           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        November 13, 2008

                                       No. 07-60884                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

RAY ANTHONY CHANEY, also known as Ray Anthony Bradley, also
known as Ray Chaney, also known as Ray A Chaney, also known
as Ray N Bradley

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                           USDC No. 1:07-cr-00012-LG


Before DAVIS, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
       Defendant Ray Anthony Chaney (“Chaney”) appeals from his conviction,
following a jury trial, on three counts relating to the theft and possession of a
firearm.      Chaney argues the district court erroneously permitted the
Government’s introduction of a firearm into evidence without a sufficient basis
for determining its authenticity. Chaney additionally argues his trial counsel



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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was ineffective for failing to offer evidence to rebut “the Government’s key
witness.”     For the reasons stated below, we AFFIRM the district court’s
evidentiary ruling and decline to address the undeveloped ineffective assistance
claim.
                          I. BACKGROUND FACTS
         A Kel-Tec assault rifle was stolen from “Guns & Ammo,” a Moss Point,
Mississippi, firearms store on July 7, 2005. Upon discovering that the firearm
was missing from the store, the store’s owner, Randy Weaver, a federally
licensed firearms dealer, immediately reported the theft to the Moss Point
Police. At approximately the same time, the Moss Point Police received a report
of a man carrying a firearm at a local residence (referenced at trial as the
“Frederick Street residence”). Officers responded to both the dealer’s store and
the residence.
         Upon arriving at the Frederick Street residence, Patrolman Dale Smith
of the Moss Point Police Department saw cars in the driveway, one of which was
a Nissan Sentra. Patrolman Smith testified at trial that he saw Chaney exit the
rear passenger area of the Sentra “with a sheet covering what appeared to be a
weapon -- a rifle of some type.” Patrolman Smith and another officer followed
Chaney behind the residence and, when they got to the rear of the house, the
officers saw Chaney proceeding back towards the Nissan Sentra. Also at the
rear of the house, the officers saw a white sheet with computer speakers
wrapped inside, as well as a rifle lying beside the sheet. The officers arrested
Chaney and Patrolman Smith was instructed by his superior to stay with the
rifle. He testified that the rifle had a “Guns & Ammo” sales tag on it. Patrolman
Smith testified that the rifle he guarded after the incident was the same rifle
that was in the photographs and in the courtroom. Thereafter, Detective David
Lawson of the Moss Point Police Department retrieved and photographed the
rifle.


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      While those officers were at the Frederick Street residence, Detective
Zrondia Hartfield of the Moss Point Police Department responded to Weaver’s
store. While interviewing Weaver, Detective Hartfield testified that she received
a radio call from another officer stating that a firearm had been recovered at the
Frederick Street residence. Via radio, she verified that the firearm had the same
serial number as the firearm Weaver reported stolen. Detective Hartfield
collected the store’s surveillance camera tapes and returned to the police
department, where she observed the rifle collected from the Frederick Street
residence and noted that it still had a “Guns & Ammo” tag attached to it.
      Officers took photographs of Chaney immediately after the arrest that
showed him wearing a distinctive baseball cap with a diamond patch on the
front. Those photographs were admitted into evidence at trial. Detective
Lawson testified that the defendant was wearing the same baseball cap in the
Guns & Ammo surveillance tape as he was wearing in the booking photos.
Patrolman Smith testified the person he saw exiting the Nissan Sentra with the
sheet and rifle was wearing “[d]ark clothing and a dark ball cap,” which was
consistent Chaney’s appearance on the store surveillance tape and in the post-
arrest photographs. Patrolman Smith also testified that Chaney was the person
he saw exiting the Nissan Sentra and in possession of the rifle.
      At trial, the Government introduced the Kel-Tec rifle into evidence. As
noted above, Detective Lawson testified that, as part of processing the rifle, he
took a photograph of the rifle’s serial number. That serial number matched the
serial number of the weapon Weaver testified was stolen from his store.
Detective Lawson also testified that he did not attempt to lift fingerprints from
the weapon because it had a textured surface, making it unsuitable for
fingerprint testing. Detective Lawson returned the weapon to Weaver on the
same day as the incident. Weaver testified that law enforcement did not give



