                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-2201

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

E RIC E. G ARVEY,
                                          Defendant-Appellant.


           Appeal from the United States District Court
               for the Western District of Wisconsin.
          No. 10-CR-133—William M. Conley, Chief Judge.



       A RGUED M AY 31, 2012—D ECIDED A UGUST 8, 2012




  Before M ANION, K ANNE, and W ILLIAMS, Circuit Judges.
  K ANNE, Circuit Judge. Eric Garvey was convicted of
four counts of distributing methamphetamine. The gov-
ernment’s evidence at trial included testimony from a
crime lab analyst, John Nied, who testified that four
plastic bags recovered from controlled buys at Garvey’s
apartment contained methamphetamine. Nied was not,
however, the same analyst who actually conducted lab
tests on the white substance found in the bags—that
2                                            No. 11-2201

analyst had left to take another job, and the government
did not call him as a witness. Nied was a supervisor at
the same lab and had peer reviewed the analyst’s work, so
he testified instead. Garvey did not object to Nied’s
testimony at trial. On appeal, Garvey argues that
allowing Nied to testify about the test results violated
his rights under the Confrontation Clause of the Sixth
Amendment. Because Garvey cannot demonstrate that
any alleged error affected his substantial rights, we
affirm his conviction.


                    I. B ACKGROUND
  In January 2008, Wisconsin law enforcement began
working with Sherry Benjamin, a confidential informant.
In exchange for leniency relating to a number of pending
prosecutions, Benjamin tipped off police about the
dealers who were selling her drugs. Later that year,
she told officers that she could purchase methamphet-
amine from Garvey, an acquaintance of her brother.
Law enforcement agents set up a total of four con-
trolled buys for her to purchase methamphetamine from
Garvey, each taking place one to three weeks apart.
  Law enforcement agents conducted a similar set up
for each of the four controlled buys. First, the agents
had Benjamin call Garvey to arrange the purchase of four
to five hundred dollars worth of methamphetamine,
recording each conversation. The agents would then
search Benjamin for contraband, place a recording
device on her, and have her meet Garvey in his apart-
ment to buy the drugs, while the agents conducted sur-
No. 11-2201                                            3

veillance from nearby. After each completed purchase,
Benjamin would turn the drugs over to the agents, who
would again search her for contraband. The agents
would then place the drugs in a sealed bag, initialing
the bag before sending it to a laboratory for testing.
  Garvey was subsequently indicted on four counts of
distributing a substance containing methamphetamine,
in violation of 21 U.S.C. § 841(a)(1). The government’s
evidence at trial included Benjamin’s recorded conversa-
tions and phone calls with Garvey—describing their
negotiations over the quantity and price of the drugs—as
well as testimony from Benjamin and law enforcement
agents about the four controlled buys. Additionally, the
government introduced into evidence four exhibits con-
taining a crystalline material recovered from the con-
trolled buys, each exhibit corresponding to a different
controlled buy. John Nied, a controlled-substance
analyst and technical unit leader at the Wisconsin State
Crime Laboratory, testified that the substance re-
covered from the buys contained methamphetamine.
  But Nied did not perform any lab tests on the exhibits
prior to testifying. The analyst who actually performed
the tests was Andrew Schleis, and the government did not
call him as a witness because he no longer worked at
the lab. Instead, the government planned to have Nied
testify in his place because Nied was a supervisor at the
same lab and had peer reviewed Schleis’s work. Prior
to trial, the government gave notice that it intended to
call Nied instead of Schleis, and that Nied would testify
as to the results of Schleis’s analysis and the methods
4                                               No. 11-2201

employed at the lab. Garvey’s counsel made no objec-
tion to the substitution.
  At trial, Nied first testified that it was common practice
for experts in his field to rely on tests performed by
other analysts in order to render an opinion. He then
gave his opinion regarding the composition of the crystal-
line material contained in each of the government’s
four exhibits. Testifying about one of the exhibits, for
example, Nied stated that “[a]fter reviewing [Schleis’s]
data, I conclude that crystalline material in this item
contains methamphetamine.” (Trial Tr. at 1-P-141.) Nied
also stated the quantities of the methamphetamine con-
tained in each exhibit, referring explicitly to Schleis’s
report when doing so. Testifying about the same exhibit,
Nied read from the report and determined that “[t]he
quantity that [Schleis] reported total was 2.592 grams.”
Id. Nied made similar statements regarding the presence
of methamphetamine and the weight of the substance
for each of the four exhibits. Again, Garvey did not
object to the testimony.
  Without presenting any evidence or calling a witness,
Garvey rested his case. The jury found Garvey guilty on
all four counts, and the district court sentenced him
to forty-two months’ imprisonment.


