                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 31, 2013
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 11-2237
 v.                                            (D.C. No. 2:10-CR-02085-WJ-1)
                                                          (D. N.M.)
 PAUL REYES SEDILLO,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, KELLY, and GORSUCH, Circuit Judges.



      Defendant-Appellant Paul Reyes Sedillo appeals from his conviction of

being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2). He raises two challenges to his conviction: (1) the district court

violated his confrontation rights under the Sixth Amendment by allowing DNA

expert, Carrie Zais, to testify about the results of DNA analysis she neither

performed nor observed; and (2) the district court erred in denying his motion for

judgment of acquittal on the grounds that there was insufficient evidence to


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
support the theory that he actually or constructively possessed a firearm. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.



                                    Background

      This case arises from a 911 call in Roswell, New Mexico. On the night of

October 22, 2009, Mr. Sedillo’s mother, Laverne Sanchez Webb, called the police

to report a disturbance outside her home. I R. 31. At the time, Mr. Sedillo was

living with his mother, having moved into the house after his release from prison

on August 29, 2009. III R. 478–79. Mr. Sedillo’s brother, Roman Reyes, had

moved out of the house to make room for Mr. Sedillo. Id. at 479–80. When Mrs.

Webb called 911, Mr. Sedillo was in his bedroom, and Mr. Reyes was asleep in

his car outside. Id. at 476, 510.

      The police arrived and secured the residence in anticipation of obtaining a

search warrant. Id. at 337–38. Officer Harrell executed the warrant, and while

searching the small living room, found a shotgun in the living room closet. Id. at

341–42. Officer Harrell testified that “when [he] opened [the closet], there was a

shotgun visible just inside the threshold of that closet. . . . [He] immediately saw

the shotgun.” Id. at 342. According to Officer Harrell, the small closet “wasn’t

even latched[;] . . . the door was barely shut . . . partly [because the] shotgun was

blocking the door from completely closing.” Id. at 344. Officers recovered two

shotgun hulls from outside the home as well. Id. at 346–47.

                                         -2-
      Mrs. Webb was surprised to learn that the police had confiscated a shotgun.

Id. at 473. She testified that there were no firearms in her home when Mr. Sedillo

moved in, and that she had been in the closet two weeks before the search and did

not see a shotgun. Id. at 471, 474–75. Mrs. Webb further testified that she

always kept her house locked when she was not home, and that only her sister had

an extra key. Id. at 477. According to Mrs. Webb, neither Mr. Sedillo nor Mr.

Reyes had a key to the house. Id. at 475. On cross-examination, Mrs. Webb

stated that she did not see Mr. Sedillo bring a gun into the house, and never saw

Mr. Sedillo go into the closet. Id. at 478, 488.

      The search revealed several items belonging to Mr. Sedillo. These were: a

Social Security card, a medicine bottle, an envelope, and a document titled

“Supplemental Nutrition Assistance Program,” all bearing Mr. Sedillo’s name.

Id. at 393–95. The police found these items in Mr. Sedillo’s bedroom. Id. They

did not find any of Mr. Sedillo’s possessions in the living room closet. See id. at

403–04.

      The police obtained a DNA sample from Mr. Sedillo. Id. at 396–98. This

sample, along with the shotgun, was sent to a New Mexico state laboratory for

testing. Id. at 242, 320. DNA analyst Stephanie Willard collected DNA from the

shotgun, which revealed that Mr. Sedillo was a major contributor. Id. at 242–43.

Prior to trial, however, Ms. Willard moved to another country and was unable to

testify. Id. at 239. The government moved in limine to allow Carrie Zais, a DNA

                                         -3-
analyst who technically reviewed Ms. Willard’s work, to testify. Aplt. Open. Br.,

Att. B at 2. Over Mr. Sedillo’s objection, the court granted the motion. Id. at 3.

      At trial, the government offered Ms. Zais as an expert in the field of DNA

analysis. III R. 235. On direct examination, Ms. Zais testified generally about

DNA profiling. Id. at 236. The government showed Ms. Zais the report from Ms.

Willard, and Ms. Zais said that she was the technical reviewer. Id. at 237, 241.

She explained that, in this capacity, she reviewed the case notes and would “have

to agree with and would have drawn the same conclusions as the analyst

performing the testing.” Id. at 241. The government asked, “based on your

review of that laboratory work, have you come to a conclusion based on your own

training and experience as to who the source of the DNA found on the shotgun

was?” Id. at 242. Ms. Zais answered “Yes” and said it was Mr. Sedillo. Id.

      The government then asked Ms. Zais to describe the DNA testing procedure

used in this case. Id. at 242–46, 283–84. Ms. Zais explained that Ms. Willard

“swabbed the textured parts of the [gun],” “placed [the swab] in a tube,”

“remove[d] just the DNA,” and “quantitated” the DNA to determine how much

was present. Id. at 242–44, 283. Because the sample was “dirty,” Ms. Willard

“diluted it out with water and then retested it.” Id. at 245, 283. Ms. Willard then

was able to obtain a DNA profile. Id. at 283. On cross-examination, Ms. Zais

confirmed that she did not perform any of the testing in the case. Id. at 286. The

actual DNA report was never admitted into evidence. See id. at 233–307.

                                        -4-
      At the close of the government’s case, Mr. Sedillo moved for a judgment of

acquittal under Rule 29 on the grounds that there was insufficient evidence of

actual or constructive possession. Id. at 532. The court took the motion under

advisement. Id. at 537. At the close of evidence, Mr. Sedillo renewed his Rule

29 motion, which after a brief hearing, the court denied. Id. at 541–42, 565.

      Before closing arguments, the judge instructed the jury that they could

convict Mr. Sedillo of being a felon in possession on a theory of actual or

constructive possession, but they were to consider the DNA evidence for actual

possession alone. I R. 117. Mr. Sedillo did not request a limiting instruction on

the expert testimony. See id. at 123. The jury returned a general verdict of

guilty. Id. at 105. The court imposed a sentence of 262 months’ imprisonment

followed by five years’ supervised release. Id. at 172–73. Mr. Sedillo timely

appealed. Id. at 176.



