United States v. Moore, Percy E. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2183
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PERCY E. MOORE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 03 CR 50018—Philip G. Reinhard, Judge.
____________
ARGUED NOVEMBER 10, 2004—DECIDED OCTOBER 13, 2005
____________
Before COFFEY, RIPPLE, and SYKES, Circuit Judges.
COFFEY, Circuit Judge. On August 28, 2003, Percy E.
Moore was convicted in the United States District Court for
the Northern District of Illinois of three counts of knowingly
and intentionally distributing cocaine hydrochloride
(cocaine powder) and cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). On April 23, 2004, he was sentenced to a term
of 175 months. On appeal, Moore argues for reversal of his
conviction, alleging that the district court erred by (1)
refusing to allow the introduction of Social Security Admin-
istration records to confirm Moore’s inability to understand
the conversations with a confidential informant; (2) admit-
ting expert witness testimony without the foundational
testimony required by Rule 702 of the Federal Rules of
2 No. 04-2183
Evidence; (3) ruling that the government had proved Moore
guilty beyond a reasonable doubt in light of inconsistent
and contradictory testimony by a confidential informant;
and (4) concluding that Moore was competent to be sen-
tenced. We affirm.
I. Background
Percy Moore was charged with three counts of know-
ingly and intentionally distributing cocaine and cocaine
base to Rosa Flemons, a Drug Enforcement Administration
(“DEA”) confidential informant. While investigating Moore,
the DEA sought the assistance of Flemons, who had been
convicted three times of drug offenses, once in federal court
for conspiracy to distribute cocaine and twice in state court
for possession of a controlled substance. In exchange for
reducing by half the low end of the federal sentence that
she was facing, Flemons agreed to serve as a confidential
source for the DEA.
On September 13, 2002, Flemons and her husband,
Robert, met with DEA Special Agent Douglas Hopkins
and Rockford Police Detective Brian Skaggs in preparation
for her first attempt to purchase drugs from Moore. Accord-
ing to the trial transcript, Flemons had never purchased
drugs from Moore prior to September 13, 2002.1 Due to
concerns for her safety, Flemons requested that she not be
required to wear audio recording equipment during the
initial buy, and her supervising agents agreed to her
request. According to Flemons and the agents, before
Flemons and her husband set off to meet Moore, the agents
1
Flemons’ friend “Kathy” had introduced her to Moore two
days earlier; Flemons testified that during their first encounter,
she asked Moore if she could purchase drugs from him and he
agreed.
No. 04-2183 3
in charge searched Flemons, her husband, and their car for
cash and contraband, and none was found. Agent Hopkins
gave Flemons $250 to purchase a quarter ounce of cocaine.
At approximately 5:00 p.m., Flemons and her husband
drove to Moore’s home on the 100 block of South Central in
Rockford, Illinois, and found him standing in the front yard
with a man and a woman. After the man left, Flemons
approached Moore and told him that she wanted to buy a
“quarter.” According to her testimony, Moore and the
unidentified woman went inside the house for a couple of
minutes and returned with a plastic bag filled with a white
powder. At this time, the woman accompanying Moore
handed the plastic bag to Flemons, and Flemons attempted
to hand her the $250. The woman pointed to Moore, and
Flemons proceeded to hand him the money. Flemons
testified that before she left, she asked Moore how much a
larger amount of cocaine would cost, and he advised her
that a kilo would cost $21,000. She returned to the car and
drove to a predetermined location to meet the handling
officers. When she arrived, she gave the plastic bag with the
white substance to Agent Hopkins, and, once again, he
searched her and her husband for money and contraband.
According to Agent Hopkins, he followed the Flemonses
until they were near the 100 block of South Central and
then transferred surveillance duties to Officer Robert
Swank of the Winnebago Sheriff’s Department, who was
stationed in a school parking lot across the street from
Moore’s home. According to Officer Swank, he had an
unobstructed view of Moore’s house. At approximately
5:00 p.m., he observed a small white vehicle with the
Flemonses arrive at Moore’s home. During his testimony at
trial, Officer Swank described the transaction, as depicted
by Flemons in her testimony, up until Moore and the
unidentified woman returned from inside the house; at that
point, he was unable to observe the exchange of money and
contraband because it took place behind a vehicle with its
hood raised, obstructing his view.
4 No. 04-2183
Flemons’ next meeting with Moore took place on Septem-
ber 23, 2002. Flemons contacted Moore by telephone, and,
during their recorded conversation, she asked Moore if she
could stop by to talk. Moore told her to “come on over.” Prior
to departing for her meeting with Moore, Flemons and her
husband were again searched for contraband and money
and were given $250 to purchase the narcotics. She wore a
concealed recording device to this second meeting, and
Officer Swank filmed the encounter. When Flemons arrived
at Moore’s home, Moore informed her that he was “dry.”
Flemons continued to contact Moore by telephone over the
next couple of weeks. The conversations were recorded.