                       II. A NALYSIS
  On appeal, Garvey argues that allowing Nied to testify
about the results of tests performed by Schleis violated
his Sixth Amendment rights under the Confrontation
No. 11-2201                                                5

Clause. The Confrontation Clause provides 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. Under the Confrontation
Clause, testimonial statements of witnesses absent from
trial may be admitted only if the declarant is unavailable
and the defendant had a prior opportunity to cross-exam-
ine. Crawford v. Washington, 541 U.S. 36, 59 (2004).
  Because Garvey made no objection to Nied’s testimony
at trial, we review only for plain error. See United States
v. Irby, 558 F.3d 651, 655 (7th Cir. 2009). “Under the
plain error standard, the party asserting the error must
establish (1) that there was in fact an error; (2) that the
error was plain; and (3) that the error affects substantial
rights.” United States v. Halliday, 672 F.3d 462, 467 (7th
Cir. 2012). Even where plain error is found, a defendant
is not entitled to relief; rather, “the decision to remedy
the error is discretionary, and we should not exer-
cise that discretion unless the error seriously affects
the fairness, integrity or public reputation of judicial pro-
ceedings.” United States v. Sykes, 614 F.3d 303, 312 (7th
Cir. 2010) (internal quotation marks and brackets omit-
ted) (quoting United States v. Olano, 507 U.S. 725, 732
(1993)). Meeting all prongs of this standard “is difficult,
as it should be.” Puckett v. United States, 556 U.S. 129,
135 (2009) (internal quotation marks omitted).
  Garvey argues that, despite the deferential standard
of review, the district court committed an obvious error
in allowing Nied to read portions of Schleis’s report
while testifying. Nied’s testimony relied on Schleis’s
6                                              No. 11-2201

report concerning: (1) the presence of methamphetamine
in the four exhibits, and (2) the weight of the substance
contained in the exhibits. At oral argument, the govern-
ment essentially conceded the error in allowing Nied
to read the weight of the four exhibits directly from
Schleis’s report, but argued that any such error was
harmless because the weight of the drugs was not
charged in the indictment or subject to a specific finding
by the jury. With regard to the testimony concerning
the presence of methamphetamine, the government
relies heavily on our opinion in United States v. Turner,
591 F.3d 928 (7th Cir. 2010), cert. granted and judgment
vacated by, No. 09-10231, 2012 WL 2470054 (U.S. June 29,
2012), to argue there was no error because Nied used
Schleis’s report to form his own independent opinion
and the report was not introduced into evidence. See
Appellee’s Br. at 17 (stating that “[t]his Court previously
confronted virtually the same issue” in Turner). Indeed,
the facts of this case mirror those in Turner considerably.
  In Turner, the government sought to have a lab
analyst testify that a substance introduced into evidence
contained cocaine base. 591 F.3d at 930. The govern-
ment did not call the analyst who actually performed
the test at trial—she was on maternity leave—and
instead called a senior forensic chemist at the same lab
who peer reviewed her work, over the defendant’s ob-
jection. Id. Although the testifying senior analyst relied
on the original analyst’s lab report and notes in
rendering his opinion, the report and notes were not
introduced into evidence. Id. at 931. We found no Con-
frontation Clause violation, even though the original
No. 11-2201                                                    7

analyst’s summaries contained some testimonial state-
ments, in part because they were never introduced into
evidence. Id. at 933. The government draws heavy
parallels to Turner, noting that Schleis’s report likewise
was not introduced into evidence.
  But after oral argument, the Supreme Court vacated our
decision in Turner and remanded that case for further
consideration in light of the Court’s decision in Williams
v. Illinois, 132 S. Ct. 2221 (2012). Therefore, we cannot
rely on Turner to resolve the present matter. In Williams,
a majority of the Court found there was no violation of
the Confrontation Clause where a forensic specialist
testified that a DNA profile produced by an outside
laboratory matched a DNA profile of the defendant
taken from a blood sample and entered into a state
police database. The Court, however, sharply divided
over the reasoning, leaving “significant confusion in
their wake.” Id. at 2277 (Kagan, J., dissenting); see also id. at
2265 (Kagan, J., dissenting) (noting that “Five Justices
specifically reject every aspect of [the plurality’s] rea-
soning and every paragraph of its explication”). But we
need not delve too deeply into the Court’s decision in
order to resolve the present issue because, even if
Garvey can establish plain error, he cannot demonstrate
that the error affected his substantial rights.
  Plain error affects the substantial rights of a defendant
when it is prejudicial, “which means that there must be
a reasonable probability that the error affected the out-
come of the trial.” United States v. Marcus, 130 S. Ct.
2159, 2164 (2010); see also United States v. McGee, 612 F.3d
8                                              No. 11-2201

