United States v. Butler

United States Court of Appeals,

Eleventh Circuit.

No. 95-8250.

UNITED STATES of America, Plaintiff-Appellee,

v.

Tyrone BUTLER; Albert Campbell, III, Defendants-Appellants.

Jan. 6, 1997.

Appeals from the United States District Court for the Southern
District of Georgia.

Before BIRCH and CARNES, Circuit Judges, and MICHAEL*, Senior
District Judge. (Nos. CR294-53-5, CR294-53-1), Anthony A. Alaimo,
Judge.

MICHAEL, Senior District Judge:

Appellants Tyrone Butler and Albert Campbell, III were

convicted of conspiracy to possess cocaine and cocaine base with

intent to distribute, in violation of 21 U.S.C. § 846. In

addition, Butler was convicted of possession of cocaine base with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On

appeal, Butler argues that (1) the trial court abused its

discretion by limiting his ability to recall the government's key

witness during the presentation of his defense; (2) application of

the sentencing guidelines violates his equal protection rights

because possession of cocaine base is punished at a much greater

level than possession of powdered cocaine; and (3) there was

insufficient evidence to convict him because the government's key

witness was not credible and there was little corroborating

evidence presented to support the witness's claims. Campbell also

*
Honorable James H. Michael, Senior U.S. District Judge for
the Western District of Virginia, sitting by designation.
makes numerous arguments in an effort to reverse his conviction.

He contends that (1) the trial court abused its discretion by

admitting evidence of his 1987 conviction for possession of

cocaine; (2) the trial court abused its discretion by refusing to

repeat its earlier instruction to the jury to disregard

inadmissible evidence of a 1988 cash seizure; (3) the trial court

abused its discretion by failing to sever his trial from that of

the other defendants; (4) the trial court erred in denying his

motions to suppress; (5) the trial court abused its discretion by

permitting a law enforcement to testify that money seized from

Campbell was packaged in "dealer folds"; and (6) the sentencing

guidelines are, on their face, unconstitutional because they

distinguish between cocaine and cocaine base, two substances that

are chemically indistinguishable. Each of appellants' claims will

be analyzed separately below.

I. Appellant Butler's Claims

A. Abuse of Discretion Through Limitation on Recall of a Government
Witness

Butler argues that the trial court abused its discretion by

limiting Butler's ability to recall the government's key witness

regarding telephone records that were introduced after examination

of the witness. Bill Noble, the government's key witness, was

convicted of conspiracy charges relating to the instant case. In

an effort to reduce his sentence of 360 months, Noble testified as

to Butler's involvement in the conspiracy. Telephone records

introduced after Noble's examination corroborated his testimony.

Butler argues that he was prevented from examining Noble about the

records in violation of his Sixth Amendment right to confront the
witness.1 The government argues that Butler never renewed his

request that the witness be recalled during his presentation of

evidence, and that in any case, Butler's Sixth Amendment rights

were not compromised because he had ample opportunity to attack

Noble's credibility during cross-examination.

"[E]videntiary rulings will be disturbed on appeal only where

there appears a clear abuse of discretion." United States v.

Taylor, 17 F.3d 333, 340 (11th Cir.), cert. denied, --- U.S. ----,

115 S.Ct. 364, 130 L.Ed.2d 317 (1994). Moreover, "[a] trial judge

has broad discretion in controlling the extent of direct and

cross-examination." United States v. James, 510 F.2d 546, 551 (5th

Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81

(1975). The defense made a tactical decision not to introduce the

telephone records during its cross-examination of Noble. If the

records on their face impeached the testimony of Noble, further

cross-examination was unnecessary. See Taylor, 17 F.3d at 340

(noting that "once there is sufficient cross-examination to satisfy

the Sixth Amendment's Confrontation Clause, further questioning is

within the district court's discretion"). If, however, Butler

sought to recall Noble to contradict the telephone records on a

subject about which Noble had previously not testified, further

cross-examination may have been warranted. Assuming without so

holding that additional cross-examination was permitted, the

substantial evidence introduced against Butler assures that the

1
Following re-direct, Butler asked to be able to later
recall Noble on the subject of the telephone records but was
rebuffed by the judge, who stated "No more. We have had enough
time for him."
error was harmless. Ignoring the toll records, the balance of the