Flemons testified that during each conversation, Moore
conveyed to her, using various terms and metaphors, that
he presently had no contraband in his possession. Finally,
on October 9, 2002, Flemons made another recorded
telephone call to Moore, during which Moore told her that
he was “all right.” Moore then instructed her to come to the
thrift store next to his house. Before leaving for the meeting
with Moore, the agents searched Flemons, her husband, and
their vehicle for cash or contraband and provided Flemons
with $800 in cash and a concealed, activated audio recorder.
Agent Hopkins again followed the Flemonses until they
were near Moore’s house, at which point Officer Nick
Cunningham of the Winnebago County Sheriff’s Depart-
ment, who was parked across the street from Moore’s house,
picked up the surveillance. When Flemons arrived at the
thrift store, Moore stated that he needed additional time to
obtain the contraband. The Flemonses left and traveled to
a nearby house to contact Agent Hopkins. Thereafter, they
drove to a local fast-food restaurant to eat lunch before
returning to the thrift shop. Upon their return, Moore
motioned for Flemons to follow him into the back room of
the store. According to Flemons, he directed her to a cup
located on the floor in the back room. Flemons approached
the cup and observed a plastic bag within, which she
No. 04-2183 5
believed contained an ounce of crack cocaine. Flemons
picked up the cup, handed Moore $800 for the drugs, and
departed. The video surveillance showed Flemons exiting
the store with the cup in her hand. After Flemons left the
store, the Flemonses met with their handling agents, gave
them the cup containing the cocaine, and submitted to a
search of their persons and vehicle. Hopkins placed the cup
containing the cocaine into an evidence bag.
Flemons again contacted Moore on October 17, 2002. She
told him in a recorded telephone conversation that she
wanted “two of them, the hard.” Moore advised her to come
over. Before leaving for Moore’s house, Flemons, her
husband, and their car were again searched, and Flemons
was given an audio recorder and $1,600 to purchase two
ounces of crack cocaine. When Flemons arrived at Moore’s
house, he had only two small amounts of crack cocaine to
sell. Flemons explained that she wanted two ounces, not
two “rocks,” and Moore told her he needed additional time.
The Flemonses left Moore’s house and went to meet Agent
Hopkins. Approximately twenty to thirty minutes later,
Flemons called Moore, and he instructed her to meet him at
210 Howard Avenue in Rockford, Illinois. The Flemonses
drove to that location, and Moore led her into a house.
Agent Hopkins and Officer Brian Skaggs of the Rockford
Police Department followed the Flemonses to the Howard
Avenue location and maintained surveillance of the house.
A short time later, the officers observed Moore walk out of
the residence to a fence surrounding the property and
disappear from view. Flemons, who was still inside the
house, testified that she observed Moore through the
windows walk along the side of the house to the fence where
he bent over and retrieved two plastic bags. According to
Flemons, Moore brought the two bags back into the house
and sold them to her for $1,600. Flemons testified that each
bag contained what appeared to be one ounce of crack
cocaine. After the transaction was complete, Flemons
6 No. 04-2183
departed and returned to her handlers. Agent Hopkins took
possession of the two plastic bags and the audio recorder
and sealed the drugs in a heat sealed evidence bag. The
Flemonses were again searched for additional cash or
contraband, but none was found.
The substances that Flemons turned over to Agent
Hopkins on September 13, October 9, and October 17, 2002,
were analyzed by Jennifer Yezek, a DEA forensic chemist.
According to Yezek’s testimony during trial, the three
substances she received were each individually sealed in
evidence bags bearing a sticker with the signature of Agent
Hopkins. She received the three evidence bags from an
unidentified evidence technician. Yezek opened each bag
and proceeded to inspect, weigh, and analyze the sub-
stances. She performed the following tests on each of the
three samples: (1) a cobalt thiocyanate test; (2) a gas
chromatography mass spectrometry test; and (3) an infrared
spectrometry test. Based on her analysis, Yezek concluded
that the substances gathered on September 13, October 9,
and October 17, 2002, consisted of 6.6 ounces of cocaine
powder, 26.9 grams of cocaine base, and 53.8 grams of
cocaine base, respectively. During trial, the substances were
introduced and admitted as government exhibits 16 (the 6.6
ounces of cocaine powder), 17 (the 26.9 grams of cocaine
base), and 18 (the 53.8 grams of cocaine base).
On February 27, 2003, Moore was arrested by federal
authorities on the basis of a complaint, filed by Agent
Hopkins, which alleged that he had violated 21 U.S.C.
§ 841(a)(1) by knowingly and intentionally distributing
powder and crack cocaine to one or more confidential
sources. On March 11, 2003, the grand jury indicted Moore
on the same three offenses.
On August 22, 2003, a final pre-trial conference was held
before United States District Court Judge Philip G.
