                            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. 3:08-cr-22-bbc—Barbara B. Crabb, Chief Judge.



      A RGUED M AY 14, 2009—D ECIDED JANUARY 12, 2010




  Before R OVNER and E VANS,               Circuit    Judges,   and
V AN B OKKELEN, District Judge.
  V AN B OKKELEN, District Judge. Danny Turner was
convicted by a jury of three counts of dealing crack



  The Honorable Joseph S. Van Bokkelen, United States District
Court Judge for the Northern District of Indiana, sitting
by designation.
  The panel thanks Hari Santhanam of Kirkland & Ellis for
representing Danny Turner on the appeal in this case.
2                                             No. 08-3109

cocaine. The district court sentenced him to 210 months
of imprisonment on each count, to be served concur-
rently. Turner appeals, arguing that the district court
should not have allowed a chemist to testify at trial
about the nature of the drug exhibits because the
chemist did not himself test those exhibits. Turner also
believes that the district court should not have admitted
the drugs into evidence because the government did not
establish a proper chain of custody. We conclude that the
district court was correct in both instances, and we
affirm its judgment.


                     I. Background
  In early 2008, Dane County Narcotics and Gang Task
Force officers learned that Danny Turner was selling crack
cocaine in Madison, Wisconsin. On January 17, 2008,
undercover officer Kim Meyer purchased crack cocaine
from Turner, and again on January 25 and February 12.
After the February 12 purchase, officers arrested Turner.
A week later, a federal grand jury in the Western District
of Wisconsin indicted Turner on three counts of distrib-
uting cocaine base (crack cocaine), in violation of 21
U.S.C. § 841(a)(1).
  At the pretrial motion hearing, the district court set a
May 5, 2008, deadline for government’s disclosure of
expert witnesses. On May 1, the government notified
Turner that it intended to call as an expert witness
Amanda Hanson, an analyst at the Wisconsin State Crime
Laboratory, regarding the weight and identification of
the drugs alleged in the Indictment. Hanson was the
chemist who analyzed the substances the undercover
No. 08-3109                                             3

agent purchased from Turner. On May 8, however, the
government advised Turner that it would instead be
calling a different expert witness—Hanson’s supervisor,
Robert Block—because Hanson was on maternity leave.
Block is a senior forensic chemist and head of the drug
identification unit at the crime laboratory in Madison.
  On May 12, Turner moved in limine to exclude Block’s
expert testimony. Turner argued that Block’s testimony,
in lieu of Hanson’s testimony, would violated the Con-
frontation Clause of the Sixth Amendment to the United
States Constitution. The government objected to the
motion and, in turn, assured the district court that Block
would testify about his own conclusions, not Hanson’s,
about the nature of the substances she tested. The
district court denied Turner’s motion.
  At trial, the government called Block as its expert
witness to identify the substances the undercover officer
bought from Turner. Among other things, Block testified
about the crime lab’s procedures for processing and
testing the evidence. Block described the safeguards
used by the lab to prevent the commingling and
tampering of evidence. He testified that the instruments
at the lab are calibrated each day that they are used and
that blank samples are run between each test to avoid
contamination or carryover from previous testing.
  Block also explained how suspected substances are
tested through gas chromatography, mass spectrometry,
and infrared spectroscopy to generate graph data in
order to determine the type of drug involved:
   The gas chromatography will print out a set of peaks
   that would be indicative of the presence of a drug or
4                                               No. 08-3109

    a standard that is run on that instrument for compari-
    son purposes. The mass spectrometer will print out a
    spectrum for a drug that has been extracted. This is a
    specific test. By specific, it means the results that are
    generated are unique to that drug and no others.
    Likewise the spectrum that is produced in the
    infrared spectroscopy will generate a spectrum, and
    again, this is the second specific test, the results of
    which are specific to each and every individual drug.
(Def.’s Appendix at 26.)
  In addition, Block described how each chemist’s
analysis must undergo a peer review, and that, as the
unit head, he peer-reviewed Hanson’s tests in this case:
    Prior to the report leaving the laboratory, every report
    must undergo a peer review by another qualified
    analyst within the unit. As the unit head, I perform
    the peer review of the other analysts within the drug
    identification section. I reviewed this report that
    Amanda Hanson generated for the analysis of the
    chunky material in Exhibits 1, 2, and 3, reviewing
    the handwritten notes and the generated data, and
    came to the same conclusion based on the infor-
    mation provided that each of these items contained
    the same material and I signed off on that peer review.
(Def.’s Appendix at 22.)
 Ultimately, Block testified that the substances tested by
Hanson—introduced at trial as Exhibits 1, 2, and
3—contained cocaine base:
No. 08-3109                                            5

