In the

United States Court of Appeals

For the Seventh Circuit

No. 13-2912

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THOMAS VITRANO,

Defendant-Appellant.

Appeal from the United States District Court for the 

Eastern District of Wisconsin.

No. 2:09-cr-00140 — Lynn Adelman, Judge.

ARGUED FEBRUARY 19, 2014 — DECIDED APRIL 4, 2014

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge. This case marks the fifth time Thomas

Vitrano has appeared before us since his conviction for

possessing a firearm as a felon and while under a domestic

abuse injunction. He has already exhausted his appeals for

those initial convictions and sentence, which he challenged in

part by fabricating a Wisconsin discharge certificate. Now he
2 No. 13-2912

appeals his subsequent conviction for the fraud and perjury he

committed in those prior proceedings. 

I. BACKGROUND

Over a decade ago, Thomas Vitrano pled guilty to one

count of possessing a firearm as a felon and one count of

possessing a firearm while subject to a domestic abuse injunction. He was sentenced to 30 years in prison under the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), because

he had prior convictions for escape and reckless endangerment.1

In March 2008, Vitrano filed a pro se motion under

28 U.S.C. § 2255, seeking a reduction in his sentence because

his business partner, Scott Valona, had allegedly found a

discharge certificate relating to his 1977 conviction for reckless

endangerment. If valid, the certificate would have purged the

reckless endangerment conviction from Vitrano’s criminal

history for ACCA purposes and thus precluded the statute’s

application to him.

The application of the ACCA generated a series of appeals by both 1

Vitrano and the government. See United States v. Vitrano, 405 F.3d 506 (7th

Cir. 2005) (on government appeal, holding that the ACCA applied because

Vitrano could not produce a discharge statement whose language could

reasonably be read to have restored all of his civilrights and remanding for

resentencing); United States v. Vitrano, 495 F.3d 387 (7th Cir. 2007) (on

defense appeal from resentencing, affirming the 30-year sentence imposed

under the ACCA); Vitrano v. United States, 643 F.3d 229 (7th Cir. 2011)

(vacating the district court’s dismissal of Vitrano’s 2255 motion); Vitrano v.

United States, 721 F.3d 802 (7th Cir. 2013) (affirming the district court’s

dismissal of Vitrano’s 2255 motion on remand). 
No. 13-2912 3

But the certificate was not valid. Both the copy Vitrano sent

to the Bureau of Alcohol, Tobacco, and Firearms and the copy

Vitrano kept for himself were “provably fake.” Although

Vitrano (who referred to himself in a letter to Valona as “the

laminator”) attempted to prevent forensic testing of his copy

of the document by covering it in Scotch tape, it differed from

valid discharge certificates in printing method, formatting, font

size, and paper type. With this evidence before it, the district

court denied Vitrano’s § 2255 motion.

After determining that the certificate was fake, the government charged Vitrano with perjury, 18 U.S.C. § 1623(a),

attempting to corruptly influence official proceedings,

18 U.S.C. § 1512(c)(2), and threatening a witness,

18 U.S.C. § 1512(b)(1). 

The case proceeded to a jury trial. Testifying for the

government, Valona explained that Vitrano had sent him the

forged certificate; Valona had not found it, as Vitrano had

alleged in previous filings. The government also played two

phone calls Vitrano made to Valona from prison. Vitrano

objected to the phone calls on Confrontation Clause grounds,

citing Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The

court ruled the calls admissible, finding that there had “been

enough testimony introduced ... to establish [that they were

Vitrano’s phone calls] to get them admitted.”

The jury found Vitrano guilty on all counts. 

II. ANALYSIS

Vitrano asserts that the district court violated his rights

under the Confrontation Clause by admitting his phone calls
4 No. 13-2912

to Valona without subjecting the technician who pulled the

phone calls to cross-examination. In the alternative, he argues

that the district court’s chain-of-custody analysis was faulty

and should not have resulted in the admission of the challenged phone calls. 

A. Confrontation Clause

The SixthAmendment’sConfrontationClause prohibits the

admission of testimonial hearsay against a criminal defendant

unless two conditions are met: (1) the declarant must be

unavailable to testify and (2) the defendant must have had a

prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). The Clause applies only to “testimonial” statements, a category that has proven difficult to define.

Davis v. Washington, 547 U.S. 813, 823–26 (2006) (Confrontation

Clause applies only to testimonial statements); United States v.

Turner, 709 F.3d 1187, 1194 (7th Cir. 2013) (assuming that

report was testimonial in the absence of clear Supreme Court

precedent).

