United States v. Michael Whitelaw ( 1996 )

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No. 95-3553WM
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United States of America, *
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Appellee, *
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v. *
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Michael D. Whitelaw, *
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Appellant. *
_____________ Appeals from the United States
District Court for the Western
No. 95-3650WM District of Missouri.
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United States of America, *
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Appellee, *
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v. *
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Steven Merritt, *
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Appellant. *
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Submitted: April 9, 1996
Filed: June 12, 1996
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Before FAGG, JOHN R. GIBSON, and BOWMAN, Circuit Judges.
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FAGG, Circuit Judge.
Michael D. Whitelaw and Steven Merritt appeal their drug-related
convictions. We affirm.
Whitelaw and Merritt contend the district court improperly admitted
a substance into evidence that was seized when they were arrested and later
analyzed as cocaine because the Government
failed to establish a proper chain of custody. We cannot agree. Whitelaw
and Merritt do not quarrel with the arresting officer's testimony
explaining how he seized, sealed, marked, and stored the packaged substance
in a police evidence locker. Likewise, they do not quarrel with the
chemist's testimony about how he took the same marked and sealed bag from
the crime laboratory vault, tested the substance inside, repackaged the
substance and the original bag in another sealed plastic container, and
then returned the sealed container to the laboratory vault until trial.
Nor do they quarrel with the chemist's courtroom identification of the
sealed container and all of its contents, or the arresting officer's
testimony the bag he placed in the evidence locker was the same bag that
was now inside the chemist's sealed container.
According to Whitelaw and Merritt, the chain of custody is fatally
flawed because the Government failed to track the bagged substance from the
evidence locker to the crime laboratory. Thus, they argue the custodial
evidence does not show the chemist tested the substance seized by the
arresting officer. Their argument is foreclosed by our contrary holdings
in United States v. Pressley, 978 F.2d 1026, 1028-29 (8th Cir. 1992) and
United States v. Glaze, 643 F.2d 549, 552 (8th Cir. 1981) (per curiam).
Although the Government could have easily avoided the problem raised in
this appeal by merely producing the persons who handled the bag during the
gap in the Government's custodial chain, we cannot say the district court
abused its discretion in admitting the cocaine over Whitelaw and Merritt's
objection. Like the district court, we are satisfied that in all
reasonable probability the substance seized by the arresting officer,
tested by the chemist, and admitted into evidence is one and the same. See
Pressley, 978 F.2d at 1028-29. Indeed, Merritt testified the substance
seized by the arresting officer was cocaine, and neither Whitelaw nor
Merritt claim the substance was tampered with, altered, or handled in bad
faith by the Government. See United States v. Miller, 994 F.2d 441, 443-44
(8th Cir. 1993).
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Whitelaw also contends the evidence is insufficient to support the
jury's verdict on his drug-related firearm charge. Although we do not
ordinarily consider pro se briefs when a party is represented by counsel,
see United States v. Marx, 991 F.2d 1369, 1375 (8th Cir.), cert. denied,
114 S. Ct. 618 (1993), our review of the record shows overwhelming evidence
of Whitelaw's guilt.
We thus affirm Whitelaw's and Merritt's convictions.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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