U.S. v. Butera, No. 81-5203

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: INGRAHAM
• Citation: 677 F.2d 1376
• Parties: 10 Fed. R. Evid. Serv. 1469 UNITED STATES of America, Plaintiff-Appellee, v. John Henry BUTERA, Robert Andrew DeNoma, Defendants-Appellants.
• Docket Number: No. 81-5203
• Decision Date: 10 June 1982

Page 1376

677 F.2d 1376 10 Fed. R. Evid. Serv. 1469 UNITED STATES of America, Plaintiff-Appellee,
v.
John Henry BUTERA, Robert Andrew DeNoma, Defendants-Appellants. No. 81-5203. United States Court of Appeals,
Eleventh Circuit. June 10, 1982.

Page 1378

Harrison T. Slaughter, Jr., A. Thomas Mihok, Orlando, Fla., for dEnoma.

Thomas G. Murray, Melvin S. Black, Miami, Fla., for Butera.

Robert A. Leventhal, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before INGRAHAM ^*, HATCHETT and ANDERSON, Circuit Judges.

INGRAHAM, Circuit Judge:

Appellants John Henry Butera and Robert Andrew DeNoma appeal from their convictions for distribution and aiding and abetting the distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) (1976) and 18 U.S.C. § 2 (1976). Butera was charged with distribution in all three counts of the indictment, while DeNoma was charged with aiding and abetting such distribution in only two of the counts: the jury returned guilty verdicts against each appellant on all counts in which they were named. Butera raises the following issues: whether the fruits of electronic surveillance allegedly conducted in violation of state law should have been suppressed; whether the district court improperly exempted a government witness from sequestration and allowed the witness to take the stand on four separate occasions; whether comments by the district court deprived appellant of a fair trial; whether comments by the prosecutor in closing argument deprived appellant of a fair trial; and whether voir dire was adequate with respect to a particular panel member. DeNoma contends he was improperly joined with Butera in the three count indictment and that severance should have been granted under Rule 14 of the Federal Rules of Criminal Procedure, and also that the evidence was insufficient to support his conviction on Count 1. As to the issues raised by Butera and DeNoma's arguments concerning joinder and severance, we find no reversible error and, accordingly, we affirm. We find the concurrent sentence doctrine is applicable to DeNoma's final argument and therefore do

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not reach the merits of that claim; rather, following the procedure adopted in United States v. Cardona, 650 F.2d 54, 58 (5th Cir. 1981), we vacate the judgment of conviction on Count 1 as to DeNoma.

I-Background ¹

This case is the result of an undercover narcotics investigation in Orlando, Florida. The principal investigator was Agent Michael Morris, a local police officer on assignment to a United States Drug Enforcement Administration Task Force. On September 29, 1980, appellant Butera contacted Agent Morris on a telephone used by the DEA for undercover operations. (Butera had been given the telephone number by an individual in Alabama who was cooperating with federal authorities). Morris and Butera subsequently met to discuss the possibility of cocaine sales by Butera to Morris. During these preliminary meetings Butera assured Morris that he could procure large quantities of high purity cocaine.

In the events underlying Count 1 of the indictment, Butera and Morris met on October 2 at a restaurant in Orlando. Morris placed $1650 on the table, whereupon Butera produced an eyeglass case containing white powder. At this moment appellant DeNoma approached the table, picked up the money as Butera slid it in his direction, and left the restaurant. Morris stated that he intended to test the white powder to see if it was cocaine, but Butera indicated he should wait until his "man" was safely gone. Butera then stated that the white powder was not cocaine, showed Morris approximately $2000 in his wallet, and explained that he was being careful in case Morris was a law enforcement officer, but that Morris could call off the deal at that point if he desired. Butera then asked the waitress to tell an individual at an adjoining table, who was and remains unidentified, to come to the table. This individual placed another eyeglass case on the table, which Butera gave to Morris. This case was subsequently determined to contain twenty eight grams of 59% pure cocaine. Count 1 of the indictment charged Butera with distribution of cocaine on this occasion, as aided and abetted by DeNoma.

Count 2 involved a sale on October 16 that took place at a private residence on Old Cheney Highway in Orlando. Only Butera and Morris took part in this transaction, in which Butera sold Morris twenty eight grams of 87% pure cocaine for $2000.

