In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3015

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EXIE TATUM, JR., also known as

ERIC TATUM,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 06 CR 231—Rudolph T. Randa, Chief Judge.

ARGUED APRIL 7, 2008—DECIDED NOVEMBER 24, 2008

Before RIPPLE, WILLIAMS, and SYKES, Circuit Judges.

WILLIAMS, Circuit Judge. Exie Tatum was convicted

of various drug and weapons charges. On appeal, he

claims that the district court erred by admitting three

baggies of cocaine recovered during his booking because

the government did not lay a proper foundation for

the admission of the evidence. We find that the district

did not abuse its discretion by admitting the evidence

because the government laid a proper foundation and
2 No. 07-3015

any gaps in the chain of custody were minimal. Therefore,

we affirm Tatum’s convictions.

I. BACKGROUND

Tatum was indicted for possession with intent to distribute controlled substances in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(c); possession of a firearm in

furtherance of a drug-trafficking crime in violation of

18 U.S.C. § 924 (c)(1)(A)(i); and being a felon in possession

of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). The testimony at Tatum’s two-day trial

focused on drugs and paraphernalia that police officers

recovered from Tatum’s residence and from his person

after his arrest. The items recovered from Tatum’s residence included numerous controlled substances (cocaine,

heroin, marijuana, as well as prescription drugs), packaging materials, a common cutting agent for cocaine,

digital scales, glass beakers with white residue, cell

phones, a gun, and large amounts of cash. Witnesses at

the trial included Milwaukee Police Department (“MPD”)

Detective Mark Wagner, the officer who recovered many

of the foregoing items and inventoried all of the evidence

in the case; a former MPD officer named Michael Capati,

who booked Tatum the night he was arrested; and Sandra

Koresch, a forensic chemist from the Wisconsin state

crime lab.

Capati testified that he was the booking officer at the

MPD’s downtown administration building on the night of

Tatum’s arrest. He was in charge of searching male prisoners and “bagging” property recovered from them. Capati

testified that he recovered a clear plastic baggie from
No. 07-3015 3

Tatum’s left pajama pocket. Once this evidence was

recovered, he stated that he passed it off to the detective

or officer responsible for the arrest. However, on crossexamination, Capati admitted that he reviewed another

officer’s report prior to testifying and, while he recalled

that Tatum was wearing pajamas underneath his pants,

he had no independent recollection of recovering the

drugs from Tatum. During his testimony, Capati also

was never asked to identify any drug exhibits.

Detective Wagner and another detective inventoried

the narcotics recovered from Tatum’s person. The

evidence was put into a large brown envelope with selfsealing locks, secured in a vault, and eventually given

to the crime lab for testing. At trial, Detective Wagner

identified the brown envelope, but he was not asked to

identify any of its contents. Furthermore, he could not

independently recall inventorying the drugs, and the

government refreshed his recollection with the MPD

Narcotics inventory. Koresch, the crime lab technician,

identified the envelope and testified about the tests that

she ran on its contents. These tests revealed that the

drugs in the envelope consisted of 4.024 grams of crack

cocaine. After Koresch completed her testimony, the

government moved to admit the narcotics recovered

from Tatum during booking, which were marked for trial

as exhibits 68, 69, and 70.

Tatum objected to the admission of these exhibits on the

ground that the government did not lay a proper foundation. According to Tatum, Wagner did not personally

recover the drugs. Moreover, Capati, who testified that

he recovered the drugs, was not asked whether he could
4 No. 07-3015

identify the exhibits and had no independent recollection of recovering the drugs from Tatum. Tatum further

argued that the state crime lab technician did not see the

drugs until months after they allegedly were recovered

from him during booking. Tatum maintained that these

gaps in the chain of custody represented a fatal flaw that

prevents the government from using exhibits 68, 69, and

70 as part of its case. The district court, after hearing

arguments, overruled this objection. The court ruled that

the exhibits were admissible because the defendant’s

chain of custody challenge went to the weight of the

evidence, and not its admissibility.

Tatum was convicted on all charges. The presentence

investigation report (“PSR”) converted the various controlled substances into a marijuana equivalent of approximately 820 kilograms and concluded that Tatum had an

offense level of 30, which yielded a sentencing range of

151 to 188 months for the drug count. The district court

sentenced Tatum to 151 months on counts one (drug

distribution) and three (felon in possession) to run concurrently, and 60 months on count two (firearm to

further drug trafficking) to run consecutively. Tatum

appeals.

II. ANALYSIS

A. The district court did not abuse its discretion by

admitting the crack cocaine into evidence.

On appeal, Tatum claims the district court abused its

discretion by admitting exhibits 68-70 because no

witness identified and authenticated the drug exhibits.
No. 07-3015 5

We review the district court’s evidentiary rulings for an

abuse of discretion. United States v. Luster, 480 F.3d 551,

556 (7th Cir. 2007). “Because we give great deference to

the trial judge’s evidentiary rulings, we will not reverse

unless the record contains no evidence on which the

trial judge rationally could have based its decision.”

United States v. Emerson, 501 F.3d 804, 813 (7th Cir. 2007).