                                     Discussion

      Mr. Sedillo raises two arguments on appeal: (1) the district court violated

his confrontation rights by admitting Ms. Zais’s testimony; and (2) the district

court erred in denying his motion for judgment of acquittal. We review the

district court’s admission of evidence for abuse of discretion. United States v.

Blechman, 657 F.3d 1052, 1063 (10th Cir. 2011). If the court erred, and the

defendant bases his challenge on the Confrontation Clause, we need not reverse if

                                        -5-
“the error is harmless beyond a reasonable doubt.” United States v. Burke, 571

F.3d 1048, 1057 (10th Cir. 2009).

      Because the jury returned a general verdict of guilty, we cannot determine

on which theory of possession (actual or constructive) the jury relied, and we

must affirm if the evidence is sufficient to support either theory. See Griffin v.

United States, 502 U.S. 46, 59–60 (1991); United States v. Ayon Corrales, 608

F.3d 654, 657–58 (10th Cir. 2010). Here, the evidence supports a finding of

constructive possession. As such, we need not address actual possession, nor

must we delve into Mr. Sedillo’s confrontation argument. Even if the court erred

in admitting Ms. Zais’s testimony, any error was harmless beyond a reasonable

doubt because Mr. Sedillo’s conviction can be sustained on a theory of

constructive possession, for which the jury did not consider the DNA evidence. 1

      Limiting our discussion to constructive possession, we do not believe the

district court erred in denying Mr. Sedillo’s motion for judgment of acquittal.

Our review is de novo as to the sufficiency of the evidence. United States v.



      1
         At oral argument, the government raised a harmless error argument
different from the one offered in its brief. The government suggested that, even if
Ms. Zais’s reference to the DNA report was objectionable, her conclusion that
Mr. Sedillo’s DNA was on the shotgun was not. See Oral arg. at 27:17–28:13.
Thus, this opinion would still be submitted to the jury. See id. Because the
government did not raise this precise argument in its brief, we will not consider it
on appeal. Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012). We will, however,
consider the government’s original argument relating to constructive possession.
See Aplee. Br. 17–18, 22–25.

                                         -6-
Smith, 641 F.3d 1200, 1204 (10th Cir. 2011). “We view the evidence in the light

most favorable to the verdict to ascertain whether any rational trier of fact could

have found the defendant guilty beyond a reasonable doubt.” Id. at 1204–05.

      To convict Mr. Sedillo of being a felon in possession under § 922(g)(1), the

government was required to prove that he “had previously been convicted of a

felony, . . . thereafter knowingly possessed a firearm, and such possession was in

or affected interstate commerce.” United States v. McCane, 573 F.3d 1037, 1046

(10th Cir. 2009) (quotation omitted). Possession of a firearm under § 922(g)(1)

can be actual or constructive. Id. “Constructive possession exists when a person

knowingly holds the power and ability to exercise dominion and control over a

firearm.” Id. (quotation omitted). In cases of joint occupancy where the

government relies on circumstantial evidence of constructive possession, the

government must “show some connection or nexus between the defendant and the

firearm.” United States v. King, 632 F.3d 646, 651 (10th Cir. 2011). “There

must be some evidence supporting at least a plausible inference that the defendant

had knowledge of and access to the weapon or contraband.” United States v.

Hishaw, 235 F.3d 565, 571 (10th Cir. 2000) (quotation omitted).

      Mr. Sedillo argues that this required nexus is missing, and thus no plausible

inference of knowledge and access can be drawn, because the police did not find

any of his possessions in the living room closet. Aplt. Open. Br. 24. The district

court heard argument on the issue, and relying on the “plausible inference”

                                         -7-
language from Hishaw, found the evidence sufficient. III R. 565. We agree.

      First, Mr. Sedillo does not deny that he lived in the house, nor does he

suggest that he could not access the closet. His mother’s testimony, that she

never saw Mr. Sedillo open the closet, is besides the point because we only ask

whether Mr. Sedillo has the power to access the gun, not whether he actually did.

See King, 632 F.3d at 652–53 (finding the evidence sufficient where a defendant,

though lacking car keys, “could have accessed” the contraband in the car); United

States v. Mendez, 514 F.3d 1035, 1042 (10th Cir. 2008) (“Because the gun was

accessible to anyone in the house, the jury could reasonably infer that anyone

using the room had knowledge of and access to the gun.”). Second, we find that,

in the case of two occupants where one occupant denies knowledge of a shotgun,

it is plausible to infer the other occupant knew about the shotgun. This does not,

as Mr. Sedillo suggests, shift the burden to Mr. Sedillo. See Aplt. R. Br. 3. Nor

does it ignore that someone else may have brought the gun into the house. See id.

at 4. In fact, defense counsel, in its closing argument, suggested three times that

Mr. Reyes, Mr. Sedillo’s brother, was responsible for the shotgun. See III R. 593,

600–01. The jury was free to consider this point in reaching its decision. That

the jury found this argument unpersuasive does not alter our conclusion.

      In response, Mr. Sedillo cites three of our prior decisions—United States v.

Mills, 29 F.3d 545 (10th Cir. 1994), Hishaw, and United States v. Taylor, 113

F.3d 1136 (10th Cir. 1997)—where we found the evidence insufficient for

                                        -8-
constructive possession. We find these cases readily distinguishable from the

instant case. In Mills, we found evidence insufficient to convict where a

defendant’s house mate placed a gun in the dining room table compartment

without the defendant’s knowledge and contrary to his instructions. 29 F.3d at

550. But here, our other occupant, Mrs. Webb, denied knowledge of the shotgun.

Likewise, in Hishaw, we found evidence insufficient to convict where a defendant

was driving a car that belonged to a friend of his brother, police found a gun in

the car, but police were unable to show the defendant exercised dominion over the

car. 235 F.3d at 572. Here, however, Mr. Sedillo lived in the house, and his

personal items—a social security card, medicine bottle, and papers—were there.

