PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 06-5009

KEVIN TYRELLE SUMMERS,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, Senior District Judge.

(8:05-cr-00101-PJM)

Argued: September 23, 2011

Decided: December 16, 2011

Before KING, SHEDD, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Shedd joined. Judge Floyd wrote an opinion concurring in the judgment.
COUNSEL

ARGUED: Lauren Elizabeth Case, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for

Appellant. Sujit Raman, OFFICE OF THE UNITED STATES

ATTORNEY, Baltimore, Maryland, for Appellee. ON

BRIEF: James Wyda, Federal Public Defender, Denise C.

Barrett, Assistant Federal Public Defender, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for

Appellant. Rod J. Rosenstein, United States Attorney, Bryan

M. Giblin, Assistant United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Baltimore, Maryland,

for Appellee. 

OPINION

KING, Circuit Judge:

Kevin Tyrelle Summers appeals his drug trafficking and

firearm convictions, entered in the District of Maryland in

accordance with the jury’s verdict. Summers contends that the

district court erroneously admitted into evidence a jacket

recovered from the vicinity of his arrest. He asserts further

that the court compounded its error by declining to exclude,

on Confrontation Clause grounds, expert evidence concerning

DNA testing performed on the jacket, together with evidence

documenting the jacket’s handling and custody during the

testing process. Discerning no reversible error, we affirm.

I.

During the evening of November 18, 2004, Summers,

wearing a black North Face-branded jacket, stood with

another man near the corner of Glacier Avenue and Fable

Street in Capitol Heights, Maryland. Corporal Patrick Hampson, a uniformed detective with the Prince George’s County

2 UNITED STATES v. SUMMERS
Police Department, emerged from his cruiser to ask the pair

about an exchange of gunfire that had occurred shortly before

at the intersection. Both men fled, with Summers sprinting

down Glacier Avenue past undercover detectives Chad Schmick and Kevin Morris, who were parked at the curb. Summers

detoured through a couple of backyards on Kayak Avenue

before surrendering to Morris. By then, however, Summers

was no longer wearing the jacket.

Hampson and Schmick found a black North Face jacket

atop one of the houses along Summers’s flight path. Hampson

placed the jacket and its contents — a Hi-Point Model C 9mm

handgun, eleven rounds of ammunition unloaded from the

pistol’s clip, and a large packet containing more than ninety

grams of crack cocaine — inside separate evidence bags for

transport in his cruiser. Hampson filled out property receipts

on the items to catalog them and to direct forensic examination.

On March 7, 2005, Summers was indicted for possession

with intent to distribute crack, in violation of 21 U.S.C.

§ 841(a)(1) ("Count One"), and possession of a firearm by a

felon, contravening 18 U.S.C. § 922(g) ("Count Two"). A

superseding indictment of May 4, 2006, charged Summers

with the additional offense of possession of a firearm during

and in relation to a drug trafficking crime, conduct proscribed

by 18 U.S.C. § 924(c) ("Count Three").

Following the federal indictment, the county police sent a

black jacket to the FBI’s Baltimore field office. The jacket

was then forwarded to the agency’s laboratory in Quantico,

Virginia, arriving at the Evidence Control Unit (the "ECU")

on May 11, 2005. The ECU routed the jacket to DNA Analysis Unit 1, where, according to an internal log, it was delivered to storage on May 13, 2005. The log shows that FBI

analysts took possession of the jacket on May 18, 2005, to

perform DNA testing, then shuttled it back to storage on May

26, 2005, for eventual return to the ECU on October 18, 2005.

UNITED STATES v. SUMMERS 3
At trial, a black jacket was marked for identification as

Government’s Exhibit 1. Asked whether he recognized the

exhibit, Hampson answered that "[i]t looks like the black

Northface coat the defendant was wearing." J.A. 73.1 Schmick

and Morris were rather less equivocal. Schmick confirmed

that Exhibit 1 was "the coat that we recovered," id. at 152,

and, when questioned whether the jacket in the courtroom was

the one that Summers wore while fleeing, Morris responded

simply, "Yes, it was," id. at 267.

