United States v. Kenneth Riley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4448
KENNETH RILEY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-96-995)
Submitted: January 12, 1999
Decided: February 10, 1999
Before ERVIN and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
C. Rauch Wise, Greenwood, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Jane B. Taylor, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kenneth Riley appeals his conviction of attempting to possess with
intent to distribute methamphetamine, 21 U.S.C.§ 841(a)(1) (1994),
possessing with intent to distribute methamphetamine, 21 U.S.C.
§ 841(a)(1), and using the United Parcel Service (UPS) to facilitate
the possession with intent to distribute methamphetamine, 21 U.S.C.
§ 843 (1994). In this appeal, Riley attacks the admission of metham-
phetamine at trial on the ground that the government did not establish
a proper chain of custody of the drugs. We affirm.
An employee of UPS called Drug Enforcement Administration
(DEA) Agent Mark Meyer on November 26, 1996, to tell him that an
employee of UPS had opened a package addressed to Sumter, South
Carolina, that appeared to contain a controlled substance. Meyer went
to the UPS facility and field-tested the substance, which tested posi-
tive for methamphetamine. Meyer took custody of the package, con-
tacted officers in Sumter, and told them about the package. He sealed
the package in a larger box and shipped it via UPS to Lt. Rick Nelson
in Sumter. Meyer maintained exclusive custody of the package until
he delivered it for shipment.
Nelson opened the package, removed most of the methamphet-
amine, placed it in a plastic bag, and kept it in his exclusive custody
until he turned it over to DEA Agent Benjamin Barfield. Nelson left
a smaller amount of the drug in the package, which he resealed. He
turned the package over to undercover agent Reed Davis, who was
disguised as an employee of UPS. Davis attempted to deliver the
package to the address in Sumter; however, because no one was at
home, Davis returned the package to Nelson, who maintained custody
of it until the following week.
Nelson again gave the package to Davis, who delivered the pack-
age to Riley at the Sumter address. Riley was arrested shortly after he
accepted delivery. Nelson seized the package after the arrest and kept
it in his custody until he turned it over to Agent Barfield. Barfield
sealed both bags and shipped them for analysis to the DEA laboratory
in Miami. A DEA forensic chemist, Ethon Jolly, received and opened
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the sealed containers, then analyzed the drugs and resealed their con-
tainers.
The drugs were returned to Agent Barfield, and they were intro-
duced as Exhibits 6 and 7 at Riley's trial. Meyer, Nelson, and Barfield
testified that the drugs that were introduced were in substantially the
same condition as when they had custody of them. Jolly testified that
because the seals he placed on the packages were not broken, Exhibits
6 and 7 had not been opened since he resealed them.
Riley argues that the government did not establish a proper chain
of custody of the drugs. First, Riley contends that the government's
proof failed because there was no evidence that the contents of the
package were not tampered with from the moment some unknown
person delivered the package to Mail Boxes, Etc. for shipment to
South Carolina via UPS. Riley maintains that the government also
failed to show that the contents were not tampered with after the
package was opened at the UPS facility and before Meyer took cus-
tody of the package. We review the district court's determination that
a proper chain of custody was established for an abuse of discretion.
See United States v. Ricco, 52 F.3d 58, 61 (4th Cir. 1995).
"[A] party introducing evidence [must] demonstrate that the evi-
dence is in fact what its proponent claims." United States v. Turpin,
65 F.3d 1207, 1213 (4th Cir. 1995). Under the "chain of custody"
rule, a prosecutor "must establish a chain of custody from the time the
items were taken to show that they are in `substantially the same con-
dition as when they were seized.'" Id. (quoting United States v.
Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991)). Here, the testi-
mony of Meyer, Barfield, Nelson, and Jolly showed that the metham-
phetamine remained in substantially the same form as when Meyer
initially took control of it in California. Under the case law, events
prior to Meyer's seizing the substance are irrelevant to the chain of
custody issue.
We therefore affirm. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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