U.S. v. Butcher
| Decision Date | 06 February 1991 |
| Docket Number | No. 89-50558,89-50558 |
| Citation | 926 F.2d 811 |
| Parties | 32 Fed. R. Evid. Serv. 19 UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Eugene BUTCHER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Paul L. Abrams, Federal Public Defender, Los Angeles, Cal., for defendant-appellant.
Stefan D. Stein, Asst. U.S. Atty., Los Angeles, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before ALARCON, NORRIS and WIGGINS, Circuit Judges.
Lloyd Eugene Butcher (Butcher) appeals from his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Butcher claims that (1) the district erred in denying his motion to suppress evidence obtained as a result of his unlawful arrest; (2) the district court abused its discretion in permitting the government to offer evidence of illegal narcotics found in his possession and other guns found at his residence, and in failing adequately to instruct the jury on the limited purpose of the admission of the evidence; (3) the district court abused its discretion by refusing to allow him to present surrebuttal testimony; and (4) the district court erred by considering his past convictions to enhance his sentence in the absence of a proper showing that he understood the nature of the offenses to which he pleaded guilty or nolo contendere. We disagree and affirm.
Butcher was arrested on May 23, 1988 by Special Agent James E. Connor, California Department of Correction, for parole violation. Immediately prior to his arrest Butcher's residence was under surveillance by Connor, and Los Angeles Deputy Sheriffs Roger Harryman and Alan Haney. They observed Butcher leave his residence carrying a black briefcase and walk down his driveway. They subsequently observed him drive a pickup truck to the end of the driveway and park it. He then re-entered his residence without the briefcase. A short time later Butcher loaded some auto supplies in the bed of the truck and drove off. With the assistance of Sergeant Roy Broxton of the Downey Police Department, Butcher's vehicle was brought to a stop.
Deputy Sheriff Harryman testified that as he approached the passenger side of the vehicle he observed the black brief case on the passenger's seat and what appeared to be the butt of a small automatic pistol tucked between Butcher's legs. Sergeant Broxton pulled Butcher out of the truck. Sergeant Broxton testified that as Butcher turned and started sliding out of the drivers seat he heard the sound of metal striking metal and then the pavement. When he looked down he observed a small automatic pistol at his feet. Deputy Sheriff Harryman subsequently recovered the .25 caliber pistol and found it to contain four live bullets. Special Agent Connor testified that he observed the gun fall out of the truck after it struck the floorboard.
After Butcher was taken into custody, the briefcase was opened at Special Agent Connor's request. It was found to contain two plastic bags containing 39 grams of methamphetamine, a plastic scale with powdery residue on top, 50 various sized plastic bags, a greeting card with the name of Lloyd Butcher on the outer envelope, an envelope containing $1000.00 in cash and two 3 X 5 cards with names and figures written on it. A parole search of Butcher's apartment yielded a sawed-off shotgun and a .44 caliber pistol in one of the bedrooms.
As part of its case in chief, the Government presented the testimony of Los Angeles Deputy Sheriff Richard Ballestros, who testified as an expert witness on narcotics trafficking. He testified that methamphatimine was normally sold in .25 gram packets and that 39 grams would provide 390 individual doses of the drug. He identified the index cards found in the briefcase as "pay and owe sheets" commonly found during the arrest of drug dealers. He opined, based upon the evidence found in the briefcase that the methamphetamine was possessed for the purpose of sale. He further testified that drug traffickers typically possess weapons to guard their drugs and money.
Vickie Butcher testified for the defense that the .25 caliber pistol found in the street belonged to her. She stated that she kept the gun at the home of her former boy friend, John Robbins. She testified further that she had obtained the gun from Robbins the day before Butcher's arrest and placed it in the driver's side map compartment of the truck. She explained that she had agreed to loan the gun to the vehicle's owner in return for borrowing the truck. She further stated that she never told Butcher that she had gone to get the gun, or that the gun was in the truck. She also said that she left the gun in the truck so that it would not be in the house.
John Robbins testified for the defense that he gave the pistol to Vickie Butcher as a gift while they cohabitated during 1987. He stated that she retrieved it from him sometime in 1988.