The government’s case-in-chief otherwise featured the

expert testimony of Brendan Shea, a forensic examiner at the

Quantico laboratory who supervises Unit 1’s analysts and

directs them to perform particular tests on evidence. After

identifying Government’s Exhibit 1 as the coat submitted to

the lab, Shea explained that he had directed his subordinate

analysts to conduct two methods of polymerase chain reaction

based, short tandem repeat typing on the jacket. The lab also

performed DNA typing on buccal swabs taken from Summers’s mouth. Shea compared the typing data, testifying that

although DNA from at least four different people was found

on the jacket, Summers was the major contributor.

Shea documented the typing results and his conclusions in

a three-page report. The report contained a table juxtaposing

the numerical identifiers of the allele found at corresponding

loci of the DNA extracted from the jacket and the buccal

swabs, revealing an exact match. Shea stated "to a reasonable

degree of scientific certainty" that Summers was the major

DNA contributor, statistically calculating the probability of a

random match as equal to or less than one in 280 billion. See

J.A. 524-25. Shea signed the report, and no other lab

employee was named therein or testified at trial. The report

was admitted into evidence as Government’s Exhibit 25.

1Citations herein to "J.A. __" refer to the contents of the Joint Appendix

filed by the parties to this appeal. 

4 UNITED STATES v. SUMMERS
The government presented no evidence of the jacket’s

whereabouts from the time Corporal Hampson placed it in his

cruiser until it arrived at the FBI laboratory. While the jacket

was at the lab, the internal log documented its movement

within Unit 1. The log reflects that four lab employees signed

for and took custody of the jacket at different times. Based on

the varying legibility of their signatures, some of the employees’ identities are more susceptible than others of being ascertained. It is clear, however, that none of them were Shea,

though he did initial the log at its bottom right corner. See

J.A. 200. The log was admitted into evidence as part of

Defendant’s Exhibit 3.

On cross-examination, Shea acknowledged that he could

not confirm that the jacket he tested was the one that Hampson recovered. Though verifying the authenticity of the log,

Shea could only speak in generalities concerning the jacket’s

safekeeping during the time that it was housed at the lab, testifying that the jacket would have been subjected to the standard routing and inventory process. Arguing to the jury at

closing, defense counsel emphasized Shea’s concession:

"Brendan Shea told you, six or seven months, I don’t know

what happened to that jacket. I can’t tell you that that jacket

is the same jacket that was allegedly pulled off of Kevin Summers." J.A. 504-05.

Counsel’s argument ultimately failed to persuade the jury,

which found Summers guilty of the drug and firearm possession charges underlying Count One and Count Two. The jury

acquitted Summers on Count Three, concluding that he did

not, beyond a reasonable doubt, possess the firearm during

and in relation to a drug trafficking crime. The district court

entered judgment on the jury’s verdict, sentencing Summers

to 262 months in prison, followed by five years of supervised

release. Summers timely noted this appeal, and we possess

jurisdiction pursuant to 28 U.S.C. § 1291. 

UNITED STATES v. SUMMERS 5
II.

We review for abuse of discretion a trial court’s decision

concerning the admissibility of evidence. See United States v.

Myers, 589 F.3d 117, 123 (4th Cir. 2009). We will not

adjudge the court to have abused its discretion unless its ruling was "arbitrary and irrational." See United States v. Haney,

914 F.2d 602, 607 (4th Cir. 1990). We review de novo, however, an evidentiary ruling implicating the Confrontation

Clause. See United States v. Williams, 632 F.3d 129, 132 (4th

Cir. 2011). Finally, we review for abuse of discretion a trial

court’s determination that an evidentiary item’s chain of custody has been sufficiently established. See United States v.

Ricco, 52 F.3d 58, 61 (4th Cir. 1995).

III.

The Sixth Amendment affords a criminal defendant "the

right . . . to be confronted with the witnesses against him."

