UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4209

ROBERT L. ADAMS, a/k/a Bubby,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-97-136)

Submitted: December 3, 1998

Decided: December 18, 1998

Before LUTTIG and TRAXLER, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James P. McHugh, KING, ALLEN, GUTHRIE & McHUGH,
Charleston, West Virginia, for Appellant. Rebecca A. Betts, United
States Attorney, Philip J. Combs, Assistant United States Attorney,
John C. Parr, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Robert L. Adams appeals his conviction for possession of a firearm
by a convicted felon, in violation of 18 U.S.C.A.§ 922(g)(1) (West
Supp. 1998). In this appeal, he challenges the constitutionality of
§ 922(g), the district court's denial of a requested jury instruction, the
admission of certain evidence, and the propriety of the Government's
closing argument.

Adams was indicted after a firearm was seized from his cell block.
He had previously been convicted of a crime punishable by imprison-
ment exceeding one year. The jury found him guilty, and he was sen-
tenced to ten years imprisonment.

Relying on United States v. Lopez, 514 U.S. 549 (1995), Adams
challenges the constitutionality of § 922(g), asserting that the enact-
ment of the statute exceeded Congress's Commerce Clause authority.
Having rejected the identical argument in United States v. Wells, 98
F.3d 808, 811 (4th Cir. 1996), we find Adams' argument to be with-
out merit. See also Scarborough v. United States , 431 U.S. 563, 577
(1977) (finding predecessor felon-in-possession statute within the
bounds of the Commerce Clause).

Next, Adams contends that the district court erred in refusing to
instruct the jury that Adams' possession of the firearm must have had
a direct impact on interstate commerce, greater than merely that the
firearm originated in a state other than West Virginia. He also asserts
that the district court erroneously denied him the right to submit evi-
dence showing that his possession of the firearm did not affect inter-
state commerce. However, in Wells, we specifically held that the
existence of the statute's jurisdictional element-- requiring the Gov-
ernment to prove that the firearm was "shipped or transported in inter-
state or foreign commerce" -- "satisfies the minimal nexus required

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for the Commerce Clause." 98 F.3d at 811. Consequently, we hold
that an adequate interstate nexus exists if the firearm was shipped or
transported in interstate or foreign commerce, regardless of whether
the defendant was involved in the shipping or transporting. Accord-
ingly, the district court did not err in refusing Adams' jury instruc-
tions or in limiting the admissible evidence on this subject.

At trial, several witnesses testified that Adams possessed the fire-
arm in question to facilitate an escape attempt. Adams unsuccessfully
filed a motion in limine seeking to exclude such testimony and now
assigns error to the admission of this evidence.

While Fed. R. Evid. 404(b) forecloses admission of similar acts
evidence simply to prove a defendant's bad character, it permits such
evidence where necessary to provide the context or res gestae of the
charged offenses. See United States v. Masters , 622 F.2d 83, 86 (4th
Cir. 1980). Such was the case here. Adams arranged for the gun to
be smuggled into the prison, and then he secreted it outside of his
individual cell. It would have been difficult for the Government to
create a coherent story about the relationship between Adams and the
firearm without some leeway to discuss his motive, intent, and lack
of mistake or accident.

However, the district court must still consider carefully whether the
prejudicial impact of the res gestae evidence substantially outweighs
its probative value. See Fed. R. Evid. 403. We review that balancing
exercise deferentially for abuse of discretion. See Masters, 622 F.2d
at 87-88. The prejudicial value of this evidence is minimal and gives
us no cause to find that the district court acted arbitrarily or irratio-
nally by admitting it. We find no abuse of discretion.

Adams next challenges, on chain of custody grounds, the introduc-
tion of a pillow used to smuggle the gun into the jail. The purpose of
establishing "chain of custody" as a threshold requirement to admis-
sion of evidence is to establish that the item to be introduced is what
it purports to be. See United States v. Howard-Arias, 679 F.2d 363,
366 (4th Cir. 1982). The authentication testimony must be "suffi-
ciently complete so as to convince the court that it is improbable that
the original item had been exchanged with another or otherwise tam-
pered with." Id. at 366. Precision in developing chain of custody is

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not an iron-clad requirement. See id. Resolution of a chain of custody
question rests within the sound discretion of the trial judge. See id.

Adams contends that the Government failed to account for the evi-
dence from the time of its seizure until it was obtained by the officer
who brought it to the evidence locker. In addition, he asserts that the
pillow was altered after it was first brought to the jail. We find that
any unaccounted for time period merely presents a"missing link" in
the chain of custody, and because there was sufficient proof that the
evidence was what it purported to be, admission of the evidence was
not an abuse of discretion. See United States v. Clark, 928 F.2d 639,
643 (4th Cir. 1991). In addition, any change in condition between the
time the pillow was brought to the jail and the time it was seized does
not weigh against admission. See United States v. Roberts, 503 F.2d
453, 456 (8th Cir. 1974) (if condition of evidence is the same at trial
as at the time of seizure, admission into evidence is proper).

Finally, Adams asserts that, during closing arguments, the Govern-
ment referred to his failure to testify when it stated that testimony
regarding that fact that the firearm was manufactured in California
was "unchallenged." To determine whether an indirect remark consti-
tutes an improper comment on a defendant's decision not to testify,
a court must ask whether the language used was intended to be, or
was of such character that the jury would naturally and necessarily
take it to be, a comment on the failure of the accused to testify. See
United States v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973), aff'd,
417 U.S. 211 (1974). Review of the record reveals that the reference
to which Adams objects was simply a statement that the evidence
regarding a certain issue was uncontroverted. Such statements gener-
ally do not constitute improper comments on a defendant's failure to
testify. See United States v. Percy, 765 F.2d 1199, 1204-05 (4th Cir.
1985). Further, the trial court specifically told the jury that the state
had the burden of proof, that Adams was not required to prove his
innocence, and that the jury's recollection of the evidence was con-
trolling. Given these instructions and the nature of the Government's
comments, we find this claim to be meritless.

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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