In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2226
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
V ERNON T HORNTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 09 CR 92—Barbara B. Crabb, Judge.
A RGUED N OVEMBER 1, 2010—D ECIDED JUNE 16, 2011
Before R OVNER, W OOD and T INDER, Circuit Judges.
R OVNER, Circuit Judge. A jury convicted Vernon Thorn-
ton of possessing ammunition after having been pre-
viously convicted of a felony in violation of 18 U.S.C.
§ 922(g)(1), attempting to possess with intent to dis-
tribute marijuana in violation of 21 U.S.C. §§ 841(a)(1)
and 846, and possessing with intent to distribute
marijuana in violation of 21 U.S.C. § 841(a)(1). The
district court sentenced Thornton to twenty-one months
of imprisonment on each count, to run concurrently.
Thornton appeals his convictions and we affirm.
2 No. 10-2226
I.
On February 26, 2009, several agents of the Dane
County Narcotics and Gang Task Force executed a
search warrant on a package that had been flagged
by FedEx as suspicious. The agents examined the
package and determined that it contained marijuana. The
packaging itself was very distinct. The marijuana had
been encased in layers of plastic wrap with a colored
fluid between some of the layers. That assembly was
surrounded by foam packing chips. Lining the inside of
the box were linoleum floor tiles. After resealing the
package, the agents delivered it to the address listed.
Although it was addressed to “Joanne Anderson,” a
woman named Kim Carrillo took delivery of the
package, and the agents then sought her cooperation.
She told the agents that she had agreed to accept the
parcel for a friend named Staci Amato in exchange for
$100. Carrillo claimed not to know what the package
contained, and she showed the agents where Amato lived.
Amato had asked her long-time friend to accept the
package because she had previously received two other
boxes of marijuana at her home and did not wish to
draw further attention to herself. Amato knew the three
packages contained marijuana and she had agreed to
accept them in exchange for cash. After receiving ship-
ments, Amato had twice before delivered marijuana to
a man she knew by the name of “Black.” Amato vividly
recalled the first delivery, shortly before Christmas of
2008, because she was unemployed and needed the
money. Delivering marijuana made her nervous and she
No. 10-2226 3
wrapped the parcel like a Christmas present to avoid
suspicion. The supplier had offered her a pound of mari-
juana as payment, but she preferred cash and so Black
sold the pound for her and gave her $350 in cash. Amato
received a similar package in February 2009, approxi-
mately one week before her arrest. As she had done
before, she delivered the package to Black. On each occa-
sion, Black paid her for the marijuana and she then
wired the money to a person in Texas. Several days
after delivering the first package, Black paid her $9,000.
For the second package, he paid her between $2,000
and $3,000. She also received payment for taking de-
livery of the marijuana and passing it along to Black.
At least some of the marijuana in the third package
was intended for Black. On February 26, 2009, the
agents arrested Amato as she was on her way to
Carrillo’s apartment to pick up the package. Amato
agreed to cooperate with the agents and set up a
meeting with Black to deliver the latest shipment to
him. Black did not want the entire package and he re-
quested that Amato deliver only two pounds to him.
The package contained more than nine pounds of mari-
juana. After making a series of phone calls to Black moni-
tored by the drug task force agents, Amato and the
agents proceeded to the agreed-upon meeting place, a
nearby Dollar Tree store. Other agents went to Black’s
home and followed him to the Dollar Tree store. When
Black arrived and pulled up along-side Amato’s car,
they arrested him. In court, Amato identified Thornton
as the man she knew as “Black.”