evidence supported Butler's convictions. Noble testified that

cocaine that he received from Campbell and his brother was

distributed to Butler and co-defendant Rodney Walker. When Noble

stopped acting as a go-between for Campbell and Butler, Butler

began to receive the cocaine directly from Campbell, a fact

supported by the testimony of Noble and Walker. In addition,

undercover agents witnessed Butler selling cocaine. Finally,

evidence seized in two separate searches corroborated the

relationship between co-defendant Marvin Campbell and Butler.

Accordingly, reversal of Butler's convictions on this ground is

unwarranted.

B. Unconstitutional Application of Sentencing Guidelines

Butler argues that his sentence of 290 months for conviction

of conspiracy and possession of cocaine and cocaine base with

intent to distribute violates his equal protection rights because

the punishments relating to cocaine base under the sentencing

guidelines are one hundred times greater than those relating to

powdered cocaine. He argues that application of these guidelines

leads to a disparate impact on blacks. This court has repeatedly

rejected this argument within the past four years. See, e.g.,

United States v. Byse, 28 F.3d 1165 (11th Cir.1994) (holding

disparate impact of sentencing guidelines on blacks was

insufficient to show discriminatory intent on the part of

Congress), cert. denied, --- U.S. ----, 115 S.Ct. 767, 130 L.Ed.2d

663 (1995); United States v. King, 972 F.2d 1259 (11th Cir.1992)

(holding that even though the sentencing guidelines had a disparate
impact on blacks, a rational basis existed for differentiating

between cocaine base and cocaine); see also United States v.

Butler, 41 F.3d 1435 (11th Cir.1995). Butler's appeal on this

ground is thus without merit.

C. Sufficiency of the Evidence

Butler argues finally that insufficient evidence was

presented to support his conviction for conspiracy. Specifically,

he contends that the government's witnesses were not credible

because they had incentives to lie and the corroborating evidence

was insufficient to permit a finding of a conspiracy.

Although "[s]ufficiency of the evidence is a question of law

reviewed de novo," an appellate court will nevertheless "view the

evidence in the light most favorable to the government, with all

reasonable inferences and credibility choices made in the

government's favor." United States v. Martinez, 83 F.3d 371, 373

(11th Cir.1996). A review of the record assures this court that a

reasonable fact finder could have found sufficient evidence to

convict Butler of the crimes for which he was charged. See supra

part I.A. Butler's appeal on this ground is thus likewise

unavailing on the merits.

II. Appellant Campbell's Claims

A. Admission of the 1987 Conviction

Campbell argues that the trial court abused its discretion by

admitting evidence of his 1987 conviction for possession of cocaine

for the purpose of proving intent. Under Federal Rule of Evidence

404(b), evidence of a prior criminal act is admissible if the

evidence (1) is "relevant to an issue other than the defendant's
character"; (2) is "sufficient to support a finding that the

defendant actually committed the extrinsic act"; and (3) if its

probative value is not substantially outweighed by unfair

prejudice. United States v. Miller, 959 F.2d 1535, 1538 (11th

Cir.) (en banc) (applying the Fifth Circuit's Beechum test), cert.

denied, 506 U.S. 942, 113 S.Ct. 382, 121 L.Ed.2d 292 (1992).

Intent is always at issue when a defendant pleads not guilty to a

conspiracy charge. United States v. Hernandez, 896 F.2d 513, 523

(11th Cir.), cert. denied, 498 U.S. 858, 111 S.Ct. 159, 112 L.Ed.2d

125 (1990). Campbell argues that whereas prior possession of a

commercial quantity of drugs is relevant to prove intent to

distribute under Rule 404(b), evidence of prior possession of drugs

for personal drug use is inadmissible to establish the intent to

conspire to distribute narcotics.