Finally, in Taylor, we found the evidence insufficient where three men lived

together, police found a firearm in one bedroom closet, and the only evidence

connecting the defendant to that bedroom were his receipts and pawn shop tickets

found in the room. 113 F.3d at 1145–46. Unlike Taylor, we only have two

occupants here, and thus, it is plausible to infer that Mr. Sedillo, the only other

occupant, knew about the shotgun.

      The dissent suggests that the nexus between Mr. Sedillo and the shotgun is

missing. According to the dissent, we have “pile[d] one inference upon another”

to establish that Mr. Sedillo had knowledge of the shotgun. The problem with

this argument is that we must view the evidence in the light most favorable to the

government. United States v. Bagby, 696 F.3d 1074, 1080 (10th Cir. 2012)

                                         -9-
(citation omitted). Thus, we must credit Mrs. Webb’s testimony that only her

sister had an extra key, not Mr. Reyes’s testimony to the contrary. See United

States v. Williamson, 53 F.3d 1500, 1516 (10th Cir. 1995) (“[W]e necessarily

resolve any conflicts in the evidence in favor of the [verdict] . . . .”).

      In the end, a rational jury could have concluded Mr. Sedillo knew about the

gun. Mens rea inferences almost always require some inference from

circumstantial evidence—few will admit to bearing an unlawful mental state.

And viewing the circumstantial evidence as we must, Mr. Sedillo’s room was just

feet away from the gun and there simply is nothing to link Mr. Reyes or Mrs.

Webb to the gun. In this light, we find sufficient evidence to support the jury’s

finding of constructive possession. And because the evidence supports a theory

of constructive possession, any confrontation error was harmless beyond a

reasonable doubt.

      AFFIRMED.

                                         Entered for the Court



                                         Paul J. Kelly, Jr.
                                         Circuit Judge




                                          - 10 -
11-2237, United States v. Sedillo

BRISCOE, Chief Judge, dissenting.

      I respectfully dissent. I disagree with the majority’s conclusion that the

evidence supports a finding of constructive possession. That conclusion makes it

necessary to address the prosecution’s alternate theory of actual possession. As

regards evidence of actual possession, I would also conclude that the district court

violated Paul Reyes Sedillo’s confrontation rights by admitting the testimony of

Carrie Zais, a DNA expert, and that this error was not harmless beyond a

reasonable doubt. Accordingly, I would reverse and remand with directions to

vacate Sedillo’s conviction of being a felon in possession of a firearm.

                                          I

      The majority concludes that the evidence presented at trial was sufficient to

establish that Sedillo had constructive possession of the firearm. Sedillo resided in

his mother’s home with his mother, Laverne Webb. In cases of joint occupancy,

as is the case here, constructive possession requires that there be “some connection

or nexus between the defendant and the firearm.” United States v. King, 632 F.3d

646, 651 (10th Cir. 2011) (quoting United States v. Ledford, 443 F.3d 702, 713

(10th Cir. 2005)). To meet the nexus requirement, the government must “point to

evidence plausibly supporting the inference that the defendant had knowledge of

and access to the firearm.” United States v. Poe, 556 F.3d 1113, 1125 (10th Cir.

2009). The evidence here does not establish a sufficient nexus between Sedillo
and the firearm.

      The majority points out that “Mr. Sedillo does not deny that he lived in the

house, nor does he suggest that he could not access the closet.” Maj. Op. 8.

However, these facts do not establish that Sedillo had knowledge of the firearm.

The majority concludes that “in the case of two occupants where one occupant

denies knowledge of a shotgun, it is plausible to infer the other occupant knew

about the shotgun.” Maj. Op. 8. However, this assertion is unsupported by our

case law and contravenes our precedent. In United States v. Jones, 49 F.3d 628

(10th Cir. 1995), we explained that it is improper to “pile[] one inference upon

another” in order to establish possession. Id. at 633. The majority here engages in

precisely this improper piling of inferences when it finds it “plausible to infer”

that Sedillo had knowledge of the shotgun from his mother’s lack of knowledge of

the shotgun.

      The cases that the majority cites reaffirm the knowledge requirement. In

United States v. King, 632 F.3d 646 (10th Cir. 2011), we held that the knowledge

requirement was satisfied because the defendant claimed ownership of the firearm

twice in front of law enforcement officers, and because a photograph of the

firearm was found on the defendant’s cell phone. Id. at 654. Similarly, in United

States v. Mendez, 514 F.3d 1035 (10th Cir. 2008), we determined that the

defendant had knowledge of the firearms because the defendant admitted to

knowing that the firearms were in the house. Id. at 1042. See also Poe, 556 F.3d

                                         -2-
at 1125 (finding that knowledge of the weapon was established when the defendant

told the police “[t]he dope and the gun are mine”). Here, there is no evidence that

Sedillo had knowledge of the shotgun.

      The majority’s use of “inference” evidence becomes even more shaky when

we acknowledge that there were other individuals, aside from Sedillo and his

mother, who had access to the house. This evidence makes it just as “plausible to

infer” that someone else brought the shotgun into the house. According to Webb’s

testimony, her sister also had a key to the house. III R. 477. And significantly, on

the night of the incident (October 22, 2009), Sedillo’s brother, Roman Reyes, slept

in a car parked in front of the house. In her testimony, Webb acknowledged that it

was possible that Roman Reyes came into the house on October 22, 2009, and

talked with Sedillo at some point. Id. at 480. Roman Reyes was living in Webb’s

house when Sedillo first moved into the house in August of 2009. On September

16, 2009, Roman Reyes and Sedillo had an argument and Roman Reyes left

Webb’s house to stay with other relatives. Id. Although Webb testified that

Roman Reyes did not have a key to the house, Roman Reyes testified that he still

had a key to Webb’s house and that Webb knew that he still had a key. Id. at 475,

512. When asked at trial whether he kept a shotgun in Webb’s house, Roman

Reyes refused to answer the question without an attorney present because he also

has a prior felony conviction. Id. at 512.