Butcher testified in his own defense. He stated that he had not been told that the gun was in the truck and that he had no knowledge that it was there. He denied having had the gun between his legs. He testified that the first time he saw the gun was when it was picked up the police. He further testified that he had not placed the black briefcase containing drugs in the truck and saw it for the first time after his arrest. He denied that the briefcase was his and claimed that the card with his name on it had been on the dashboard.
On cross examination, Butcher testified that one of the conditions of his parole was that he could not possess firearms. He also testified that his wife left the gun in the truck because she didn't want firearms around him. He further denied that he had two guns in his bedroom. He stated that his wife slept in the upstairs bedroom on the day of his arrest because the downstairs bedroom that he and she normally shared had been flooded. He stated that the upstairs bedroom was normally used by another individual.
On rebuttal, the Government recalled Special Agent Connor. He testified that he participated in the search of Butcher's residence immediately following his arrest. Special Agent Connor stated that he saw no signs of a plumbing leak in the residence. He further testified that he found a .44 caliber pistol and sawed-off shotgun in Butcher's bedroom. He stated that the shotgun was lying on the floor between the bed and the window. He further testified that Vickie Butcher was sleeping in the bed at the time he entered the room. She told him that it was her bedroom. He also observed photographs of Butcher and his wife in the room and papers bearing Butcher's name.
Butcher contends that he was unlawfully arrested and that the district court should have granted his motion to suppress the evidence. We review de novo an order denying a motion to suppress. United States v. Limatoc, 807 F.2d 792, 794 (9th Cir.1987) (citing United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir.1986)). "[T]he ultimate issue of the lawfulness of a search presents a mixed question of law and fact that is reviewed de novo." Limatoc, 807 F.2d at 794 (citing United States v. Feldman, 788 F.2d 544, 550 (9th Cir.1986)).
Butcher contends that the person who arrested him was not an agent of his parole officer and therefore could not take him into custody or conduct a search without probable cause. Butcher also argues that the arrest was invalid because it was used as a subterfuge for a criminal investigation.
Under California and federal law, probable cause is not required to arrest a parolee for a violation of parole. Warrantless arrests of parole violators are also valid. People v. Kanos, 14 Cal.App.3d 642, 648, 92 Cal.Rptr. 614 (1971); United States v. Rabb, 752 F.2d 1320, 1324 (9th Cir.1984), cert. denied, 471 U.S. 1019, 105 S.Ct. 2027, 85 L.Ed.2d 308 (1985). The arrest of a parolee is more like " 'a mere transfer of the subject from constructive custody into actual or physical custody.' " Rabb at 1324 (quoting People v. Villareal, 262 Cal.App.2d 438, 447, 68 Cal.Rptr. 610 (1968)).
A parole officer is not required personally to effect the arrest or search of his parolee to validate the arrest or search. United States v. Dally, 606 F.2d 861, 862-63 (9th Cir.1979); People v. Kanos, 14 Cal.App.3d at 646, 92 Cal.Rptr. 614. In Kanos, the court stated:
The legality of the search is not affected by the fact that it was conducted by Special Agents ... rather than by defendant's own parole officer. The function of these agents was to investigate and apprehend parole violators; they were acting in line with department procedures on behalf of the department.
In the instant case Butcher was arrested on May 23, 1988 by Special Agent James E. Connor of the California Department of Corrections. Special Agent Connor acted in accordance with his statutory duties as an agent for the Department of Corrections. Pursuant to California Penal Code Sec. 830.2(f), the primary duties of the Department of Corrections' Special Agents are the "investigation or apprehension of parolees [and] parole violators...." On May 11, 1988, Butcher's parole officer, Stewart Yeomans, told Special Agent Connor that Butcher had violated the terms of his parole and was a fugitive from the Department of Corrections. Parole Officer Yeomans gave Butcher's last known residence address to Special Agent Connor. Special Agent Connor had the authority pursuant to section 830.2(f) to arrest Butcher once Parole Officer Yeomans told him that Butcher had violated his parole. The district court did not err in concluding that the arrest "was a lawful arrest effected by Agent Connor and in the proper course of his official duties."
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