Reinhard in the Northern District of Illinois, Western
No. 04-2183 7
Division. During the hearing, Moore’s counsel represented
that, although he had previously filed a motion to have
Moore examined for competency, he presently felt that
Moore was competent to stand trial.2 He also represented to
the court that Moore was not alleging “in any way, shape,
or form that [he] was legally insane at the time of the
offense.” However, counsel did advise the court
that according to the Social Security Administration
(“SSA”), Moore had been found to be totally mentally
disabled for the past nine years and had been receiving
social security disability in the amount of $1,200 per month.
Moore’s counsel further advised the court for the first time
that he had been trying to obtain records from the SSA
documenting his disability but had not yet received them.
Upon hearing defense counsel’s representations about
Moore’s mental capacity, the government moved the district
court to bar Moore from presenting a diminished capacity
defense. Prior to the start of trial, the court granted the
government’s motion, stating, “There shall not be mention
of diminished capacity as any defense nor can there be any
expert testimony raised as to the issue of if he has a mental
disability for Social Security purposes because there’s been
no such disclosure.” However, the judge also told the parties
that although he was barring Moore from presenting a
diminished capacity defense, he would not rule out the
introduction of the SSA records: “Subject to hearing what
the questions are that are posed to the defendant, should he
take the stand, I will allow that just to show as to his
basic intelligence.” The only other mention of the SSA
records occurred at the end of the first day of trial when
government counsel informed the court that he still had not
2
Prior to the final pre-trial conference, Moore’s counsel had
moved to withdraw the motion for a competency examination, and,
at the time of the final pre-trial conference, the motion was no
longer pending.
8 No. 04-2183
received a copy of the records. Moore’s counsel explained
that he had not produced the records because he still had
not received them. He then suggested that he would not
be introducing the records because “the judge has basi-
cally ruled that they’re not relevant.” The district court
responded by stating, “I’ve essentially ruled that he
can probably testify [to] his mental condition—if he wants
to tell us what his IQ is or something like that, he can do it,
and if he can tell he’s under a disability, I’ll allow that, but
that’s about it.”
The jury trial continued from August 26, 2003, through
August 28, 2003. Moore did not testify at trial nor did
he present any witnesses in his defense. He did not move
the court to admit his SSA records. The government called
Flemons, Agent Hopkins, and Officers Swank and
Cunningham to testify as to the transactions and conversa-
tions between Flemons and Moore. In addition, the govern-
ment presented the testimony of Jennifer Yezek, the
forensic chemist, Joseph Ambrozich, a DEA fingerprint
analyst, and Steven Johnson, a veteran police officer with
the Rockford Police Department who testified as an expert
in the area of narcotics distribution investigation. On
August 28, 2003, the jury found Moore guilty on all three
counts, and the court entered judgment on each of the
verdicts. On September 10, 2003, Moore filed a motion for
judgment of acquittal and, in the alternative, a request for
a new trial. Judge Reinhard denied each request in a
minute order dated September 12, 2003. On October 10,
Moore filed a motion for an examination to determine his
competency for sentencing, and Judge Reinhard granted the
motion. After the competency review conducted under the
supervision of the United States Bureau of Prisons in
Butner, North Carolina, the court held an evidentiary
hearing on March 25, 2004, to determine Moore’s compe-
tency. During the hearing, Dr. Adam Wooten, the psychia-
trist who evaluated Moore while he was at Butner, testified
No. 04-2183 9
as to his examinations of Moore. Wooten testified that
although Moore suffered from depression, he believed that
Moore’s medication, Zoloft, successfully controlled his
depression. He further opined that Moore appeared able to
understand the nature of the proceedings against him and
to assist his counsel during the sentencing phase. Defense
counsel then called Moore’s fiancee, Meighan Fitzgerald, to
testify. Fitzgerald testified that Moore constantly asked her
the same questions during a single visit and that he had
stopped writing her letters. After hearing the arguments of
counsel, Judge Reinhard determined that Moore was
competent to proceed with sentencing, stating:
I’ve had the opportunity to read the forensic
evaluation by Dr. Wooten thoroughly, and I’ve also
had the opportunity to view his testimony both on
cross examination and direct examination. I’ve also
had the opportunity to read the presentence investi-
gation report and to view Mr. Moore throughout the
trial, and he actually was on videotape during
portions of the evidence that were used by the
government against him.
The court concludes . . . that I have a qualified
psychiatric opinion that has not been rebutted,
except by some lay testimony, which in certain
circumstances could overcome expert testimony.
But under these circumstances, having listened to
the psychiatrist testify and having read the history
taken by Dr. Wooten, the examination that he had
of the defendant over a period of time, his observa-
tion over a period of time, also the psychological
testing that confirms aspects of depression, but also
while it may state some conclusions about that [sic]
he was hallucinating, it does not in any way nega-
tive, in my opinion, the medical opinion by Dr.
Wooten that the defendant is not suffering from a
mental disease or defect rendering him mentally
10 No. 04-2183
incompetent to the extent he’s unable to under-
stand the nature and consequences of the proceed-
ings against him or properly assist Mr. Phillips in
his own defense.
