U.S. v. Cardenas

• Decision Date: 11 January 1989
• Docket Number: No. 87-2655,87-2655
• Citation: 864 F.2d 1528
• Parties: 27 Fed. R. Evid. Serv. 658 UNITED STATES of America, Plaintiff-Appellee, v. Martin CARDENAS, a/k/a Raul Ramirez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1528

864 F.2d 1528

27 Fed. R. Evid. Serv. 658

UNITED STATES of America, Plaintiff-Appellee, v. Martin CARDENAS, a/k/a Raul Ramirez, Defendant-Appellant.

No. 87-2655.

United States Court of Appeals Tenth Circuit.

Jan. 11, 1989.

Rehearing Denied March 17, 1989.

Paula Burnett, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Rhonda P. Backinoff, Asst. U.S. Atty., on the brief), Albuquerque, N.M., for plaintiff-appellee.

Frances Smylie Brown, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender with her on the brief), Denver, Colo., for defendant-appellant.

Before HOLLOWAY, Chief Judge, BRORBY, Circuit Judge, and ANDERSON, ^* District Judge.

BRORBY, Circuit Judge.

Defendants Martin Cardenas and Julian Rivera-Chacon were tried jointly in the United States District Court for the District of New Mexico. A jury rendered guilty verdicts on all counts in the indictments: conspiracy to distribute cocaine in violation of 21 U.S.C.A. Sec. 846 (1981); possession with intent to distribute cocaine in violation of 21 U.S.C.A. Sec. 841(a)(1) (1981); aiding and abetting in violation of 18 U.S.C.A. Sec. 2 (1969); possession of a gun by an illegal alien in violation of 18 U.S.C.A. Sec. 922(g)(5) (Supp.1988); shipping, transporting, or receiving a firearm with intent to commit an offense punishable by imprisonment for a term exceeding one year in violation of 18 U.S.C.A. Sec. 924(b) (1976); and carrying a gun during a drug trafficking crime in violation of 18 U.S.C.A. Sec. 924(c) (Supp.1988).

Defendant Cardenas seeks reversal of the cocaine convictions, alleging an inadequate foundation for the admission of the cocaine based on the incomplete chain of custody and material alteration of the cocaine. In addition, Cardenas appeals his convictions under 18 U.S.C.A. Sec. 922(g)(5) and 18 U.S.C.A. Sec. 924(b) alleging insufficiency of evidence of possession of a firearm, and the erroneous definition of "carrying" under 18 U.S.C.A. Sec. 924(c) used by the trial court.

A. FACTS

On July 9, 1987, Martin Cardenas and Julian Rivera-Chacon were arrested in the underground parking lot in the area of the (then) Regent Hotel located in Albuquerque, New Mexico. Lawrence Villas also was arrested and indicted along with Rivera-Chacon and Cardenas. Villas entered into a plea agreement with the government and pled guilty to reduced charges in exchange for testifying against Cardenas and Rivera-Chacon. The evidence produced at trial culminating in guilty verdicts is as follows.

For several months prior to the arrests, Villas was under investigation by the Socorro Police Department for drug trafficking. Ray Mares, one of its law enforcement officers, supplied Villas' name to Lieutenant Lundy of the Bernalillo County Sheriff's Department. Lieutenant Lundy, in turn, enlisted the aid of Greg Gunter and Eddie Montoya, also of the Bernalillo County Sheriff's Department, in the investigation of Villas.

At trial, Villas testified that Rivera-Chacon was his sole source of cocaine and that they had planned the drug transaction. On July 9, Rivera-Chacon and Cardenas were in the parking lot to sell cocaine to Gunter and Montoya and that he, Villas, was merely the go-between. Villas testified that he approached Cardenas' vehicle as planned; that Rivera-Chacon gave Villas a sample of the cocaine which was wrapped in currency for Gunter to try prior to the sale; that Villas took the sample up to the hotel room; and that Gunter and Montoya simulated snorting the cocaine. Villas further testified that Gunter, satisfied that the "coke" was good, left the hotel with him to complete the transaction in the parking lot. They looked for Cardenas' truck, but it had moved. They got into Villas' truck to try to find Cardenas and Rivera-Chacon. Ultimately, the operation concluded when Officer Ruben Garcia's vehicle blocked-in two vehicles. The first vehicle contained Villas and undercover Officer Gunter. The second vehicle contained Cardenas as driver and Rivera-Chacon as passenger. Villas, Cardenas and Rivera-Chacon were all arrested at the scene.

