and granted in this case, for
example, the result would have been the appearance of
Olson on the stand, and then defendants would have been
worse off than they were with DeFrancesco—for defense
counsel could undermine DeFrancesco’s testimony by
reminding the jury that he had not done any of the work
and that flaws in Olson’s procedures may have been
omitted from the lab notes. That it may be to defendants’
advantage to accept the hearsay version of evidence
Nos. 05-4506 & 06-1840 3
makes it problematic to entertain a Crawford claim via
the plain-error clause of Fed. R. Evid. 103(d). A defendant
who sincerely wants live testimony should make the
demand, so that the declarant can be produced. The lack
of a demand for testimony by an available declarant
leads to the conclusion that the appellate argument is
strategic rather than sincere.
We need not pursue that subject, however, because
there was no problem with DeFrancesco’s testimony. He
testified as an expert, not as a fact witness. When an
expert testifies, “the facts or data need not be admissible
in evidence in order for the opinion or inference to be
admitted.” Fed. R. Evid. 703. So if the Confrontation
Clause precludes admitting Olson’s report, this does not
spoil DeFrancesco’s testimony. See United States v. Henry,
472 F.3d 910, 914 (D.C. Cir. 2007). (Litigants may insist
that the data underlying an expert’s testimony be admit-
ted, see Fed. R. Evid. 705, but by offering the evidence
themselves defendants would waive any objection under
the Confrontation Clause.)
Because defendants failed to make the right objection,
Olson’s report was received in evidence. And some of
his report is indeed testimonial in nature. The report has
two kinds of information: the readings taken from the
instruments, and Olson’s conclusion that these readings
mean that the tested substance was cocaine. The latter
is testimonial as the Supreme Court used that word in
Crawford and more recent decisions, such as Davis v.
Washington, 547 U.S. 813, 126 S. Ct. 2266 (2006). Davis
says that a statement is testimonial if it was made without
an ongoing emergency, and “the primary purpose of the
interrogation [or statement] is to establish or prove past
events potentially relevant to later criminal prosecution.”
126 S. Ct. at 2274 (footnote omitted). A chemist’s asser-
tion that “this substance was cocaine” meets the Davis
definition.
4 Nos. 05-4506 & 06-1840
DeFrancesco reached on the stand the same conclu-
sion that appeared in Olson’s report. Defendants do not
say that Olson’s evaluation could have played any role
in the jury’s deliberation. Instead they are concerned
about the readings taken from the instruments, because
those readings are the problem for the defense. Any
competent chemist would infer from these data that the
tested substance was cocaine. Yet the instruments’
readouts are not “statements”, so it does not matter
whether they are “testimonial.” That’s the holding of
United States v. Washington, 498 F.3d 225 (4th Cir. 2007).
A physician may order a blood test for a patient and
infer from the levels of sugar and insulin that the patient
has diabetes. The physician’s diagnosis is testimonial,
but the lab’s raw results are not, because data are not
“statements” in any useful sense. Nor is a machine a
“witness against” anyone. If the readings are “statements”
by a “witness against” the defendants, then the machine
must be the declarant. Yet how could one cross-examine
a gas chromatograph? Producing spectrographs, ovens,
and centrifuges in court would serve no one’s interests.
That is one reason why Rule 703 provides that the ex-
pert’s source materials need not be introduced or even
admissible in evidence. The vital questions—was the lab
work done properly? what do the readings mean?—can be
put to the expert on the stand. The background data need
not be presented to the jury.
Thus we agree with Washington that the Sixth Amend-
ment does not demand that a chemist or other testify-
ing expert have done the lab work himself. Our decision
in United States v. Ellis, 460 F.3d 920 (7th Cir. 2006), is
to much the same effect—though it does not involve ex-
pert analysis. A hospital conducted blood and urine tests
that were introduced into evidence as the hospital’s
business records. See Fed. R. Evid. 803(6); see also
Rule 803(4). Then the arresting officer testified that
Nos. 05-4506 & 06-1840 5
the results demonstrated the presence of methamphet-
amine in Ellis’s system. Ellis holds that the test results
were not “testimonial” under Crawford and Davis. 460
F.3d at 923–24. We did not consider the possibility
that the data are not “statements” in the first place. Thus
Washington and Ellis reach the same result: the Con-
frontation Clause does not forbid the use of raw data
produced by scientific instruments, though the interpreta-
tion of those data may be testimonial.
DeFrancesco was entitled to analyze the data that Olson
had obtained. Olson’s own conclusions based on the data
should have been kept out of evidence (as doubtless they
would have been, had defendants objected). Still, given
DeFrancesco’s live testimony and availability for cross-
examination, Olson’s inferences and conclusions were
not harmful to the defendants.