    Q. So are you able—were you able to form an 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 upon 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.
(Id.)
 Neither Hanson’s lab report, nor her notes, nor the
data charts were introduced into evidence.
  At the close of the government’s case, Turner moved
for a directed verdict. He argued that the government
had not established a sufficient chain of custody to
prove that the drugs tested were the same substances the
undercover agent purchased from him. The district
court denied Turner’s motion.
  Turner chose not to present any evidence. After closing
arguments, the jury returned guilty verdicts on all three
counts of the indictment. The district court sentenced
Turner as a career offender to 210 months of impris-
onment on each count of the Indictment, to be served
concurrently.
6                                               No. 08-3109

                         II. Analysis
A. Issues for Appeal
     Turner’s appeal raises two issues:
1.    Whether the district court violated his Sixth Amend-
      ment right to confront Hanson, the forensic chemist
      who tested the drugs; and
2.    Whether the district court abused its discretion by
      admitting the drugs into evidence without Hanson’s
      testimony as to how she handled the drugs during
      the testing.


B. The Sixth Amendment
  Turner argues that the district court violated his Sixth
Amendment right to confrontation by permitting Block to
testify about Hanson’s tests. Turner claims that Hanson’s
notes, machine test results, and her final report were
testimonial in nature and that Block’s reliance of these
materials violated his right to confront a witness
because the government had not demonstrated that
Hanson was unavailable for trial. Turner insists that our
decision in United States v. Moon, 512 F.3d 359 (7th Cir.
2008), mandates that his conviction be vacated.
  “We review evidentiary rulings implicating a
defendant’s Sixth Amendment right to confrontation
de novo.” United States v. Burgos, 539 F.3d 641, 643
(7th Cir. 2008). If any error is to be found, “an otherwise-
valid conviction should not be set aside if the constitu-
tional error was harmless beyond a reasonable doubt.”
Id. (citing Chapman v. California, 386 U.S. 18, 24 (1967)).
No. 08-3109                                              7

  The Sixth Amendment guarantees 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. Accordingly, the government may not intro-
duce into evidence “testimonial statements of a witness
who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity
for cross-examination.” United States v. Crawford, 541 U.S.
36, 53-54 (2004). “The critical inquiry is whether the
statements in question are ‘testimonial’—because, as
the [Supreme] Court held, it is only that type of state-
ment that makes a declarant a ‘witness’ under the Con-
frontation Clause.” Burgos, 539 F.3d 641, 643 (7th Cir.
2008) (quoting Crawford, 541 U.S. at 51).
  Therefore, we must first determine if the govern-
ment introduced any statements from Hanson that were
testimonial, without first demonstrating that she was
unavailable for trial and without giving Turner an oppor-
tunity to cross-examine her. No such problem exists.
With the exception of Block’s passing comment—which
we address below—that having peer-reviewed Hanson’s
analysis, he reached the same conclusion as Hanson
about the nature of the exhibits; nothing from Hanson’s
notes, machine test results, or her final report was intro-
duced into evidence. Accordingly, we are faced with a
similar situation as in Moon where the government’s
expert witness was properly allowed to rely on the infor-
mation gathered and produced by a lab employee who
did not testify at trial.
  In Moon, a DEA chemist testified at trial that the sub-
stance seized from the defendant was cocaine. The
8                                                No. 08-3109

chemist did not perform the tests himself. Instead, the lab
work had been done by another employee who left the
agency three weeks before trial. The chemist based his
testimony on the output of an infrared spectrometer and
a gas chromatograph as well as the employee’s report
and lab notes. In addition, the government entered into
evidence, without an objection, the employee’s report,
which contained both the readings taken from the instru-
ments and his own conclusion that those readings
meant the tested substance was cocaine. Moon, 512 F.3d
at 362. On appeal, the defendant challenged the
district court’s admission of the employee’s report.
    We found that there was no problem with the chemist’s
    testimony because
     [h]e testified as an expert, not as a fact witness. When
     the 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 [the em-
     ployee’s] report, this does not spoil [the chemist’s]
     testimony.
Id. at 361. We also held that instrument readouts were
not “statements” and, thus, could not be testimonial. Id.
at 362.
  Likewise, we see no problem with Block’s expert testi-
mony, especially in light of the fact that Hanson’s sum-
maries, which contained some testimonial statements,
were not admitted into evidence. Turner’s contention
that Block could not rely on Hanson’s work product has
no support in law: “the Sixth Amendment does not de-
No. 08-3109                                               9