There is lay testimony, as I indicated, from Ms.
Fitzgerald, which are observations of him. I think
they are not inconsistent with somebody who is
depressed awaiting sentence, and there’s no indica-
tion by her testimony, in my opinion, that he’s
unable to understand legal concepts. Assuming that
her testimony is accurate that he sometimes re-
peats questions, that, in my opinion, does not
overcome the testimony [of Dr. Wooten].
I saw him in person and on videotapes, and
there’s no doubt—at least throughout the entire
trial, in my opinion, he was competent, and any
depression that he may have is not unusual for a
person who is now facing a sentence after being
convicted and being out on bond.
On April 23, 2004, Judge Reinhard sentenced Moore
to a term of 175 months in the custody of the United States
Bureau of Prisons. On April 29, 2004, Moore filed a Notice
of Appeal for his conviction and his sentence.
II. Analysis
Moore raises four issues on appeal. First, he claims
that the district court prevented him from presenting
evidence that he did not understand the narcotics terminol-
ogy used in his conversations with Rosa Flemons. Specifi-
cally, he argues that the court precluded him from introduc-
ing SSA records which he claims would have revealed his
limited ability to understand coded narcotics terminology.
Next, he argues that the government failed to lay the
proper foundation for the expert testimony of Jennifer
No. 04-2183 11
Yezek, the DEA forensic chemist, as required by Rule 702
of the Federal Rules of Evidence. He also contends that the
court erred when it denied his post-trial motion and ruled
that the government had proved him guilty beyond a
reasonable doubt despite inconsistent and contradictory
testimony from Flemons. Finally, Moore argues that the
district court erred when it ruled that he was competent to
be sentenced.
A. Introduction of Evidence
Moore claims that the district court erred in precluding
him from introducing his SSA records. Prior to and dur-
ing trial, defense counsel made it clear to the district
court that he did not intend to introduce the records as
evidence in support of a legally insane or diminished
capacity defense; rather, Moore argues that the records
would have provided evidence that he was mentally incapa-
ble of understanding his conversations with Flemons in
which both parties used coded drug language. The govern-
ment contends that despite his suggestion to the contrary,
Moore never sought to introduce the SSA records, and the
district court never precluded Moore from presenting those
records to the jury.
Federal Rule of Evidence 103(a)(2) states, “Error may not
be predicated upon a ruling which admits or ex-
cludes evidence unless a substantial right of the party is
affected, and . . . [i]n case the ruling is one excluding
evidence, the substance of the evidence was made known to
the court by offer or was apparent from the context within
which questions were asked.” Fed. R. Evid. 103(a)(2). This
rule effectively requires a defendant to present his eviden-
tiary arguments to the trial court in order to preserve the
issue for appeal. Although this circuit does not require
litigants to make formal offers of proof when evidence is
excluded, “the record must show the equivalent: grounds for
12 No. 04-2183
admissibility, the proponent must inform the court and
opposing counsel what he expects to prove by the excluded
evidence, and he must demonstrate the significance of the
excluded testimony.” United States v. King, 75 F.3d 1217,
1223 (7th Cir. 1996) (citing United States v. Peak, 856 F.2d
825, 832 (7th Cir. 1988)).
Prior to the start of trial, the district court briefly ad-
dressed the admissibility of the SSA records in ruling on the
government’s motion in limine to preclude Moore from
presenting a diminished capacity defense.3 Although Judge
Reinhard granted the government’s motion in limine, his
ruling allowed Moore to seek leave of court to introduce the
records for a limited purpose: “Subject to hearing what the
questions are that are posed to the defendant, should he
take the stand, I will allow that just to show as to his basic
intelligence.” During trial, Moore never sought leave to
introduce the SSA records and made no attempt at an offer
of proof. Defense counsel suggested that Moore would not
introduce the records because “the judge has basically ruled
that they’re not relevant.” However, immediately after
defense counsel’s statement, Judge Reinhard clarified his
ruling, stating, “I’ve essentially ruled that he can probably
testify [to] his mental condition—if he wants to tell us what
his IQ is or something like that, he can do it, and if he can
tell he’s under a disability, I’ll allow that, but that’s about
it.” Although the district court left the door open to offer the
SSA records, Moore’s counsel never sought to introduce the
3
The court notes that unlawfully distributing cocaine in violation
of 21 U.S.C. § 841(a)(1) is a general intent crime, see United States
v. Manganellis, 864 F.2d 528, 539 (7th Cir. 1988), and diminished
capacity is a defense only to specific intent crimes, see United
States v. Fazzini, 871 F.2d 635, 641 (7th Cir. 1989) (citing United
States v. Twine, 853 F.2d 676, 679 (9th Cir. 1988)). Thus, a
diminished capacity defense was not available to Moore.
No. 04-2183 13
documents during trial.4 By failing to make an offer of
proof, Moore forfeited the issue. Thus, we will review the
exclusion of this evidence only for plain error.5 See Fed. R.
