United States v. Milam

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5211
RANDOLPH KENNEY MILAM,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CR-94-430-A)
Argued: May 9, 1996
Decided: September 10, 1996
Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Lance Daniel Gardner, Fairfax, Virginia, for Appellant.
Bruce Carlton Swartz, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, Pat-
rick E. DeConcini, Special Assistant United States Attorney, Alexan-
dria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Defendant-appellant Randolph Kenney Milam appeals from his
conviction for selling cocaine, crack cocaine, and marijuana in viola-
tion of 21 U.S.C. § 841(a)(1) and (b)(1)(C) & (D). Milam asserts that
the charges against him should have been dismissed because the gov-
ernment violated his speedy trial right when it failed to indict him
within 30 days after transporting him from his arrest site to the East-
ern District of Virginia. Milam also claims that the district court
abused its discretion in admitting evidence of the controlled sub-
stances he allegedly sold when individuals in the chain of custody
were not produced at trial because their exact identity was not certain.
We affirm.
From 1991 to early 1994, Milam worked for a company that per-
formed services at building NC-3 of the Naval Sea Systems Com-
mand in Arlington, VA. Milam came under investigation when the
Naval Criminal Investigative Service (NCIS) received a report that he
was involved in the distribution of narcotics at NC-3. NCIS arranged
for Virginia Alcohol Beverage Control Board undercover officer
James Jones to meet with Milam.
Milam was arrested on September 1, 1994 in the District of Colum-
bia for allegedly selling drugs on four separate occasions to officer
Jones. Milam allegedly sold Jones cocaine powder on November 19,
1993; marijuana on December 23, 1993; and crack cocaine on
December 23, 1993 and January 10, 1994. After each buy, Jones
wrote his initials on a piece of paper along with the time and date of
the purchase and gave the contraband and identifying paper to Arling-
ton County vice detective Joseph Marchi. Detective Marchi wrote his
name, the date, and time on the paper also, sealed the evidence into
an Arlington County Police Department package and deposited the
package in the police property vault. Trial evidence showed that the
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contraband was not opened or adulterated while in the vault. On
March 25, 1994, Marchi retrieved the evidence and delivered it to
NCIS agent Robert Iorio.
Iorio sealed the substances into NCIS evidence bags, initialed and
dated the bags, and entered them into NCIS's own custody system
that same day, March 25, 1994. The custodian who received the evi-
dence from Iorio was investigator John Jenkins. Jenkins testified that
the evidence remained in an NCIS vault and was not altered or tam-
pered with while in his custody. Jenkins packaged, sealed, and
stamped the evidence for registered mailing to the NCIS laboratory
in Norfolk, VA on April 5, 1994. Once packaged, one of several sec-
retaries in his office actually delivered the evidence to the post office
for mailing. The exact identity of the secretary who delivered the
sealed and stamped packages to the post office was not certain.
NCIS evidence custodian Robin Davis received the packages and
secured the evidence in a vault at the Norfolk lab until it was tested
by fingerprint examiner Curtis Shane and chemist Peter Ausili. The
scientists testified that although each item of contraband was con-
tained in a sealed, outer evidence bag, the inner sample bag of one
item, crack cocaine, was a non-ziploc type and was not sealed. Trial
testimony confirmed, however, that none of the samples were con-
taminated or adulterated at the NCIS lab. After testing, the sealed evi-
dence was repackaged and returned to investigator Jenkins by
registered mail. As with delivery to the post office, Jenkins testified
that one of several secretaries actually signed for the registered pack-
age when it was received on July 6, 1994, although it was then
brought directly to Jenkins and he alone opened it.
Following Milam's arrest on September 1, 1994, the government
transported him to the Eastern District of Virginia where he arrived
on September 7, 1994. On September 8, 1994, Milam had his initial
appearance before a magistrate judge. On September 12, 1994, Milam
appeared for a combined preliminary hearing and hearing on the gov-
ernment's motion for pretrial detention. A temporary detention order
issued on September 13, 1994. Monday, October 10, 1994 was
Columbus Day - a federal holiday - and on Tuesday, October 11,
1994, a federal grand jury handed down the four-count indictment on
which Milam was tried.
