Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 78 CR 20010 -- Stanley J. Roszkowski, Judge.
Before Cummings and Bauer, Circuit Judges, and East,*fn* District Judge.
Lampson appeals his criminal conviction for theft of mail under 18 U.S.C. § 1708. He raises objections concerning failure of proof, improper exclusion of evidence, insufficient evidence, and denial of the constitutional right to a speedy trial. We find no reversible error and affirm the conviction.
At approximately 4:45 A.M. on June 19, 1978, a Mr. and Mrs. Jacobs received a phone call stating that there was a burglary in progress at the Compton, Illinois Post Office. They called the sheriff's office and then proceeded to the post office. They both heard pounding noises, and Mr. Jacobs saw defendant Lampson stick his head out of the post office several times to look around. Mrs. Jacobs concealed herself behind a tree at the rear of the post office. She then saw two men come around the corner of a building, with the older of the two, Lampson, looking around the corner of the building and up and down the alley. As they then walked toward her, Mrs. Jacobs confronted them, and they fled. Mrs. Jacobs observed that Lampson was carrying a box.
The men fled in separate directions, and were immediately apprehended by deputy sheriffs. Mrs. Jacobs followed Lampson's tracks in the dew-covered, uncut grass and found, at a spot Lampson had twice passed by while being chased by the sheriff, a box and several pieces of mail. She picked up the mail, put it in the box, and gave them to "the Sheriff's Department." Within 15 minutes a Detective Blake arrived on the scene. One of the sheriff's deputies took this box of mail out of a squad car where it had been put, and turned it over to Detective Blake. It was later delivered to a postal inspector.
On June 29, 1978, Lampson and Robert Qualls, Lampson's nephew, were indicted in a two-count indictment for forcible entry into a post office and theft of mail, in violation of 18 U.S.C. §§ 2115*fn1 and 1708.*fn2 Following pretrial motions, the case was set for trial on October 23, 1978. Due to an ongoing civil anti-trust trial, and the District Judge's planned hospitalization, the trial date was continued to the following November 29. The trial date had to be again postponed, but on November 30, Lampson was ordered released on a $5,000 signature bond. He chose not to sign the recognizance bond and remained in federal custody until January 22, 1979.
On February 15, 1979, trial was commenced. Qualls was found guilty of both counts of the indictment, while Lampson was found guilty only of count II theft of mail. Lampson was sentenced to five years imprisonment. On April 9, 1979, Lampson filed his notice of appeal.*fn3
II. SUBSTANTIVE OBJECTIONS
Lampson objects to his conviction on grounds of failure of proof, improper exclusion of evidence, insufficient evidence, and denial of his constitutional right to a speedy trial.
Lampson contends that there was a break in the demonstrated chain of custody of the pieces of mail, such that the pieces of mail introduced at trial were not shown to be the same pieces found at the scene of the crime by Mrs. Jacobs. Lampson argues that because Mrs. Jacobs could not identify which sheriff's deputy she gave the box of mail to, the chain of custody was broken at that point (Detective Blake did not testify which deputy he received it from, and no deputy testified to receiving or turning over the mail). Since there were no identifying marks placed on the mail by Mrs. Jacobs, Lampson continues, there was technically no proof that the mail which was shown at trial to be stolen was the same mail found on the grass. Lampson concludes that this is a failure of proof as to him on the element of stolen mail.
Lampson would have us exclude the pieces of mail from evidence due to the alleged inadequacy in the chain of custody. However, it has been held that whether the Government has proven an adequate chain of custody goes to the weight of the evidence, rather than admissibility. E. g., United States v. Henderson, 588 F.2d 157 (5th Cir.), cert. denied, 440 U.S. 975, 99 S. Ct. 1544, 59 L. Ed. 2d 794 (1979); United States v. White, 569 F.2d 263 (5th Cir.), cert. denied, 439 U.S. 848, 99 S. Ct. 148, 58 L. Ed. 2d 149 (1978). Although this principle is usually applied in cases where there is a question about some change in the condition of the evidence between apprehension and testing, we believe it is equally applicable here.
The testimony at trial indicated that the box of mail was given by Mrs. Jacobs to one deputy, and later taken from a patrol car and given to Detective Blake by the same or another deputy. Courts need exercise greater care when the issue concerns the very identity of the evidence, rather than just possible changes in its condition. The Government's burden of proving each and every element of the crime cannot be diluted by unwarranted presumptions about the evidence it seeks to introduce. Although such heightened scrutiny is appropriate for chain of custody identification claims, automatic exclusion is not required. ...