4 No. 10-2226
Thornton was driving a pickup truck at the time of
his arrest. From the bed of the pickup truck, the agents
recovered a second box which also contained foam
packing chips and what appeared to be marijuana resi-
due. The agents noted that, like the box Amato was
delivering that day, the box in the truck bed was lined
with linoleum tiles. Thornton agreed to talk to the
agents and the conversation was recorded. Excerpts
were later played for the jury. Thornton admitted in that
conversation that he had more marijuana and also am-
munition in his home.1 The agents then executed a
search warrant at Thornton’s home where they recovered
a duffle bag containing ten separate packages of mari-
juana weighing between 12.24 grams and 38.01 grams,
for a total of approximately eight and a half ounces. They
found a digital scale near the packets of marijuana. They
also recovered three different calibers of ammunition.
Thornton was charged with being a felon in posses-
sion of ammunition, possessing with intent to distribute
1
In support of this fact, the government cites a page of trial
transcript where the court allowed excerpts of the audio
recording of Thornton’s post-arrest meeting with the agents
to be played. The trial transcript does not contain the content
of the recorded conversation, and neither the recording nor
the transcript of the recording appear in the record on appeal.
The defendant does not contest the government’s portrayal of
the recorded conversation and so we will accept the facts as
given by the government in this instance. The government
is admonished to include in the record in the future all
relevant evidence and exhibits on which it intends to rely in
the appeal.
No. 10-2226 5
the marijuana found in his home, and attempting to
possess with intent to distribute the marijuana that
Amato was trying to deliver to him on the day of
his arrest. A magistrate judge handled all pre-trial pro-
ceedings. When Thornton’s lawyer filed a motion for
disclosure of any experts the government intended to
present at trial, the magistrate granted the motion but
set no deadline for the disclosure. See Fed. R. Crim. P.
16(a)(1)(G). Approximately ten days before the start of the
trial, the prosecutor, who had overlooked the court’s
disclosure order, sent the curriculum vitae (“CV”) of its
drug expert to defense counsel, along with a note stating
that she was providing the CV even though defense
counsel had not requested expert witness disclo-
sures. She also provided copies of expert reports from
the government’s drug expert, and from the firearms
expert who was to testify about the ammunition found
in Thornton’s home. The prosecutor was incorrect, of
course, as she candidly admitted in the district court, in
the government’s brief on appeal, and during oral argu-
ment. The defense had in fact requested expert dis-
closures and the court had ordered them provided, but
defense counsel chose not to correct the prosecutor’s
misimpression. He believed (correctly) that it was not
his duty to remind the government of its obligations
under the court’s orders. By the day the trial was sched-
uled to begin, defense counsel had seen the reports from
the drug and firearms experts and the CV of one of the
experts. The magistrate conducted jury selection pro-
ceedings and the trial began the next day in the
district court.
6 No. 10-2226
At the start of trial, Thornton moved to exclude all of
the government’s expert witnesses. Defense counsel
argued that even in the case of the government’s drug
expert, David Hannon, whose CV and report were pro-
vided before the trial, the CV and report were too thin
to establish the witness’s expertise. The court offered to
delay the trial so that the government could provide
adequate disclosures of any law enforcement officers
it intended to present as experts. The government
decided to forego presenting any experts other than
Hannon and ATF Agent William Baudhuin. Baudhuin’s
report had already been provided and the government
provided his CV to defense counsel on the morning of
trial. The court allowed a long lunch break for the
defense to review the materials, and also allowed
defense counsel to conduct voir dire of Baudhuin
during his testimony. The court overruled Thornton’s
objections to the adequacy of the materials presented
by the government, and asked defense counsel to submit
in writing the case law on which he was relying for the
proposition that the CVs or reports were inadequate.
Defense counsel did not submit anything in writing
but continued to make oral objections which the court
overruled.
Hannon testified that the substances found in
Thornton’s home and in the package that Amato was
delivering were in fact marijuana. Hannon described
for the jury the various tests that were performed to
make that determination. He also testified regarding the
weight of the marijuana found at Thornton’s home and
the weight of the marijuana in the package Amato was
delivering to Thornton on the day of his arrest. Baudhuin
No. 10-2226 7
then testified that the ammunition found in Thornton’s
home was manufactured outside the state of Wisconsin.