Officers Montoya, Gunter and Garcia of the Bernalillo Police Department, Officer Mares of the Socorro County Sheriff's Office, and Special Agent Ortiz of the United States Bureau of Alcohol, Firearms and Tobacco, were all present. Lieutenant Lundy, searching Rivera-Chacon, found a gun hidden in his boot. Officer Garcia, conducting a full inventory search of Cardenas' truck, discovered a .25 caliber handgun behind a potato chip bag in an open dashboard compartment on the driver's side of the car; the open compartment was inches from the steering wheel, within an effortless reach of Cardenas. Under the front seat, Garcia found a brown paper bag containing a plastic sack with a white substance inside. Garcia handed the brown paper bag containing the plastic sack, and the .25 caliber handgun to Officer Gunter. From this moment, Officer Gunter had sole physical custody of this evidence.

Officer Mares testified that Gunter showed him a plastic sack containing a white substance. Mares was too busy to inspect the substance. He testified that he did not see a brown paper bag, nor did he see Garcia give the substance to Gunter. In addition, at trial Officer Mares could not absolutely identify the plastic sack containing the white substance as the plastic sack that Gunter displayed at the scene; however, he did state that the plastic sack exhibited at trial in every respect resembled the sack displayed to him at the arrest. No field test was performed on the substance. Officer Garcia accompanied Gunter to the station with the seized evidence. At the station, Mares assisted Gunter in tagging the evidence. Gunter then, unobserved, carried the sealed evidence bags to the evidence room on the third floor of the station. The evidence technician testified that no brown paper bag was submitted to her; that she is obligated to accept any evidence given her; and that ultimately the police officers decide what is evidence and what is not.

Since Officer Gunter committed suicide one month prior to the trial, he was not available to testify.

I.

Defendant alleges that the plastic sack containing cocaine was improperly admitted into evidence on two bases: (1) the government failed to provide a sufficient chain of custody; and (2) there was a material alteration of the evidence. We disagree.

The standard of review of an appellate court when deciding the proper admission or exclusion of evidence at trial is abuse of discretion, defined in this circuit as an arbitrary, capricious, whimsical, or manifestly unreasonable judgment. United States v. Wright, 826 F.2d 938, 943 (10th Cir.1987).

Controlling the admission or exclusion of real evidence at trial, Fed.R.Evid. Rule 901(a) provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." The rationale is that in the absence of showing that the evidence is what its proponent alleges, the evidence is simply irrelevant. E. Morgan, Basic Problems of State and Federal Evidence, 327 (5th ed.1976); see also, 7 J. Wigmore, Wigmore on Evidence Sec. 2129 at 703 (Chadbourn rev.1978) (authenticity is an "inherent logical necessity").

The condition precedent to the admission of real evidence is met by providing the proper foundation. If the proffered evidence is unique, readily identifiable and relatively resistant to change, the foundation need only consist of testimony that the evidence is what its proponent claims. E. Cleary, McCormick on Evidence Sec. 212 at 667 (3d ed.1984). However, when the evidence, as here, is not readily identifiable and is susceptible to alteration by tampering or contamination, the trial court requires a more stringent foundation "entailing a 'chain of custody' of the item with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with." (Emphasis added.) Id. at 668; accord United States v. Luna, 585 F.2d 1, 6 (1st Cir.), cert. denied, 439 U.S. 852, 99 S.Ct. 160, 58 L.Ed.2d 157 (1978); Gallego v. United States, 276 F.2d 914, 917 (9th Cir.1960).

This circuit's controlling test for the admission and exclusion of real evidence under Fed.R.Evid. Rule 901(a) was clearly enunciated in Reed v. United States, 377 F.2d 891, 893 (10th Cir.1967) (citing Brewer v. United States, 353 F.2d 260 (8th Cir.1965)). Before admitting or excluding real evidence, the trial court must consider the nature of the evidence, and the surrounding circumstances, including presentation, custody and probability of tampering or alteration. If, after considering these factors, the trial court determines that the evidence is substantially in the same condition as when the crime was committed, the court may admit it. Reed, 377 F.2d at 893.

The cocaine, not uniquely identifiable, requires a sufficient chain of custody to support its admission. However, the chain of custody need not be perfect for the evidence to be admissible. United States v. Mora, 845 F.2d 233, 236-37 (10th Cir.). cert. denied, --- U.S. ----, 109 S.Ct. 562, 102 L.Ed.2d 587 (1988); United States v. Lepanto, 817 F.2d 1463, 1466-67 (10th Cir.1987). The well-established rule in this circuit is that deficiencies in the chain of custody go to the weight of the evidence, not its admissibility; once admitted, the jury evaluates the defects and, based on its evaluation, may accept or disregard the evidence. United States v. Brandon, 847 F.2d 625, 630 (10th Cir.) cert. denied, --- U.S. ----, 109 S.Ct. 510, 102 L.Ed.2d 545 (1988); Mora, 845 F.2d at 237 (citing United States v. Gay, 774 F.2d 368 (10th Cir.1985)); United States v. Drumright, 534 F.2d 1383, 1385 (10th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 385, 50 L.Ed.2d 327 (1976).

On appeal, defendant alleges that there...