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United States v. Exietatum

November 24, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
EXIETATUM, JR., ALSO KNOWN AS ERIC TATUM, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 06 CR 231-Rudolph T. Randa, Chief Judge.

The opinion of the court was delivered by: Williams, Circuit Judge.

ARGUED APRIL 7, 2008

Before RIPPLE, WILLIAMS, and SYKES, Circuit Judges.

Exie Tatum was convicted of various drug and weapons charges. On appeal, he claims that the district court erred by admitting three baggies of cocaine recovered during his booking because the government did not lay a proper foundation for the admission of the evidence. We find that the district did not abuse its discretion by admitting the evidence because the government laid a proper foundation and any gaps in the chain of custody were minimal. Therefore, we affirm Tatum's convictions.

I. BACKGROUND

Tatum was indicted for possession with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c); possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924 (c)(1)(A)(i); and being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The testimony at Tatum's two-day trial focused on drugs and paraphernalia that police officers recovered from Tatum's residence and from his person after his arrest. The items recovered from Tatum's residence included numerous controlled substances (cocaine, heroin, marijuana, as well as prescription drugs), packaging materials, a common cutting agent for cocaine, digital scales, glass beakers with white residue, cell phones, a gun, and large amounts of cash. Witnesses at the trial included Milwaukee Police Department ("MPD") Detective Mark Wagner, the officer who recovered many of the foregoing items and inventoried all of the evidence in the case; a former MPD officer named Michael Capati, who booked Tatum the night he was arrested; and Sandra Koresch, a forensic chemist from the Wisconsin state crime lab.

Capati testified that he was the booking officer at the MPD's downtown administration building on the night of Tatum's arrest. He was in charge of searching male prisoners and "bagging" property recovered from them. Capati testified that he recovered a clear plastic baggie from Tatum's left pajama pocket. Once this evidence was recovered, he stated that he passed it off to the detective or officer responsible for the arrest. However, on cross-examination, Capati admitted that he reviewed another officer's report prior to testifying and, while he recalled that Tatum was wearing pajamas underneath his pants, he had no independent recollection of recovering the drugs from Tatum. During his testimony, Capati also was never asked to identify any drug exhibits.

Detective Wagner and another detective inventoried the narcotics recovered from Tatum's person. The evidence was put into a large brown envelope with self-sealing locks, secured in a vault, and eventually given to the crime lab for testing. At trial, Detective Wagner identified the brown envelope, but he was not asked to identify any of its contents. Furthermore, he could not independently recall inventorying the drugs, and the government refreshed his recollection with the MPD Narcotics inventory. Koresch, the crime lab technician, identified the envelope and testified about the tests that she ran on its contents. These tests revealed that the drugs in the envelope consisted of 4.024 grams of crack cocaine. After Koresch completed her testimony, the government moved to admit the narcotics recovered from Tatum during booking, which were marked for trial as exhibits 68, 69, and 70.

Tatum objected to the admission of these exhibits on the ground that the government did not lay a proper foundation. According to Tatum, Wagner did not personally recover the drugs. Moreover, Capati, who testified that he recovered the drugs, was not asked whether he could identify the exhibits and had no independent recollection of recovering the drugs from Tatum. Tatum further argued that the state crime lab technician did not see the drugs until months after they allegedly were recovered from him during booking. Tatum maintained that these gaps in the chain of custody represented a fatal flaw that prevents the government from using exhibits 68, 69, and 70 as part of its case. The district court, after hearing arguments, overruled this objection. The court ruled that the exhibits were admissible because the defendant's chain of custody challenge went to the weight of the evidence, and not its admissibility.

Tatum was convicted on all charges. The presentence investigation report ("PSR") converted the various controlled substances into a marijuana equivalent of approximately 820 kilograms and concluded that Tatum had an offense level of 30, which yielded a sentencing range of 151 to 188 months for the drug count. The district court sentenced Tatum to 151 months on counts one (drug distribution) and three (felon in possession) to run concurrently, and 60 months on count two (firearm to further drug trafficking) to run consecutively. Tatum appeals.

II. ANALYSIS

A. The District Court Did Not Abuse Its Discretion by Admitting the Crack Cocaine into Evidence

On appeal, Tatum claims the district court abused its discretion by admitting exhibits 68-70 because no witness identified and authenticated the drug exhibits.

We review the district court's evidentiary rulings for an abuse of discretion. United States v. Luster, 480 F.3d 551, 556 (7th Cir. 2007). "Because we give great deference to the trial judge's evidentiary rulings, we will not reverse unless the record contains no evidence on which the trial judge rationally could have ...


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