      The majority dismisses the evidence that someone else might have brought

                                        -3-
the firearm into the house. The majority notes that “defense counsel, in its closing

argument, suggested three times that Mr. Reyes, Mr. Sedillo’s brother, was

responsible for the shotgun.” Maj. Op. 8. The majority concludes that “[t]he jury

was free to consider this point in reaching its decision,” and that “the jury found

this argument unpersuasive.” Maj. Op. 8. That the jury found Sedillo guilty does

not relieve us, or the district court, from requiring an evidentiary basis for the

verdict which satisfies the legal requirements for constructive possession. 1 As

noted in the discussion that follows, when the legal requirements for constructive

possession are not met, this court will reverse the conviction at issue regardless of

the jury’s guilty verdict.

      Further, I find unpersuasive the majority’s distinction of this case from our

prior decisions. In United States v. Mills, 29 F.3d 545 (10th Cir. 1994), we found

insufficient evidence for a jury to find constructive possession when the

defendant’s housemate testified that she placed firearms in the dining room table



      1
        At the close of the government’s case-in-chief during trial, Sedillo moved
for a judgment of acquittal pursuant to Fed. R. Crim. P. 29, arguing that there was
insufficient evidence to establish either actual or constructive possession. III R.
532-33. Sedillo renewed his motion for judgment of acquittal at the close of all
evidence. Id. at 541-42. The district court denied Sedillo’s motion for judgment
of acquittal. The district court found that the government had presented sufficient
evidence, particularly the DNA evidence that was recovered from the shotgun, to
support a theory of actual possession. Id. at 556. Relying on United States v.
Hishaw, 235 F.3d 565 (10th Cir. 2000), the district court also found that “the
government ha[d] presented sufficient evidence to support at least the plausible
inference that [Sedillo] had knowledge and access to the weapon.” Id. at 565.

                                         -4-
compartment without the defendant’s knowledge and contrary to his instructions.

Id. at 550. But we also noted in Mills that even if the jury disbelieved the house

mate’s testimony, “that disbelief cannot constitute evidence of the crimes charged

and somehow substitute for knowing constructive possession in this joint

occupancy situation.” Id. As we explained, the defendant was not required to

prove that he was denied access to the kitchen table or compartment, but that “the

government had to come forward with evidence to connect [the defendant] with

knowing constructive possession of the firearms.” Id. As is the case here, “[m]ere

dominion or control . . . is insufficient to establish constructive possession.” Id.

      And in United States v. Hishaw, 235 F.3d 565 (10th Cir. 2000), we

determined that testimony at trial regarding the defendant’s prior possession of the

firearm was “simply too remote and too vague to support the inference that

[defendant] constructively possessed the pistol.” Id. at 572. Likewise, in United

States v. Taylor, 113 F.3d 1136 (10th Cir. 1997), we held that witness testimony of

the defendant’s possession of “a small handgun on one or two occasions” was

insufficient to establish that the defendant “ever possessed or even had knowledge

of” the firearm that was discovered in the defendant’s apartment. Id. at 1145.

Additionally, in Taylor, we found that the evidence was insufficient to support a

constructive possession conviction when the firearm was found in the defendant’s

bedroom. We noted that the defendant shared the bedroom with another occupant,

and even though the defendant’s belongings were found in the bedroom, we held

                                         -5-
that “joint occupancy of a bedroom, without more, is insufficient to support a

conviction of constructive possession of a gun found in a bedroom.” Id. at 1146

(citing United States v. Sullivan, 919 F.2d 1403, 1431 (10th Cir. 1990)). Here, the

firearm was not found in Sedillo’s bedroom, but in a hall closet in a common area

of the house.

      The majority distinguishes Taylor from this case because there were three

occupants in the apartment in Taylor, whereas there were only two known

occupants in this case. The number of joint occupants is not sufficient to

distinguish Taylor from this case. “In cases of joint occupancy, where the

government seeks to prove constructive possession by circumstantial evidence, it

must present evidence to show some connection or nexus between the defendant

and the firearm or other contraband.” Id. at 1145 (quoting Mills, 29 F.3d at 549).

There is no evidence showing a connection or nexus between Sedillo and the

shotgun.

      For these reasons, I would conclude that the evidence is insufficient to

uphold Sedillo’s conviction which rests upon a theory of constructive possession.

                                         II

      Because I would conclude that the evidence does not support a finding of

constructive possession, I must next address whether there was sufficient evidence

to support a finding of actual possession. This court reviews district court’s

evidentiary rulings for an abuse of discretion. United States v. Ledford, 443 F.3d

                                        -6-
702, 707 (10th Cir. 2005); United States v. Jenkins, 313 F.3d 549, 559 (10th Cir.

2002). If error is found and a party objects to the court’s evidentiary ruling based

solely on the Federal Rules of Evidence, this court reviews for nonconstitutional

harmless error. Ledford, 443 F.3d at 707. However, if error is found and a party

objects to evidentiary rulings that implicate the Confrontation Clause, this court

“may find error harmless only if it is convinced that the error was harmless beyond

a reasonable doubt.” Id. (citing United States v. Jefferson, 925 F.2d 1242, 1253-

54 (10th Cir. 1991)).

      The government’s proof of actual possession rested upon the testimony of

the DNA expert, Carrie Zais. Sedillo objected to Zais’s testimony that the DNA

found on the shotgun came from Sedillo on grounds that her testimony would

violate his confrontation rights. I R. 68-73. Accordingly, any violations of

Sedillo’s Confrontation Clause rights are subject to harmless error review, in

which this court determines whether the error was harmless beyond a reasonable

doubt. This court reviews the record de novo. United States v. Chavez, 481 F.3d

1274, 1277 (10th Cir. 2007).

      I would conclude that Zais’s testimony violated the Confrontation Clause of

the Sixth Amendment. If Zais’s testimony is excluded, there is insufficient

evidence to support a conviction of actual possession. And, as a result, any error

in admitting Zais’s testimony would not be harmless beyond a reasonable doubt

because Sedillo’s conviction cannot be sustained based on a theory of constructive

                                         -7-
possession.