U.S. Const. amend. VI. Summers maintains that he was convicted by the testimony of witnesses whom he was not permitted to cross-examine, in derogation of the Confrontation

Clause. According to Summers, the government was constitutionally compelled to produce at trial the laboratory employees who signed the internal log, along with the subordinate

analysts who actually conducted the DNA typing upon which

Shea’s expert conclusions were premised.

A.

In Crawford v. Washington, 541 U.S. 36 (2004), the

Supreme Court unanimously ruled that the defendant’s Confrontation Clause rights had been violated by the admission

into evidence of his nontestifying wife’s statement to the

police. The opinion of the Court, authored by Justice Scalia,

overruled Ohio v. Roberts, 448 U.S. 56 (1980), which had

permitted statements of unavailable witnesses to be admitted

at trial insofar as they bore "adequate indicia of reliability,"

6 UNITED STATES v. SUMMERS
meaning that they satisfied a "firmly rooted hearsay exception" or were otherwise bolstered by "particularized guarantees of trustworthiness." Roberts, 448 U.S. at 66.

Crawford changed the law to condition the admission of

such statements on (1) the witness being unavailable at trial,

and (2) the defendant having had the prior opportunity to

cross-examine the witness. Crawford applies whenever "testimonial evidence is at issue." 541 U.S. at 68. Inasmuch as it

was the result of formal police interrogation, the evidence at

issue in Crawford plainly met the Court’s criterion, although

it elected to "leave for another day any effort to spell out a

comprehensive definition of ‘testimonial.’" Id. The Court did

distinguish "nontestimonial hearsay," however, noting that

"an approach that exempted such statements from Confrontation Clause scrutiny altogether" would be consistent with the

Framers’ intent. Id.; cf. United States v. Cabrera-Beltran, 660

F.3d 742, 753 (4th Cir. 2011) (holding that border crossing

records not created for trial are nontestimonial and admissible

under public records exception to hearsay rule).

The distinction between testimonial and nontestimonial

statements came to the forefront in Davis v. Washington, 547

U.S. 813 (2006), in which the trial court had admitted a

recording of a 911 call from a woman to prove, in the absence

of the woman’s testimony, that the defendant, her former boyfriend, had assaulted her. The Supreme Court unanimously

ruled that the woman’s statement was nontestimonial. The

Court again spoke through Justice Scalia: 

Statements are nontestimonial when made in the

course of police interrogation under circumstances

objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an

ongoing emergency. They are testimonial when the

circumstances objectively indicate that there is no

such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past

UNITED STATES v. SUMMERS 7
events potentially relevant to later criminal prosecution. . . . This is not to imply, however, that statements made in the absence of any interrogation are

necessarily nontestimonial. . . . And of course even

when interrogation exists, it is in the final analysis

the declarant’s statements, not the interrogator’s

questions, that the Confrontation Clause requires us

to evaluate.

Davis, 547 U.S. at 822 & n.1. The Court assumed, for the

sake of argument, that the questions posed by the 911 operator eliciting the incriminating responses were the acts of the

police, constituting "interrogation." See id. at 823 n.2. Notably, Justice Thomas concurred only partially in the judgment,

concluding that the responses were admissible because they

were not part of a "formalized dialogue" resembling testimony. See id. at 840 (Thomas, J., concurring in the judgment

in part and dissenting in part).

About a year after the Supreme Court’s decision in Davis

v. Washington, we had occasion to apply its teachings in

United States v. Washington, 498 F.3d 225 (4th Cir. 2007). In

the latter proceeding, an appeal from federal criminal driving

convictions, the district court admitted the expert testimony of

a lab director with respect to his report (which was not part

of the evidentiary record) of gas chromatograph tests performed on the defendant’s blood, though the technicians who

operated the diagnostic machines did not appear at trial. We

affirmed the convictions, concluding that the test data revealing the presence of alcohol and PCP in the defendant’s blood

were not the technicians’ statements, but instead were "the

‘statements’ of the machines themselves." Washington, 498

F.3d at 230 (emphasis deleted). Judge Niemeyer, writing for

the panel majority, explained that such "raw data," being "independent of human observation or reporting," was not susceptible to cross-examination and thus did not implicate the

Confrontation Clause. Id.