In Melendez-Diaz v. Massachusetts, the Supreme Court held

that “certificates of analysis”—sworn statements in whichstate

analysts asserted, based on laboratory testing, that a seized

substance was cocaine—were testimonial. 557 U.S. at 309–11.

The certificates fell within the “core class of testimonial

statements” because they were essentially affidavits and were

thus “functionally identical to live, in-court testimony, doing

‘precisely what a witness does on direct examination.’” Id. at

310–11 (quoting Davis, 547 U.S. at 830). The sworn nature of

these statements was not essential; rather, it was dispositive

that the certificates were “‘incontrovertibly ... affirmation[s]
No. 13-2912 5

made for the purpose of establishing or proving some fact’ in

a criminal proceeding.” Bullcoming v. New Mexico, 131 S. Ct.

2705, 2716–17 (2011) (quoting Melendez-Diaz, 557 U.S. at 310).

Vitrano seizes on the Melendez-Diaz line of cases, asserting

that the prison technician who prepared the CDs should have

been called to testify at trial. But Vitrano has failed to identify

what precisely the “missing” analyst did or said that was

hearsay, much less testimonial hearsay. Unlike in MelendezDiaz and its progeny, we have no report in which the prison

technician states, after analysis, that Vitrano was urging

Valona to lie or threatening him. Perhaps there was a certification that the calls were stored and pulled in the normal fashion,

but Vitrano does not identify it.2

Preparing an exhibit for trial is not in itself testimonial; we

have previously ruled that “an expert who gives testimony

about the nature of a suspected controlled substance may rely

oninformation gathered and produced by an analyst who does

not himself testify.” Turner, 709 F.3d at 1190. There was thus no

need for the government to call the technician who prepared

Exhibit 9 as a witness, and no violation of Vitrano’s Sixth

Amendment rights.

B. Chain of Custody

In the alternative, Vitrano argues that the government did

not lay an appropriate chain of custody foundation for the

In any event, such a certification would likely be non-testimonial. United 2

States v. Ellis, 460 F.3d 920, 927 (7th Cir. 2006) (certification asserting that

records submitted were records kept in the ordinary course of business was

non-testimonial).
6 No. 13-2912

phone calls. He asserts that a proper foundation would have

included the testimony of the investigating officers, citing

United States v. Collins, 715 F.3d 1032 (7th Cir. 2013). 

We review the district court’s evidentiary rulings on the

chain of custody of physical exhibits under the lenient abuseof-discretion standard. United States v. Prieto, 549 F.3d 513, 524

(7th Cir. 2008). At trial, the government must show that the

exhibit being offered is in substantially the same condition it

was in at the time of the crime. United States v. Lee, 502 F.3d

691, 697 (7th Cir. 2007). When the evidence is in police custody,

a presumption of regularity applies; in the absence of evidence

to the contrary, we assume the police did not tamper with the

evidence. United States v. Tatum, 548 F.3d 584, 587 (7th Cir.

2008). And any gaps in the chain of custody go to the weight

given the evidence, not its admissibility. Prieto, 549 F.3d at

524–25. 

In Vitrano’s case, the government established the chain of

custody for the phone calls through the testimony of Lieutenant Troy Fardel and ATF Special Agent John Adamson. Fardel

oversaw the prison’s response to the subpoena for the phone

calls. He testified that he directed a technician to search for

phone calls made using Vitrano’s unique “TAC” number. The

prison’s phone system used voice-recognition technology to

prevent inmates from using other TAC numbers when making

phone calls. Upon receiving the phone call recordings from the

technician, Fardel made two CDs that contained a total of 27

calls. Fardel then gave these CDs to Special Agent Adamson,

who maintained custody of the discs and created Exhibit 9 for

trial.
No. 13-2912 7

This evidence, coupled with the presumption of regularity,

was more than sufficient for the trial court to conclude that the

phone calls were in substantially the same condition that they

were at the time they were made. The district court did not

abuse its discretion in admitting the phone calls. 

Vitrano also argues in his reply brief that the phone calls

should not have been admitted because they were insufficiently authenticated. He did not make this argument in his

initial brief before this court, and the issue is therefore waived.

United States v. Matchopatow, 259 F.3d 847, 851 (7th Cir. 2001).

III. CONCLUSION

Vitrano’s attempt to shoehorn the facts of his case into our

Confrontation Clause precedent fails, as does his chain of

custody argument. We AFFIRM Vitrano’s conviction.