      The Confrontation Clause of the Sixth Amendment 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. In Crawford v. Washington,

541 U.S. 36, 59 (2004), the Supreme Court interpreted the Confrontation Clause to

mean that “[t]estimonial statements of witnesses absent from trial [can be]

admitted only where the declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine.” Statements are testimonial when “the

primary purpose of the interrogation is to establish or prove past events potentially

relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822

(2006).

      The Supreme Court held in Melendez-Diaz v. Massachusetts, 557 U.S. 305

(2009), and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), that scientific

reports could not be used as substantive evidence against the defendant at trial

unless the analyst who had prepared the report was subject to cross-examination.

In Melendez-Diaz, the defendant was charged with distributing and trafficking

cocaine. At trial, the prosecution submitted three “certificates of analysis”

showing that forensic analysis of seized substances from the defendant found the

substances to contain cocaine. Melendez-Diaz, 557 U.S. at 308. The Court held

that the certificates of analysis, which were sworn under oath and notarized, were

“functionally identical to live, in-court testimony, doing ‘precisely what a witness


                                        -8-
does on direct examination.’” Id. at 310-11 (quoting Davis, 547 U.S. at 830). As a

result, the defendant was “entitled to be confronted with the analysts at trial.” Id.

at 311 (quotation omitted). In Bullcoming, the defendant was convicted of driving

under the influence of intoxicating liquor. At trial, the court admitted into

evidence a forensic laboratory report certifying that the defendant’s blood alcohol

concentration was above the legal threshold. Instead of calling the analyst who

signed the certification to testify, the prosecution called another analyst who was

familiar with the laboratory’s general testing procedures but who had not

participated nor observed the actual analysis on the defendant’s blood. The Court

rejected this surrogate testimony and held that “[t]he accused’s right is to be

confronted with the analyst who made the certification.” Bullcoming, 131 S. Ct. at

2710.

        In her concurrence to Bullcoming, Justice Sotomayor highlighted several

factual circumstances that Bullcoming did not present. First, Justice Sotomayor

explained that Bullcoming “is not a case in which the State suggested an alternate

purpose . . . for the [forensic] report.” Id. at 2722 (Sotomayor, J., concurring).

Second, Bullcoming “is not a case in which the person testifying is a supervisor,

reviewer, or someone else with a personal, albeit limited, connection to the

scientific test at issue.” Id. Third, Justice Sotomayor highlighted that Bullcoming

“is not a case in which an expert witness was asked for his independent opinion

about underlying testimonial reports that were not themselves admitted into


                                         -9-
evidence.” Id. Finally, Justice Sotomayor noted that Bullcoming “is not a case in

which the State introduced only machine-generated results.” Id. According to

Justice Sotomayor, Bullcoming “does not present, and thus the Court’s opinion

does not address, any of these factual scenarios.” Id.

      In Williams v. United States, 132 S. Ct. 2221 (2012), the most recent

Supreme Court case to address the admission of scientific reports under the

Confrontation Clause, the Court sought to respond to one of Justice Sotomayor’s

factual distinctions, the question of “determin[ing] the constitutionality of

allowing an expert witness to discuss others’ testimonial statements if the

testimonial statements were not themselves admitted as evidence.” Id. at 2233

(quoting Bullcoming, 131 S. Ct. at 2722 (Sotomayor, J., concurring)). The

defendant in Williams was convicted of rape. At trial, the prosecution called an

expert witness who testified that a DNA profile produced by an outside laboratory,

Cellmark, matched a profile produced by the state police lab using a sample of the

defendant’s blood. Id. at 2227. The defendant in Williams argued that the

Confrontation Clause was violated when the witness “referred to the DNA profile

provided by Cellmark as having been produced from semen found on the victim’s

vaginal swabs.” Id. According to the defendant, his right to confrontation was

violated because the witness did not have personal knowledge that the profile

produced by Cellmark was based on vaginal swabs taken from the victim. The

Supreme Court in Williams split three ways: Justice Alito wrote a plurality that


                                        - 10 -
three other Justices joined; Justice Breyer (who joined in the plurality) and Justice

Thomas (who did not join in the plurality) each wrote a concurring opinion; and

Justice Kagan, with whom three other Justices joined, wrote for the dissent.

      The plurality concluded that the testimony at issue in Williams did not

violate the Confrontation Clause. The plurality rested on two independent bases in

reaching its decision. First, the plurality found that the Confrontation Clause does

not apply to “out-of-court statements that are not offered to prove the truth of the

matter asserted.” Id. at 2228. The plurality reasoned that the phrase “[DNA]

found in semen from the vaginal swabs of [the victim]” was not offered to prove

the truth of the matter asserted; instead, “that fact was a mere premise of the

prosecutor’s question.” Id. at 2236. Because Williams was a bench trial instead of

a jury trial, the plurality assumed that the trial judge understood that the phrase

was not admissible to prove the truth of the matter asserted. Id. at 2236-37. On a

second, independent basis, the plurality concluded that even if the Cellmark

forensic report had been admitted into evidence and introduced for its truth, the

Confrontation Clause was not violated because the report was not testimonial. The

plurality found that the primary purpose of the report was not to accuse the

defendant or to create evidence for use at trial. Instead, “its primary purpose was

to catch a dangerous rapist who was still at large, not to obtain evidence for use

against petitioner, who was neither in custody nor under suspicion at that time.”

Id. at 2243-44 (emphasis added).


                                         - 11 -
      Justice Thomas had a separate reason for concluding that the expert

witness’s testimony did not violate the Confrontation Clause. Justice Thomas in

his concurrence agreed with the dissent that the expert witness’s statements

regarding the Cellmark report were introduced for their truth, and that the

plurality’s “primary purpose” test in determining whether a statement is

testimonial is unjustified. Id. at 2258-59, 2261-64 (Thomas, J., concurring in

judgment). However, he concluded that the Cellmark report was not testimonial

because the report “lacked the requisite ‘formality and solemnity’ to be considered

‘testimonial’ for purposes of the Confrontation Clause.” Id. at 2255 (citing

Michigan v. Bryant, 131 S. Ct. 1143, 1167 (2011) (Thomas, J., concurring in

judgment)). According to Justice Thomas, the Cellmark report lacked “the

solemnity of an affidavit or deposition” because it was not a sworn or certified

declaration of fact, nor was it “the product of any sort of formalized dialogue

resembling custodial interrogation.” Id. at 2260.