Although this court has not addressed whether prior personal

drug use evidences an intent to distribute drugs, it previously has

admitted evidence of personal drug use where the use was tied to

the offenses being prosecuted. Accordingly, in United States v.

Lehder-Rivas, 955 F.2d 1510, 1517 (11th Cir.), cert. denied, 506

U.S. 924, 113 S.Ct. 347, 121 L.Ed.2d 262 (1992), this court

affirmed a district court's decision to admit evidence of a

defendant's personal drug use that took place during the course of

a conspiracy, concluding that such information was relevant to

explain other events that occurred during the conspiracy.

Similarly, in United States v. Alonso, 740 F.2d 862, 869 (11th

Cir.1984), cert. denied, 469 U.S. 1166, 105 S.Ct. 928, 83 L.Ed.2d

939 (1985), we held that evidence that the defendants had used
cocaine with an informer was relevant to demonstrate the

relationship and trust that developed between the defendants and

the informer during the course of the conspiracy. In the instant

case, Campbell's 1987 conviction for possession of cocaine took

place more than three years prior to the events underlying the

conspiracy for which he was convicted. As such, the events that

led to the 1987 conviction were not intimately related to the

instant conspiracy. Thus, we must determine the relevance of prior

personal drug use in a subsequent, unrelated prosecution for the

distribution of drugs.

The circuits are not unanimous on this issue. In United

States v. Gadison, 8 F.3d 186, 192 (5th Cir.1993), the Fifth

Circuit noted that a defendant puts his intent at issue when he

pleads guilty to a conspiracy charge. Id. at 192 (citing United

States v. Prati, 861 F.2d 82, 86 (5th Cir.1988)). There the

defendant, convicted of distributing crack cocaine, argued on

appeal that his prior state court conviction for unlawful

possession of cocaine should have been excluded. The court,

however, concluded that the conviction was admissible because "[a]

prior conviction for possession of cocaine is probative of a

defendant's intent when the charge is conspiracy to distribute."

Id.

As indicated, other circuits have reached a contrary decision.

See United States v. Ono, 918 F.2d 1462, 1464-65 (9th Cir.1990);

United States v. Monzon, 869 F.2d 338, 344-45 (7th Cir.), cert.

denied 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989);

United States v. Marques, 600 F.2d 742, 751 (9th Cir.), cert.
denied, 444 U.S. 858, 100 S.Ct. 119, 62 L.Ed.2d 77 (1979);

Enriquez v. United States, 314 F.2d 703, 717 (9th Cir.1963).

After considering the rationales enunciated by the various

courts of appeals, we conclude that the logical extension of our

current jurisprudence is to admit evidence of prior personal drug

use to prove intent in a subsequent prosecution for distribution of

narcotics. Intent is clearly at issue in a conspiracy prosecution;

thus, we follow the Fifth Circuit's conclusion that evidence of

prior use is relevant to proof of intent. Were we to decide

otherwise than as indicated in the Gadison case, the decision below

would still be affirmed, for the record below is replete with other

evidence, principally unchallenged, to demonstrate to a reasonable

jury the defendant's guilt beyond a reasonable doubt. Evidence was

introduced that Campbell repeatedly supplied Noble with cocaine and

that Noble either paid Campbell directly or wired Campbell's

girlfriend the money via Western Union. In addition, Howell

testified that Campbell supplied him with powdered cocaine and paid

him to process it into crack cocaine. Furthermore, a search of a

car in which Campbell was riding resulted in the seizure of almost

$6,000 in currency packaged in "dealer folds." Finally, a search

of Campbell's house led to the discovery of an electronic scale

with crack cocaine residue, $10,000 in currency packaged in "dealer

folds," and evidence of numerous cash expenditures that vastly

exceeded Campbell's income over a three year period. Thus, we

conclude that any alleged error in admitting Campbell's conviction

would be harmless. Accordingly, admission of the prior conviction

does not present as grounds for reversal of conviction.
B. Failure to Repeat an Instruction to the Jury

The district court initially permitted the government to

introduce evidence of the seizure of money from Campbell during a

1988 search at an airport in St. Louis. Nevertheless, the court

later ruled this evidence inadmissible under Rule 404(b) and

instructed the jury to ignore the evidence. Campbell argues that

the district court abused its discretion when it refused to repeat

the instruction during the court's charge to the jury.