mand that a chemist or other testifying expert have
done the lab work himself.” Id.
  Turner further argues that the district court violated
his rights under the Sixth Amendment confrontation
clause when it allowed Block to testify that his conclusions
about Exhibits 1, 2, and 3 were the same as Hanson’s.
Turner points to language in Moon that, while the expert
was entitled to analyze the data gathered by the lab
employee who tested the drugs, the employee’s “own
conclusions based on the data should have been kept out
of evidence (as doubtless they would have been, had
defendant objected).” Id.
  But in this regard Moon is different from Turner’s case.
The expert witness in Moon was not involved in the
testing process of the suspected substances: he was strictly
an expert witness. Block, on the other hand, was the
laboratory supervisor whose job was to personally check
Hanson’s test results. As such, he could testify about his
personal involvement in the testing process, about the
accuracy of the tests, and about agreeing with Hanson
when he signed off on her report. What is more, Block’s
testimony unequivocally establishes that his opinion
about Exhibits 1, 2, and 3 was his own:
    Q. So are you able—were you able to form an opinion
       as to the nature of the substance in those three
       exhibits?
    A. I was.
    Q. My opinion based upon the examinations that were
       performed on the chunky materials within
10                                              No. 08-3109

        Exhibits 1, 2, and 3, along with my experience, is
        that each of these items in 1, 2, and 3 contain
        cocaine base.
(Def.’s Appendix at 22.)
  Yet, even if it had been an error for Block to describe how
the peer review process applied in this case, the error
would have been harmless under any standard. Block’s
statement was a passing reference to Hanson in the
context of explaining the procedures for processing and
testing the evidence at the laboratory. This was not a case
of trying to introduce Hanson’s opinion through the
back door or to bolster her conclusion in order to make
Block’s own opinion more believable. Therefore, Turner’s
reliance on United States v. Cuong, 18 F.3d 1132 (4th Cir.
1994), is misplaced.
   In Cuong, the defendant, a doctor, was charged with
illegally prescribing painkillers. The government called
an expert witness to testify about the defendant’s practice
of prescribing the drugs. The expert testified that in his
opinion the drugs were medically unnecessary and that
his findings “were essentially the same” as the findings
of his close friend, Dr. Stevenson, who “is also a lawyer,
and . . . is well thought of in Northern Virginia,” and who
“has been president of Medical Society.” Id. at 1143. The
defendant objected to the expert’s testimony about
Dr. Stevenson but the judge let it in.
  The Fourth Circuit reversed the district court because
“the defendant [was] subjected to the testimony of a
witness whom he may not cross-examine, and [the expert
witness] bolstered his testimony by claiming that an
No. 08-3109                                              11

outstanding doctor, who is also a lawyer and president
of the Medical Society, agrees with him.” Id.
  Unlike in Cuong, the qualifications of Hanson—the
testing scientist—were not put before the jury. And the
brief mention of her conclusion was made in reference to
explaining how the peer review process works at the
laboratory:
    Prior to the report leaving the laboratory, every report
    must undergo a peer review by another qualified
    analyst within the unit. As the unit head, I perform the
    peer review of the other analysts within the drug
    identification section. I reviewed this report that
    Amanda Hanson generated for the analysis of the
    chunky material in Exhibits 1, 2, and 3, reviewing
    the handwritten notes and the generated data, and
    came to the same conclusion based on the information
    provided that each of these items contained the
    same material and I signed off on that peer review.
(Def.’s Appendix at 22.)
  Accordingly, we find that, even if it was an error for
the district court to allow Block to state that his opinion
was the same as Hanson’s, the error was harmless.
  After the oral argument in this case, the Supreme Court
of the United States decided Melendez-Diaz v. Massachusetts,
129 S.Ct. 2527 (2009). In Melendez-Diaz, the prosecution
introduced certificates of analysis as a substitute for
in-court testimony to show that the substance recovered
from the defendant was cocaine. “The certificates were
sworn to before a notary public by analysts at the State
12                                              No. 08-3109