8 UNITED STATES v. SUMMERS
Next, in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527

(2009), the Supreme Court considered whether sworn certificates from forensic analysts, admitted to attest that the substance seized from the defendant was cocaine, were

"testimonial" for Confrontation Clause purposes. The Court,

by a 5-4 vote, held in the affirmative and vacated the defendant’s conviction, with Justice Scalia observing for the majority that the certificates were "functionally identical to live, incourt testimony, doing ‘precisely what a witness does on

direct examination.’" Melendez-Diaz, 129 S. Ct. at 2532

(quoting Davis, 547 U.S. at 830). The Court pointed out that

"the sole purpose of the affidavits was to provide prima facie

evidence of the composition, quality, and the net weight of the

analyzed substance," and that it could be safely assumed "that

the analysts were aware of the affidavits’ evidentiary purpose." Id. (internal quotation marks omitted). Because the

analysts could have been available to testify (or, at least, there

was no showing to the contrary) and because there had been

no opportunity for them to be cross-examined, Crawford

demanded that the defendant’s conviction be overturned.2 Justice Thomas, providing the determinative fifth vote, wrote a

concurring opinion noting his adherence to the position that

extrajudicial statements implicate the Confrontation Clause

"only insofar as they are contained in formalized testimonial

materials, such as affidavits, depositions, prior testimony, or

confessions." Id. at 2543 (Thomas, J., concurring).

Not long thereafter, we decided United States v. Johnson,

587 F.3d 625 (4th Cir. 2009). In that case, the trial court

admitted the expert testimony of police officers to decipher

2

Justice Scalia cautioned, however, that "we do not hold, and it is not

the case, that anyone whose testimony may be relevant in establishing the

chain of custody, authenticity of the sample, or accuracy of the testing

device, must appear in person as part of the prosecution’s case."

Melendez-Diaz, 129 S. Ct. at 2532 n.1. Rather, "[i]t is up to the prosecution to decide what steps in the chain of custody are so crucial as to

require evidence; but what testimony is introduced must (if the defendant

objects) be introduced live." Id.

UNITED STATES v. SUMMERS 9
code words used in telephone conversations between drug

traffickers. The experts’ testimony was based upon their experience in general, together with particular knowledge gleaned

from the investigation. Judge Wilkinson authored our opinion,

pointing out that Crawford "in no way prevents expert witnesses from offering their independent judgments merely

because those judgments were in some part informed by their

exposure to otherwise inadmissible evidence." Johnson, 587

F.3d at 635. On the other hand, Crawford would apply to bar

testimony "where the witness is used as little more than a conduit or transmitter for testimonial hearsay, rather than as a

true expert whose considered opinion sheds light on some

specialized factual situation." Id. Thus, "an expert’s use of

testimonial hearsay is a matter of degree." Id. Judge Wilkinson’s opinion distinguished Melendez-Diaz, observing that, in

Johnson, the government’s experts appeared at trial and were

cross-examined. See id. at 636.

Most recently, the Supreme Court issued its opinion in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). Bullcoming

was another 5-4 case, and this time Justice Ginsburg delivered

the opinion of the Court, which attracted the concurrence of

Justice Thomas in everything but Part IV and footnote 6 (reiterating Justice Scalia’s "primary purpose" test in Davis for

evaluating whether a statement is testimonial). Bullcoming

involved a drunk-driving trial in which the state introduced a

lab report certifying the results of a blood-alcohol test performed on a sample taken from the defendant. The signatory

analyst did not testify, "having very recently [been] put on

unpaid leave," 131 S. Ct. at 2711-12 (alteration in original),

but another analyst familiar with the lab’s procedures did. The

testifying analyst had not participated in or observed the

defendant’s blood test, however.