"[T]he timing of [a limiting] instruction is best left to the

trial judge's discretion" because he is better able to determine

whether such an instruction "would unduly emphasize the evidence in

the minds of the jurors." United States v. Dabish, 708 F.2d 240,

243 (6th Cir.1983). Where a contemporaneous limiting instruction

has been given to the jury, the court retains discretion to

determine whether the instruction needs repeating at the end of

trial. United States v. Ashby, 864 F.2d 690, 694 (10th Cir.1988),

cert. denied, 494 U.S. 1070, 110 S.Ct. 1793, 108 L.Ed.2d 794

(1990). In the instant case, the court gave a limiting instruction

when it excluded the evidence. It quite properly might have

believed that repeating the instruction would unduly emphasize the

1988 search in the airport. Moreover, because the law assumes that

jurors follow their instructions, see Richardson v. Marsh, 481 U.S.

200, 206, 107 S.Ct. 1702, 1706, 95 L.Ed.2d 176 (1987); United

States v. Chandler, 996 F.2d 1073, 1088 (11th Cir.1993), cert.

denied, --- U.S. ----, 114 S.Ct. 2724, 129 L.Ed.2d 848 (1994), the

repetition of a limiting instruction was unnecessary. The court's

refusal to repeat the instruction was not an abuse of discretion.
C. Motion for Severance

Campbell argues that his motion to sever his trial from the

other defendants should have been granted in light of a Bruton

problem. The government introduced a statement of co-defendant

Samantha Williams that was elicited during a search of her

residence. In that statement, Williams denied owning several

cooking pots, pans, and a scale, all of which were used in the

production of cocaine base.2 Campbell argues that even though

Williams's statement neither facially implicated nor made any

reference to him, admission of the statement violated Bruton v.

United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Under Bruton, a non-testifying codefendant's statement is

inadmissible if the statement facially incriminates another

defendant. If, however, the statement does not facially

incriminate another defendant but merely becomes incriminating

after being linked with evidence that is later introduced at trial,

the statement may be introduced if redacted so as "to eliminate not

only the defendant's name, but any reference to his or her

existence." Richardson, 481 U.S. at 208, 211, 107 S.Ct. at 1707,

1709.

In the instant case, Williams denied owning the crack pots and

scale. Campbell contends, however, that even though Williams did

not state that the items belonged to Campbell, the inference was

clear because he had fathered several of her children, financially

supported Williams, and spent time in the house which was linked to

2
This statement was already redacted for trial so as to
avoid Bruton problems; the original statement identified
appellant Campbell as the owner of the drug paraphernalia.
the drug conspiracy. That notwithstanding, Williams's statement as

introduced to the jury poses no Bruton problem because it makes no

reference whatsoever to Campbell or any other individual. Williams

simply denied ownership of certain drug paraphernalia. Just

because other evidence was introduced that permitted the inference

that it was Campbell's paraphernalia is insufficient to justify

applying the Bruton bar. Accordingly, Campbell's appeal on this

ground is denied.

D. Motions to Suppress

Campbell challenges four separate searches, each of which will

be addressed separately.

1. Search of Sarah Williams's Residence

Campbell argues that the search of Williams's house was

illegal because consent was not properly obtained from the

occupants. The Magistrate Judge held that Campbell had standing to

challenge the search. Campbell argues that consent was not validly

obtained because the arresting officers had stationed other

officers around the perimeter of the house in order to prevent its

occupants from leaving, thus effectively seizing the occupants

prior to obtaining consent.

A warrantless search undertaken without probable cause is

valid if conducted pursuant to consent. Schneckloth v. Bustamonte,

412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973).

