Incomplete continuity slip gets conviction vacated

A Fort Wayne man’s argument that his defense strategy was upended when the government waited until mid-trial to produce a complete chain of custody document convinced the 7th Circuit Court of Appeals to overturn his conviction.

Joshua Mackin was charged with being a felon in possession of a firearm after Fort Wayne police found a loaded silver handgun in his pants pocket while arresting him for an outstanding warrant. One of the arresting officers secured the firearm in the evidence locker and filled out a continuity slip, which tracks the movement of a piece of evidence.

Prior to trial, the government gave a copy of the continuity slip, which was incomplete, to Mackin. It was missing signatures of the officers who had been in possession of the gun and it had the wrong serial number for the firearm.

At trial, the defense argued the half-done continuity slip showed the government would not establish the gun’s chain of custody. The government countered by producing a complete continuity slip and conceded it had not given the form to Mackin’s counsel.

Moving for a mistrial, the defense argued the government violated Federal Rule of Criminal Procedure 16 by failing to disclose the correct continuity slip. Mackin’s team said the issue of chain of custody was the primary trial strategy and if the correct slip had been provided, Mackin may had pled.

The U.S. District Court for the Northern District of Indiana, Fort Wayne Division, denied the motion and Mackin was found guilty.

On appeal, Mackin contended that he would have known his chain-of-custody defense strategy was implausible had the government disclosed the correct continuity form. But because the prosecution’s own error raised the potential for that defense, he was deprived of the opportunity to prepare a plausible defense.  

The government asserted it did not violate Rule 16 because it had no reason to suspect that Mackin would contest the gun’s chain of custody or that the continuity slip would be material to his defense.

A unanimous 7th Circuit panel disagreed with the government and ordered Mackin’s conviction be vacated in United States of American v. Joshua R. Mackin, 14-3602.

“Mackin does not argue that he had an absolute right to disclosure of the continuity slip, or that continuity slips are mandatory discovery material in the mine-run of cases,” Judge Michael Kanne wrote for the court. “Instead, he argues that in this particular case, once the government chose to disclose the incomplete continuity slip, he was entitled to the complete and correct one. We agree, and we hold as much today.”