United States of America v. Zebulon Xavier Marzette

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1646
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
Z EBULON X AVIER M ARZETTE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:21-cr-00005-DRL-MGG-1 — Damon R. Leichty, Judge.
____________________
A RGUED F EBRUARY 23, 2024 — DECIDED J ULY 1, 2024
____________________
Before S CUDDER , JACKSON -A KIWUMI , and PRYOR , Circuit
Judges.
S CUDDER , Circuit Judge. Zebulon Marzette appeals his con-
viction for possessing a firearm as a felon, challenging the dis-
trict court’s admission of two pieces of evidence at trial. Mar-
zette preserved one of his challenges—a chain-of-custody
challenge to DNA evidence—but not the other—a hearsay
challenge to police testimony about the content of a 911 call.
In the end, the government’s chain-of-custody evidence

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2 No. 23-1646
sufficed and, under the demanding standards of plain error
review, Marzette fails to persuade us that any error allowing
the 911 caller’s statements to come in through police testi-
mony prejudiced him at trial. So we affirm.
I
A
The trial record supplies the operative facts.
At about 5:30 p.m. on September 20, 2019, a 911 dispatcher
received a call reporting an incident at the LaSalle Park
Homes apartment complex on Falcon Street in South Bend,
Indiana. The caller stated that there were people pounding on
her door and waving guns. The dispatcher relayed the infor-
mation to four officers—Sergeant Miranda Baker, Officer
Bryan Watkins, Officer Chris Butler, and Officer Joshua Law-
son. Sergeant Baker and Officer Watkins responded directly
to the apartment complex to investigate the disturbance,
while Officers Butler and Lawson checked out the perimeter.
The responding officers encountered a dynamic environ-
ment, complicated by the simultaneous occurrence of several
events. Sergeant Baker and Officer Watkins arrived at the
complex looking for armed suspects. The officers described
the scene as “chaotic,” with several people outside yelling at
them that “the people with guns” ran down an alleyway lead-
ing towards the backside of the building. After first ensuring
no one in front of the building was armed, Sergeant Baker
then headed for the alleyway in search of the people who
caused the reported disturbance.
As Sergeant Baker swept the complex’s surroundings, two
other events unfolded in parallel. Officers Butler and Law-
son—who drove directly to the perimeter of the complex—

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No. 23-1646 3
pulled over (for reasons unclear from the trial record) a Blue
Chevy Malibu that they saw driving away from the backside
of the building. Around the same time, Zebulon Marzette left
the apartment complex on foot and walked to the location of
the car stop. What happened next is unclear. At some point,
the officers handcuffed Marzette and placed him in the back
of the squad car. We cannot tell what prompted that action.
We are not required to answer this question, however, be-
cause Marzette does not challenge any aspect of his detention
on appeal.
Later—whether before or after detaining Marzette we can-
not say—Officers Butler and Lawson radioed for assistance.
This led Sergeant Baker and Officer Watkins to head in the
direction of the car stop. By the time they arrived, the Malibu
had been stopped, its passenger-side door was open, and one
passenger stood outside of the car while the driver remained
inside. According to Officer Watkins, a third person—Mar-
zette—was handcuffed in the back of Officer Lawson’s car.
In the course of these events, Marzette asked to speak with
Sergeant Baker and proceeded to tell her that his sister had
called him to the LaSalle Park complex because “people were
at her apartment waving guns.” He stated that he had come
to her apartment to help his sister.
While Marzette was talking to Sergeant Baker, Officer
Watkins was gathering information from the Malibu’s occu-
pants. The driver did not have any identification on her, and
initially gave Officer Watkins a fake name and birth date.
Through continued questioning Officer Watkins eventually
learned that she was Shawnta Rector, Marzette’s girlfriend.
During the course of these interactions, Officer Watkins no-
ticed through the open passenger door a softball-sized bag of

