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.