The Supreme Court vacated the defendant’s conviction:

"As a rule, if an out-of-court statement is testimonial in

nature, it may not be introduced against the accused at trial

unless the witness who made the statement is unavailable and

10 UNITED STATES v. SUMMERS
the accused has had a prior opportunity to confront that witness." Bullcoming, 131 S. Ct. at 2713. The Court stressed that

the first analyst’s certification "reported more than a machinegenerated number," in that it also verified that the lab had

received the blood sample intact, that the sample was in fact

the defendant’s, that the analyst performed a particular test in

accordance with a specific protocol, and that the process had

not been compromised. Id. at 2714. Although the report was

in this case unsworn, it was yet testimonial because it was

"created solely for an ‘evidentiary purpose,’" id. at 2717

(quoting Melendez-Diaz, 129 S. Ct. at 2532), and was "‘formalized’ in a signed document," id. (quoting Davis, 547 U.S.

at 837 n.2 (Thomas, J., concurring in the judgment in part and

dissenting in part)). 

Writing separately, Justice Sotomayor pointed out that 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." 131 S. Ct.

at 2722 (Sotomayor, J., concurring in part). According to Justice Sotomayor, "[i]t would be a different case if, for example,

a supervisor who observed an analyst conducting a test testified about the results or a report about such results." Id. In

addition, 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 evidence." Id. (citing Fed. R. Evid. 703). Finally, Justice

Sotomayor noted that Bullcoming — perhaps in contrast to

the situation we confronted in United States v. Washington,

supra — "is not a case in which the State introduced only

machine-generated results, such as a printout from a gas chromatograph," and that the Court did not decide "whether . . .

a State could introduce (assuming an adequate chain of custody foundation) raw data generated by a machine in conjunction with the testimony of an expert witness." Id.

B.

Against the backdrop of Crawford and the subsequent

authorities applying it, we evaluate first the Confrontation

UNITED STATES v. SUMMERS 11
Clause implications, if any, of the absence of trial testimony

from the FBI lab employees who signed the internal log documenting custody of the jacket. Justice Scalia may well have

had things like the log in mind when he spoke in MelendezDiaz of evidence that "may be relevant in establishing the

chain of custody, authenticity of the sample, or accuracy of

the testing device." 129 S. Ct. at 2532 n.1; see supra note 2.

Although the government is required, after Melendez-Diaz, to

provide live testimony if it deems evidence of certain "steps

in the chain of custody" to be crucial, see 129 S. Ct. at 2532

n.1, no such requirement inheres when chain-of-custody evidence is introduced by the defense, see Evans v. Verdini, 466

F.3d 141, 147 (1st Cir. 2006) (declining to find Sixth Amendment violation where defendant’s questioning of witness

opened door to rebuttal testimony not subject to crossexamination).

In this case, Summers caused the log to be admitted as part

of Defendant’s Exhibit 3. Thus, to the extent that there could

have been points to be scored with the jury by challenging the

handling of the jacket at the FBI lab, it was incumbent upon

the defense to subpoena the lab employees. Cf. MelendezDiaz, 129 S. Ct. at 2540 (recognizing, in contrasting situation,

where prosecution ignores its duty to provide necessary witnesses, defendant’s subpoena power "is no substitute for the

right of confrontation").

The prosecutor’s decision to forgo any chain-of-custody

evidence with respect to the jacket suggests that the government considered that part of its case to be something less than

crucial. The government’s strategy in this regard appears to

have been vindicated, notwithstanding the risk that jurors who

watch television and movies may expect evidence revealing

the chain of custody, providing a tenacious defense lawyer the

opportunity to exploit that expectation by peppering prosecution witnesses with questions probing the omission. Nonetheless, "[t]he chain of custody is not relevant when a witness

identifies the object as the actual object about which he testi12 UNITED STATES v. SUMMERS
fied." United States v. Phillips, 640 F.2d 87, 94 (7th Cir.

1981).

In deciding whether the jacket was admissible, the district

court needed only to satisfy itself that it was "improbable that

the original item had been exchanged with another or otherwise tampered with." United States v. Jones, 356 F.3d 529,

535 (4th Cir. 2004); see Fed. R. Evid. 901(a) ("The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent claims."). Establishing a strict chain of custody "is not an

iron-clad requirement, and the fact of a missing link does not

prevent the admission of real evidence, so long as there is sufficient proof that the evidence is what it purports to be and has

not been altered in any material respect." United States v.