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4 No. 23-1646
a “green leafy substance” next to the passenger seat. This led
Officer Watkins to arrest Rector.
As Rector was being handcuffed, the passenger standing
outside of the Malibu directed Officer Watkins’s attention to
a gun in a green purse resting on the back seat of the car. Upon
looking inside, Officer Watkins immediately saw the gun sit-
ting on the top of the purse as if someone had “recently
placed” it there. The passenger insisted that the purse be-
longed to Rector. Rector then confirmed that the purse was
hers and claimed ownership of the gun as well.
As Officer Watkins spoke with Rector, Sergeant Baker
questioned Marzette. Marzette was within earshot of Officer
Watkins and Rector and frequently diverted his attention
away from Sergeant Baker to Rector’s conversation with Of-
ficer Watkins. Marzette urged Sergeant Baker not to tow the
Malibu. He explained that he wanted to drive the car away
because his brother had rented it from Hertz and listed Mar-
zette’s name on the rental agreement. During this exchange
about the Malibu, Marzette apparently saw the gun in the
back seat of the Malibu. He then told Sergeant Baker that he
was a felon and that “he did not touch the gun so his DNA
would not be on it.” Marzette does not challenge the admis-
sion of these statements on appeal.
Marzette’s statement proved inaccurate. The officers
seized the gun and had it tested for DNA evidence. The anal-
ysis revealed the presence of Marzette’s DNA on the trigger.
A federal indictment followed, charging Marzette with one
count of felony possession of a firearm on or about September
20, 2019, in violation of 18 U.S.C. § 922(g)(1). In time the case
proceeded to a jury trial.

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No. 23-1646 5
B
The trial was all about whether Marzette possessed the
gun found in the backseat of the Malibu on September 20,
2019. Over no objection from Marzette, the government’s first
two witnesses described the 911 dispatch call to the apartment
complex, telling the jury that they responded to a report of
“people pounding at [the caller’s door] waving guns.” The
four officers went on to explain how they handled the traffic
stop, painting a clear picture of the facts already described.
With that background in place, the government then
turned to forensic evidence to show that Marzette possessed
the gun at some point prior to the police recovering it from
the Malibu. A forensic DNA analyst testified that the DNA of
three people was found on the gun and that it was highly
likely that Rector and Marzette were two of those people. He
opined that it was at least one trillion times more likely that
the DNA originated from Marzette, Rector, and an unidenti-
fied third person than from three random strangers. Even
more specifically, the analyst stated that 54% of the DNA on
the trigger belonged to Marzette, suggesting that he had
touched the gun the most or at least most recently.
Several witnesses testified to the chain of custody the gun
followed from the traffic stop to the forensic laboratory. Mar-
zette objected to the introduction of this DNA-related evi-
dence, arguing that each custodian in the gun’s chain of cus-
tody needed to come to open court and testify to prove that
the gun and the DNA evidence were authentic and reliable.
The district court disagreed and overruled Marzette’s objec-
tion, admitting the DNA-related testimony and testing results
into evidence upon finding that the government laid the
proper foundation for its admission.

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6 No. 23-1646
In its closing argument, the government urged the jury to
find that the evidence proved Marzette’s constructive posses-
sion of the firearm on September 20, 2019 beyond a reasonable
doubt. The government contended that the evidence lent itself
to the straightforward conclusions about what happened that
afternoon: the same day the officers received a dispatch call
of “people pounding at [the caller’s door] waving guns,” Mar-
zette drove the Malibu to his sister’s apartment with the gun
in the car and tried to protect her from the violent altercation.
Then, when he heard the officers coming, he left the gun in
the car and told his girlfriend to drive away. But once he no-
ticed that she was being pulled over, Marzette panicked,
walked to the traffic stop, and made statements to Sergeant
Baker connecting himself to the disturbance at the apartment
and the gun found in the Malibu’s backseat. In short, Marzette
“injected” himself into the center of the investigation.
Marzette pressed a different perspective of the evidence.
In his closing argument, he emphasized that no witnesses,
photographs, or videos tied him to the gun. Even the DNA
evidence was thin—found only on the trigger, and people do
not wield guns strictly by the trigger. He asked the jury to ac-
quit him because the evidence did not prove that he possessed
the gun, directly or constructively, on September 20, 2019.
The jury returned a guilty verdict and the district court
later sentenced Marzette to 36 months’ imprisonment. He
now appeals.
II
Marzette asks us to resolve two—and only two—issues on
appeal. We must first determine whether the district court
abused its discretion when it admitted the DNA evidence

