                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0230n.06
                             Filed: May 5, 2008

                                           06-1306

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )
                                               )
v.                                             )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
RONALD EUGENE SWIFT, II,                       )   EASTERN DISTRICT OF MICHIGAN
                                               )
       Defendant-Appellant.                    )



       Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.


       PER CURIAM. In this appeal, defendant Ronald Eugene Swift contends that there

was insufficient evidence to sustain the second of his two convictions for distribution of five

or more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), that were based on

controlled buys made on February 27, 2004, and March 6, 2004, respectively. He rests

his argument on what appears from the record to be a simple misstatement in the

testimony of the government’s chemist. Swift posits that because the forensic chemist who

tested the substances sold by Swift stated that his lab received both samples on March 1

and because it is uncontroverted that the government did not seize the second sample until

March 6, the district court should have granted his Rule 29 motion with regard to the

second count. Because a rational trier of fact could conclude that the chemist mistakenly

stated that the second sample was received on March 1, but otherwise credit his testimony
06-1306
United States v. Swift

that the substance seized on March 6 was cocaine base, there is sufficient evidence to

support Swift’s conviction on count two. We therefore affirm the district court’s judgment.


                   FACTUAL AND PROCEDURAL BACKGROUND


      After a jury trial, Swift was convicted of two counts of distribution of five or more

grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), arising from two separate

controlled buys made by a government informant on February 27 and March 6, 2004,

respectively. The government informant, Ashanti Jackson, made the controlled buys from

the defendant, whom she knew as “Ron-Ron,” in an attempt to secure favorable treatment

for her boyfriend, who had been arrested for distributing crack cocaine.


      The testimony at trial established that on February 27 – under the supervision of

DEA agents – Jackson made a controlled buy from Swift of one ounce of crack cocaine.

On March 6, Jackson made a second controlled buy, this time of two ounces of a

substance that Swift represented as, and which appeared to Jackson and officers to be,

crack cocaine. Although Jackson attempted to set up a third buy, she was unable to reach

Swift again. Both buys occurred at or near Swift’s grandmother’s house, and Jackson, as

well as the DEA agents involved, identified Swift as the seller. The government also

presented phone records and an audio recording in support of their case against Swift.


      The crack cocaine involved in the February 27 buy was admitted into evidence

without objection as exhibit 101 and that involved in the March 6 buy was admitted into


                                           -2-
06-1306
United States v. Swift

evidence without objection as exhibit 107. The DEA agent through whom the exhibits were

admitted, Margo Anderson, specifically testified that exhibit 107 contained “the two ounces

of crack cocaine we purchased on March 6.”


       The government’s forensic chemist, Odiest Washington, testified that he had

subjected both exhibits 101 and 107 to various tests and concluded that exhibit 101

contained 22.4 grams of 77 percent pure cocaine base and that exhibit 107 contained 44.4

grams of 73 percent pure cocaine base. The government did not submit Washington’s lab

report into evidence. During cross-examination, Washington testified that both exhibits

were received by his lab on March 1, 2004, that he checked them out of the lab’s evidence

vault on March 10, 2004, and that he ran the tests on March 12, 2004. Defense counsel

did not point out the discrepancy between the March 1 and March 6 dates to the witness

or press him to explain further, and government counsel, who apparently did not catch the

discrepancy, did not attempt to clarify the issue on redirect.


       At the close of the government’s evidence, defense counsel made a Rule 29 motion

to dismiss count two “for the failure of the prosecution to present any laboratory analysis

of anything seized on March 6,” stressing the “physical impossibility” that the lab received

exhibit 107 on March 1. The government’s attorney, who was taken by surprise by the

argument concerning a discrepancy in the dates, insisted that any discrepancy went to the

weight of the evidence, not its admissibility, and that there was otherwise sufficient




                                            -3-
06-1306
United States v. Swift

evidence to establish that exhibit 107 was seized on March 6 and was indeed crack

cocaine. The district court agreed and denied the motion, explaining:


              With respect to whether the exhibit that was obtained was the same
       one that was seized, I suppose that could go to the chain of custody although
       exhibit 107 was received without objection in this court.
              I do believe that the exhibit is properly before the court, and the
       witness, Mr. Washington, did testify that it was a controlled substance
       consisting of 44.4 grams of 73 percent pure cocaine base.
              Consequently, I do think the government has offered evidence from
       which a jury could conclude, if believed, the elements of a crime in count 2
       beyond a reasonable doubt. And I tend to agree with the observation that
       the discrepancy goes to the weight and not the admissibility; it’s certainly a
       point for argument but not one that I believe would preclude the jury from
       making an assessment and considering the count.