      The dissent in Williams disagreed with both reasons offered by the plurality,

as well as Justice Thomas’s “indicia of solemnity” test. The dissent argued that

the Cellmark report in Williams is identical to the one in Bullcoming and

Melendez-Diaz, and so “the substance of the report could come into evidence only

if Williams had a chance to cross-examine the responsible analyst.” Id. at 2266-67

(Kagan, J., dissenting).

      The Williams opinion is no doubt a “fractured decision.” Id. at 2265


                                        - 12 -
(Kagan, J., dissenting). None of the three rationales proffered by the plurality,

Justice Thomas’s concurrence, or the dissent garners the support of a majority of

the Court. As Justice Kagan noted, five Justices disagreed with the reasoning

offered by the plurality:

             I call Justice ALITO’s opinion “the plurality,” because
             that is the conventional term for it. But in all except its
             disposition, his opinion is a dissent: Five Justices
             specifically reject every aspect of its reasoning and every
             paragraph of its explication.

Id.

      In Marks v. United States, 430 U.S. 188 (1977), the Supreme Court held that

“[w]hen a fragmented Court decides a case and no single rationale explaining the

result enjoys the assent of five Justices, ‘the holding of the Court may be viewed

as that position taken by those Members who concurred in the judgments on the

narrowest grounds.’” Id. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169

n.15 (1976)). “In practice, however, the Marks rule produces a determinate

holding ‘only when one opinion is a logical subset of other, broader opinions.’”

United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006) (quoting

King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)). Applying Marks

becomes problematic “[w]hen the plurality and concurring opinions take distinct

approaches, and there is no ‘narrowest opinion’ representing the ‘common

denominator of the Court’s reasoning.’” Id. (quoting King, 950 F.2d at 781).

Consequently, this court “do[es] not apply Marks when the various opinions


                                        - 13 -
supporting the Court’s decision are mutually exclusive.” Id. See also Large v.

Fremont Cnty., Wyo., 670 F.3d 1133, 1141 (10th Cir. 2012).

      Based on the facts presented, I need not determine the precise holding of

Williams to conclude that Zais’s testimony violated the Confrontation Clause

because her statements would violate Sedillo’s confrontation rights under both

lines of reasoning offered by the plurality. 2

      Whether the Statement was Offered for the Truth of the Matter Asserted

      In Williams, the plurality’s first independent basis for concluding that the

statement at issue did not violate the Confrontation Clause is that the statement

was not offered for the truth of the matter asserted. According to the plurality,



      2
         This court applied the Williams decision in United States v. Pablo, 696
F.3d 1280 (10th Cir. 2012), which was decided after the prior opinion in that
case, United States v. Pablo, 625 F.3d 1285 (10th Cir. 2010), was vacated and
remanded by the Supreme Court in light of Williams. See Pablo v. United States,
133 S. Ct. 56 (2012). The defendant in Pablo was convicted of rape, kidnapping,
assault, and carjacking. At trial, the government called a lab analyst to testify as
an expert witness regarding DNA analysis and serology analysis performed by the
state crime lab. The defendant argued that his confrontation rights were violated
when the witness introduced out-of-court testimonial statements contained in the
laboratory reports. Pablo, 696 F.3d at 1284. The defendant failed to raise his
Confrontation Clause objection in the district court, and so the court reviewed his
claim for plain error. Id. at 1287. Upon remand from the Supreme Court, the
court explained that “we need not decide the precise mandates and limits of
Williams, to the extent they exist.” Id. at 1289. Instead, the court emphasized
that under plain error review, “we cannot say the district court plainly erred in
admitting [the witness’s] testimony, as it is not plain that a majority of the
Supreme Court would have found reversible error with the challenged admission.”
Id. at 1291. Because the standard of review here is harmless beyond a reasonable
doubt, as opposed to plain error review, Pablo provides little guidance for this
case.

                                          - 14 -
“the Confrontation Clause ‘does not bar the use of testimonial statements for

purposes other than establishing the truth of the matter asserted.’” Williams, 132

S. Ct. at 2235 (quoting Crawford, 541 U.S. at 59-60, n.9). And under the rules of

evidence, “an expert may base an opinion on facts that are ‘made known to the

expert at or before the hearing,’ but such reliance does not constitute admissible

evidence of this underlying information.” Id. (quoting Ill. R. Evid. 703; Fed. R.

Evid. 703). Accordingly, the plurality concluded that the testimony at issue in

Williams—the phrase “found in semen from the vaginal swabs of [the

victim]”—was “not admissible for the purpose of proving the truth of the matter

asserted.” Id. at 2236. Instead, the statement was “a mere premise of the

prosecutor’s question” that the expert witness “assumed . . . to be true when she

gave her answer indicating that there was a match between the two DNA profiles.”

Id.

      The statements at issue in this case are Zais’s disclosure, through her expert

testimony, of the laboratory report that was prepared by Stephanie Willard.

Specifically, the statements at issue are Zais’s opinion that the DNA profile

derived from evidence recovered from the shotgun matched Sedillo’s profile,

Zais’s reference to contents of the forensic laboratory report and Willard’s notes,

and Zais’s explanation of Willard’s testing procedures. According to Sedillo,

Zais’s opinion that the DNA profile recovered from the shotgun matched Sedillo’s

profile “necessarily assumes that both [DNA] profiles are accurate,” and that her


                                        - 15 -
opinion “is in no way independent of that assumption.” Aplt. Open. Br. 14.