Under Rule 104(a) of the Federal Rules of Evidence,

“preliminary questions concerning the admissibility of

evidence shall be determined by the court,” and “such

matters must be established by a preponderance of proof.”

United States v. Thomas, 294 F.3d 899, 904 (7th Cir. 2002)

(internal quotations omitted). Physical exhibits may be

admitted so long as they are in “substantially the same

condition as when the crime was committed.” United States

v. Scott, 19 F.3d 1238, 1245 (7th Cir. 1994) (internal quotations omitted). In making the admissibility determination,

the district court employs a “presumption of regularity”

and assumes that the government officials who had

custody of the exhibits discharged their duties properly.

The government does not need to prove a “perfect” chain

of custody, and any gaps in the chain “go to the weight

of the evidence and not its admissibility.” Id.

Here, the government laid a proper foundation for the

admission of the three exhibits of crack cocaine. Tatum

maintains that Detective Wagner, who inventoried the

drugs, could not independently recall that he did so;

however, the government was entitled to refresh his

recollection during his testimony with the inventory

sheet that he prepared at the time of the incident. See
6 No. 07-3015

Fed. R. Evid. 803(5). Moreover, Capati testified that

evidence recovered from a suspect is bagged and passed

off to the conveying officer, and Wagner identified, at trial,

the brown paper bag (also referred to as a “narcotics

envelope”) that contained the drugs recovered from

Tatum. Under the presumption of regularity, the

district court was entitled to presume that the bag contained the drugs that had been removed from Tatum

during booking. That Wagner was not asked to identify

the drugs contained within the bag does not persuade us

that these were not the drugs recovered from Tatum. The

crime technician identified the contents of the brown

paper bag as containing crack cocaine, and there is no

evidence that its contents had been altered, especially

since the bag had self-sealing locks to prevent tampering

prior to transport to the crime lab. See Thomas, 294 F.3d

at 905 (“merely raising the possibility (however hypothetical) of tampering is not sufficient to render evidence

inadmissible”) (internal quotations omitted).

Even if there is a gap in the chain of custody because

the booking officer could not remember recovering the

drugs from Tatum, the booking officer did testify that it

was his routine to give any drugs found on a suspect’s

person to the arresting officer—in this case, Wagner, who

testified that he inventoried the drugs. See Scott, 19 F.3d at

1244-45 (applying the presumption of regularity where

there was a minor gap in the chain of custody). Therefore,

the failure of the booking officer to recall specifically

recovering evidence from Tatum does not render the

drugs inadmissible. Cf. Thomas, 294 F.3d at 905 (“When

chain of custody is called into question without any
No. 07-3015 7

evidence of tampering, and if the tapes were in official

custody at all times, a presumption arises that the tapes

were handled properly.”).

In any event, if there was an error admitting the drugs,

it was harmless. Even if the 4.024 grams of crack cocaine

that were taken from Tatum following his arrest are

inadmissible, the overall drug quantity amount drops

down to a marijuana equivalent of approximately 740

kilograms. That reduction is not enough to alter Tatum’s

current guidelines range of 151 to 188 months. See

United States v. Frith, 461 F.3d 914, 918 (7th Cir. 2006)

(district court’s error in determining the amount of the

loss for defendant’s securities law violations was

harmless because even if that erroneous amount was

excluded from the loss calculation, defendant’s offense

level remained the same). We find that the government

laid a proper foundation for the drugs through the testimony of Wagner and the crime lab technician; that any

gaps in the chain of custody were likely minimal; and the

district court did not abuse its discretion by admitting

the drugs.

B. Tatum is free to file a § 3582(c)(2) motion in the

district court. 

Tatum seeks a remand to pursue retroactive application

of the revised crack guideline to his sentence. Effective

November 1, 2007, the United States Sentencing Commission reduced offense levels in most crack cocaine cases by

two levels. See United States Sentencing Commission

Guidelines Manual, Supplement to Appendix C, 226-31
8 No. 07-3015

(2007) (Amendment 706). The Commission then made

the changes retroactive, effective March 3, 2008, which

permitted defendants to rely on the amended crack

guidelines to seek sentence reductions under 18 U.S.C.

§ 3582(c)(2). See Supplement to the 2007 United States

Sentencing Guidelines Manual at 1-4 (Mar. 3, 2008)

(U.S.S.G. § 1B1.10(c)). The government contends that we

need not vacate and remand Tatum’s sentence because

the recent guideline amendments do not render Tatum’s

sentence erroneous, and it would be more appropriate

for Tatum to file a motion in the district court rather

than challenge his sentence on appeal.

We agree with the government that the proper vehicle

for Tatum to seek retroactive relief under the revised

guideline is a motion to the district court pursuant to

§ 3582(c)(2). We need not consider whether Tatum can

receive any relief under Kimbrough v. United States, 128

S. Ct. 558, 169 L.E.2d. 481 (2007), because during oral

argument defense counsel stated he was not seeking

relief under Kimbrough in this appeal. We did not decide

in United States v. Taylor, 520 F.3d 746 (7th Cir. 2008), nor

do we today, whether a defendant may receive the

benefit of Kimbrough in a § 3582(c)(2) motion to the

district court.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the judgment of the district court.

11-24-08