He based this testimony on the markings on the boxes
of ammunition as well as on the ammunition itself, per-
sonal experience with ammunition, and catalogs pro-
duced by the manufacturers and maintained by the
ATF. Thornton objected to Baudhuin’s testimony in part
because it relied on documents that could be con-
sidered hearsay. The court overruled the objection. The
government presented other law enforcement officers
as fact witnesses only, and also presented the testimony
of Carrillo and Amato. During cross-examination of
Amato, defense counsel sought to question Amato about
the extent of her involvement in selling marijuana to
persons other than Thornton. The court sustained the
government’s objections to this line of questioning as
irrelevant to the charges. The jury convicted Thornton
on all three counts and the court sentenced him to three
concurrent terms of twenty-one months’ imprisonment.
Thornton appeals.
II.
On appeal, Thornton contends that the court abused
its discretion when it limited his cross-examination of
Staci Amato. He maintains that the court erred in
allowing the testimony of Hannon and Baudhuin as
experts because their CVs and reports were too thin to
qualify them as experts. He also argues that the court
erred in allowing the expert testimony of ATF Agent
Baudhuin because the court failed to apply the Daubert
8 No. 10-2226
framework to his testimony and allowed him to rely on
hearsay documents that were created for the purposes
of prosecution rather than for scientific study. See
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).
A.
Thornton’s counsel wished to question Amato about
her full involvement with a drug conspiracy based in
Texas, the supplier of the marijuana in this case. He
sought to demonstrate that Thornton was not Amato’s
only buyer of marijuana, that only a portion of the third
shipment was intended for Thornton, and that Amato
was much more involved in the conspiracy than the
government was portraying her to be. Thornton also
wished to show that Amato had a motive to lie about how
much marijuana she delivered to him. The main issue
on the drug counts, Thornton contends, was whether
he intended to distribute the marijuana or whether
he simply possessed personal use amounts. Amato was
allowed to testify that this was her third delivery to
Thornton in a relatively short period of time. The amount
of money that exchanged hands was indicative of sub-
stantial amounts of marijuana in each delivery. Thornton
wished to show that Amato was motivated to lie about
making multiple, large deliveries to Thornton in order
to protect her larger customers who were actually
engaged in the distribution of marijuana.
The government objected to these questions based on
relevance. Thornton, the government contended, was not
charged with conspiracy; he was charged only with
No. 10-2226 9
attempt to possess with intent to distribute two pounds
of marijuana, and with possession with intent to dis-
tribute the marijuana in his home. On the monitored
calls with Amato, Thornton was heard asking for “two
books,” a term that Amato explained meant two pounds
of marijuana. The government never claimed that the
entire third package was destined for Thornton, only
that he had requested two pounds of the latest shipment.
The court ruled that Amato’s relative culpability as well
as her other sales or deliveries were irrelevant to the
charges against Thornton and refused to allow defense
counsel to pursue the topic on cross-examination of Amato.
We review the court’s decision to admit or exclude
evidence for abuse of discretion. United States v. Boone, 628
F.3d 927, 932 (7th Cir. 2010); United States v. Cooper, 591
F.3d 582, 590 (7th Cir.), cert. denied, 130 S. Ct. 3530 (2010);
United States v. Wescott, 576 F.3d 347, 355 (7th Cir. 2009),
cert. denied, 130 S. Ct. 1546 (2010). We will reverse and
order a new trial only if any evidentiary errors are not
harmless. Boone, 628 F.3d at 932; Cooper, 591 F.3d at 590;
Fed. R. Crim. P. 52(a). Thornton argues on appeal that
the evidence was relevant to demonstrate that Amato
lied about her level of involvement with the conspiracy
and, as previously noted, fingered Thornton as a major
buyer in order to protect her other customers. Thornton
contends that he purchased only personal use quantities
of marijuana, and Amato’s testimony made it appear
that he had purchased distribution level quantities on
three occasions during a three-month period.
