United States v. Webster
| Decision Date | 05 January 2015 |
| Docket Number | No. 13–1927.,13–1927. |
| Citation | 775 F.3d 897 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Tommy WEBSTER, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
John M. Maciejczyk, Attorney, Office of the United States Attorney, South Bend, IN, for Plaintiff–Appellee.
Kelli M. Mulder, Attorney, Kirkland & Ellis LLP, Chicago, IL, for Defendant–Appellant.
Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.
On May 9, 2012, Tommy Lee Webster, Jr. was charged in a superseding indictment with five counts, including: possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c); manufacture of marijuana, in violation of 21 U.S.C. § 841(a)(1); possession with intent to deliver cocaine base, in violation of 21 U.S.C. § 841(A)(1); and possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). A jury convicted him on all counts, and he was sentenced to 168 months' imprisonment followed by three years of supervised release. Webster now appeals that conviction.
Webster's arrest occurred on March 11, 2011, when police officers went to a residence at 816 Almond Court in South Bend, Indiana, in response to an anonymous tip. As two officers proceeded to the front door, a third officer heard a door close and went to the yard on the side of the house where he encountered Webster. Webster had $2,296 in cash on his person at the time, and the officers smelled a strong odor of marijuana coming from the house and on Webster's clothing. Webster produced a driver's license that indicated he resided at 816 Almond Court. Two individuals exited the house and began running from the residence. One fled back inside the house and ultimately escaped through a second-floor window, but the other, Frederick Jones, was apprehended. The officers placed Jones and Webster in the caged back seat of a squad car while they sought a search warrant for the residence. An officer, Corporal Hammer, was in the patrol car with them for approximately 2–1/2 hours before and during the search, and at some point he employed the internal video camera in the car to record all conversations in the vehicle. He was absent from the car for approximately 8 minutes, and during that time Webster engaged in conversation with Jones and placed several phone calls which are audible in the recording. The government subsequently moved to enter that 8–minute excerpt into evidence, as well as a transcript of that recording prepared by Corporal Hammer, Officer Kronewitter, and a third officer. Defense counsel offered no objection, and the district court allowed the evidence. Before playing the tape, the court informed the jury that the recording was evidence but the transcript was not evidence and that it merely reflected what a few people believe is on the tape. The jury was further instructed that in the case of a conflict, they should “go with what you hear, rather than what you see.”
The search of the residence revealed a marijuana grow operation, including 50 rooted plants, 38 cuttings, high-pressure sodium grow lights on timers, chemicals, and a computer that displayed the video from surveillance cameras. In addition, the officers found marijuana in the pocket of a coat in the first floor closet, and plastic baggies and electronic scales in the kitchen. Of the three upstairs bedrooms, only one contained a bed. In that bedroom, the officers found a bag containing several smaller plastic bags of marijuana next to the bed, loose marijuana and another container of marijuana near the bed, and, in the pocket of a coat hanging in the closet, a plastic bag containing several smaller bags filled with white and brown powder substances. A loaded shotgun was found in that bedroom and an unloaded shotgun was found in the closet.
Webster challenges his convictions on the drug and firearms charges on three grounds. He asserts that the district court erred in allowing the admission into evidence of forensic laboratory reports as well as a recording of the conversation involving Webster in the squad car. In addition, he contends that the evidence was insufficient to support the convictions. We address these arguments in turn.
We begin with the challenge to the admission of the forensic laboratory reports. The suspected drug evidence was sent to the Indiana State Police laboratory and Kristen Sturgeon, a forensic scientist, prepared two laboratory reports identifying the drugs. Although Sturgeon was disclosed as a potential government expert witness prior to trial, she was never called to testify during the trial. Instead, the two lab reports were admitted into evidence during the testimony of Indiana State Police Trooper Brian Hoffman and South Bend Police Sergeant Michael Steven Suth.