Following additional discussions, the parties all gathered on the night of November 19 at the Old Cheney residence to plan the first of what was intended to be several large sales. At this meeting, Morris was wearing a transmitter that allowed agents outside the house to monitor and record the conversations. Butera produced a white garbage bag filled with white powder. Assisted by DeNoma, Butera weighed the bag, gave a small sample to Morris, and sealed the bag in a large brown paper bag. This white powder was subsequently determined to be nine hundred and ninety-eight grams of 90% pure cocaine. Pursuant to the arrangements made that evening, the parties met the following afternoon. Morris and another DEA Task Force agent, Agent Fernandez, met DeNoma at a motel. DeNoma and Agent Fernandez, who was carrying $62,000 ostensibly to be used for the purchase, went to a second motel and Morris proceeded to meet Butera at the airport. Butera there handed over the package that had been prepared the night before. Both appellants were thereupon arrested.

II-Appellant Butera

A. Admissibility of Recorded Conversations.

At trial the government introduced three tape recordings of a conversation involving Butera, DeNoma and Agent Morris which took place in Butera's residence on the evening of November 19, 1980. As noted above, the recordings were obtained via a concealed transmitter worn by Agent Morris. No warrant was obtained in connection with this transmission and recording. Butera's

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pretrial motion to suppress the recordings was denied and his objection to admission at trial was also unsuccessful.

Butera concedes that the evidence was admissible as a matter of federal law, in that neither the Constitution nor the federal wiretapping statute ² require a warrant or other safeguards before conversations are overheard or recorded, as in this case, with the consent of one of the participants in the conversation. See United States v. Caceres, 440 U.S. 741, 744, 750-52, 99 S.Ct. 1465, 1467, 1470-71, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); United States v. Shedan, 651 F.2d 336 (5th Cir. 1981) (citing 18 U.S.C. § 2511(2)(c) ³); United States v. Gorel, 622 F.2d 100, 106 (5th Cir. 1979), cert. denied, 445 U.S. 943, 100 S.Ct. 1340, 63 L.Ed.2d 777 (1980); United States v. Nelligan, 573 F.2d 251, 254 (5th Cir. 1978). Nevertheless, Butera argues that the recordings should have been suppressed because Agent Morris and others involved in the investigation were state and local officials, and the warrantless recordings violated the Florida Constitution as interpreted by its state courts. This argument is utterly without merit.

As we have previously observed, "it is well settled that federal law governs the admissibility of tape recordings in federal criminal cases," and complaints that the evidence was obtained in violation of state law are of no effect. United States v. Nelligan, 573 F.2d 251, 253 (5th Cir. 1978) (cites omitted); see also United States v. Horton, 601 F.2d 319, 323 (7th Cir.), cert. denied, 444 U.S. 937, 100 S.Ct. 287, 62 L.Ed.2d 197 (1979); United States v. Testa, 548 F.2d 847 (9th Cir. 1977); United States v. Shaffer, 520 F.2d 1369, 1372 (3d Cir. 1975), cert. denied sub. nom. Vespe v. United States, 423 U.S. 1051, 96 S.Ct. 779, 46 L.Ed.2d 640 (1976); United States v. Neville, 516 F.2d 1302, 1309 (8th Cir.), cert. denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 251 (1975). ⁴ But cf. Walinski & Tucker, Expectations of Privacy: Fourth Amendment Legitimacy Through State Law, 16 Harv.C.R.-C.L.L.Rev. 1 (1981). That Agent Morris is a member of the City of Orlando Police Department does not affect the application of federal law to this issue, see Nelligan, supra, 573 F.2d at 253, particularly when the record reflects that Agent Morris was on an indefinite special assignment to the DEA, was under the supervision of federal authorities at all relevant times, had been deputized as a United States Deputy Marshal and received part of his pay from the federal government. Cf. United States v. Gray, 626 F.2d 102, 105 (9th Cir. 1980) (state agents serving with DEA were, at time of search, acting in "federal capacity"; federal law applies). The recordings were properly admitted.

B. Witness Sequestration.

Butera contends that Agent Morris was improperly exempted from witness sequestration under Federal Rule of Evidence 615.

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After the government presented Agent Morris as the principal investigating officer in the case, the district court ruled that Morris would be a designated representative for purposes of Rule 615(2) and therefore could remain in court to assist the government in the presentation of its case; however, the district court also ordered Morris not to discuss his testimony with the other witnesses. Morris took the stand on four separate occasions to describe the underlying events in the case in chronological order. The district court specifically made an observation on the record, however, that Morris had not taken full advantage of the court's ruling and had not remained in the courtroom during the testimony of other witnesses.

As a case agent, Morris was clearly exempted under Rule 615(2) and the district court's ruling was entirely correct. See United States v....