Ricco, 52 F.3d 58, 61-62 (4th Cir. 1995). The district court’s

role is merely to act as a gatekeeper for the jury, and the proponent of the evidence need only make a prima facie showing

of its authenticity. See United States v. Vidacak, 553 F.3d

344, 349 (4th Cir. 2009).

At trial, Hampson, Schmick, and Morris each identified

Government’s Exhibit 1 as the North Face jacket Summers

wore the night he was arrested. The officers’ testimony was

more than enough to put the issue before the jury, which

heard in counterbalance Shea’s testimony on crossexamination that he had no idea where the jacket had been

prior to its receipt by the lab six or seven months following

Summers’s arrest, or whether it had been tampered with. During the defense’s closing argument, counsel emphasized

Shea’s admissions; absent any affirmative evidence of tampering, however, the jury simply declined to attribute much

importance to the imperfections in the government’s documentation. Under the circumstances, the district court did not

abuse its discretion in ruling that admission of the jacket into

evidence satisfied the Rule 901(a) threshold.

UNITED STATES v. SUMMERS 13
C.

1.

A more substantial question is presented by the absence at

trial of the analysts responsible for conducting the DNA tests

on the jacket, the results of which provided the basis for

Shea’s testimony and the preparation of his report. We perceive little difficulty with the admission of Shea’s testimony,

given the predominance therein of his independent, subjective

opinion and judgment relative to the lesser emphasis accorded

the objective raw data generated by the analysts. See Fed. R.

Evid. 703 (instructing that facts or data upon which an expert

bases an opinion or inference, if of a type reasonably relied

on by similar experts, "need not be admissible in evidence in

order for the opinion or inference to be admitted").

On the witness stand, Shea painstakingly explained the process whereby he, and he alone, evaluated the data to reach the

conclusion that, to a reasonable degree of scientific certainty,

Summers was the major contributor of the DNA recovered

from the jacket. In that respect, Shea’s testimony was no different, and no more problematic, than that of the police officers in Johnson. Far from being "a conduit or transmitter" of

what his subordinate analysts had concluded about the jacket,

Shea’s opinion was an "original product" that could be (and

was) readily "tested through cross-examination." Johnson,

587 F.3d at 635.

To a considerable extent, much the same can be said about

Shea’s written report, which more or less mirrored his trial

testimony. The appearance of the analysts’ testing results

within, however, gives us pause insofar as the table detailing

those results constituted a more prominent part of the report

than the underlying data did of the testimony. This is not to

imply that the data was unimportant to Shea’s opinion, for of

course it was crucial. The difference is that while Shea’s testimony focused upon the conclusions he drew from the data,

14 UNITED STATES v. SUMMERS
the report invited the jurors’ attention to the data’s numerical

identifiers. Admission of the report presented an unnecessary

risk that the jury would improperly evaluate the DNA evidence based on its lay perceptions of what the data meant

rather than on Shea’s expertise and any potential inaccuracies

in his conclusions that might be developed on crossexamination. Cf. Fed. R. Evid. 703 ("Facts or data that are

otherwise inadmissible shall not be disclosed to the jury . . .

unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.").

Presented with an analogous situation, the Seventh Circuit

affirmed the defendant’s conviction for trafficking in crack

cocaine, notwithstanding that the head of the lab unit testified

in place of the analyst who actually tested the seized substance. See United States v. Turner, 591 F.3d 928 (7th Cir.

2010). In Turner, the supervisor essentially peer-reviewed his

subordinate’s report, which was not admitted into evidence,

and then testified, based on his own training and experience,

that the substance produced at trial was crack. The court of

appeals rejected the defendant’s Confrontation Clause challenge, relying on another drug trafficking case, United States

v. Moon, 512 F.3d 359 (7th Cir. 2008). The court in Moon

held, in agreement with our decision in United States v. Washington, that pure instrument read-outs are not testimonial. See

Moon, 512 F.3d at 362; see also Turner, 591 F.3d at 932.