      There are several factual distinctions between Williams and this case. The

plurality in Williams pointed out four safeguards to prevent the disclosure of out-

of-court statements on which the expert relied: (1) trial courts can screen out

experts who act as mere conduits for hearsay by enforcing the requirements for

expert testimony, (2) experts are generally precluded from disclosing inadmissible

evidence to a jury, (3) if such evidence is disclosed to the jury, the trial judge may

and, under most circumstances, must, instruct the jury that out-of-court statements

cannot be accepted for their truth, and (4) if the prosecution cannot provide any

independent admissible evidence to prove the foundational facts that are essential

to the relevance of the expert’s testimony, then the expert’s testimony cannot be

given any weight by the trier of fact. Williams, 132 S. Ct. at 2241. Several of

these safeguards are not present in this case, suggesting that Zais’s testimony

would violate the Confrontation Clause under the plurality’s first line of reasoning.

      First, the plurality in Williams drew a distinction between a bench trial and

a jury trial when addressing the disclosure of an expert witness’s underlying

factual assumptions. While the rules of evidence generally bar the disclosure of

such inadmissible evidence in jury trials, there are “no restriction[s] on the

revelation of such information to the factfinder” in bench trials because “it is

presumed that the judge will understand the limited reason for the disclosure of the

underlying inadmissible information and will not rely on that information for any


                                         - 16 -
improper purpose.” Williams, 132 S. Ct. at 2234-35. The plurality further

explained that the testimony at issue in Williams could not have gone to the jury in

a jury trial “[a]bsent an evaluation of the risk of juror confusion and careful jury

instructions.” Id. at 2236.

      Unlike Williams, which involved a bench trial, the case at bar was tried to a

jury. Significantly, there was no evaluation of the risk of juror confusion

regarding the underlying assumption of Zais’s testimony—that the DNA profile

generated from evidence on the shotgun and Sedillo’s DNA profile were accurate.

The plurality in Williams explained that “the trial judges may and, under most

circumstances, must, instruct the jury that out-of-court statements cannot be

accepted for their truth, and that an expert’s opinion is only as good as the

independent evidence that establishes its underlying premises.” Id. at 2241. The

district court here did not give the jury this limiting instruction. Instead, the

district court gave this instruction regarding expert testimony: “Give opinion

testimony as much weight as you think it deserves, considering the education and

experience of the witness, the soundness of the reasons given for the opinion, and

other evidence in the trial.” I R. 123. Under the Federal Rules of Evidence, an

expert witness may base an opinion on facts or data that are otherwise

inadmissible, but “the proponent of the opinion may disclose them to the jury only

if their probative value in helping the jury evaluate the opinion substantially

outweighs their prejudicial effect.” Fed. R. Evid. 703.


                                         - 17 -
      In the present case, Willard analyzed the DNA profiles and prepared the

forensic laboratory report. However, it was Zais who testified at trial that

Sedillo’s DNA profile matched the DNA profiled recovered from the shotgun. The

district court relied on this court’s initial ruling in Pablo before remand and found

that “an expert testifying about another DNA analyst’s work is proper, ‘so long as

the expert opinion is that of the expert appearing at trial,’ rather than someone

simply reciting what the first analyst did.” Aplt. Open. Br. Attach. B at 2 (citing

and quoting Pablo, 625 F.3d at 1292-96). The district court found no

Confrontation Clause problem because Zais can testify to her opinion, based on

Willard’s notes and test results, that the DNA profiles matched. Id. at 3.

However, the district court did not determine whether the probative value of

Willard’s underlying analysis substantially outweighs its prejudicial effect.

      Second, the plurality in Williams also emphasized that the expert witness in

that case testified to the truth of matters for which she had personal knowledge,

but did not testify to the truth of the underlying laboratory report:

             [The expert witness] made no other reference to the
             Cellmark report, which was not admitted into evidence
             and was not seen by the trier of fact. Nor did she testify
             to anything that was done at the Cellmark lab, and she
             did not vouch for the quality of Cellmark’s work.

Williams, 132 S. Ct. at 2235. In the present case, the report that Willard prepared

was not admitted into evidence, but Zais did refer to the report during her

testimony, as well as how Willard performed her testing and her analysis. Zais


                                         - 18 -
explained how Willard swabbed the textured parts of the stock, lever, safety, and

trigger of the gun for DNA. III R. 242. Zais then described the quantitation

process, a test to determine how much DNA is present, of the sample from the

shotgun. Id. at 244. Zais reported that through the quantitation process, Willard

determined that the sample was dirty. Id. at 245. Zais then testified that Willard

diluted the sample with water so that the sample could be tested, and she testified

to the amount of DNA recovered from the shotgun and control samples collected

from other parts of the gun. Id. at 244, 246-47. As technical reviewer, Zais did

not participate or observe the analysis that Willard conducted, but she reviewed

Willard’s case notes, Willard’s conclusions in the report, and agreed with

Willard’s conclusions. Id. at 241-42. Unlike Williams, where the expert witness

did not make references to the laboratory report or testify to anything that was

done at the laboratory, here, Zais testified as to Willard’s testing procedure,

referred to Willard’s report, and vouched for the quality of Willard’s work.

      Further, the plurality in Williams cited “strong circumstantial evidence

regarding the reliability of Cellmark’s work.” Williams, 132 S. Ct. at 2239. The

plurality questioned “how . . . shoddy or dishonest work in the Cellmark lab

[could] have resulted in the production of a DNA profile that just so happened to

match petitioner’s.” Id. (footnote omitted). Under the facts of Williams, where

Williams was not even under suspicion when Cellmark profiled the semen sample,

it was permissible for the trier of fact to infer that the odds of sloppy work or a


                                         - 19 -
dishonest lab technician to falsely accuse the petitioner was “exceedingly low.”

Id. Compared to Williams, there is a lack of such “strong circumstantial evidence”

in this case. Sedillo was already identified as a suspect when DNA sample was

collected from the shotgun. DNA samples from Sedillo were sent to the Scientific

Laboratory Division of the New Mexico Department of Public Safety along with

the shotgun. Willard was aware of Sedillo’s identity when she performed the

testing, and Willard knew that this was a felon in possession case before she

conducted the DNA test. Id. at 291. Here, shoddy or dishonest work in the

laboratory could have produced a match between the DNA recovered from the

shotgun and Sedillo’s DNA.