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him any special instructions with respect to the returned rifle. He put the rifle
on display for sale.
      The firearm did not look exactly the same when introduced at trial as it
did on the day it was stolen. Patrolman Smith testified that he identified the
rifle under the sheet during his initial encounter with Chaney because of its
sight -- which had been removed by the time of trial. Special Agent Joe Belisle
of the federal Bureau of Alcohol, Tobacco, and Firearm was qualified as an
expert in the field of identification and manufacture of firearms. He provided
the necessary evidence demonstrating the rifle’s connection to interstate
commerce. Agent Belise also testified that the rifle met the statutory definition
of   a “firearm.”   To reach his conclusions, Agent Belise testified that he
personally examined the rifle by picking it up from Weaver’s store. He testified
that the firearm had some rust areas that were not apparent at the time it was
stolen because, while in the ATF’s custody, the rifle was exposed to moisture
during Hurricane Katrina.       Agent Belise also testified that the rifle as
introduced into evidence was missing a magazine and barrel extender with
accompanying sight, because he let Weaver keep those items while Agent Belise
was examining the weapon. Agent Belise then described those missing items for
the jury.
      On February 22, 2007, a federal grand jury indicted Chaney on three
counts: (1) stealing or unlawfully taking a firearm from a federally licensed
firearms dealer in violation of 18 U.S.C. § 922(u); (2) possession of a stolen
firearm in violation of 18 U.S.C. § 922(j); and (3) being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). The jury returned a guilty verdict
on all three counts. The district court sentenced Chaney to terms of 120 months
imprisonment as to counts one and two, and a term of 235 months imprisonment




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as to count three, all to run concurrently, in addition to a term of supervised
release and a special assessment. Chaney filed a timely notice of appeal.1
                                    II. DISCUSSION
A.    Admission of the Firearm
      The parties do not dispute that the Kel-Tec assault rifle introduced at trial
was the same rifle stolen from the Guns & Ammo store. In that respect, the
rifle’s authenticity is not at issue.          Instead, Chaney argues the rifle was
materially altered such that it was rendered inadmissible at trial and that the
district judge consequently erred in permitting its admission. We disagree.
      As an initial matter, the parties agree that defense counsel did not object
to the admission of the Kel-Tec rifle at trial and that we should therefore only
review the district court’s evidentiary ruling for plain error. Under the plain
error standard, we first ask whether the district court committed an “error” that
is “plain” and that affects substantial rights. United States v. Reyna, 358 F.3d
344, 350 (5th Cir. 2004). “If those criteria are met, we have the discretion to
correct the forfeited error but should do so only if the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’” Id. (alteration
in original) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
      “[A] trial judge may admit physical evidence if he is satisfied that in
reasonable probability the article has not been changed in any important respect
from its original condition.” United States v. Albert, 595 F.2d 283, 290 (5th Cir.
1979). “Factors to be considered in making this decision include the nature of
the article, the circumstances surrounding its custody, and the likelihood of
others tampering with it.” Id. at 290 n.14. This determination is committed to
the district court’s “broad discretion.” See United States v. Daughtry, 502 F.2d
1019, 1022-23 (5th Cir. 1974).