       After the court denied his Rule 29 motion, the defendant rested without offering any

evidence. In closing argument, defense counsel focused on the March 1 – March 6

discrepancy, but the jury convicted on both counts, apparently concluding that the

discrepancy in the dates was a mistake or misstatement on the part of the chemist, but that

his testimony that exhibit 107 was cocaine base was otherwise credible, as was

Anderson’s testimony that exhibit 107 constituted the purported contraband sold by the

defendant on March 6. This conclusion is in line with an instruction given to the jury

regarding consideration of witnesses’ testimony, which read in pertinent part, “[i]t is up to

you to decide if a witness’ testimony was believable and how much weight you think it

deserves. You are free to believe everything that a witness said or only part of it, or none

of it at all.” The defendant received a sentence of 180 months.


                                            -4-
United States v. Swift
06-1306

       Swift now appeals the denial of his Rule 29 motion. He contests only the narrow

issue of whether, as a matter of law, because of the discrepancy in dates and the

purported lack of a lab report concerning the second controlled buy, there was insufficient

evidence that the March 6 substance was cocaine base. He does not otherwise question

the sufficiency of the evidence supporting either count one or the other elements of count

two.


                                       DISCUSSION


       We review de novo a district court’s denial of a Rule 29 motion. See United States

v. Talley, 194 F.3d 758, 764 (6th Cir. 1999). The relevant inquiry is “whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Circumstantial evidence may

satisfy the standard, and the evidence need not be such that it excludes every reasonable

hypothesis except that of guilt. See United States v. Hill, 142 F.3d 305, 311 (6th Cir. 1998)

(internal quotation marks and citation omitted).


       Swift contends that “from this record we cannot know the identity of the substance

police seized on March 6, 2004.” He correctly acknowledges that case law supports the

conclusion that the lack of a lab report is not dispositive. See United States v. Schrock,

855 F.2d 327, 334 (6th Cir. 1988) (“To our knowledge, no court has held that scientific

identification of a substance is an absolute prerequisite to conviction for a drug-related

                                            -5-
United States v. Swift
06-1306

offense, and we too are unwilling to announce such a rule.”); United States v. Covington,

133 F.3d 639, 644 (8th Cir. 1998) (“It is well established that the identity of a controlled

substance can . . . be proved by circumstantial evidence and opinion testimony.”) (internal

quotation marks and citation omitted); United States v. Sanapaw, 366 F.3d 492, 496 (7th

Cir. 2004) (“[N]either expert testimony nor a chemical test of the substance sold is required

to prove distribution of a controlled substance.”).


       Swift is incorrect, however, in his assertion that Washington’s testimony was “fatally

flawed,” a proposition for which he offers no authority. Viewing the testimony in the light

most favorable to the government, as we must in a sufficiency challenge, a logical

explanation for the discrepancy in the dates is that Washington was simply mistaken about

when the second sample reached his lab, perhaps confusing the actual date of receipt with

the date on which the first sample arrived, a rational conclusion the trier of fact would be

entitled to draw from the whole of the evidence presented. See Sixth Circuit Criminal

Pattern Jury Instruction 1.07- Credibility of Witnesses (“You are free to believe everything

that a witness said, or only part of it, or none of it at all. . . . [I]f you believe that the witness

was inconsistent . . . [a]sk yourself if it seemed like an innocent mistake. . . .”). And,

despite Swift’s assertion that Washington’s misstatement left the jury with no evidence

upon which to conclude that exhibit 107 was the substance seized on March 6 and that it

was indeed crack cocaine, Anderson’s testimony that exhibit 107 contained “the two

ounces of crack cocaine we purchased on March 6,” combined with Washington’s

testimony that exhibit 107 was 73 percent pure crack cocaine base, provided the jury

                                                -6-
United States v. Swift
06-1306

sufficient evidence from which to conclude that the substance in question was seized on

March 6 and was crack cocaine, as alleged in the indictment.


                                    CONCLUSION


      For the reasons set out above, we conclude that the district court did not err in

denying the defendant’s Rule 29 motion and, therefore, we AFFIRM the judgment of

conviction.




                                         -7-