Indeed, our Washington precedent controls the result in

Summers’s case. The numerical identifiers of the DNA allele

here, insofar as they are nothing more than raw data produced

by a machine, are indistinguishable in character from the gas

chromatograph data in Washington and the chromatograph

and spectrometer results in Moon and Turner. Undoubtedly,

the more sound practice would have been to exclude Shea’s

report from evidence, in the same fashion that the foundational reports were treated in Washington and Turner, but the

jury’s access to the report during deliberations in no way

UNITED STATES v. SUMMERS 15
detracts from the validity of its verdict. See Moon, 512 F.3d

at 362 (opining that non-testifying expert’s "own conclusions

based on the data should have been kept out of evidence," but

declining to disturb conviction for plain error in light of testifying expert’s "live testimony and availability for crossexamination").

The Supreme Court’s decisions in Melendez-Diaz and in

Bullcoming do not compel a different result. The notarized

certificates of analysis at issue in Melendez-Diaz revealed

considerably more than raw data; they concluded that the substance attributed to the defendant’s possession "was found to

contain: Cocaine." 129 S. Ct. at 2531. To be sure, Shea’s

report also contained the statement on the ultimate issue that

Summers was "the major contributor of the DNA obtained

from" the jacket, J.A. 524 (endnote omitted), but that was

Shea’s statement and not that of the analysts, and was in any

event merely duplicative of his permissible trial testimony.3

Bullcoming is distinguishable because it was patently not,

as Justice Sotomayor stressed, a case contesting the Sixth

Amendment implications of machine-generated results. Summers has nonetheless directed our attention to a case recently

published by the Court of Appeals of Maryland, Derr v. State,

___ A.3d ___, No. 6 Sept. Term, 2010, 2011 WL 4483937

(Md. Sept. 29, 2011). The court in Derr reversed the defendant’s judgment of conviction for multiple sexual offenses

and remanded for a new trial, holding that the trial court had

run afoul of the Confrontation Clause by permitting the prosecution’s expert to testify regarding DNA analyses on crime

scene evidence performed in years past by others, and to testify with respect to the reference sample analysis undertaken

3Because we conclude that the numerical identifiers in Shea’s report are

not statements implicating the Confrontation Clause, we need not consider

whether an expert’s report is sufficiently "formalized" to satisfy Justice

Thomas’s definition of a testimonial statement as expressed in his concurring opinion providing the deciding vote in Melendez-Diaz. 

16 UNITED STATES v. SUMMERS
by her subordinates, without the supervisor’s active participation or personal observance.

In so ruling, the Derr court concluded that "the testing procedures and method employed, the DNA profile created, and

the conclusion that there is a match are testimonial in nature,"

with the result that the prosecution was obliged to produce the

analysts who actually performed the testing. 2011 WL

4483937, at *1. The DNA profile referenced by the court is

derived from an electropherogram, that is, a "graph that displays a series of different-colored peaks of different heights,"

documenting "the allele values at each chromosomal location

or loci." Id. at *5. According to the court, "the DNA profile

is a statement of the analyst that essentially says: ‘This is the

DNA profile for this person.’" Id. at *12. Based on the court’s

explanation, we perceive that the "DNA profile" it held to be

a testimonial statement closely corresponds to what we have

called in this case the "numerical identifiers of the DNA

allele." 

To the extent that Derr ascribes testimonial significance to

machine-generated results — a conclusion that cannot be

squared with our own circuit precedent — we find its reasoning unpersuasive. Melendez-Diaz and Bullcoming each

involved one or more absent expert’s "certification" with

respect to the meaning of the underlying raw data, and no

such certification is at issue here. The only evidence interpreting the raw data was provided by Shea via his report and live

testimony, and he was strenuously cross-examined by the

defense.

We are cognizant of the concerns attendant to excusing

analysts and technicians from trials under such circumstances,

such concerns being best expressed, perhaps, by our late colleague Judge Michael in dissent in United States v. Washington:

Finally, it is not for the majority to say that "there

would be no value in cross-examining the lab techniUNITED STATES v. SUMMERS 17
cians." A defendant’s right to confront witnesses

against him does not depend on whether a court

believes that cross-examination would be useful. The

strategic decision of whether to cross-examine a laboratory technician is one for the defendant to make.