Evid. 103(d) (“Nothing in this rule precludes taking no-
tice of plain errors affecting substantial rights although
they were not brought to the attention of the court.”); Fed.
R. Crim. P. 52(b) (“A plain error that affects substantial
rights may be considered even though it was not brought to
the court’s attention.”).
The Supreme Court has established a four-part plain
error standard. See United States v. Cotton, 535 U.S. 625,
631-32 (2002); Olano, 507 U.S. at 732. Before an appellate
court can correct an error not raised at trial, there must
be “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] sub-
stantial rights.’ ” Cotton, 535 U.S. at 631 (quoting Johnson
4
Part of Moore’s argument is that since he did not have the
SSA records in his possession, he could not seek to introduce them
during trial. As conceded by Moore’s counsel during oral argu-
ment, the first mention of the SSA records to the district court
occurred at the final pre-trial conference on the Friday prior to the
start of trial. While Moore’s counsel advised the court that he had
filled out a request but had not yet received the records, he did not
request the court’s assistance in securing those records during the
final pre-trial conference nor at any time thereafter. See, e.g., Fed.
R. Crim. P. 17(c) (governing subpoenas for the production of
documents). Moreover, he did not request a continuance of the
trial in order to secure those documents. For these reasons, this
court is unpersuaded by Moore’s argument that he could not
introduce the documents because he did not have them.
5
“Forfeiture” is “the failure to make the timely assertion of a
right”, as opposed to “waiver,” which is “the intentional relin-
quishment or abandonment of a known right.” United States v.
Olano, 507 U.S. 725, 733 (1993); United States v. Davis, 15 F.3d
1393, 1407 n.4 (7th Cir. 1994). “Waiver precludes appellate
review, but forfeiture permits review for plain error.” United
States v. Jaimes-Jaimes, 406 F.3d 845, 847 (7th Cir. 2005).
14 No. 04-2183
v. United States, 520 U.S. 461, 466-67 (1997)). If all three
requirements are met, an appellate court may review a
forfeited error, “but only if (4) the error seriously affect[s]
the fairness, integrity, or public reputation of judicial
proceedings.” Cotton, 535 U.S. at 631-32 (alteration in
original) (quoting Johnson, 520 U.S. at 467).
Moore’s argument fails to clear the steep hurdle imposed
by the plain error standard. In his appellate brief, Moore
suggests that the SSA records were necessary to demon-
strate “his deficient mental condition to explain to the jury
why the words he used during these conversations [with
Flemons] did not refer to cocaine and were not ‘code’ for
cocaine as alleged by the Government.” However, Moore
fails to explain how the SSA records would have established
that he was mentally incapable of understanding the coded
drug language. The records would not have said anything
about Moore’s understanding of the particular conversa-
tions in question. Moreover, they would not have said
anything about Moore’s ability to comprehend coded
narcotics terminology. The records alone would not demon-
strate that Moore did not understand any of the specific
conversations he had with Flemons. At most, the records
would have demonstrated that the SSA had determined
that he suffered from a mental disability and was entitled
to disability benefits under the Social Security Act. Moore
would have then needed to call an expert to interpret the
records and explain the effect his mental disability had
on his ability to understand language; however, Moore
never obtained, or indicated that he wanted to obtain, an
expert to testify about his alleged mental impairment.
Furthermore, Moore did not testify at trial, which
would have been the logical way to present evidence con-
No. 04-2183 15
cerning his history of mental illness.6 On numerous occa-
sions the trial court stated that it would not prohibit Moore
from testifying that he did not understand the narcotics
terminology used in his conversations with Ms. Flemons.
Similarly, his counsel did not even see fit to question the
government’s law enforcement expert about how an individ-
ual with mental disabilities would have been confused by
the drug terminology used during the drug sales. The
court’s decision to bar the SSA records did not preclude
Moore’s theory of the defense because he had sufficient
means to present that theory to the jury but chose not to do
so. See King, 75 F.3d at 1222.
Furthermore, any erroneous exclusion of Moore’s SSA
records was harmless in light of the overwhelming evidence
of Moore’s guilt. Moore was convicted for actually selling
cocaine, not merely discussing a sale of the illegal sub-
stance. Regardless of what was said between Moore and
Flemons, the government presented more than ample
evidence during trial of the actual sale of narcotics by
Moore to Flemons. On three separate occasions Flemons
went to a location prescribed by Moore (his home or his
mother’s thrift store) and each time she returned with
cocaine. Before each visit she, her husband, and their car
were searched and found clean of drugs, and, during
each visit, she was monitored by law enforcement per-
sonnel. Considering the totality of evidence presented
at trial, we are convinced that even if we were to deter-
mine that the district court had committed an error in
dealing with the admissibility of the SSA records, we would
deem it to be harmless error.
6
As set forth earlier, Moore also failed to make an offer of
proof at any time during the trial.
