U.S. v. Howard-Arias

• Decision Date: 01 June 1982
• Docket Number: A,HOWARD-ARIA,No. 81-5153,81-5153
• Citation: 679 F.2d 363
• Parties: 10 Fed. R. Evid. Serv. 1218 UNITED STATES of America, Appellee, v. Edmundoppellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 363

679 F.2d 363

10 Fed. R. Evid. Serv. 1218

UNITED STATES of America, Appellee, v. Edmundo HOWARD-ARIAS, Appellant.

No. 81-5153.

United States Court of Appeals Fourth Circuit.

Argued Jan. 8, 1982.

Decided June 1, 1982.

John C. Lowe, Charlottesville, Va. (Lowe, Gordon, Jacobs & Snook, Ltd., Charlottesville, Va., on brief), for appellant.

Raymond A. Jackson, Asst. U. S. Atty., Norfolk, Va., Laura Everhart, Third Year Law Student (Justin W. Williams, U. S. Atty., Alexandria, Va., on brief), for appellee.

Before HAYNSWORTH, Senior Circuit Judge, and BUTZNER and SPROUSE, Circuit Judges.

SPROUSE, Circuit Judge:

The appellant, Edmundo Howard-Arias was convicted after a jury trial of possession of marijuana on the high seas with intent to distribute it and of possession with intent to import it into the United States under 21 U.S.C. §§ 955a(a) and 955a(d). ¹ He was sentenced to consecutive terms of imprisonment, and separate special parole terms were imposed on each count. His appeal challenges certain evidentiary rulings, procedures used during the sentencing phase of his trial, and his multiple convictions and sentences, contending that they violate the double jeopardy clause of the fifth amendment. Finding no merit to his arguments, we affirm.

I.

Appellant was one of several crew members of the fishing trawler "Don Frank" rescued when their ship became disabled sixty miles off the Virginia coast on December 29, 1980. They were taken aboard an Italian ship, and shortly thereafter units of the United States Coast Guard arrived on the scene. An officer from one of the Coast Guard cutters boarded the wreckage of the "Don Frank" and discovered a large quantity of what was later determined to be marijuana. The Coast Guard cutter "Cherokee" attempted to tow the wreckage to shore, but thirty miles from Norfolk, Virginia, the "Don Frank" foundered and sank. All was not lost however, as approximately 240 bales of the marijuana from the "Don Frank" were salvaged. Upon return to port, the seized material was turned over to Coast Guard and Drug Enforcement Administration (DEA) investigators for testing and storage.

The appellant was indicted on three counts: possession of marijuana with the intent to distribute it while on a vessel subject to the jurisdiction of the United States, conspiracy to distribute marijuana, and possession of marijuana with intent to import it into the United States. Prior to trial, the conspiracy count was dismissed. Howard-Arias was convicted on the remaining two counts and sentenced on each count to a five-year term of imprisonment, a special parole term of three years and a fine of $10,000, the terms of imprisonment to run consecutively.

II.

The appellant's claims regarding the admission of certain evidence need not long detain us. His first argument is that the government failed to establish a continuous "chain of custody" for the marijuana from the time of its seizure on the seas off the Virginia coast until introduction at trial. It is conceded that one of the DEA agents involved in the transfer and testing of the bales and samples drawn from them did not testify at trial. The Coast Guard officer who seized and tested the marijuana, the officer to whom he surrendered it the DEA custodian at Norfolk, and the DEA chemist all appeared as witnesses. The special agent who received the marijuana from the Coast Guard for transit to the DEA in Norfolk did not.

The "chain of custody" rule is but a variation of the principle that real evidence must be authenticated prior to its admission into evidence. See Fed.R.Evid. 901; McCormick, Handbook on the Law of Evidence § 213 (2d ed. E. Cleary ed. 1972). The purpose of this threshold requirement is to establish that the item to be introduced, i.e., marijuana, is what it purports to be, i.e., marijuana seized from the "Don Frank." Therefore, the ultimate question is whether the authentication testimony was sufficiently complete so as to convince the court that it is improbable that the original item had been exchanged with another or otherwise tampered with. United States v. Brewer, 630 F.2d 795 (10th Cir. 1980). Contrary to the appellant's assertion, precision in developing the "chain of custody" is not an iron-clad requirement, and the fact of a "missing link does not prevent the admission of real evidence, so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspect." United States v. Jackson, 649 F.2d 967 (3d Cir.), cert. denied, --- U.S. ----, ----, 102 S.Ct. 341, 574, 70 L.Ed.2d 176, 479 (1981); United States v. Mullins, 638 F.2d 1151 (8th Cir. 1981); United States v. Brewer, supra; United States v. Lampson, 627 F.2d 62 (7th Cir. 1980). Resolution of this question rests with the sound discretion of the trial judge, and we cannot say that he abused that discretion in this case.

