U.S. v. Butch, 99-5738

Citation256 F.3d 171
Decision Date24 April 2001
Docket NumberNo. 99-5738,99-5738
Parties(3rd Cir. 2001) UNITED STATES OF AMERICA, v. JOSEPH BUTCH APPELLANT Submitted Under Third Circuit LAR 34.1(a)
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

On Appeal From the United States District Court For the District of New Jersey (D.C. Criminal No. 98-00390) District Judge: Honorable Stephen M. Orlofsky

Mark W. Catanzaro, Moorestown, NJ, for Appellant Joseph Butch.

Robert J. Cleary United States Attorney George S. Leone Chief, Appeals Division Newark, NJ, and Norman J. Gross, Assistant United States Attorney Camden Federal Building and United States Courthouse, Camden, NJ, for Appellee United States of America.

Before: Barry, Ambro and Aldisert, Circuit Judges

OPINION OF THE COURT

Ambro, Circuit Judge

Joseph Butch challenges his conviction following a jury trial in the United States District Court for the District of New Jersey (the "District Court") on one count of violating 21 U.S.C. S 846 by conspiring to distribute and to possess with intent to distribute oxycodone, a Schedule II narcotic controlled substance, contrary to 21 U.S.C.S 841(a)(1). He also challenges the sentence imposed by the District Court. Butch alleges that the District Court (1) improperly admitted evidence of prior thefts of oxycodone at trial, (2) erred in determining the applicable sentencing range under the United States Sentencing Guidelines by attributing to him the entire weight of each pill rather than calculating the amount of the controlled substance per pill, and (3) erred by failing to submit the weight of the controlled substance to the jury for a factual determination beyond a reasonable doubt in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). We have jurisdiction over this appeal pursuant to 28 U.S.C. S 1291. For the reasons that follow, we will affirm the conviction and sentence.

I.

At the time of this alleged criminal activity, Butch was employed as a scheduler and dispatcher for two related, Philadelphia-based commercial truck and driver leasing companies, Marano Truck Lease ("Marano") and American Helper ("AH"). Marano and AH leased trucks and drivers to the courier service Rapid Delivery Services ("RDS"). RDS in turn was employed by Amerisource, a wholesale distributor of pharmaceutical drugs and other medical products, to deliver those products from its warehouse in Thorofare, New Jersey, to hospitals and pharmacies.

From September, 1997 through January, 1998, Butch scheduled Robert Manning ("Manning"), a temporary driver for AH, to a delivery route for Amerisource. According to Manning's testimony, on January 7, 1998 Butch offered Manning $5000 to help him steal a tote of Amerisource's pharmaceutical drugs from the back of the delivery truck that Manning would be driving the next day. Manning agreed. On January 8, 1998, Manning met Butch and another man at a Burger King restaurant on Front Street in Philadelphia. Butch retrieved a plastic tote containing the drugs from the back of the truck. After Manning had resumed his route, Butch discovered that he had stolen the wrong tote. Butch called Manning and arranged to have the third man meet Manning at a Dunkin' Donuts shop to pick up the correct tote, which he did. When Manning arrived later at the Veteran's Administration hospital in Philadelphia, he called the police and reported the theft as planned. Several days later, Butch gave Manning the agreed-upon $5000.

In April and May of 1998, Butch twice solicited Manning to steal pharmaceutical drugs from Amerisource trucks that others were driving. Butch identified the trucks, the delivery routes and the drug totes, and gave Manning the key. Manning was to follow the trucks and steal the drugs when the drivers left the trucks unattended. Manning took the keys, but did not follow through with the theft of any drugs.

On May 19, 1998, Butch offered $5000 to George Fronick ("Fronick"), another AH driver who made deliveries for Amerisource, to help him steal pharmaceutical drugs from the truck Fronick was driving. Fronick reported the plan to his supervisor at RDS, and the FBI and DEA were notified. Investigators for the two agencies arranged for Fronick to cooperate in apprehending Butch.

After a failed attempt on May 20, 1998, Butch again solicited Fronick to assist him in his theft plans. Fronick reported the solicitation to his supervisor, and the investigators supplied Fronick with a concealed micro-cassette recorder and a video camera to place in the back of his truck. On June 4, 1998, Butch detailed the plan to have Fronick arrive at Mercy Hospital at 6:30 a.m., drive the front of the truck up to the loading dock, and unlock the back of the truck. A third man would unload the totes from the back of the truck. Fronick was then to get rid of the padlock, and report the theft to the police. This conversation was recorded on the micro-cassette carried by Fronick. The third man was Manning, who testified that Butch instructed him to take the drugs from the back of the truck, deliver them to Butch at a Dunkin' Donuts shop near the Marano facility, and report to a job Butch had scheduled for him.