16 No. 04-2183
B. Chain of Custody
Moore next claims that the district court erred in admit-
ting the testimony of the government’s forensic chemist,
Jennifer Yezek. Moore makes a fleeting Daubert challenge
to Yezek’s testimony, arguing that the government failed to
lay the proper foundation for her expert testimony as
required by Rule 702 of the Federal Rules of Evidence.
However, beyond referencing the standards set forth in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
589-95 (1993), his only specific argument is that her
testimony was unreliable because the government failed to
establish a chain of custody for the drugs she analyzed.7
Moore argues that the government failed to establish that
its exhibits 16, 17, and 18 were actually the evidence
collected from Flemons after her encounters with Moore and
that the samples were not contaminated before they
reached Yezek. At trial, Moore’s counsel objected during
Yezek’s direct examination, arguing that she was speculat-
ing when she testified that she received the samples from
an evidence technician who had retrieved them from a
vault. The trial judge overruled the objection in part,
finding that Yezek could testify that she received the
samples from an evidence technician, but he sustained the
objection as to any testimony about where the samples were
before they came into her possession.
A district court’s evidentiary rulings, including matters
concerning the chain of custody, are reviewed for abuse
of discretion. United States v. Scott, 19 F.3d 1238, 1245 (7th
Cir. 1994). “ ‘The standard for the admission of exhibits into
7
Moore’s counsel also failed to object to the foundation of her
testimony at trial. After the government questioned Yezek about
her credentials and then tendered her as an expert, defense
counsel stated that he had no objection as to the foundation of her
testimony, and the district court accepted her as a qualified expert
in the field of chemistry and the analysis of narcotics.
No. 04-2183 17
evidence is that there must be a showing that the physical
exhibit being offered is in substantially the same condition
as when the crime was committed.’ ” United States v. Lott,
854 F.2d 244, 250 (7th Cir. 1988) (quoting United States v.
Aviles, 623 F.2d 1192, 1197 (7th Cir. 1980)). It is well
accepted in this circuit that “[a] perfect chain of custody is
not a prerequisite to admission,”United States v. Smith, 308
F.3d 726, 739 (7th Cir. 2002), as “gaps in the chain nor-
mally go to the weight of the evidence rather than its
admissibility,” Lott, 854 F.2d at 250. Furthermore, “the
government need only show that it took reasonable precau-
tions to preserve the original condition of the evidence, it
does not have to exclude all possibilities of tampering with
the evidence . . . . [a] presumption of regularity exists with
respect to official acts of public officers and, absent any
evidence to the contrary, the court presumes that their
official duties have been discharged properly.” Id. (internal
citations omitted); see also Aviles, 623 F.2d at 1198; United
States v. Lampson, 627 F.2d 62, 65 (7th Cir. 1980).
During his testimony, Agent Hopkins described the
procedure for handling the substances turned over to him
by Flemons. He stated that when he received the sub-
stances (all in clear bags) from Flemons, he put the bag and
its contents into an evidence bag,8 “heat-sealed” the top
opening of the evidence bag, and then placed an evidence
sticker with the date, the case number, and his signature on
the evidence bag. He stated that his department maintained
custody of the evidence bags at the DEA office in Rockford
until transferring the bags to the North Central Regional
Lab in Chicago. Yezek testified at trial that she weighed
government exhibits 16, 17, and 18 and analyzed the
contents for the presence of narcotics. She stated that she
8
Agent Hopkins testified that an evidence bag has three fac-
tory seals and an opening at the top through which he would place
the evidence.
18 No. 04-2183
obtained each of the exhibits from a DEA evidence techni-
cian in a heat-sealed evidence bag with a label bearing
Agent Hopkins’ signature. Yezek explained how she opened
each evidence bag, removed the substance from its original
packaging, and tested the substances. She sent the original
packaging for fingerprint analysis and identified each
exhibit she examined by a laboratory control number
unique to that exhibit.
Moore argues that the “missing links” in the chain of
custody include the government’s lack of specifics concern-
ing the transfer of the exhibits from the DEA field office
in Rockford to the North Central Regional Lab in Chicago
and the transfer of the exhibits from the laboratory techni-
cian at North Central to Yezek. See Lott, 854 F.2d at 250.
Although he has raised the possibility of tampering during
these transfers, Moore has failed to point to any evidence
that even suggests tampering or casts doubt on the authen-
ticity of the exhibits. Having reviewed all of the trial
testimony of Agent Hopkins and Yezek, the court is satis-
fied that the exhibits were at all times kept in official
custody; thus, the presumption of regularity attaches.
Moreover, according to Yezek’s trial testimony, the evidence
bags bearing Agent Hopkins’ signature were heat-sealed
when she received them and remained sealed until she
began her analysis. The chain of custody for each exhibit
was substantially complete, and, based on this record and
the relevant case law, we refuse to conclude that the district
court abused its discretion in admitting exhibits 16, 17, and
18 and allowing Ms. Yezek to testify as to those exhibits.