627, 631 (7th Cir. 2010) (defendant must establish
“serious prejudice”). Garvey, moreover, bears the
burden of persuasion with respect to showing prejudice.
See United States v. Baker, 655 F.3d 677, 681 (7th Cir.
2011); see also McGee, 612 F.3d at 631 (noting that plain-
error review is more confined than harmless-
error review in part because defendant bears burden
of persuasion).
   Garvey cannot demonstrate that, absent Nied’s testi-
mony, the outcome of the trial probably would have
been different. First, the government correctly notes that
Nied’s testimony regarding the weight of the sub-
stance contained in the exhibits was not essential to the
jury’s verdict. The indictment alleged only that Garvey
knowingly “distributed a mixture or substance con-
taining methamphetamine,” and did not specify a quan-
tity. Nor did the jury make any findings regarding
the quantity of methamphetamine sold for sentencing
purposes. Thus, this case is readily distinguishable
from United States v. Taylor, 471 F.3d 832 (7th Cir. 2006),
on which Garvey relies.
  The defendant in Taylor was charged with possession
with intent to manufacture more than 1,000 marijuana
plants. Id. at 835. At trial, however, the government only
called two of the three detectives that, together, had
counted the 1,417 total marijuana plants in Taylor’s
home. Id. at 841. Because the testimony of the
two detectives regarding the total number of plants
was predicated on the out-of-court statements of the
third detective regarding his specific count, we found
No. 11-2201                                            9

a violation of the Confrontation Clause. Id. Moreover,
Taylor was able to demonstrate that his substantial
rights were affected because the jury made a special
finding that he possessed 1,000 or more marijuana plants,
subjecting him to a mandatory minimum sentence of
120 months’ imprisonment. Id. at 842-43. Unlike in
Taylor, Garvey’s jury made no special finding concerning
the quantity of drugs. Nied’s testimony describing the
weight of the substance was therefore unnecessary for
the jury to reach its verdict.
   The jury, moreover, heard an abundance of other evi-
dence establishing both that Garvey sold methamphet-
amine during the four controlled buys and the quantity
sold in each transaction. Specifically, the govern-
ment introduced into evidence taped conversations of
Garvey commenting on the quality, price, and amount
of methamphetamine sold during his negotiations
with Benjamin and the ensuing controlled buys. Even
without Nied’s testimony, the government firmly estab-
lished that Garvey sold Benjamin methamphetamine
during each of the controlled buys.
  In any event, Garvey cannot establish prejudice
because the evidence at trial was straightforward and
overwhelming, irrespective of Nied’s testimony. See
Irby, 558 F.3d at 656 (testimonial statements admitted in
violation of Confrontation Clause, but no plain error
because defendant’s substantial rights not affected in
light of overwhelming evidence of guilt). The evidence
at trial included the tape-recorded negotiations and
transactions between Garvey and Benjamin. Benjamin
10                                               No. 11-2201

was searched prior to each transaction, kept under sur-
veillance during the purchase, and once again searched
by agents after she turned the drugs over to law enforce-
ment. Although the defense posited that Benjamin
may have had the motive to falsely accuse Garvey
(in order to curry police favor) and opportunity to do
so (the defense thought Benjamin could have been
carrying the drugs on her prior to the controlled buys,
notwithstanding the police searches before each buy),
the jury rejected this theory. And Nied’s testimony
would have no reason to affect the jury’s decision
in that regard one way or the other. In light of the essen-
tially uncontroverted other evidence establishing the
presence of methamphetamine, Garvey cannot demon-
strate that any alleged error affected his substantial rights.


                     III. C ONCLUSION
  For the foregoing reasons, we A FFIRM Garvey’s con-
viction.




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