U.S. v. Butler, 92-1328

• Decision Date: 05 April 1993
• Docket Number: No. 92-1328,92-1328
• Citation: 988 F.2d 537
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roland Eugene BUTLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 537

988 F.2d 537

UNITED STATES of America, Plaintiff-Appellee, v. Roland Eugene BUTLER, Defendant-Appellant.

No. 92-1328.

United States Court of Appeals, Fifth Circuit.

April 5, 1993.

Peter Fleury, Asst. Federal Public Defender, Ira Kirkendoll, Federal Public Defender, Fort Worth, TX, for defendant-appellant.

Delonia A. Watson, Frank Able, Asst. U.S. Attys., Marvin Collins, U.S. Atty., Fort Worth, TX, for plaintiff-appellee.

Appeal from the United States District Court For the Northern District of Texas.

Before POLITZ, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Roland Eugene Butler makes a number of challenges to his conviction and sentence on charges of possessing with intent to distribute both cocaine (Count I) and cocaine base (Count II). We find no error except in the court's order refusing to allow Butler to conduct an independent chemical analysis of the substance alleged to be cocaine base. We therefore affirm on the cocaine charge (Count I), vacate the judgment on the cocaine base charge (Count II), and remand to the district court with instructions to allow Butler to test the substance alleged to be cocaine base.

I.

On August 1, 1991, at approximately 12:45 a.m., Officer Roy Kaiser, a Narcotics detective with the Los Angeles Police Department, observed an African-American female approach the American Airlines ticket counter at the Ontario International Airport in California. She purchased a ticket with cash and, without carrying any luggage, hurriedly exited the terminal instead of approaching the boarding gate. Officer Kaiser consulted with airport employees and determined that she purchased the ticket in the name of Robin Jamerson. The ticket was for one-way travel departing at 1:00 a.m. to arrive in Washington, D.C. via Dallas/Fort Worth.

Kaiser's partner, Officer Robert Gartner, followed the woman and observed her leave the terminal and hand her ticket to the appellant. The appellant waited for several minutes and then entered the terminal. Officer Gartner followed appellant to the security screening area. Officer Kaiser also observed the appellant, an African-American male wearing a gray, double-breasted suit and carrying a black briefcase and gray garment bag, enter the terminal and quickly approach the security screening area. Officer Kaiser then followed the appellant to the gate area and observed him board the 1:00 a.m. flight to Dallas.

Officer Kaiser then telephoned Agent Mike Munday of the Dallas/Fort Worth DEA Task Force, relayed his observations, and requested that Agent Munday investigate the appellant upon his arrival in Dallas. At the Dallas/Fort Worth Airport, Agent Munday observed a man fitting appellant's description arrive on the flight from Ontario, California. He was carrying a black briefcase and a gray garment bag. Agent Munday approached the appellant, identified himself, and asked for his airline ticket. The ticket, paid for in cash and issued to R. Jamerson, was for one-way travel from Ontario to Washington D.C. via Dallas/Fort Worth. Agent Munday asked for identification but appellant, appearing nervous, denied having any identification. Agent Munday asked appellant if his name appeared correctly on the ticket and the appellant responded that he did not know why the name Jamerson appeared on the ticket. Appellant then presented a California identification card bearing the name Roland Eugene Butler.

Agent Munday asked to search the appellant's briefcase, and the appellant consented to the search. Agent Munday then asked to search the appellant's garment bag. Appellant first responded that he had found the garment bag on the airplane, but later stated that Robin, his half-sister, gave him the bag at Ontario Airport. The appellant did not consent to the search of the garment bag, and Agent Munday asked him to follow the officers to have a drug-detecting canine sniff the bag for the presence of narcotics. The appellant followed the officers to the airport lobby area. The dog gave a positive alert that the garment bag contained narcotics. Agent Munday then arrested appellant and advised him of his Miranda rights. The appellant later gave a written consent to search his garment bag and Agent Munday searched the bag in his office. Agent Munday found a white powdery substance and a brown pasty substance, both of which tested positive for cocaine after a field test. Approximately one week later, Agent Munday found a hospital admittance card bearing the name of Roland Butler inside a pocket of a pair of jeans recovered from the garment bag.