See, e.g., United States v. Williams, 44 F.3d 614, 618 (7th
Cir. 1995) (finding a sufficient chain of custody despite the
lack of testimony regarding how drugs seized at a crime
scene were transferred to the drug analysis lab).
No. 04-2183 19
C. Insufficiency of the Evidence
Moore next argues that the evidence presented at trial
was insufficient to support his conviction for possession
with intent to distribute cocaine and cocaine base. “A party
challenging the sufficiency of the evidence supporting a jury
conviction faces a steep uphill battle.” United States v.
Graham, 315 F.3d 777, 781 (7th Cir. 2003). We have
previously stated that a challenge to the sufficiency of the
evidence poses a “nearly insurmountable hurdle.” United
States v. Frazier, 213 F.3d 409, 416 (7th Cir. 2000). In
evaluating a sufficiency of the evidence claim, we must
determine whether “ ‘after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.’ ” United States v. Ramirez, 796 F.2d
212, 214 (7th Cir. 1986) (quoting Jackson v. Virginia, 443
U.S. 307 (1979) (emphasis in original)). “An appellate court
will not weigh the evidence or assess the credibility of the
witnesses. ‘Only when the record contains no evidence,
regardless of how it is weighed, from which the jury could
find guilt beyond a reasonable doubt, may an appellate
court overturn the verdict.’ ” Ramirez, 796 F.2d at 214-15(internal citations omitted) (quoting United States v. Peters,
791 F.2d 1270, 1308 (7th Cir. 1986)).
Moore argues that the government’s case depended
entirely on Flemons’ testimony, which he characterizes as
inconsistent, contradictory, and thus unreliable. Moore
points to trial testimony by Flemons in which she stated
that a conversation between them was not recorded, then
later changed her testimony and stated that the same
conversation was recorded.9 Moore also argues that the
9
As set forth in the factual background, Flemons did not wear a
recording device on September 13, 2002, the first time she
(continued...)
20 No. 04-2183
cocaine could have come from Flemons and not him. As
support for this argument, Moore highlights the fact that
neither of the Flemonses were given a body cavity search or
internal examination before their meetings with Moore.
Moore’s argument that Flemons’ testimony is unreli-
able amounts to an attack on her credibility. “Credibility is
for the jury, not this court, to determine.” United States v.
Mejia, 909 F.2d 242, 245 (7th Cir. 1990). This court will not
interfere “[w]hen a jury has chosen to credit crucial testi-
mony with full knowledge of the many faults of the witness
providing it . . . .” United States v. Woolfolk, 197 F.3d 900,
904 (7th Cir. 1999). During trial, Moore’s counsel took the
opportunity to thoroughly cross-examine Flemons regarding
her prior convictions, her inconsistent statements, and her
cooperation with the government in exchange for a reduced
sentence. After hearing Flemons’ testimony, including
defense counsel’s attempts to discredit her, the jurors
obviously determined that Flemons’ testimony was credible.
A review of the record reveals that her testimony, although
evincing minor inconsistencies, was by and large consistent
with the other evidence presented, including the testimony
of three officers who supervised the buys as well as the
audio and video surveillance. Because the record does not
reveal her testimony to be unreliable as a matter of law, the
jury was entitled to its credibility determination. See United
States v. Pagan, 196 F.3d 884, 889 (7th Cir. 1999) (“The
extent to which [the informant’s] personal failings and
motivations may have influenced his testimony was for the
jury to decide.”); United States v. Dunigan, 884 F.2d 1010,
1013 (7th Cir. 1989) (“Mere inconsistencies in the witness’
testimony do not render it legally incredible.”).
9
(...continued)
purchased cocaine from Moore. She did wear recording devices
during the encounters on October 9, 2002, and October 17, 2002.
No. 04-2183 21
Moreover, even if the jury had some misgivings about
Flemons, the government’s case did not rest solely on her.
The government certainly placed emphasis on the testimony
of Flemons, who met with Moore on three occasions (two of
which were recorded) and spoke to him on the telephone
several times. However, the government also presented a
plethora of other evidence, including but not limited to
audio and video tape recordings of the alleged drug transac-
tions, the testimony of three law enforcement officers who
organized, supervised, and observed the transactions, the
unchallenged expert testimony of a forensic chemist who
opined that the substances given to Hopkins by Flemons
contained cocaine and cocaine base, and the expert testi-
mony of Steven Johnson, an officer with twenty-six years of
law enforcement experience, who deciphered the coded
narcotics vocabulary used by Moore during his conversa-
tions with Flemons. The jury had the opportunity to view
video recordings of Moore meeting with Flemons during two
of the controlled drug buys arranged by law enforcement, to
listen to Flemons and Moore negotiate a sale—albeit in
coded language—and to hear the testimony from the officers
and forensic chemist concerning the substances she brought
back from her meetings with Moore. Based on the totality
of the evidence presented and the applicable case law, we
conclude that the jury could reasonably have inferred that
Moore possessed and intended to distribute cocaine and
cocaine base.