Consent is valid if obtained voluntarily. Id. at 222, 93 S.Ct. at

2045. "[W]hether a consent to a search was in fact "voluntary' or

was the product of duress or coercion, express or implied, is a

question of fact to be determined from the totality of all the
circumstances." Id. at 227, 93 S.Ct. at 2047. One consideration

is whether "the police conduct would have communicated to a

reasonable person that the person was not free to decline the

officer[ ]'[s] request[ ]" to search the house. See Florida v.

Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389

(1991). Appellant suggests that Williams consented to the search

because she was already aware that the police had surrounded the

house to prevent its occupants from leaving. The Magistrate Judge,

however, determined from the facts that consent was given

voluntarily. Williams opened the door voluntarily, was informed

that she could refuse the search, signed a consent form, and was

cooperative. When Williams later argued that consent was not

voluntarily given, the Magistrate Judge found the testimony of the

officers more persuasive and credible.

On appeal, the factual findings of a magistrate judge as to

the credibility of witnesses will only be overturned if clearly

erroneous. See Amadeo v. Zant, 486 U.S. 214, 215, 108 S.Ct. 1771,

1772, 100 L.Ed.2d 249 (1988). Based on the evidence before the

court, it cannot be said that the magistrate's decision was clearly

erroneous. Accordingly, Campbell is denied relief on this ground.

2. Search of Appellant's Residence

Campbell challenges the adequacy of the affidavit used to

establish probable cause for the search warrant that was used in

connection with the search of his residence. Specifically,

Campbell argues that the affidavits was based upon stale

information, failed to establish probable cause, and failed to

establish the affiant's basis of knowledge.
 "Information must be timely for probable cause to exist, for

probable cause must exist at the time the magistrate judge issues

the search warrant. Stale information is not fatal where the

government's affidavit "updates, substantiates, or corroborates the

stale material.' " United States v. Green, 40 F.3d 1167, 1172

(11th Cir.1994) (quoting United States v. Harris, 20 F.3d 445, 450

(11th Cir.1994)), cert. denied, --- U.S. ----, 115 S.Ct. 1809, 131

L.Ed.2d 733 (1995). In the instant case, while some of the

information may have been two years old, additional information

updated and substantiated the stale material. Accordingly, the

primary issue is whether the affidavit established probable cause.

The task of the issuing magistrate [in determining whether to
issue a warrant] is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the
affidavit before him, including the "veracity" and "basis of
knowledge" of persons supplying hearsay information, there is
a fair probability that contraband or evidence of a crime will
be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76

L.Ed.2d 527 (1983). This question is reviewed de novo by an

appellate court, "tak[ing] care to review findings of historical

fact only for clear error and to give due weight to inferences

drawn from those facts by resident judges and local law enforcement

officers." Ornelas v. United States, --- U.S. ----, ----, 116

S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996).

The warrant to search appellant's residence was based on the

affidavit of James Tuten, a Task Force Officer for the Drug

Enforcement Agency. In his affidavit, Tuten stated that Campbell

had been named by a federal grand jury in an indictment arising out

Campbell's cocaine distribution activities. The affidavit
explained that Noble, an unindicted co-conspirator, had stated that

Campbell had kept cocaine in a garage at his residence two years

previously. The affidavit, however, did not state the basis for

Noble's information; i.e., whether Noble had ever been to

appellant's house. Nevertheless, the affiant further explained

that Samantha Williams had stated that Campbell conducted his drug

trafficking business from her home. This information was supported

by the fruits of the search of Williams's home—pots and a scale,

all of which contained cocaine base residue. Howell, another

person who had dealings with Campbell, told the affiant that he had

been introduced to Campbell at Campbell's residence, and had

repeatedly purchased quarter and half kilos of cocaine from

Campbell. Finally, the affiant explored Campbell's finances to

conclude that appellant had a large amount of unexplained wealth.

Based on these facts, the issuance of a warrant was

appropriate. The facts asserted in the affidavit supported

allegations that appellant was involved in the drug trade and

created "a fair probability that contraband or evidence of a crime

[would] be found" at appellant's residence. Campbell's conviction

therefore will not be reversed on the basis of this search.

