Before: WALD, BORK, and SILBERMAN, Circuit Judges
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA; Criminal No. 85-00128.
This case was reviewed on the record on appeal from the United States District Court for the District of Columbia and was briefed by counsel for the parties. The court has considered the issues tendered for decision and finds they occasion no need for a published opinion. See D.C. Cir. R. 11(d), 13(c). On consideration thereof and for the reasons set forth in the accompanying memorandum, it is
ORDERED and ADJUDGED, by this Court, that the judgment from which this appeal is taken is affirmed. It is
FURTHER ORDERED, by this Court, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See Local Rule 14, as amended on November 30, 1981 and June 15, 1982. This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.
After a four-day jury trial, the appellant Javed Nawaz was convicted of attempted possession with intent to distribute heroin, 21 U.S.C. § 846, and related charges. Nawaz now appeals his conviction on the grounds that (1) the district court should have disqualified a prosecution witness, government informant Moazzam Khan, because his religion allegedly permitted him to lie for a good cause, and (2) the district court erred in allowing the admission into evidence of a quantity of heroin despite the government's failure to establish its "chain of custody" over the heroin. Because we find that the district court did not abuse its discretion with respect to either of these matters, we affirm the judgment of conviction.
At the outset, we note that the appellant did not object to Khan's testimony at trial and raises the issue of Khan's competence to testify for the first time on appeal. Because challenges to the competence of witnesses to testify must be addressed initially to the district court, the issue must be deemed to have been waived. See United States v. Odom, 736 F.2d 104, 112 (4th Cir. 1984), and cases cited therein. In any event, however, the appellant's claim is meritless. The issue of Khan's tendency toward truthfulness is one of credibility and not competence. See Fed. R. Evid. 601; see also Notes of Advisory Committee on Proposed Rules ("Included among the grounds [of incompetency] thus abolished are religious belief . . . ."). The appellant's trial counsel vigorously cross-examined Khan about his supposed willingness to lie for a "good cause," but the jury apparently believed Khan nonetheless. The appellant was entitled to nothing more.
Nor was it an abuse of discretion for the district court to allow the admission into evidence of heroin imported from Pakistan that the government contended Nawaz intended to purchase. These five kilogram packages of heroin were first obtained by Khan from drug merchants in Pakistan and were transferred successively through a network of undercover Drug Enforcement Agency agents leading to Nawaz. The appellant, noting that one of these agents who possessed the heroin for several days did not testify at trial, claims that the government filed to establish the necessary "chain of custody" over this evidence. Assuming arguendo that a break in this chain would prejudice appellant, we find no reversible error here. Our cases have taken a practical rather than a doctrinaire approach to chain-of-custody questions. Although one agent who served briefly as custodian of the heroin did not appear at trial, Khan testified that he recognized by its packaging and marking that the heroin introduced at trial was that which he had delivered to the absent agent. Under these circumstances, "we are not impressed with the likelihood that chicanery or carelessness characterized the handling of the [heroin] at some point in [its] journey . . . to the courtroom." United States v. Robinson, 447 F.2d 1215, 1221 (D.C. Cir. 1971) (en banc). The government has satisfied its burden of demonstrating the integrity of the evidence "as a matter of reasonable probability." Gass v. United States, 416 F.2d 767, 770 (D.C. Cir. 1969).