The first report was admitted into evidence during the testimony of Trooper Hoffman. He related his observations of the marijuana grow operation at the residence in detail and testified that he transported the plants back to his office and dried them prior to sending them to the laboratory. The government then sought to admit Sturgeon's report attesting that the evidence contained 816 grams of marijuana. In response to the request to admit the report into evidence, Webster's counsel stated
Later in the trial, Sergeant Suth testified as to the lab results for the powdered substance found in the residence. Suth was an evidence technician in the Metro Special Operations Section of the South Bend Police Department, and at the residence he was responsible for securing the evidence and subsequently weighing, field testing, and processing it. He testified that the evidence was then taken to the Indiana State Police Lab and examined by Sturgeon, and he identified the lab report containing the results of the testing. The government then moved to have the report admitted into evidence, and defense counsel stated “[n]o objection.” The court held that the exhibit was admitted without objection. Suth proceeded to testify as to the findings in Sturgeon's lab report identifying the white and brown powder substances as cocaine and cocaine base.
Webster now contends that the admission of Sturgeon's laboratory reports without her testimony or a stipulation as to the admissibility violated the Sixth Amendment Confrontation Clause of the Constitution. The government concedes that Sturgeon's lab reports were not properly admitted, but argues that the error does not require reversal.
As the government acknowledges, we have repeatedly held that “the government may not introduce forensic laboratory reports or affidavits reporting the results of forensic tests and use them as substantive evidence against a defendant unless the analyst who prepared or certified the report is offered as a live witness subject to cross-examination.” United States v. Maxwell, 724 F.3d 724, 726 (7th Cir.2013); Bullcoming v. New Mexico, –––U.S. ––––, 131 S.Ct. 2705, 2710, 180 L.Ed.2d 610 (2011); United States v. Moon, 512 F.3d 359, 360–62 (7th Cir.2008). In failing to call Sturgeon in the trial, the government ran afoul of that proscription.
In general, when a defendant fails to object to the admission of evidence at trial, we review only for plain error. In this case, it appears that the decision not to object was intentional. When the government first moved to admit the lab reports into evidence, defense counsel stated that he thought he had agreed to it and that he had no objection. He reiterated that he had no objection when the government moved to admit the remaining lab report. That affirmative decision to forego an objection would normally be considered a waiver rather than a forfeiture. See United States v. Locke, 759 F.3d 760, 763 (7th Cir.2014) () “ ‘[W]aiver occurs when a defendant intentionally relinquishes or abandons a known right, whereas forfeiture occurs when a defendant simply fails to timely assert his rights.’ ” United States v. Pappas, 409 F.3d 828, 829 (7th Cir.2005), quoting United States v. Harris, 230 F.3d 1054, 1058 (7th Cir.2000). A forfeiture generally reflects an oversight, whereas a waiver encompasses a deliberate decision not to present a ground for relief. Id. In contrast to forfeited issues that we review for plain error, we do not review issues that are waived at all because a valid waiver leaves no error to correct on appeal. Id. at 830.
Although the decision not to object appears to be an intentional decision which would constitute a waiver, the government did not argue that we should construe it as a waiver. Instead, the government asserted that we should review the admission of the evidence for plain error. In arguing that we should review for plain error, the government has waived the argument that the objection should be considered to have been waived. United States v. Murphy, 406 F.3d 857, 860 (7th Cir.2005)(government “waived waiver” by asserting that we should apply the plain error standard of review). Accordingly, we will review the challenge under the plain error standard.
Under that standard, we will reverse only if there is error that is plain, that affects the defendant's substantial rights, and that seriously affects the fairness, integrity or public reputation of judicial proceedings, resulting in a miscarriage of justice. United States v. Iacona, 728 F.3d 694, 699 (7th Cir.2013). An error affects substantial rights if it is prejudicial, “that is, when it has affected the outcome of the district court proceedings.” United States v. McLaughlin, 760 F.3d 699, 706 (7th Cir.2014).
The government contends, correctly, that the error...
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