Defendants raise many other issues, but the only one
that requires discussion is whether the evidence sup-
ports the jury’s verdict that Alexander and Moon conspired
to distribute cocaine. They depict their transactions as
those of commercial buyer and seller, rather than as a
conspiracy, which means an agreement to commit a
future crime. See United States v. Lechuga, 994 F.2d
346 (7th Cir. 1993) (en banc). Why this issue should arise
at all is hard to understand. Both defendants were con-
victed of actually distributing cocaine. The penalty for
conspiracy to distribute drugs is no greater than the
penalty for a substantive offense and may be less. (Alexan-
der was sentenced to life in prison for one of his sub-
stantive offenses, and to 120 months for another, to run
concurrently with 120 months for the inchoate crime; Moon
received 190 months, concurrent, for both substantive
and inchoate offenses. Alexander’s sentence is higher
because of his extensive criminal history, use of a weapon,
and obstruction of justice; none of those enhancements
is contested.)
6 Nos. 05-4506 & 06-1840
Adding a conspiracy charge does little but complicate
the trial and appeal. Some prosecutors may believe
that they need to charge conspiracy in order to take
advantage of the co-conspirator exception to the hear-
say rule, see Fed. R. Evid. 801(d)(2)(E), but that’s a
mistake. This rule of evidence depends on principles of
agency, so it applies (if the evidence demonstrates agree-
ment by a preponderance, see United States v. Martinez de
Ortiz, 907 F.2d 629 (7th Cir. 1990) (en banc)) whether
or not the indictment has a conspiracy count. See United
States v. Gil, 602 F.2d 546, 549 (7th Cir. 1979). Only
the $100 special assessment for the conspiracy convic-
tion is at issue, and it is hard to imagine that the prosecu-
tor charged, tried, and briefed appeals on this issue
for less than $200 (one assessment per defendant). The
value of judicial time devoted to this question greatly
exceeds $200. But here we are, and after Ray v. United
States, 481 U.S. 736 (1987), a court of appeals can’t use
the concurrent-sentence doctrine to bypass the issue.
A judge authorized a wiretap of Alexander’s phone so
that agents could track down the source of the drugs he
was selling. (They had lots of evidence that Alexander
was dealing in cocaine and marijuana.) Agents heard
Alexander talk to Moon, and the familiarity with which
they spoke implied that they had been doing business
for some time. During one conversation Moon said: “what
I intend to do is to give you enough to have four, five, or six
meals if that’s open for you and then when I come back the
following to see you is that you and I need to schedule
some time to have some lunch.” An agent interpreted this
for the jury as a promise to deliver between 4 and 6
kilograms of cocaine (“meals”), with some or all of the
payment deferred (so that “schedule some time to have
some lunch” meant “set up a time for you to pay me”). The
district judge did not abuse his discretion in allowing the
agent to testify as an expert about the meaning of elliptical
phrases that are designed to make conversations sound
Nos. 05-4506 & 06-1840 7
innocent to any third party who may be listening; Moon
was not running a Meals-on-Wheels service.
When agents stopped a car that Moon was driving, they
found 28 packages of cocaine, each holding a kilogram, and
about $60,000 in cash, some $6,000 of which could
be traced to payments that an informant had made to
Alexander. Moon later called Alexander and tried to set
up a time for Alexander to pay the rest of what he owed. A
jury could conclude from this (and the references to
“lunch”) that Moon had been fronting cocaine to Alexander,
who paid for some or all of each delivery only after resell-
ing the inventory. The agents kept a watch on Alexander
and Moon, who soon met; Alexander handed over $20,000.
(A jury could find that the money came from Alexander,
who was seen giving Moon something before driving away.)
Defendants acknowledge that they dealt in cocaine
but say that buying and selling drugs differs from con-
spiracy. That’s true enough in principle, as Lechuga holds,
but often the same evidence that shows particular transac-
tions may support an inference that the parties have
agreed to commit future crimes together, and thus have
conspired. See United States v. Nubuor, 274 F.3d 435 (7th
Cir. 2001); United States v. Hach, 162 F.3d 937 (7th Cir.
1998). That’s so here—not only because the recorded
conversations imply that Alexander and Moon had been
working together but also because a jury could infer
that Moon extended credit to Alexander. Credit transac-
tions make the parties co-venturers; Moon would profit
only if Alexander committed a future crime (the sale of
the fronted drugs) and paid him back. The jurors were
told that they had to distinguish normal sales from
conspiracy; defendants do not question the terms of those
instructions. The evidence was sufficient to allow a
reasonable jury to infer that Moon and Alexander were
joint venturers.
AFFIRMED
8 Nos. 05-4506 & 06-1840
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-3-08