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No. 23-1646 7
from the gun over Marzette’s chain-of-custody objection. Sec-
ond, we must resolve whether the district court committed
plain error when it admitted Sergeant Baker’s hearsay testi-
mony about the 911 dispatch call. We address each contention
in turn.
A
The district court did not abuse its discretion in rejecting
Marzette’s chain-of-custody objection. Chain of custody fo-
cuses on the sequence and integrity of the movement of evi-
dence, from the time of its recovery to its presentation in
court. See United States v. Craig, 573 F.2d 455, 478 (7th Cir.
1977). When the demonstrated chain of custody is “substan-
tially complete” and there is no indication of evidence tam-
pering or wrongdoing by those handling the evidence, we up-
hold the admission at trial. See United States v. Lott, 854 F.2d
244, 250–51 (7th Cir. 1988).
The government’s chain-of-custody testimony cleared this
low bar. Officer Watkins told the jury that he put on gloves,
removed the gun from Rector’s purse, then handed the fire-
arm to another officer for evidence packaging and processing.
An evidence specialist with the South Bend Police Depart-
ment then testified to swabbing the inside of Marzette’s cheek
for DNA and providing that sample to the forensic DNA an-
alyst. The analyst testified that Kelly Gorny, a forensics spe-
cialist who did not testify, swabbed the gun and tested that
DNA against the sample collected from Marzette. Through-
out their testimony, the officers and DNA specialists identi-
fied the appropriate person’s signatures on the packaging and
evidence logs at each link in the movement and processing of
the evidence.

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8 No. 23-1646
Marzette objected, contending that the evidence was un-
reliable because all officers who processed the DNA needed
to testify to “support a finding that the item is what the [gov-
ernment] claims it is,” thus establishing a complete chain of
custody. Fed R. Evid. 901(a). The district court disagreed,
finding that the government provided a substantially com-
plete chain of custody.
Marzette faces an uphill battle on appeal. Establishing a
complete chain of custody is a low threshold. See Lott, 854
F.2d at 250–51. Even more, when the government introduces
physical evidence in a criminal case, we apply a “presump-
tion of regularity”—by presuming that the officials who han-
dled the evidence sufficiently followed standard procedures
to ensure a proper chain of custody. United States v. Prieto, 549
F.3d 513, 524 (7th Cir. 2008) (internal quotation marks omit-
ted). Missing links in the chain, if any, go to the weight a jury
affords the evidence, not to its admissibility. See id. at 524–25.
The chain-of-custody evidence presented by the govern-
ment satisfied these standards. Among its witnesses, the gov-
ernment presented an unbroken chain of custody. The testi-
mony showed that from the moment the police saw the gun
on top of Rector’s purse in the backseat of the Malibu to the
final stages of DNA processing, the evidence passed between
officers according to standard protocols. Nothing at trial
called the integrity of the chain of custody into question, nor
did Marzette impeach this evidence through cross examina-
tion.
Marzette disagrees, suggesting that the government
needed to call each custodian involved in the chain of cus-
tody. But the presumption of regularity applies even if the
government does not call each custodian in the chain of

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No. 23-1646 9
custody to testify about their discrete role in processing evi-
dence. See United States v. Turner, 591 F.3d 928, 935 (7th Cir.
2010), vacated on other grounds, 567 U.S. 947 (2012). That is es-
pecially true where, as here, each officer identified the custo-
dian’s signatures on the custody seals and vouched for their
accuracy. See Fed. R. Evid. 901(b)(2); United States v. Tipton,
964 F.2d 650, 655 (7th Cir. 1992). Absent any evidence of tam-
pering, the government’s chain-of-custody evidence receives
a presumption of regularity. On this record, we cannot find
that the district court abused its discretion.
B
That brings us to Marzette’s challenge to the admissibility
of Sergeant Baker’s testimony of the 911 dispatch call describ-
ing the “people pounding at [the caller’s door] waving guns.”
In Marzette’s view, the government offered this testimony for
the impermissible hearsay purpose of proving its truth—that
in fact people pounded on an apartment door waving guns.
See Fed. R. Evid. 802. Marzette concedes that he did not object
to this testimony and therefore that our review is only for
plain error. See Puckett v. United States, 556 U.S. 129, 134 (2009)
(“If a litigant believes that an error has occurred … during a
federal judicial proceeding, he must object in order to pre-
serve the issue.”).
Federal Rule of Criminal Procedure 52(b) provides us with
“a limited power to correct errors that were forfeited because
not timely raised in district court.” United States v. Olano, 507
U.S. 725, 73 (1993). On plain error review, Marzette must
demonstrate that the admission of Sergeant Baker’s statement
was an error that is clear, and not subject to reasonable dis-
pute. See Puckett, 556 U.S. at 135. Next, Marzette must show
that the admission affected his substantial rights, meaning it