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Milam moved to dismiss the charges claiming that the government
failed to indict him within 30 days of his arrival in the Eastern Dis-
trict. The district court denied the motion and denied rehearing. Rul-
ing from the bench, the district court held that Milam's initial
appearance on September 8, 1994 was excluded from the speedy trial
time computation under 18 U.S.C. § 3161(h) as a proceeding concern-
ing the defendant, hence the first day counted for speedy trial pur-
poses was September 9, 1994. Milam's preliminary hearing on
September 12, 1994 was also excluded under 18 U.S.C.§ 3161(h),
thus the last day of the 30 day period in which Milam had to be
indicted to comply with the speedy trial requirements was Sunday,
October 9, 1994. Under Fed. R. Crim. P. 45(a), however, if the last
day of the period is a Saturday, Sunday, or legal holiday, the period
continues to run until the end of the next day which is not a weekend
or holiday, so the court held that Milam's indictment on Tuesday,
October 11, 1994, following the Monday Columbus Day holiday, was
timely.
At trial, Milam objected to the admission of the drugs into evidence
on the grounds that, inter alia, the particular secretaries who mailed
and received the registered mail package containing the evidence
were not identified, and the lab had found one inner sample bag to be
unsealed. The district court sustained the objection only as to the
crack contained in the unsealed inner bag and granted a judgment of
acquittal as to the charges related to it. As to the other items of evi-
dence, the court found that although the identity of the secretaries
who delivered and received the packages was not certain, the fact that
the evidence was at the time sealed inside registered mail packages
provided adequate assurance of the integrity of the chain of custody.
The jury found Milam guilty of the three remaining charges of distri-
bution and the district court entered judgment of conviction on March
10, 1995.
We review the district court's interpretation of the Speedy Trial
Act's requirements de novo. United States v. Wright, 990 F.2d 147,
148 (4th Cir. 1993). The court's decision concerning the admissibility
of the drugs into evidence we review for abuse of discretion. United
States v. Howard-Arias, 679 F.2d 363, 366 (4th Cir. 1982).
Milam concedes that our decision in Wright disposes of any ques-
tion that his speedy trial rights were violated. He asks us to reconsider
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that case, however, because he contends that the intent of § 3161(h)
is to exclude only those proceedings that result in"an actual delay in
the progress of the case," and, he claims, Wright fails to address
whether a showing of actual delay is required. In Wright, on indistin-
guishable facts, we held that the day of the defendant's initial appear-
ance and the day on which a combined preliminary and detention
hearing were held should be excluded, under § 3161(h)(1), from the
30 day period set by § 3161(b). Wright, 990 F.2d at 148-49. We also
held that Fed. R. Crim. P. 45(a) applied to extend the period when the
30th day fell on a Sunday. 990 F.2d at 149. As a panel, we are bound
to apply Wright, and therefore hold that the district court did not err
in concluding that Milam's indictment was timely. We note in addi-
tion that footnote 2 of the Wright opinion expressly rejects Milam's
contention that an actual showing of delay is required before the days
on which either motions are filed or hearings are held can be excluded
from the speedy trial period. 990 F.2d at 149 n.2.
Milam also concedes that under our decision in United States v.
Howard-Arias, 679 F.2d 363 (4th Cir. 1982), a"missing link [in the
chain of custody] does not prevent the introduction of real evidence,
so long as there is sufficient proof that the evidence is what it purports
to be and has not been altered in any material respect." Howard-Arias,
679 F.2d at 366. Milam argues that Howard-Arias is distinguishable,
however, because in that case the identity of the individual in the
chain of custody who did not testify at trial was certain. In Howard-
Arias we said that the purpose of the chain-of-custody requirement is
to provide "authentication testimony [that is] sufficiently complete so
as to convince the court that it is improbable that the original item had
been exchanged with another or otherwise tampered with." Howard-
Arias, 679 F.2d at 366. Here, the government has presented evidence
to show that both the police and the NCIS carefully adhered to routine
procedures designed to ensure strict accountability and prevent tam-
pering with the evidence. Milam, by contrast, points to no evidence
that creates even a reasonable possibility that the NCIS employees
who delivered and received the registered mail packages exchanged
or tampered with their contents. In the absence of any such evidence,
we agree with the district court that the fact that the substances were
sealed inside registered mail packages when they were handled by the
unidentified employees provides "sufficient proof that the evidence is
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what it purports to be and has not been altered in any material aspect."
679 F.2d at 366.
The judgment of the district court is accordingly
AFFIRMED.
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