Fairchild and Pell, Circuit Judges, and Gordon, District Judge.*fn1
Defendant Maurice W. Stevenson was charged in a three count indictment with having unlawfully sold, received and otherwise dealt with narcotic drugs on November 30, 1966 and August 18, 1967 in violation of 26 U.S.C. § 4705(a) and 21 U.S.C. § 174. Following conviction this court reversed the judgments and remanded the cause for a new trial. United States v. Stevenson, 409 F.2d 354 (7th Cir. 1969).
Stevenson was retried on the first two counts of the indictment relating to occurrences on November 30, 1966, and was again found guilty following a jury trial. He was sentenced to five years imprisonment on each count, the sentences to run concurrently. Stevenson brings the instant appeal from those judgments of conviction and sentence.
The relevant facts are these. On November 30, 1966, Federal Bureau of Narcotics Agent Kenneth C. Cloud and an informer, Elkins, drove to 46th Street and St. Lawrence Avenue in Chicago, followed by agents Bottorff and Verdovec in a second car. There the informer introduced Cloud to a man later identified in testimony as Stevenson. After some conversation, Cloud paid the man $115 for a spoon of heroin which was to be delivered within 10 minutes at 40th and State Streets.
Cloud and the informer proceeded to that location. At about 6:00 p. m., the man to whom the money had been paid arrived in a red Buick convertible. He walked to Cloud's car, leaned down and dropped three tin foil packages into the informer's hands. Cloud immediately took the packages. The man walked away.
Stevenson contends that the evidence was not sufficient to prove him guilty beyond a reasonable doubt. He first urges that there is "a possibility of a break in the chain of custody" of the narcotics introduced in evidence against him. Stevenson concedes that on this question the trial judge is to determine the adequacy of the evidence of custody to warrant reception of physical evidence and that this decision can be overturned only for clear abuse of discretion. See Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960). He also concedes that Government witnesses testified to the whereabouts of the evidence during the entire period from its acquisition until trial.
He contends, however, that due to the length of time between the alleged offense and his second trial, the number of people who had custody of the evidence, the fact that at one point the evidence was mailed to and from Washington, D.C., and the fact that Government witnesses refreshed their recollection from official records, it is "a bit more than conceivable that tampering with the evidence has occurred." Such utter speculation cannot be credited on appeal in the face of Government evidence showing a continuous chain of custody. As Stevenson further concedes, the mere fact that it is conceivable that tampering has occurred is not sufficient to require the exclusion of the evidence. West v. United States, 359 F.2d 50, 55 (8th Cir. 1966), cert. denied 385 U.S. 867, 87 S. Ct. 131, 17 L. Ed. 2d 94. The trial court did not abuse its discretion in admitting the narcotics in evidence.
Defendant also points to certain minor discrepancies between the testimony of the Government agents and the informer. The discrepancies involve the exact location, within a block or two, of the meetings with Stevenson; the color of the top of Stevenson's car; whether the informer had any money with him and who walked to whom when the narcotics were passed.
The record contains uncontradicted testimony of the agents and the informer that Cloud and the informer did meet Stevenson twice on November 30, 1966, that on the first meeting money was transferred to him and that on the second meeting he transferred narcotics to Cloud and the informer. In light of this testimony, the assembled minor discrepancies cannot negate the fact that the jury was presented with sufficient evidence to find Stevenson guilty beyond a reasonable doubt.
Stevenson further challenges the ability of the Government agents to identify him because of the darkness at the time of the meetings. The agents testified that it was just getting dark. We, of course, must take the evidence in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942), and given the face-to-face nature of the meetings, we cannot say that the jury could not find that Stevenson had been adequately identified as the person who sold the narcotics to agent Cloud.
Stevenson next urges that the trial court abused its discretion in permitting the Government to reopen its case-in-chief and that this had the effect of denying him due process by suppressing favorable evidence.
The defense had subpoenaed the informer Elkins. Based on a prior conversation with Elkins, defense counsel believed that Elkins would testify that he was a paid Government informer in November 1966; that he knew nothing of the transaction with Stevenson on November 30, 1966; that he was never with Stevenson or agent Cloud on that day and that he did not receive drugs or any other packages from Stevenson.
When the defense called Elkins, he invoked his Fifth Amendment privilege against self-incrimination on the advice of his own attorney. A lengthy proceeding out of the presence of the jury followed. The trial judge indicated his belief that there was no real basis for the assertion of the privilege and his displeasure at the Government's reluctance to grant Elkins ...