      1
          Chaney does not appeal the district court’s sentencing decisions.

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      In support of his argument, Chaney points to various ways that the rifle
changed between the robbery and trial, namely that the sight was absent at
trial, that it had been in Weaver’s possession for approximately two months, and
that the rifle suffered some water damage as a result of Hurricane Katrina.
However, not every change to a piece of physical evidence renders it inadmissible
at trial: only changes “in any important respect from its original condition” will
call the item’s admissibility into question. Albert, 595 F.2d at 290. The presence
of rust, its possession by Weaver, and the absence of a magazine and sight did
not affect the jury’s ability to determine whether the rifle was a “firearm,”
undoubtedly an important issue at trial. Moreover, there is no reason to believe
those changes affected the rifle’s serial number, which was the primary method
for determining that the rifle introduced at trial was the same weapon stolen
from Guns & Ammo and recovered from the Frederick Street residence.
      Chaney further argues that, without the barrel extender and
accompanying sight, the jury could not test the veracity of Patrolman Smith’s
testimony. Specifically, Patrolman Smith testified he saw Chaney carrying
something wrapped in a sheet, which he identified as a rifle because of its
distinctive sight. The jury was capable of considering this issue despite the
missing sight. “Unless persuaded the evidence is too unreliable -- matter which
is too likely to induce speculation or to introduce the likelihood of more prejudice
than probative weight -- the [district judge] should permit the jury to consider
the evidence for what it is worth.” Daughtry, 502 F.2d at 1023. Aside from the
rifle (sans barrel extender and sight), the jury had photographs taken of the
weapon on the day of the robbery, as well as Patrolman Smith’s and Agent
Belise’s testimony describing the missing sight. Those witnesses were available
for cross-examination. Thus, we cannot conclude that the rifle was so unreliable
that the district judge abused his discretion in permitting the jury to conduct its
own evaluation of the evidence.        Additionally, even if the district judge

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committed some error in permitting the rifle’s admission without the barrel
extender and sight, we cannot conclude in light of the other testimony and
evidence regarding the sight and establishing Chaney’s guilt that the rifle’s
admission was plain error, affected Chaney’s substantial rights, or seriously
affected the fairness of the proceedings such that reversal is warranted.
      Finally, the district court did not err in permitting the rifle’s introduction
at trial despite the nearly two months that it was in Weaver’s possession. “Any
break in the chain of custody affects the weight, not the admissibility of
evidence. Thus, if the district court correctly finds that the government has
made a prima facie showing of authenticity, then the evidence is admissible, and
issues of authenticity are for the jury to decide.” United States v. Johnson, 68
F.3d 899, 903 (5th Cir. 1995) (internal citations omitted). Chaney does not
dispute that the Government made a prima facie showing of authenticity.
Accordingly, Weaver’s possession of the rifle was a matter for the jury to
consider and did not affect the rifle’s admissibility.
B.    Ineffective Assistance of Counsel
      Chaney next argues that his trial counsel was constitutionally ineffective
in his treatment of Patrolman Smith’s testimony. Patrolman Smith testified at
trial that he saw Chaney exit the Nissan Sentra and run behind the Frederick
Street residence; Chaney claims there was available evidence that Patrolman
Smith previously stated that he only saw Chaney come from behind the Nissan
Sentra and walk to the rear of the Frederick Street. Chaney asserts trial
counsel provided ineffective assistance by failing to develop this inconsistency
in order to discredit Patrolman Smith’s testimony.
      “We do not usually review claims of ineffective assistance of counsel on
direct appeal, because the record is rarely sufficiently developed to enable
appellate review.” United States v. Cothran, 302 F.3d 279, 285 (5th Cir. 2002).
In this case, we have no evidence concerning counsel’s reasons for not

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impeaching Patrolman Smith’s testimony using the purportedly contradictory
evidence. Such evidence is generally required to evaluate whether counsel
provided ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 689
(1984) (“A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.”). Thus, we do not address the merits of
Chaney’s ineffective assistance claim because this is not one of the “rare cases”
where the record is sufficiently developed to permit resolution of the claim. See
United States v. Andrews, 22 F.3d 1328, 1345 (5th Cir. 1994); United States v.
Higdon, 832 F.2d 312, 314 (5th Cir. 1987). This decision is without prejudice to
Chaney’s right to raise the claim in proceedings under 28 U.S.C. § 2255. See
Cothran, 302 F.3d at 285; Higdon, 832 F.2d at 314.
                             III. CONCLUSION
      For the foregoing reasons, we affirm the defendant’s conviction and decline
to consider his ineffective assistance of counsel claim.
      AFFIRMED.




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