Finding that "[tjhe chain of custody rule is but a variation of the principle that real evidence must be authenticated prior to its admission into evidence....” [Precision in developing the "chain of custody” is not an iron-clad requirement, and the fact of a "missing link does not prevent the admission 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 aspect.”
How later courts described this case
- Finding that "[tjhe chain of custody rule is but a variation of the principle that real evidence must be authenticated prior to its admission into evidence....” [Precision in developing the "chain of custody” is not an iron-clad requirement, and the fact of a "missing link does not prevent the admission 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 aspect.”
- sentencing based on proper considerations where court stated that the defendant had “affected many lives in providing the drugs which addicted numerous individuals and in promoting the crimes which are perpetrated to pay for the drugs”
- observing the lack of any precedent holding that due process requires the government to give notice of the evidence it will offer at sentencing
- “The court’s statement that it would ‘take into consideration’ all of the trial testimony, the presentence report, and ‘what I heard here today’ does not equate with reliance on extensive and materially false information.”
Written by the judges who cited it.
The opinion
GARTH, Circuit Judge,
concurring and dissenting.
I concur in all respects with the affirmance of the convictions of the defendants in this case. The only aspect of the majority opinion with which I disagree is that concerning the actions taken by the district court at the time of Jackson’s sentencing.
I can understand only too well the problems faced by a district court judge with a heavy calendar on sentencing day, and his desire to impose sentences on all defendants in a multi-defendant case at the same time. Nevertheless, in this case apparently no notice had been given either to the court or to the defendant that the government intended to produce a number of witnesses whose testimony could influence the sentence to be imposed on Jackson. I do not suggest that in every case where the government produces witnesses at sentencing, continuances should be granted. Nor do I suggest that the procedure adopted by a district court is not one within the sole discretion of that court. I point out only that in this case, the government produced eight witnesses to testify about various aspects of Jackson’s propensities, background, character and general temperment. Their testimony, as the record reveals, referred to particular incidents, some of which were questioned by Jackson’s attorney. Jackson’s counsel, not having been alerted to the government’s plan, apparently had not come prepared for an extended hearing. He immediately requested additional time, so that he could present evidence in mitigation of the testimony produced by the government. It was this request that was denied.
In a case that presented the many unusual aspects that apparently this case had, and which among other things prompted the United States Attorney to come for *985 ward on sentencing day with some eight witnesses, it appears to me that the better course of action would have been to allow Jackson’s attorney some additional time in which to prepare a response to the government’s witnesses and to produce affirmative evidence on Jackson’s behalf. This is not to say that I regard the sentence imposed upon Jackson as unfair or improper. My only concern is that in the unusual circumstances presented here, I believe that Jackson should have been given an opportunity to respond to the evidence which the government produced as this evidence might have affected the sentence. In my view, Jackson should have been given the opportunity to produce those proofs which he claimed were necessary to put the sentencing proceeding into proper perspective and to rebut, if he could, the evidence of the government. Thus, rather than affirm Jackson’s sentence at this point, I would remand to the district court with the direction that a hearing be held at which the government and the defendant could produce testimony with respect to sentencing.
In suggesting this disposition, I do not for one moment intimate that this hearing should not be conducted by the same judge who presided at the original sentencing hearing and I express no opinion as to the sentence imposed upon Jackson. After an opportunity has been afforded Jackson to present evidence and to rebut the government’s evidence, if the sentencing judge is still of the opinion that Jackson should be sentenced to the same sentence as he imposed on July 11,1980,1 perceive no reason why that sentence should not be reimposed. I emphasize that I do not advocate this extended procedure in every routine sen-fencing that takes place. Here, however, because of the unusual circumstances surrounding the sentencing procedure, I believe that the district court judge may have exceeded the proper exercise of his discretion in denying a continuance. 1
. I observe that the discretion of the court is also invoked with respect to Fed.R.Crim.P. 32(c). Under that rule, if the defendant requests permission to examine the pre-sentence report, the court shall afford him that opportunity, with certain exceptions, before imposing sentence. The rule goes on to note:
[t]he court shall afford the defendant or his counsel an opportunity to comment thereon and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report.
Thus, as I read this rule, in the event a defendant challenges the factual accuracy of matters contained in the report, it might be necessary to continue the sentencing proceeding so as to permit the defendant to introduce testimony.
The rule, therefore, requires no more nor no less than I would advocate under the circumstances present here. The same principle is invoked — before sentence is imposed an opportunity must be afforded for the presentation of any factual disagreement.