Butler was charged with knowingly possessing 988.1 grams of cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(B); and knowingly possessing 948.4 grams of cocaine base with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). ¹

Prior to trial, appellant filed a motion to suppress the evidence seized from him at the airport and any statements made during his interrogation. The court overruled the motion after a hearing. The appellant also filed a motion to require the government to furnish appellant with a sample of the controlled substances for testing and analysis. The court denied the motion. The appellant also filed an application requesting the court to order issuance of a subpoena to a character witness in California, which the court also denied.

After trial, the jury returned a verdict of guilty on both counts. The court sentenced appellant to concurrent terms of 240 months imprisonment on each count, and concurrent terms of four years of supervised release on the cocaine offense and five years on the cocaine base offense. Butler filed a timely notice of appeal.

II.

Butler first challenges the district court's order denying his application for the issuance of a subpoena to produce Kerry Morning, a character witness, and the court's refusal to admit into evidence portions of that witness's affidavit. The affidavit accompanied Butler's application for the issuance of the subpoena and demonstrated the nature of the character witness's testimony. Morning stated that appellant's character and reputation were inconsistent with that of a drug dealer. Appellant contends that the court's ruling violated both his constitutional and statutory right to compulsory process.

On appellant's statutory claim, Fed.R.Crim.P. 17(b) provides that a court shall order a subpoena on a named witness upon a satisfactory showing "that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense." A trial court enjoys wide discretion in determining whether a subpoena should issue under Rule 17(b). United States v. Ojebode, 957 F.2d 1218, 1222 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1291, 122 L.Ed.2d 683 (1993). It is unusual that a character witness's testimony will be essential to an adequate defense. This is not such an unusual case. Cocaine and cocaine base were recovered from a garment bag that Butler was carrying. A card identifying Butler was found in the garment bag. It is unlikely that Morning's testimony would have undermined this strong, direct evidence of guilt. It follows that Morning's testimony probably would not have changed the verdict in this case. We are satisfied that the witness was not "necessary to an adequate defense."

Similar reasoning persuades us that Butler's constitutional claim must also fail. Butler cannot show that he was unable to obtain a fair trial without Morning's testimony. See Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir.1983).

Appellant also challenges the court's refusal to allow him to introduce the following passages of Morning's affidavit:

Roland's character and reputation is not consistent with that of a drug dealer. I have never known Roland to possess, use, or sell drugs.

The accusations against Roland are inconsistent with my knowledge of his character and reputation.

Appellant's argument is meritless. The district court facilitated a stipulation between the parties. It agreed to admit most of the affidavit into evidence because both the government and the appellant stipulated to its admission. The court refused to admit the above quoted part of the affidavit because the government declined to stipulate to its admissibility. The hearsay affidavit was only admissible to the extent the parties agreed to its admissibility. We find no error in the court's refusal to admit the affidavit in its entirety.

III.

The appellant next argues that the district court erred in overruling his motion to suppress evidence because the officers lacked reasonable suspicion in seizing appellant. For purposes of reviewing the district court's ruling at a suppression hearing we accept the court's factual findings "unless they are clearly erroneous or are influenced by an incorrect view of the law." United States v. Simmons, 918 F.2d 476, 479 (5th Cir.1990).

Agent Munday stopped appellant because he matched a description of an individual who exhibited suspicious behavior in the Ontario airport. The court found that the initial contact between the agents and appellant constituted "mere communication," which does not implicate the Fourth Amendment. See United States v. Hanson, 801 F.2d 757, 761 (5th Cir.1986). We have held that a "simple stop," consisting of a request for identification and a plane ticket, does not constitute a seizure. United States v. Galberth, 846 F.2d 983, 989-90 (5th Cir.), cert. denied, 488 U.S. 865, 109 S.Ct. 167, 102 L.Ed.2d 137 (1988).

The court found that a seizure occurred when appellant handed Agent Munday his airline ticket and identification card bearing two different names, and that the seizure was justified and supported by reasonable suspicion. "[A] district court's determination that a seizure has or has not occurred is a finding of fact subject to reversal only for clear...