United States v. Burris, 16163.

• Decision Date: 13 May 1968
• Docket Number: No. 16163.,16163.
• Citation: 393 F.2d 81
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Weldon BURRIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

393 F.2d 81 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Weldon BURRIS, Defendant-Appellant.

No. 16163.

United States Court of Appeals Seventh Circuit.

February 16, 1968.

Rehearing Denied May 13, 1968.

Charles J. Durham, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., Robert J. Weber, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Gerald M. Werksman, Asst. U. S. Attys., of counsel, for appellee.

Before CASTLE, SWYGERT and CUMMINGS, Circuit Judges.

CASTLE, Circuit Judge.

The defendant-appellant, Weldon Burris, prosecutes this appeal from the judgment of conviction and sentence entered following a jury trial on a six-count indictment charging him and a co-defendant, William B. Trigg, with violations of the federal narcotic laws (26 U.S.C.A. § 4705(a) and 21 U.S.C.A. § 174). Burris was convicted on the three counts charging § 174 violations, and because of prior convictions was mandatorily sentenced to a term of ten years' imprisonment on each of the counts, to run concurrently.

The defendant contends on appeal that (1) extra-judicial information, adverse to the defendant, possessed by the trial judge resulted in prejudice which deprived the defendant of a fair trial; (2) the giving of a "flight" instruction constituted plain error requiring a reversal; and (3) the court erred in admitting into evidence two of the government's narcotics exhibits.

The defendant was tried jointly with the co-defendant, William B. Trigg. The claim of prejudice on the part of the trial judge was the subject of detailed consideration in our opinion affirming the conviction of Trigg (United States v. William B. Trigg, 7 Cir., 392 F.2d 860, Opinion filed February 16, 1968). We there rejected contentions identical with those which are here advanced by Burris. What was said there is dispositive here. And, for the purposes of this opinion we adopt the views expressed in Trigg, supra. Moreover, none of the matter with respect to which complaint is made could have had impact with respect to the particular sentence imposed on Burris. His prior convictions made mandatory the term of imprisonment imposed.

Defendant does not claim that the flight instruction given is not a correct statement of the law, but contends that there was no factual foundation in the evidence which warranted the giving of an instruction on flight. We find this contention without merit. There is testimony that when government agents approached Burris on the street for the purpose of arresting him, he ran from the agents and after entering a second-floor apartment by means of the stairs at the rear of the building he was successful in escaping the agents' immediate pursuit. And, that later the same evening, Burris, in a telephone conversation he apparently thought he was having with Trigg¹ stated that he had been at the apartment in question "and the cops came in and I got away". Thus, there was adequate foundation in the evidence for an instruction on flight. The giving of the instruction was not error, much less "plain error" within the purview of Rule 52(b) of the Federal Rules of Criminal Procedure (18 U.S.C.A.). At the time the instruction was proposed by the government, trial counsel for Burris objected. But when counsel for the co-defendant Trigg suggested a modification of the instruction, which the court made, Burris' counsel withdrew his objection. Under the circumstances, the defendant is in no position to assert error in connection with the giving of the instruction. White v. United States, 9 Cir., 315 F.2d 113, 115; United States v. Vasen, 7 Cir., 222 F.2d 3.

Defendant's remaining contention is that the chain or continuity of custody of the narcotics contained in government's exhibits 3 and 4 was not established, and it was therefore error to admit those exhibits in evidence. The testimony...