Laboratory Institute of the Massachusetts Department of
Public Health.” Id. at 2531. The Supreme Court held that
the certificates were testimonial statements and the
prosecution could not prove its case without first
showing that a witness was unavailable and that the
defendant had had an opportunity to cross-examine him.
  Turner submitted a supplemental brief, claiming that
Melendez-Diaz stands for the proposition that he should
have been able to confront Hanson on the witness
stand. Turner’s argument is faulty. In writing for the
Court, Justice Scalia explicitly stated that “we do not
hold, and it is not the case, that anyone whose testi-
mony may be relevant in establishing the chain of
custody, authenticity of the sample, or accuracy of the
testing device, must appear in person as part of the prose-
cution’s case.” Id. at 2532 n.1. Moreover, Melendez-Diaz
did not do away with Federal Rule of Evidence 703. And
most importantly, unlike in Melendez-Diaz, Hanson’s
report was not admitted into evidence, let alone
presented to the jury in the form of a sworn affidavit,
“functionally identical to live, in-court testimony, doing
‘precisely what a witness does on direct examination,’ ” id.
at 2532. Instead, Block testified as an expert witness
presenting his own conclusions about the substances in
question to the jury. Accordingly, Melendez-Diaz
does not control this case.


C. Chain of Custody
  Turner argues that the district court abused its dis-
cretion in admitting Exhibits 1, 2, and 3 into evidence
No. 08-3109                                             13

even though the government did not present any
witness who had personal knowledge of Hanson’s han-
dling and testing of the substances the undercover
officer bought from him. He contends that nothing is
known about how Hanson handled the drugs, whether
she followed appropriate procedures or tampered with
the evidence. Turner thus argues that there is a gaping
hole in the chain of custody which makes the evidence
inherently unreliable and requires that his conviction
be vacated. Turner suggests that the presumption of
regularity does not apply in testing suspected substances
because the job of a laboratory chemist is “exceptionally
complex and often prone to error, bias, and prejudice.”
(Appellant’s Br. at 33.)
  We review the district court’s evidentiary rulings,
including matters concerning chain of custody for
physical exhibits, under the abuse of discretion standard.
United States v. Prieto, 549 F.3d 513, 524 (7th Cir. 2008).
We will not reverse a trial judge unless the record
contains no evidence on which the trial court could
have rationally based its decision. United States v. Tatum,
548 F.3d 584, 587 (7th Cir. 2008).
  As we have stated before, the government is not
required to call every witness who handled an exhibit
before that exhibit may be admitted into evidence:
   The standard for the admission of exhibits into evi-
   dence is that there must be a showing that the physical
   exhibit being offered is in substantially the same
   condition as when the crime was committed. In
   making this determination, the district court makes a
14                                              No. 08-3109

     “presumption of regularity,” presuming that the
     government officials who had custody of the
     exhibits discharged their duties properly.” The chain
     of custody need not be perfect; gaps in the chain go
     to the weight of the evidence, not its admissibility.
     In addition, the government does not have to ex-
     clude all possibilities of tampering with the evidence.
     Instead, the government need only show that it took
     reasonable precautions to preserve the original con-
     dition of the evidence.
United States v. Prieto, 549 F.3d 513, 524-25 (7th Cir. 2008)
(citations and quotation marks omitted).
  Because the substances purchased from Turner
remained in official custody at all times, the presumption
of regularity applies. Turner presents no case law to the
contrary, and we find no compelling reason to do
away with this principle in the context of laboratory
testing. Turner only speculates that Hanson might have
tampered with the evidence, but speculation is not
enough to reverse the district court’s evidentiary rul-
ing. Moreover, Detective Hughes testified at trial
that the drugs appeared to be in substantially the same
condition as when he received them from Officer
Meyer. Finding no error in the district court’s decision
to allow Exhibits 1, 2, and 3 into evidence, we decline
Turner’s request to vacate his conviction.


                      III. Conclusion
  Because we find that the district court did not commit
error in allowing Block’s testimony at Turner’s trial and
No. 08-3109                                         15

did not abuse its discretion in admitting into evidence
Exhibits 1, 2, and 3, we affirm the judgment of the
district court.
                                             A FFIRMED.




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