Although we understand Thornton’s reason on appeal
for wishing to explore Amato’s full involvement in
10 No. 10-2226
the drug distribution conspiracy, at trial, Thornton’s ex-
planation in defense of this line of questioning was con-
siderably more murky. On appeal, counsel makes clear
that Thornton wished to demonstrate that Amato
had a motive to lie about the size and frequency of her
deliveries to Thornton in order to protect customers
who were truly purchasing distribution level quantities
of marijuana from her. But at trial, Thornton simply
argued that this line of questioning was relevant to
Amato’s general credibility. Thornton also argued at
trial that he wanted to demonstrate that the idea that the
entire third package was destined for him was a fallacy.
Finally, he wanted to establish that Amato was not an
“innocent duped woman” but rather was a drug-dealing
middle man, “knee deep” in the conspiracy and a much
more culpable player than Thornton. R. 18-2, Tr. at 55-56.
At trial, defense counsel never told the court that he
wanted to show that Amato was lying about the size and
frequency of deliveries to Thornton in order to protect
others who were larger purchasers. He did not tell
the court that he was attempting to demonstrate that
Thornton purchased only user level quantities and that
Amato lied about selling him more. His explanation in
support of this line of questioning instead appeared
limited to the third package.
The court was correct that the government had already
conceded that only two of the nine pounds in the
package were destined for Thornton. Thus the govern-
ment had already conceded the point that Thornton
claimed he wished to make with his cross-examination.
The jury was well aware that not all of the marijuana
No. 10-2226 11
was destined for Thornton and could easily infer
that Amato must have had other ways to dispose of the
additional seven pounds. Thus the evidence already
demonstrated the points Thornton wished to establish.
Without Thornton providing a clearer explanation of
the relevance of that line of questioning, we cannot say
that the district court abused its discretion in limiting
Amato’s cross-examination.
Had Thornton explained that he was also attacking
Amato’s credibility on the other two deliveries, then
his proposed questioning of Amato regarding other
customers or the scope of her involvement in the con-
spiracy may well have been relevant. But even if the
court had abused its discretion in limiting this cross-
examination, any error would have been harmless. In
determining whether an evidentiary error is harmless,
we consider whether, in the mind of the average juror,
the prosecution’s case would have been significantly
less persuasive had the improper evidence been ex-
cluded. Cooper, 591 F.3d at 590; United States v. Emerson,
501 F.3d 804, 813 (7th Cir. 2007); United States v. Owens,
424 F.3d 649, 656 (7th Cir. 2005); United States v. Eskridge,
164 F.3d 1042, 1044 (7th Cir. 1998). The prosecution’s case
for Thornton’s intent to distribute was quite strong.
With at least one of the other two packages, there was
strong physical evidence that Thornton had taken
delivery of another box of marijuana from Amato: the
oddly lined box that was found in the bed of Thornton’s
truck was very similar to the box Amato was seeking to
deliver to him on the day of his arrest. In light of that
second box, the two pounds that Thornton wanted
12 No. 10-2226
from the third package, and the individually packaged
eight and a half ounces found at his home next to a
scale, his defense of personal use was dubious at best.
Any error in limiting the cross-examination thus would
have been harmless.
On appeal, Thornton also claims that the court’s limita-
tions on his cross-examination of Amato violated his
Confrontation Clause rights. He did not, however, raise
his Confrontation Clause concerns in the district court
and so we review this forfeited argument for plain error.
United States v. James, 464 F.3d 699, 709 (7th Cir. 2006),
cert. denied, 129 S. Ct. 2035 (2009); United States v.
Stephenson, 557 F.3d 449 (7th Cir. 2009). Before we will
reverse for plain error based on an argument not made
at trial, we must find (1) that there is error, (2) that it is
plain, and (3) that it affects substantial rights. James, 464
F.3d at 709. “Once these three conditions have been
met, we may exercise our discretion to correct the error
if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” James, 464 F.3d at 709.
