US v. David Shanton, Sr., No. 09-4617 (4th Cir. 2013)

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This opinion or order relates to an opinion or order originally issued on January 20, 2012.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4617 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID WILBERT SHANTON, SR., Defendant - Appellant. On Remand from the United States Supreme Court. 10599) Submitted: February 26, 2013 (S. Ct. No. 11- Decided: March 4, 2013 Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. James Wyda, Federal Public Defender, Lauren E. Case, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Michael C. Hanlon, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: After a jury trial, David Wilbert Shanton, Sr., was convicted firearm of two counts offenses. On of armed appeal, bank robbery Shanton argued and that related (1) the district court erred under the Confrontation Clause of the Sixth Amendment admitting the testimony of a DNA expert without also requiring the testimony of those persons involved in conducting the DNA testing, and (2) the court erred by ordering that he serve a consecutive ten year sentence for the first of his two 18 U.S.C. ยง 924(c) (2006) convictions. After placing this appeal in abeyance for United States v. Summers, 666 F.3d 192 (4th Cir. 2011), cert. denied, 133 S. Ct. 181 (2012), this Court affirmed. See United States v. Shanton, No. 09-4617, 2012 WL 165029 (4th Cir. Jan. 20, 2012) (unpublished). On October 1, 2012, the Supreme Court granted Shanton s petition for a writ of certiorari, vacated the judgment and remanded for further consideration in light of Williams v. Illinois, 132 S. Ct. 2221 (2012). In Confrontation judgment. Williams, the Clause issue Supreme and Court affirmed addressed the a similar lower court s After considering Williams, we affirm. * * Shanton s sentencing issue, which is independent of his Confrontation Clause issue, will not be discussed. 2 In Williams, an expert witness from the Illinois State Police Laboratory testified at a bench trial regarding a DNA match that incriminated the defendant. The Illinois State Police sent Cellmark, an independent laboratory, a vaginal swab and directed returned the analysis. obtained Cellmark vaginal to conduct swab and a DNA analysis. report Cellmark containing the DNA The expert witness testified that the DNA profile by Cellmark from the vaginal swab matched the defendant s DNA profile, which was obtained from the state s forensic database. The expert witness did not have any first hand knowledge of how Cellmark handled the vaginal swab, what tests were actually run on the swab or the manner in which the tests were conducted. However, she was permitted to testify that the DNA taken from the vaginal swab matched to a reasonable degree of medical certainty the defendant s DNA. Justice Alito authored the plurality opinion joined by three other justices. In the plurality opinion it was found that there was no Confrontation Clause violation because the statements from the Cellmark report were not being used for the truth of the matter asserted. The plurality concluded that the statements from the Cellmark report were used as a premise from which the opinion. expert See was Williams, 132 able S. opinion). 3 to Ct. at arrive 2233-37 at her (plurality Justice Thomas authored an opinion concurring in the judgment. He Confrontation concluded Clause that because there the was no violation statements at of issue, the while being admitted for the truth of the matter asserted, lacked the formality and evidence. See solemnity associated 132 Williams, concurring in the judgment). S. Ct. with at 2255 testimonial (Thomas, J., The dissent, authored by Justice Kagan and joined by the remaining three justices, found that the statements were offered for the truth of the matter and did violate the Confrontation Clause. See Williams, 132 S. Ct. at 2265 (Kagan, J., dissenting). We have considered Williams in conjunction with our decision in Summers, and conclude that judgment should still be affirmed. the district court s If this case were to go before the Supreme Court again, we believe five justices would affirm: Justice Thomas on the ground that the statements at issue were not testimonial and Justice Alito, along with the three justices who joined his plurality opinion, on the ground that the statements were not admitted for the truth of the matter asserted. After Williams, Summers still has precedential value in this court and in that case we affirmed a Confrontation Clause issue that rose from a similar factual scenario. In fact, Summers presented a slightly more riskier scenario because 4 the expert witness submitted a written report, seen by the jury, that contained some of the non-testifying analysts raw data. In this case, the Government did not introduce the expert witness report into evidence, nor was there any testimony on direct examination regarding the actual raw data the expert used to reach her opinion. Accordingly, we affirm the convictions and sentence. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 5