Early the next morning, Fronick met Butch at a gas station and went over the plan. Butch gave Fronick two plastic trash bags, told him to put the boxes of drugs into the bags, and to leave them at the back of the truck. Fronick picked up the delivery and drove his truck to Mercy Hospital according to Butch's instructions. When he reached the hospital parking lot, Fronick activated the hidden camera in the truck and proceeded with the plan. In addition to the hidden camera and the hospital's own surveillance camera, the investigators had the entire scene under surveillance. They observed Butch and another man, Fred Moll ("Moll"), sitting inside Moll's car. They also observed Manning approach the truck, remove two plastic bags containing the boxes of pharmaceutical drugs, and place them into the trunk of his car. As Manning attempted to drive out of the hospital parking lot, the investigators stopped and arrested him, seizing the bags from the trunk. Other agents blocked Moll's car and arrested Moll and Butch. The bags contained 26,400 Endocet tablets, a generic form of Percocet, each tablet containing approximately 4.4 milligrams of oxycodone and 325 milligrams of acetaminophen. See Physicians' Desk Reference 1211 (55th ed. 2001).

On June 18, 1998 a federal grand jury sitting in Newark, New Jersey returned a one count indictment, charging "[f]rom on or about May 19, 1998 to on or about June 5, 1998,... Joseph Butch did knowingly and intentionally conspire and agree with others to distribute and to possess with intent to distribute oxycodone, a Schedule II narcotic drug controlled substance, contrary to Title 21, United States Code, Section 841(a)(1), [i]n violation of Title 21 United States Code, Section 846." The indictment did not specify the quantity of oxycodone attributable to Butch.

On April 26, 1999, the Government filed a motion in limine seeking the admission of evidence of Butch's January and May, 1998 dealings with Manning as intrinsic to the conspiracy charged or, alter natively, as admissible under Federal Rule of Evidence 404(b). On May 3, 1999, the day that the jury trial began, the District Court issued a published opinion1 denying the Government's motion to admit the evidence as intrinsic to the conspiracy and as evidence of a common scheme and plan.2 However, the District Court admitted under Rule 404(b) the testimony of Manning for the limited purpose of establishing the background of the conspiracy as charged in the indictment. The District Court also recited the limiting instruction it intended to accompany the evidence.

The Government introduced evidence of the January and May, 1998 events at trial. The limiting instruction was given. Butch testified in his own defense, denying any criminal intent and claiming that it was Manning who had solicited him to steal the drugs. Butch also testified that he pretended to participate in the scheme in order to catch Manning in the act. The jury rejected Butch's defense and on May 11, 1999, convicted him of the charge. The District Court sentenced Butch to 240 months (20 years) imprisonment, the statutory maximum for the crime of which he was convicted.

II.

Butch's initial challenge on appeal is that the District Court improperly permitted the Government to introduce evidence of his January and May, 1998 dealings with Manning under Federal Rule of Evidence 404(b).3 The nature of his objection is twofold. First, Butch argues that the testimony of specific events admitted to establish the background of a conspiratorial relationship goes well beyond the limited, general questioning that this Court permits. See United States v. O'Leary, 739 F.2d 135 (3d Cir. 1984). Second, he argues that the probative value of the evidence is substantially outweighed by its prejudicial effect. We review the District Court's decision to admit evidence under Rule 404(b) for an abuse of discretion, which "may be reversed only when `clearly contrary to reason and not justified by the evidence'." United States v. Balter, 91 F.3d 427, 436 (3d Cir. 1996) (citing United States v. Bethancourt, 65 F.3d 1074, 1079 (3d Cir. 1995)). We conclude that the District Court did not abuse its discretion in admitting Manning's testimony as background evidence of a conspiratorial relationship pursuant to Rule 404(b).

The "threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character." Huddleston v. United States, 485 U.S. 681, 686 (1988). This Court recently set out a four -factor standard governing the admissibility of evidence pursuant to Rule 404(b), which requires: (1) a proper evidentiary purpose; (2) relevance under Rule 402; (3) a weighing of the probative value of the evidence against its...

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