Federal Evidence Review

In a crack conspiracy trial, evidence of crack found on the defendant was admitted even though the original evidence storage container was destroyed and the weight of the drug at trial was smaller than it had been when originally seized by police; defendant’s suggestion of tampering based on differences between the drug evidence as initially seized and as produced at trial was insufficient to create the “reasonable probability” that the evidence was altered or was not the drug found on the defendant, in United States v. Allen, __ F.3d __ (6th Cir. Aug. 13, 2010) (No. 08-6363)

FRE 901 provides that as a condition precedent to admission of evidence that it be authenticated. Authentication means that a proponent of evidence has provided evidence “sufficient to support a finding” that the proffered evidence “is what its proponent claims.” FRE 901(a). The FRE provides a variety of means that can be used for authentication. See FRE 901(b). It also enumerates other types of evidence that are self-authenticating. See FRE 902. In a recent case, the Sixth Circuit cautioned about the difference between showing a chain of custody, from which a conclusion of authentication could be reached, and undermining a trial judge’s finding that the proffered evidence is reasonably likely to be what its proponent claims and therefore is admissible.

In the case, defendant Allen was arrested after police chased down a car in which he was traveling. The chase ended abruptly when the car stopped and its driver surrendered. But the defendant refused to cooperate and leave the car and he was “ultimately tasered by Officer Goodine, at which point Allen fell to the ground and was handcuffed by Officer Mayweather. Officer Goodine found a bag containing a white powdery substance that later turned out to be cocaine base; Officer Mayweather found a handgun under the vehicle, which he believed, based on its location and Allen’s movements, had been slid underneath the car from the passenger’s side.” Allen, __ F.3d at __.

During the defendant’s trial on drug conspiracy charges, the court “heard that Allen and [car driver] Bush were members, ‘OGs’ or Original Gangsters, in the Athens Park Blood Gang, and were engaged in drug dealing together. Agent Healy … testified that Allen told him that Bush gave him the gun and the drugs prior to the stop and told him to get rid of them. In response, Allen said that he slid the gun under the car and put the drugs in his pocket. Officer Mayweather testified that he saw Allen open the passenger door and make movements consistent with throwing something away.” Allen, __ F.3d at __.

In addition to this evidence, the prosecutor also introduced into evidence the drugs that the defendant purportedly had in his pocket when arrested. The defendant objected to admission of this evidence, contending that it was no longer in the bag in which it rested while allegedly found on the defendant, but rather was now in a new bag supplied by the DEA. More importantly, the defendant noted that the weight of the drugs entered into evidence differed from the weight initially seized by the police. The defendant suggested that the new bag and the reduction in weight was evidence of tampering.

The defendant was convicted and he appealed, contending in part that the trial court should not have entered the “tampered” drug evidence. The circuit dismissed this contention, explaining that the defendant produced no evidence of tampering and that mere suggestions of possible tampering was insufficient to undermine admission of the drug evidence. The circuit presented a brief review of the major principles guiding the authentication of evidence, including that:

• Authentication Ultimate Question For Jury: “Chain of custody issues are jury questions and the possibility of a break in the chain of custody of evidence goes to the weight of the evidence, not its admissibility. United States v. Allen, 106 F.3d 695, 700 (6th Cir. 1997); United States v. Drake, 280 F. App’x 450, 454-55 (6th Cir. May 29, 2008).

• Standard For Admission: Physical evidence is admissible when the possibilities of misidentification or alteration are “eliminated, not absolutely, but as a matter of reasonable probability.” United States v. McFadden, 458 F.2d 440, 441 (6th Cir.1972) (citation omitted).

• Allegation vs. Factual Showing: Merely raising the possibility of tampering is insufficient to render evidence inadmissible. United States v. Allen, 106 F.3d 695, 700 (6th Cir. 1997).

• Presumption Of Regularity: Where there is no evidence indicating that tampering with the exhibits occurred, courts presume public officers have discharged their duties properly. United States v. Allen, 106 F.3d 695, 700 (6th Cir. 1997).

Employing these principles, the circuit required only a brief discussion to affirm the admission of the evidence and discount the defendant’s arguments:

“Allen presents no actual evidence that tampering occurred. In particular, Allen argues that the original evidence bag was destroyed and replaced with a DEA evidence bag, and that the weight of the crack cocaine diminished over time. However, it does not appear that there was anything improper about Officer Hixon’s replacement of the original evidence bag, and Agent Montejo provided several explanations for the decrease in weight [of the crack cocaine]. At most, Allen’s arguments merely raise the possibility of tampering. Consequently, the district court did not abuse its discretion in admitting the crack cocaine.”

Allen, __ F.3d at __.

The finding in Allen was not unique or new. For example, Seventh Circuit cases suggest a similar approach and assumption that the foundation for submitted evidence need not be invincible. See, e.g., United States v. Tatum, 548 F.3d 584, 587 (7th Cir. 2008) (exhibits of crack cocaine admitted into evidence event hough “booking officer could not remember recovering drugs from defendant”); United States v. Lee, 502 F.3d 691, 697 (7th Cir. 2007) (“The government is not required to prove a perfect chain of custody, as gaps in the chain go to the weight of the evidence rather than its admissibility. ‘[T]he government need only show that it took reasonable precautions to preserve the original condition of the evidence, it does not have to exclude all possibilities of tampering with the evidence….‘”) (citations omitted))