Argued May 28, 2015
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:13-cr-00062 -- Theresa L. Springmann, Judge.
For United States of America, Plaintiff - Appellee: Lovita Morris King, Attorney, Office of The United States Attorney, Fort Wayne, IN.
For Joshua R. Mackin, Defendant - Appellant: Donald C. Swanson Jr., Attorney, Andrew L. Teel, Attorney, Haller & Colvin PC, Fort Wayne, IN.
Before FLAUM, KANNE, and SYKES, Circuit Judges.
Kanne, Circuit Judge.
Appellant Joshua Mackin was charged with one count of being a felon in possession of a firearm. During discovery, the government disclosed an incomplete copy of the continuity slip used to track the firearm's chain of custody. Later, at trial, the government produced the correct and complete copy. Mackin moved for a mistrial, arguing that the government violated its Rule 16 obligation to turn over the correct and complete document, as the document was material to preparing his defense. The trial court denied his motion, and he now appeals that denial. For the reasons discussed below, we vacate Mackin's conviction and remand the case for further proceedings.
On August 2, 2013, Fort Wayne police officers Treven Brown and Alexander Ramon went to the home of Appellant Joshua Mackin, seeking to serve him with a valid arrest warrant. The officers apprehended Mackin in the alley outside his home. After placing Mackin in handcuffs, Officer Ramon searched Mackin's person. From Mackin's pants pocket, Officer Ramon recovered a silver handgun that was loaded with five rounds. Officer Brown confiscated the firearm, and he recorded its serial number on an incident report. Officer Brown testified that the weapon was within his view or possession from the time Officer Ramon recovered it until Officer Brown secured it in an evidence locker.
At the time he secured it in the evidence locker, Officer Brown completed a " continuity slip" for the firearm. A continuity slip is a document designed to track the movements of a piece of evidence while it remains in law enforcement's custody. Officer Brown testified that, adhering to protocol, he filled out and signed the continuity slip at the time he placed the firearm in the evidence locker. He then placed the continuity slip in the locker with the firearm.
One month after Mackin's arrest, Bureau of Alcohol, Tobacco, Firearms and Explosives (" ATF" ) Special Agent Craig Edwards examined a firearm bearing the same serial number as the number listed on the incident report prepared by Officer Brown. Agent Edwards determined that the weapon was functional and was manufactured in California.
On August 28, 2013, a grand jury returned a one-count indictment against Mackin, charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In an accompanying allegation, the government sought the forfeiture of the firearm, identifying it by the serial number " 3224934." The district court set Mackin's trial for August 19, 2014.
At some point prior to trial, the government turned over discovery materials requested by Mackin. Included in those materials was a document entitled " F.W.P.D. Continuity Record," or the continuity slip discussed above. The slip is a standard form that includes a variety of labeled boxes, or fields, into which one enters information about items of evidence. Several fields are designed to track the movement of a piece of evidence, including a series of signature boxes marked as " From: Signature, PE" and " To: Signature, PE."
The continuity slip produced to Mackin before trial contained a number of empty fields. To be sure, it included in typewritten form Mackin's name, the date, time, and address of the " original investigation," and a description of the firearm allegedly obtained from Mackin. In the first " From" signature box, the word " copy" is handwritten, and in the first " To" signature box, " Locker #26" is handwritten. But the remaining " From" and " To" boxes are blank, and no signatures appear anywhere on the continuity slip. It was incomplete.
On August 5, 2014, the government filed a motion to correct what it called a " scrivener's error" in the forfeiture allegation that had accompanied Mackin's indictment. The motion to correct indicated that in the forfeiture document, the firearm's serial number did not match the serial numbers listed in Officer Brown's report, the ATF's search record, or the serial number inscribed on the firearm itself. The district court granted the motion, and the government corrected the serial number as listed in the forfeiture allegation. The government did not correct or supplement the incomplete continuity slip.
On August 12, 2014, one week before trial, Mackin filed a proposed jury instruction involving a duress defense. The government responded with a motion in limine, requesting that Mackin be required to establish a prima facie case of duress in order to present that affirmative defense instruction to the jury. The district court denied Mackin's proposed jury instruction and granted the government's motion. That decision left Mackin with only one line of defense: the largely incomplete continuity slip.
At trial, the government called Officer Brown as its first witness. Officer Brown testified to the circumstances of Mackin's arrest, including the recovery of the firearm. During that testimony, the government provided Officer Brown with his incident report and a copy of the continuity slip that had been disclosed to the defense. After refreshing his recollection with those documents, Officer Brown testified that the serial number of the weapon he recovered from Mackin was 3224394. The government then showed Officer Brown a firearm marked as " Government Exhibit 1." Officer Brown testified that the gun appeared to be the same one that he recovered from Mackin. After comparing the serial numbers, he testified that it was indeed the same firearm. The government then moved to admit the firearm into evidence.
Mackin objected to the firearm's admission and was granted leave to voir dire Officer Brown regarding the exhibit. Officer Brown described the normal protocol for securing a weapon, storing the evidence, and completing a continuity slip. He stated that, as the officer placing the weapon into storage, he completed and signed the continuity slip that accompanied the weapon. The slip was then placed in the evidence locker with the firearm. Any person who later accessed the weapon was then required to sign the form, so that, as Officer Brown explained, " we know who has that weapon and where it's at at all times."
Mackin asked Officer Brown to point out where his signature appeared on the continuity form that had been produced to Mackin in discovery. Officer Brown acknowledged that his signature did not appear anywhere on the document, but stated that " if [defense counsel had] the original, [Officer Brown] would be more than happy to show [counsel] on that." Defense counsel, however, had only the incomplete copy provided during discovery. The court then asked the government if the original form was available, to which the government responded that it would check its files.
Following that voir dire, Mackin again objected to the admission of the firearm. He argued that the government could not lay the proper foundation for its admission into evidence because there were no signatures or other notations on the form to document the weapon's handling while in law enforcement's possession. Without that, he argued, the government could not establish the gun's chain of custody. He stated that " apparently there is an entirely separate document that's been prepared by Officer Brown that Mr. Mackin has not been provided as part of his defense."
The court then held a bench conference with counsel outside the hearing of the jury. During the conference, the case agent seated with the government produced a continuity slip that differed from the one Mackin had. This new form contained a number of signatures in the " To" and " From" fields, continuing onto a second page, as well as an indication that the firearm was at one point located in the " ATF vault." The government conceded that this new form had additional information that was not present on the previously ...