The defendant bears the burden of establishing that
the error affected substantial rights by demonstrating
that the outcome probably would have been different
without the error. Id. We have already determined that
the court’s decision to exclude this line of questioning
was not an abuse of discretion and likely would have
been harmless even if Thornton had made clear the
nature of his claim of relevance. Without a cogent ex-
planation to the district court regarding the true
relevance of this evidence to his defense that he
possessed only personal use amounts of marijuana,
No. 10-2226 13
the district court did not err in barring the line of ques-
tioning. And given that the exclusion of this line of ques-
tioning was harmless, Thornton falls far short of the
standard for plain error in any case. The court therefore
did not err in limiting the cross-examination of Amato.
B.
We next consider whether the court erred in allowing
the expert testimony of the drug expert David Hannon
and ATF Agent Baudhuin. Thornton continues to argue
that the CVs and reports that the government provided
for these witnesses were inadequate. Thornton also con-
tends that the court failed to apply the Daubert frame-
work to Agent Baudhuin’s testimony and allowed him
to rely on hearsay documents that were created for the
purposes of prosecution rather than for scientific study.
According to Thornton, Baudhuin’s reliance on docu-
ments maintained by the ATF for the purposes of pros-
ecution violated Daubert and prevented him from con-
ducting an adequate cross-examination. Thornton
frames this claim as a violation of the Confrontation
Clause.
We note first that, after the district court overruled
Thornton’s oral objections to the adequacy of the gov-
ernment’s Rule 16(a)(1)(G) submissions, the district
judge directed Thornton to “write out the case law” on
which he was basing his objection so that she could
review it. R. 18-2, Tr. at 66-67. Thornton did not respond
to the district court’s request. He now contends that the
court erred by simply overruling his objections to the
14 No. 10-2226
Rule 16 materials without assessing under Daubert
whether Hannon or Baudhuin qualified as experts. Thorn-
ton did not include the allegedly objectionable Rule 16
materials in the record on appeal. And his argument on
appeal is undeveloped as was the objection he made in
the district court. Undeveloped and unsupported argu-
ments may be deemed waived. Wescott, 576 F.3d at
356; United States v. Tockes, 530 F.3d 628, 633 (7th Cir.
2008). However, even were we to address the argument
on its merits, we would conclude that the district
court did not abuse its discretion in overruling
the objection to the Rule 16 materials. We will assume
for the sake of argument that the government’s dis-
closures were inadequate even though the state of the
record does not allow us to assess the disclosures. Even
if the disclosures were inadequate, Thornton would still
be required to establish that any Rule 16 violation ham-
pered his opportunity to prepare a defense or that the
violation substantially influenced the jury. United States
v. White, 582 F.3d 787, 804 (7th Cir. 2009), cert. denied, 130
S. Ct. 1542 (2010). See also United States v. Stevens, 380
F.3d 1021, 1026 (7th Cir. 2004) (holding that a Rule 16
error will be reversed only for abuse of discretion that
is prejudicial to the substantial rights of the defendant).
Thornton has not even attempted to establish prejudice
from the court’s decision to overrule his Rule 16 objec-
tions. Thornton has not demonstrated, for example, that
he was unduly surprised or lacked an adequate oppor-
tunity to prepare a defense. Stevens, 380 F.3d at 1026.
Moreover, when the government violates Rule 16, the
remedy is not necessarily the exclusion of the expert
No. 10-2226 15
evidence. Id. Instead, the district court may adopt a
number of different remedies, including granting a con-
tinuance. Id. The court offered a continuance at one
point in the discussion and Thornton did not accept
the court’s offer, instead apparently choosing to go
forward with the information provided.