D. Competency to be Sentenced
Moore’s final argument is that the trial court erred in
finding him competent to be sentenced. Approximately
six weeks after the jury trial and prior to his sentencing,
Moore’s counsel informed the trial judge that Moore had
become disoriented and was no longer able to adequately
assist counsel in presenting his defense. Moore’s coun-
22 No. 04-2183
sel requested an examination to determine whether
Moore was competent to be sentenced. The trial court
granted Moore’s motion for a psychiatric examination
and Moore was sent to the United States Bureau of Prisons
in Butner, North Carolina, for evaluation. After Moore’s
evaluation at Butner, the court held a competency hearing
and determined that Moore was competent to proceed with
and assist counsel in preparing for the sentencing phase of
the trial proceeding.
When the trial court has held a hearing and made
findings about the competency of a defendant, as it did in
this instance, “we will overturn those findings only upon a
showing that they are clearly erroneous.” United States v.
Collins, 949 F.2d 921, 924 (7th Cir. 1991) (quoting United
States v. Garrett, 903 F.2d 1105, 1116 (7th Cir. 1990)). In
order for a defendant to be found incompetent, the evidence
must demonstrate that he did not understand the nature
and consequences of the proceedings against him and that
he was unable to assist in his own defense. See United
States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th
Cir. 1984).
Moore first argues that because his counsel raised and
supported his incompetency claim, his claim had more
merit. Moore cites several Seventh Circuit cases that
state that an attorney’s failure to raise the issue of compe-
tency is evidence of a defendant’s mental fitness. Moore
then argues that these cases also stand for the proposition
that an attorney’s request for a competency hearing makes
his client’s claim more meritorious. However, “[a] defense
motion for a competency hearing is not sufficient to create
‘reasonable cause’ for the judge to believe the defendant is
incompetent.” Collins, 949 F.2d at 925. Rather, a defen-
dant’s motion for a competency hearing “simply inform[s]
the court that the defendant, himself, put his competency in
issue.” Id. In other words, merely filing a motion to deter-
mine competency does not mean that the motion is meritori-
No. 04-2183 23
ous. Similarly, a trial judge’s decision to order a competency
hearing has no bearing on whether reasonable cause exists
to believe that a defendant was incompetent; rather, the
order simply demonstrates the judge’s decision to comply
with the dictates of the statute providing for competency
hearings. See id.In finding Moore competent to be sentenced, Judge
Reinhard relied on Dr. Wooten’s psychiatric examination
and diagnosis as well as his own observations of Moore’s
behavior on the videotapes, during the trial, and prior to
the competency hearing. Although Dr. Wooten diagnosed
Moore as suffering from depression, he stated that
Moore’s medication appeared to control his depression.10 He
also testified that Moore had no difficulty accomplishing
daily activities, such as eating and tending to personal
hygiene, and that Moore understood the crimes he had been
charged with, the possible penalties he faced, the role of his
attorney, and the role of the trial judge. Furthermore,
nothing in the record demonstrates that during pre-trial or
trial proceedings, Moore acted in a manner that would even
suggest incompetence, and Moore has failed to identify any
questionable conduct during the trial or sentencing hearing
that would lead the court to doubt his competency. Instead,
Moore rests his claim on his attorney’s assertions and the
lay testimony of his fiancée that he became withdrawn and
disengaged after trial. This behavior, as pointed out by the
10
We have previously determined that depressive condition in and
of itself does not usually prevent a defendant from understanding
the proceedings against him or prohibit him from assisting in his
own defense. See United States v. Teague, 956 F.2d 1427, 1432
(7th Cir. 1992) (stating that “major depression, generalized
anxiety disorder and borderline personality disorder are not
psychiatric problems that would prevent a defendant from
understanding the proceedings against him and interfere with his
ability to confer with his attorney on his own behalf.”).
24 No. 04-2183
trial judge, is consistent with depression, which is not
unusual for a person facing a stiff sentence after conviction
and being out on bond. Furthermore, his fiancée did not
testify that he was unable to understand the charges
against him or the penalties he faced. Neither the lawyer’s
request for a hearing nor his fiancée’s testimony, without
any corroborating expert opinion, generates “a real, sub-
stantial, and legitimate doubt” as to Moore’s competence.
Collins, 949 F.2d at 927. Thus, the district court did not
clearly err in determining that Moore was competent to be
sentenced.
III. Conclusion
The district court did not err in excluding or admitting
the evidence referred to herein, and there was ample
evidence in the record for a jury to convict Moore on three
counts of knowingly and intentionally distributing cocaine
and cocaine base in violation of 21 U.S.C. § 841(a)(1).
Finally, the district court’s determination that Moore
was competent to be sentenced was not clearly erroneous.
The court AFFIRMS both the conviction and the sentence
of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-13-05