Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. S CR 79-17 -- Allen Sharp, Judge .
Before Pell, Bauer and Cudahy, Circuit Judges.
Defendant-appellant Steven Aviles appeals from the judgment of conviction entered by the district court on the jury verdict finding him guilty on four counts of violating the federal narcotics laws. The appellant raises two issues on appeal: (1) whether the district court abused the discretion accorded to it under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., in denying his motion for a continuance prior to trial and (2) whether the court abused its discretion in permitting certain evidence to be admitted at trial over the appellant's objection that the evidence was tainted by an insufficient chain of custody. We find no abuse of discretion in these rulings and accordingly affirm the judgment appealed from for the reasons set forth below.
Viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942), the evidence adduced at trial with respect to the two claims of error asserted on appeal reveals the following facts. On May 18, 1979, the appellant was arraigned on a four count indictment charging him in three counts with distributing a controlled substance, phencyclidine, and in one count with conspiring to distribute phencyclidine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Appellant was represented at the arraignment by the attorney who would serve as his trial counsel. Appellant entered a plea of not guilty to the charges alleged in the indictment and the trial date was set for July 5, 1979. This date was subsequently confirmed by written notice. Appellant posted bond on May 21, 1979.
Approximately six weeks later, on June 28, 1979, defense counsel filed his first motion for a continuance. In that unsigned and unverified motion, counsel asserted that he had been unable to confer adequately with his client due to the condition of the appellant's bond which prohibited him from traveling outside the district and thereby interfered with the appellant's ability to confer with his counsel whose office was located outside the district in Chicago, Illinois. This motion was denied by the district court as insufficient under the Speedy Trial Act.
The case was called for trial on Thursday, July 5, 1979. Prior to the selection of the jury, co-defendant Larry McMahan filed a petition to enter a plea of guilty to count four of the indictment, which charged McMahan, Diane Risner, the appellant and his wife, Patricia, with conspiracy to distribute phencyclidine. The plea agreement obliged the government to move for dismissal of the remaining counts of the indictment against McMahan upon his sentencing for the fourth count.
The plea agreement with McMahan contained no provision requiring him to cooperate with the government or to testify against his co-defendants. However, counsel for the government did explain to the court that an understanding had been reached with McMahan that he was willing to testify and would do so for whatever consideration the court might choose to render as a result of such testimony. The district court accepted McMahan's plea.
The court next considered the government's motion for severance of Diane Risner as a co-defendant. The motion incorporated an agreement reached between the government and Risner to the effect that in consideration for her testimony as a witness for the government in the trial against the remaining two defendants, the government would move to dismiss the indictment against her. The district court granted the motion for severance.
At that time, counsel for the appellant orally renewed his motion for a continuance. In support of the motion, defense counsel reasserted his inability to confer with his client because of the appellant's bond restrictions. He further asserted that since he had not been advised until two days prior to trial that McMahan and Risner would become government witnesses, the defense would require additional time to alter its trial strategy and to procure additional impeachment witnesses.
The trial judge determined that defense counsel had failed to present reasons sufficient to warrant a continuance to postpone the trial schedule established on May 18, 1979 pursuant to the Speedy Trial Act. However, despite his decision not to grant the continuance and in apparent deference to defense counsel's expressed needs, the district court did not commence the actual trial on Thursday, July 5 as had been planned. Rather, the court limited the activities of July 5 to the selection of the jury and informed defense counsel that he would not have to present his case to the jury until the following Monday, July 9, 1979.
On Friday, July 6, the government began the presentation of its evidence and the court recessed the trial that afternoon for the weekend. On Monday, July 9, the government concluded its case and that afternoon the defense proceeded with its case. The trial continued until July 10 when, after presentation of closing arguments, the jury retired, deliberated, and returned their verdict of guilty on all counts of the indictment.
Other facts pertinent to this appeal concern the chain of custody of government exhibits 1, 2 and 3, which were plastic bags containing narcotics purchased by Indiana State Police Sergeant Reginald Shireman on various dates from co-defendant Larry McMahan. Exhibit 1 was purchased directly by Sergeant Shireman from McMahan on March 28, 1979. Shireman testified that after the purchase he placed the bag containing a powdered substance purported to be phencyclidine into an evidence bag, marked the evidence bag with a case number, the date and time of purchase, the item number, and his initials, and then sealed the evidence bag with red tape. He further testified that he then placed the evidence bag into his briefcase which was in turn placed in the trunk of his Indiana State Police vehicle. Although Sergeant Shireman could not recall the date he delivered exhibit 1 to the Indiana State Police laboratory, the analyzing chemist, Maureen O'Connor, testified that it was received intact on the next day, March 29.
Sergeant Shireman purchased the narcotics represented by government exhibit 2 directly from McMahan on April 3, 1979. Shireman testified he followed the same marking and sealing procedure with this exhibit as he had with exhibit 1. O'Connor ...