. . . Forensic test reports are not always accurate.

Testing errors are sometimes caused by technician

inexperience, sample contamination, failure to follow laboratory protocols, or breaks in the chain of

custody. . . . The best way to expose errors or falsification in testing is through cross-examination of the

laboratory technician.

498 F.3d at 235 (Michael, J., dissenting). We heartily agree

with Judge Michael that the handling of evidence, calibration

of equipment, and the like can be fertile ground for crossexamination, but we must temper our agreement with the

practical observation that a serious challenge to processing

defects is likely to arise only infrequently. When the issue is

palpable, it is up to the defense to advise the prosecution in

good faith such that the attendance of appropriate witnesses

may be secured. See Moon, 512 F.3d at 361 ("A defendant

who sincerely wants live testimony should make the demand,

so that the declarant can be produced. The lack of a demand

for testimony by an available declarant leads to the conclusion

that the appellate argument is strategic rather than sincere.");

cf. Washington, 498 F.3d at 220 ("The value of crossexamination might relate to authentication or to a description

of the machines or to the chain of custody, but none of these

were issues at trial."). Of course, the duty to produce necessary witnesses and, it necessarily follows, the consequences of

their absence, is always assumed by the prosecution. See

Melendez-Diaz, 129 S. Ct. at 2540 (declaring that "the Confrontation Clause imposes a burden on the prosecution to

present its witnesses, not on the defendant to bring those

adverse witnesses into court").

18 UNITED STATES v. SUMMERS
2.

Even were we not persuaded that our Washington precedent

controls the result in this case, effectively rebutting Summers’s contention that he was entitled to confront the lab analysts at trial, his conviction need not be disturbed if the

purported error was harmless beyond a reasonable doubt. See

Chapman v. California, 386 U.S. 18, 24 (1967). We have previously mentioned that admission of Shea’s report was almost

wholly cumulative of Shea’s live testimony, a circumstance

that casts substantial doubt upon the importance of the report

in establishing Summers’s guilt.

More fundamentally, however, we cannot help but note that

the government’s decision to introduce DNA evidence

derived from the jacket had the unintended collateral effect of

rendering a straightforward case significantly more complex.

With respect to proving ownership of the jacket, the evidence

introduced through Shea was scarcely more than the thin

glaze on a dense cake baked to doneness by the officers’

largely unshakable testimony that: (1) Summers was wearing

the jacket before he ran; (2) he was not wearing the jacket

when he was caught; and (3) the jacket was found in the

immediate vicinity of his flight path. Although we suppose

that the jury could have been impressed that Quantico

weighed in on the issue, we hardly think that the government

needed to rely on the FBI’s star power to prevail in its openand-shut case. Even had the district court’s admission of

Shea’s report constituted error, it would surely be harmless

beyond a reasonable doubt.

IV.

Pursuant to the foregoing, we affirm the district court’s

entry of judgment on the jury’s verdict.

AFFIRMED

UNITED STATES v. SUMMERS 19
FLOYD, Circuit Judge, concurring in the judgment: 

Although I concur in the judgment, I respectfully disagree

with the majority’s decision to reach the Confrontation Clause

issue.

As we recognized in Norfolk Southern Railway Co. v. City

Of Alexandria, 608 F.3d 150 (4th Cir. 2010), "the principle of

constitutional avoidance . . . requires the federal courts to

strive to avoid rendering constitutional rulings unless absolutely necessary." Id. at 156-57. "It is not the habit of the

Court to decide questions of a constitutional nature unless

absolutely necessary to a decision of the case." Ashwander v.

Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,

concurring) (internal quotation marks omitted).

Here, the majority states that any error in regards to a Confrontation Clause violation is harmless beyond a reasonable

doubt. I agree with this determination. Hence, because I am

of the opinion that it is unnecessary to resolve a thorny issue

such as this in what is an evolving area of constitutional law,

I would decline to address the alleged Confrontation Clause

violation. 

20 UNITED STATES v. SUMMERS