United States v. Thomas Vitrano , 747 F.3d 922 ( 2014 )

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 injunc-
tion. 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 endanger-
ment.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.
1
The application of the ACCA generated a series of appeals by both
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 civil rights 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 govern-
ment 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 chal-
lenged phone calls.
A. Confrontation Clause
The Sixth Amendment’s Confrontation Clause 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. Washing-
ton, 541 U.S. 36, 68 (2004). The Clause applies only to “testimo-
nial” 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 which state
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 Melendez-
Diaz 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 certifica-
tion 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
on information 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
2
In any event, such a certification would likely be non-testimonial. United
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 abuse-
of-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 at524–25.
In Vitrano’s case, the government established the chain of
custody for the phone calls through the testimony of Lieuten-
ant 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 insuffi-
ciently 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.