We turn finally to Thornton’s claim that Agent
Baudhuin’s testimony violated the Confrontation Clause
because he was allowed to testify that the ammunition
was manufactured outside of Wisconsin based on
materials kept by the ATF for the purposes of prosecu-
tion. We review evidentiary rulings implicating the de-
fendant’s Sixth Amendment confrontation rights de novo.
United States v. Turner, 591 F.3d 928, 932 (7th Cir. 2010).
If any error is found, an otherwise valid conviction
should not be set aside if the constitutional error was
harmless beyond a reasonable doubt. Id. Thornton’s
main objection is that Agent Baudhuin’s testimony was
based on written materials kept by the ATF for the pur-
poses of prosecution, not on information generally
relied upon by experts in the field.
But Thornton’s argument mischaracterizes Agent
Baudhuin’s testimony regarding the place of manu-
facture of the ammunition. Agent Baudhuin testified
that he determined the place of manufacture by ex-
amining the ammunition itself, matching the bullets to
the boxes in which they were found, and then deter-
mining where the ammunition was manufactured based
on the information on the boxes (at least one of which
actually listed the place of manufacture), his personal
16 No. 10-2226
experience with ammunition, his ATF training, and
catalogs of information kept by the ATF. Agent
Baudhuin testified that the information kept by the ATF
came from the manufacturers of the ammunition. Agent
Baudhuin’s reliance in part on written materials pro-
vided by ammunition manufacturers and kept by the
ATF for the purposes of prosecution in no way vio-
lates Thornton’s Confrontation Clause rights. Although
the ATF kept the manufacturers’ written materials for
the purposes of aiding prosecutions, there was no in-
dication that the manufacturers created this documenta-
tion of their products for that same purpose. “Business
and public records are generally admissible absent con-
frontation not because they qualify under an exception
to the hearsay rules, but because—having been created
for the administration of an entity’s affairs and not for
the purpose of establishing or proving some fact at trial—
they are not testimonial.” Melendez-Diaz v. Massachusetts,
129 S. Ct. 2527, 2539-40 (2009). Moreover, “[w]hen an
expert testifies, ‘the facts or data need not be admissible
in evidence in order for the opinion or inference to be
admitted’ ” if those facts or data are of a type rea-
sonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject. United
States v. Moon, 512 F.3d 359, 361 (7th Cir. 2008) (quoting
Fed. R. Evid. 703). Manufacturers’ materials which
identify the place that a product was manufactured fall
within this category of facts or data. United States v.
Ware, 914 F.2d 997, 1003 (7th Cir. 1990) (experts in the
field of firearms identification reasonably rely on
markings on the weapon, ATF publications and lists,
No. 10-2226 17
and firearms trade books, magazines and reference mate-
rials in determining the place of manufacture of a par-
ticular firearm). See also United States v. Floyd, 281 F.3d
1346, 1349 (11th Cir. 2002) (allowing an ATF firearms
expert to testify to the place of manufacture of ammuni-
tion based on an examination of the ammunition,
reference to a manufacturer’s catalog, and consultation
with an ATF technical adviser); United States v. Gresham,
118 F.3d 258, 266-67 (5th Cir. 1997) (affirming the admis-
sion of expert opinions on the place of manufacture of
bomb components where the opinions were based on
discussions with the manufacturers, corporate literature
and reference materials maintained by the ATF, studies
of distinctive markings on the products, and the ex-
perts’ personal experience in law enforcement). The
court did not err in allowing Agent Baudhuin to testify
regarding the place of manufacture of the ammunition
found in Thornton’s home.
III.
The district court did not err in limiting the cross-exami-
nation of Staci Amato. Nor did the court err in al-
lowing Hannon and Agent Baudhuin to testify as experts,
or in permitting Agent Baudhuin to testify, based in
part on his review of manufacturers’ materials main-
tained by the ATF, that the ammunition was manu-
factured in states other than Wisconsin.
A FFIRMED.
6-16-11