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10 No. 23-1646
affected the outcome of his trial. See id. Finally, if these criteria
are satisfied, we have the discretion to remedy the error only
if it “seriously affect[ed] the fairness, integrity, or public rep-
utation of judicial proceedings.” Id. (citing United States v. At-
kinson, 297 U.S. 157, 160 (1936)).
The parties devoted substantial portions of their briefs to
debating whether the first two criteria were met—whether al-
lowing Sergeant Baker to recount the content of the 911
caller’s statement was error, and, if so, whether the error was
plain. Marzette presses the point on appeal because of the em-
phasis that the government placed on the 911 dispatch call at
trial and implicated him in the disturbance at the apartment
complex. The government, on the other hand, sees the state-
ment as properly admitted for the non-hearsay purpose of
merely explaining why the police officers were at the apart-
ment complex in the first place. In its view, the 911 call pro-
vides helpful context for the jury’s understanding of why the
police pulled over the Chevy Malibu in the first place.
Both arguments have something to say for themselves,
and, in the end, we do not need to resolve whether the district
court committed error in admitting the 911 call through the
backdoor of Sergeant Baker’s testimony. Even if we assume
the admission was error, we cannot conclude that Sergeant
Baker’s testimony about the 911 call affected the outcome of
Marzette’s trial. See Olano, 507 U.S. at 732–34.
Marzette’s argument on appeal is very limited. He is not
contesting that the government’s evidence sufficed to show
that he possessed the gun recovered from the backseat of the
Malibu. Rather, his contention is that the district court’s al-
lowing Sergeant Baker to recount the 911 caller’s request for
help reflected such a substantial evidentiary error as to affect

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No. 23-1646 11
the outcome of the trial and, even more, to seriously call into
question the fairness and integrity of his trial. Marzette sees
the 911 call as all but putting himself in the middle of armed
confrontation at the LaSalle Park Homes complex on the
evening of September 20, 2019.
We disagree. The jury had before it ample evidence show-
ing that Marzette put himself in the middle of everything that
led both to the police recovering the gun from the Malibu and
the jury finding that he constructively possessed the gun. Yes,
the jury heard the 911 caller’s report, but it also heard Mar-
zette’s own statement that he showed up at the apartment
complex because his sister had told him that people were out-
side her building waving guns. Marzette then made things
worse for himself by continuing to make ill-advised, volun-
tary statements to the police. He tied himself to the Malibu by
walking to the location of the car stop and then telling the po-
lice that he wanted to drive the car home because his name
was on the rental agreement. And, going even further, he then
told the police that they would not find his DNA on the gun—
a statement that proved false.
All of this allowed the jury to find beyond any reasonable
doubt that Marzette constructively possessed the gun recov-
ered from the Malibu. That finding easily follows, the jury
could have concluded, from the clear inferences available
from the evidence: Marzette responded to his sister’s call for
help at her apartment by driving (or riding) there in the Mal-
ibu with his gun with him inside the car. Why take the gun?
Because, as the jury could have determined, he may have
needed it in confronting the armed contingent outside his sis-
ter’s apartment.

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12 No. 23-1646
Even if the district court should not have allowed Sergeant
Baker to recount the 911 dispatch report, the jury had to look
no further than Marzette himself and the results of the DNA
testing to connect enough dots to return a guilty verdict. So
even if it was an error to admit the dispatch call, the govern-
ment could have presented effectively the same case with its
exclusion. See United States v. Marchan, 935 F.3d 540, 546 (7th
Cir. 2019) (holding that cumulative hearsay statements are
harmless). Marzette thus failed to meet the demanding stand-
ards of plain error review. See Puckett, 556 U.S. at 135.
Based on the evidence before the jury, allowing Marzette’s
conviction to stand would not so detrimentally affect his
rights as to call the entire fairness and integrity of the trial into
question. We have little choice here but to AFFIRM.

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