3. St. Louis Airport Search

Campbell challenges the introduction of evidence arising out

of a consensual search of his luggage in a St. Louis airport.

Campbell argues that he was illegally detained because he was not

informed that he was free to ignore the police and go about his

business. Because this evidence ultimately was not admitted at

trial, the issue of detention and the search's validity is
irrelevant. Rather, this issue is governed by the limiting

instruction, which was sufficient. See supra part II.B.

4. Martin County Search

Finally, Campbell challenges an automobile search. Pursuant

to a lawful traffic stop, police seized almost $6000 from a car in

which he was riding. Campbell argues that even though the police

had probable cause to stop the vehicle, they needed a search

warrant to look behind the door panel that contained some of the

money.

On appeal, determinations of probable cause and reasonable

suspicion should be reviewed de novo. Ornelas, --- U.S. at ----,

116 S.Ct. at 1662. The car in which Campbell was a passenger was

pulled over because it was speeding and one of its headlights was

out. The driver was arrested pursuant to an outstanding warrant,

and a search incident to arrest resulted in the discovery of $1200

over the driver's side visor. The officer then discovered that

Campbell had previously been convicted of a drug felony.

Furthermore, the ownership of the vehicle was at issue because

Campbell claimed to have borrowed the car. Given these facts, the

officer had probable cause to search the vehicle for drugs and

additional contraband. See id. at ----, 116 S.Ct. at 1663.

Campbell, however, argues that even though probable cause

existed to permit a search, the vehicle was already under physical

control of the police, thus requiring a warrant. "If a car is

readily mobile and probable cause exists to believe it contains

contraband, the Fourth Amendment thus permits police to search the

vehicle without more." Pennsylvania v. Labron, --- U.S. ----, ----
, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996). Because the car

was stopped on the highway in the process of returning to Miami, it

remained readily mobile, thus justifying the search behind the

loose panel.3 Accordingly, the evidence of the search was

admissible.

E. Dealer Folds

A dealer fold is a means of packaging money that is peculiar

to drug dealers. Campbell argues that the district court erred

when it admitted testimony that the money seized from Campbell

during the Martin County automobile search was packaged in dealer

folds because the officer's testimony regarding this issue was

based solely upon the officer's experience.

"The rule is well-established that an experienced narcotics

agent may testify about the significance of certain conduct or

methods of operation unique to the drug distribution business...."

United States v. Washington, 44 F.3d 1271, 1283 (5th Cir.), cert.

denied, --- U.S. ----, 115 S.Ct. 2011, 131 L.Ed.2d 1010 (1995);

see also United States v. Cross, 928 F.2d 1030, 1050 (11th Cir.),

cert. denied, 502 U.S. 985, 112 S.Ct. 594, 116 L.Ed.2d 618 (1991);

United States v. Thomas, 676 F.2d 531, 538 (11th Cir.1982).

Testimony as to dealer folds, therefore, was admissible unless

barred by Federal Rule of Evidence 403. "[A] conviction will not

be overturned on the basis of a violation of Rule 403 absent a

clear abuse of discretion. This rule is "an extraordinary remedy

which should be used sparingly,' and, indeed, the trial court's

3
That the automobile remained readily mobile is confirmed by
the fact that the officer permitted Campbell to continue on his
way after seizing the money.
discretion to exclude evidence as unduly prejudicial is "narrowly

circumscribed.' " Cross, 928 F.2d at 1051. On the basis of this

standard, this court does not find the admission of testimony

regarding "dealer folds" unduly prejudicial.

F. Sentencing Guidelines

Finally, Campbell also asserts that application of the

sentencing guidelines violates due process because cocaine and

cocaine base are chemically indistinguishable. At the time oral

argument was had in the instant case, this court was considering

the identical argument in another case pending before the court.

That case having been decided, we are now compelled to reject

Campbell's argument. See United States v. Sloan, 97 F.3d 1378

(11th Cir.1996).

Accordingly, for all the reasons previously stated, appellant

Campbell's conviction will be AFFIRMED.

As the convictions of both appellants are affirmed, the

decision of the court below is AFFIRMED.