Appellant also contends that the district court erred in admitting into evidence a certificate from a Colombian official in order to prove that the "Don Frank" was not registered in Colombia.

Shortly after the seizure by the Coast Guard, Howard-Arias indicated that the "Don Frank" was of Colombian registry and that its journey had originated in Colombia. In an effort to rebut that assertion, the government produced at trial a document from Rear Admiral Avila, the Director General of Maritime and Port Affairs of Colombia, stating that a vessel named the "Don Frank" had been registered in Colombia until April, 1979, but not thereafter. Admiral Avila's signature was attested to as genuine by a series of Colombian officials culminating in the certificate of Colombian Consular Chief Rafael Pena, whose signature was in turn certified by Irving Kanter, an American consular official in Bogota, Colombia. The appellant contends that this document did not conform to the requirements of Fed.R.Evid. 902(3). Once again, he misses the mark. Rule 902 recognizes that the possibility of fraud, forgery and misattribution of certain documents is so slight that the general requirement of authentication by extrinsic evidence, Fed.R.Evid. 901, is dispensed with. ² Howard-Arias contends that nothing less than a statement by the affiant that he is the official designated to make such certifications under Colombian law can satisfy the requirements of Rule 902(3). We do not read the plain language of the rule as embodying such a formalistic requirement. The document offered into evidence purported to be executed, in official capacity, by a Colombian official authorized to make such an execution, and this signature and statement of official capacity was concededly attested to in intermediate and final certifications by various Colombian officials and the American consular officer in Bogota. We perceive no error in this process, nor in the trial court's admission into evidence of the document. See generally 5 J. Weinstein & M. Berger, Weinstein's Evidence P 902(01) (1978 & 1981 Supp.)

Appellant also contends that the trial court erred in not releasing the probation officer's sentencing recommendation contained in a pre-sentence report, in refusing to allow interrogation of the probation officer and in considering certain information in the report that was "inflammatory" and "false." We do not agree with these contentions.

Federal district courts are given wide latitude as to the information they may consider in passing sentence after a conviction, Roberts v. United States, 445 U.S. 552, 556, 100 S.Ct. 1358, 1362, 63 L.Ed.2d 622 (1980), and Congress has expressly directed that

(n)o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

18 U.S.C. § 3577. While a defendant has a right to be sentenced only on information that is accurate, United States v. Lee, 540 F.2d 1205, 1210 (4th Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976), this appellant was represented by counsel who highlighted perceived inaccuracies in a timely fashion. The trial judge noted these objections, and he was not required to allow the appellant to present testimony regarding the accuracy of contested portions of the report. Fed.R.Crim.P. 32(c)(3)(A). ³ Likewise, the appellant's claim that the court was required to divulge the contents of the probation officer's sentencing recommendation is meritless, since Rule 32(c)(3)(A) explicitly authorizes the procedure followed by the district court.

III.

The appellant's claim that the fifth amendment's double jeopardy provision ⁴ barred his multiple convictions and multiple sentence requires an excursion into what has been characterized as a "vertible Sargasso Sea" of jurisprudence. Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981). As stated by the Supreme Court, the double jeopardy clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). Thus it is clear that this proscription against subjecting a criminal defendant to double jeopardy extends both to multiple convictions and to multiple punishments for the same offense. The appellant was twice convicted and twice punished at a single trial, and it is an open question in this circuit whether the prohibition against multiple convictions applies only to successive proceedings, or also applies when multiple convictions are entered in a single trial, see United States v. Buckley, 586 F.2d 498 (5th Cir. 1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979); Wright v. United States, 519 F.2d 13 (7th Cir.), cert....