      In this case, several safeguards that the plurality relied on in Williams are

absent. First, the district court failed to provide careful jury instructions regarding

how the jury should weigh Willard’s test results, and the district court did not

consider the prejudicial effect of permitting Zais to testify regarding Willard’s

underlying analysis. Second, Zais in her testimony referred to Willard’s notes and

the laboratory report. In addition, there is no strong circumstantial evidence in

this case regarding the reliability of Willard’s work. Applying the plurality’s first

line of reasoning in Williams suggests that Zais’s testimony would violate the

Confrontation Clause.

                  Whether the Laboratory Report Was Testimonial

      Based on a second, independent reason, the plurality in Williams concluded


                                        - 20 -
that the expert witness’s statements in that case did not violate the Confrontation

Clause because the Cellmark report was not testimonial. The plurality found that

the Cellmark report was not testimonial because the report “plainly was not

prepared for the primary purpose of accusing a targeted individual,” nor was the

primary purpose “to create evidence for use at trial.” Id. at 2243. In Williams,

when the sample from the victim was sent to Cellmark, the primary purpose of the

DNA test was “to catch a dangerous rapist who was still at large,” as the defendant

was neither in custody nor under suspicion at the time. Id. Under the facts

presented, the plurality concluded that “there was no ‘prospect of fabrication’ and

no incentive to produce anything other than a scientifically sound and reliable

profile.” Id. at 2244 (quoting Bryant, 131 S. Ct. 1143, 1157 (2011)).

      By contrast, when applying the plurality’s reasoning in Williams, the

laboratory report in this case would be considered testimonial. Here, Sedillo had

been identified as a suspect when a sample of his DNA, along with the shotgun,

were sent to the Scientific Laboratory Division of the New Mexico Department of

Public Safety. The primary purpose of the DNA test was to accuse a targeted

individual and to create evidence for use at trial. Willard knew that if her test

results were inculpatory, the DNA profile she produced would be used by the

prosecution in its case against Sedillo. See III R. 291 (noting that Willard in this

case “was informed that this case involved Paul Reyes Sedillo”). In Williams, the

plurality concluded that “there is no real chance that ‘sample contamination,


                                        - 21 -
sample switching, mislabeling, or fraud’ could have led Cellmark to produce a

DNA profile that falsely matched petitioner.” Id. at 2244. The plurality explained

that it is “beyond fanciful” that “shoddy lab work would somehow produce a DNA

profile that just so happened to have the precise genetic makeup of petitioner, who

just so happened to be picked out of a lineup by the victim.” Id. In this case,

however, it is not beyond fanciful that sample contamination, sample switching,

mislabeling, or fraud could have produced test results that matched Sedillo’s DNA

to the DNA sample found on the shotgun. Applying the plurality’s primary

purpose test to this case, the laboratory report here would be testimonial in nature,

and Zais’s testimony disclosing its contents would violate the Confrontation

Clause. 3

       Justice Thomas in Williams disagreed with both of the plurality’s reasons.

Instead, Justice Thomas concluded that the statement at issue was not testimonial

because it did not bear any “indicia of solemnity.” Williams, 132 S. Ct. at 2259

(Thomas, J., concurring in judgment). Justice Thomas explained that the report in


       3
         A finding that the laboratory report in this case was testimonial would be
consistent with the First Circuit’s recent interpretation of the Williams decision.
In United States v. Cameron, 699 F.3d 621 (2012), the First Circuit held that
certain reports generated by Yahoo! were testimonial and violated the
Confrontation Clause. In distinguishing Cameron from Williams, the First Circuit
noted that “[n]obody at Yahoo! who was involved in creating the [reports] could
possibly have believed that the [reports] could be other than ‘incriminating.’” Id.
at 647. The First Circuit held that the reports at issue were testimonial because
“Yahoo! created these Reports after its own employees had already concluded
that a crime had been committed,” and that “Yahoo! then sent these Reports to an
organization that forwards such reports to law enforcement.” Id.

                                        - 22 -
Williams was not testimonial because it “lacks the solemnity of an affidavit or

deposition, for it is neither a sworn nor a certified declaration of fact,” nor does it

“attest that its statements accurately reflect the DNA testing processes used or the

results obtained.” Id. at 2260 (Thomas, J., concurring in judgment). Justice

Thomas distinguished the report in Williams, which was signed by two reviewers

who neither purported to have performed the DNA testing nor certified the

accuracy of those who did, with the laboratory reports that were determined to be

testimonial in Melendez-Diaz and Bullcoming. In Melendez-Diaz, the laboratory

reports were sworn to before a notary public by the analysts who conducted the

test, and in Bullcoming, the report included a “Certificate of Analyst” signed by

the analyst who conducted the test. Id.

      Applying Justice Thomas’s indicia of solemnity test to this case, it is

unclear whether the laboratory report would be testimonial. The report was not

admitted into evidence in district court and is not part of the record on appeal.

Thus, it is unclear whether the report bears sufficient “indicia of solemnity” to be

considered testimonial under Justice Thomas’s test.

      Nonetheless, under Williams, Zais’s statements at trial disclosing the

substance of the laboratory report would violate the Confrontation Clause. Zais’s

statements in this case would violate the Confrontation Clause under both reasons

provided by the plurality in Williams. Her statements would also violate the

Confrontation Clause according to the reasoning provided by the dissent in


                                          - 23 -
Williams. See id. at 2267 (arguing that the type of expert testimony in Williams

“is functionally identical to the ‘surrogate testimony’ . . . in Bullcoming”) (Kagan,

J., dissenting). Based on the facts of this case, I would conclude that Zais’s

testimony violated the Confrontation Clause.

                                         III

      Accordingly, I would reverse and remand with directions to vacate Sedillo’s

conviction.




                                        - 24 -
