U.S. v. Butler, 89-3187
| Citation | 288 U.S. App. D.C. 167,924 F.2d 1124 |
| Decision Date | 04 April 1991 |
| Docket Number | No. 89-3187,89-3187 |
| Parties | UNITED STATES of America v. William Joseph BUTLER, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia (Criminal No. 89-00135).
Mary E. Davis (appointed by the court), for appellant.
William C. Brown, Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Helen M. Bollwerk and Merrick B. Garland, Asst. U.S. Attys., were on the brief, for appellee.
Before EDWARDS, BUCKLEY and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
William J. Butler appeals his convictions on two counts of possession with intent to distribute drugs and his sentences on those charges. Butler challenges his convictions on the grounds that (1) the prosecutor deprived Butler of due process by questioning him and commenting to the jury regarding his silence following arrest; (2) the government failed to provide records requested pursuant to a valid subpoena; (3) the prosecutor impermissibly questioned Butler at trial regarding prior convictions; and (4) a portion of the judge's jury instructions prejudiced the jurors against Butler. In addition, Butler appeals his sentence asserting that the judge erroneously sentenced him as a "career offender" under the United States Sentencing Guidelines. Finding no merit in any of these contentions, we affirm Butler's convictions and sentences.
In deciding this appeal, we must view the evidence in the light most favorable to the government, allowing the government the benefit of all reasonable inferences that may be drawn from the evidence and permitting the jury to determine the weight and credibility of the evidence. United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986). So viewed, the evidence reveals the following material facts.
On April 3, 1989, Officer Glenn Giardino of the District of Columbia Metropolitan Police Department observed Butler, with whom he was acquainted, outside a convenience store on Alabama Avenue, S.E., in the District of Columbia. Recalling that he had seen Butler's name on a list of outstanding arrest warrants, Giardino approached Butler, informed him of the warrant and performed a "pat-down." Giardino discovered no weapons but did notice what "felt like large bags of candy" in Butler's jacket pockets. Giardino then led Butler into the store and was joined there by Officer James Carpenter who watched Butler while Giardino telephoned the warrant division to confirm that the warrant was still outstanding. Having received confirmation, Giardino arrested Butler and conducted a full search of his person, discovering a total of 152 grams of crack cocaine and 17 grams of cocaine powder in his jacket and pants pockets. Butler was then transported to the police station.
After being read his Miranda rights at the station by Officer Sean Rollins, Butler signed a document waiving those rights and agreed to speak. Rollins then asked him where he had obtained the drugs and Butler responded "From the dope boy." When Rollins asked the identity of the "dope boy," Butler hesitated, then requested to speak in private with Giardino. When the two were alone, Butler told Giardino "I was just getting ready to drop it off."
Butler was subsequently indicted on two counts: (1) possessing with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a), (b)(1)(C), and (2) possessing with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. Sec. 841(a), (b)(1)(A)(iii).
On June 14, 1989, Butler was tried before a jury on both drug counts. Butler's defense was, as he testified on direct examination, that he had taken the cocaine from his young cousin, "Little Duck," on the day of his arrest and "was going around the store to take it to the police station" in order to "get even" with "Porky," the drug dealer from whom it had come. He further testified that, although he wanted to explain to Giardino at the time of his arrest why he had the drugs, he did not have the opportunity to do so:
Q ... Why did you sign you wanted to talk to the police?
A Because I wanted to talk to somebody about the incident.
Q And who did you want to talk to?
A I wanted to talk to Giardino because I knew him, and we have talked before to each other.
. . . . .
Q And when you asked to speak to Officer Giardino, what did you tell him?
A I couldn't really tell him nothing because I was trying to tell him what was happening, but he didn't want to hear it. He had already made up his mind. He didn't want to hear what I had said.
Q Did you tell him you were just getting ready to drop that off?
A Yes.
Q Did he believe you?
A No Q What did you decide to do at that point in time?
A Well, they wouldn't listen to me. I didn't want to say nothing else. I just wanted to get an attorney or lawyer or something like that.
Tr. I 128. The jury found Butler guilty on both counts and the judge sentenced him to concurrent prison terms of 240 and 360 months. Butler now appeals both his convictions and his sentences.
Butler first advances four arguments for reversal of his convictions. We find none of them persuasive.
Butler's principal argument is that the prosecutor improperly questioned him on cross-examination, and later commented in closing argument, regarding his silence after arrest, thereby depriving him of his right to due process under the fifth amendment. Because Butler failed to object to the references to silence in either the cross-examination or the closing argument, we review the prosecutor's conduct only for "plain error." United States v. Zabalaga, 834 F.2d 1062, 1066 (D.C.Cir.1987). We find no such error here.
During cross-examination, the prosecutor questioned Butler extensively concerning his failure to tell the police on the day of his arrest that he had intended to bring the drugs to the police station:
Q And when Giardino came back, you didn't say anything to him about the drugs, did you?
A Because when he was coming back, he was talking and telling me I had a warrant on me, and he slammed me up against the refrigerator. It was the coffee machine he slammed me up against, that real quick, and threw handcuffs on me, and searched my pockets.
Q But at no time prior to that did you say anything about the drugs, right?
. . . . .
Q Now, when you got back to the station, Officer Rollins came to you, right?
A True.
Q You did not tell Officer Rollins that you were bringing the drugs to the police department, did you?
A No.
Q And you didn't tell Officer Giardino ever that you were bringing the drugs to the police department, did you?
A Yes, I told him that.
Q You told him--
A I was just about to drop the drugs off. To the police station.
Q Did you use the words "to the police station"?
A No.
Q You never used the words "to the police station"?
A No.
Q And you never explained to him that you got the drugs from Little Duck and you were trying to get even with Porky and that you were bringing the drugs in to give to the police, did you?
A After he tried to prove that it was mine, I just shut up and waited until I got attorneys. I could never talk to them, at no times talk to them. I couldn't talk to them in the police station because they were present with other policemen and I don't want to talk around them.
Q You did pull Giardino aside and you asked to talk to him by yourself, right?
A Yes.
Q And you didn't say those things when you talked to him by yourself, did you?
A No, I didn't say. He didn't pay no attention or listen to it then. He already made up his mind whoever you wanted to do it, so I shut my mouth.
Q You didn't say about bringing the stuff to the police station.
. . . . .
A You didn't tell him you were bringing the drugs to the police department, did you?
. . . . .
Q Did you?
A I mean, at the police station, no, I didn't.
During closing argument, the prosecutor again focussed on Butler's failure to disclose to the police his claimed plans for the cocaine:
No. He doesn't say a word about drugs. Not when he first sees Giardino, not when Giardino walks with him to the Seven-Eleven, and not while Giardino is making a phone call.
Not a word to the other officer, Officer Carpenter, while they are waiting for Giardino to make a phone call, not when Giardino comes back from the call, not when Giardino says he is under arrest, not when Giardino puts him in cuffs, not even when Giardino begins searching him, and not even after Giardino finds the drugs.
By Mr. Butler's own admission, not once at the Seven-Eleven does he say, "Gee, I was on my way to the police department, and here is the drugs, and they belong to Porkie."
* * * * * *
Now we are at the police station. There Mr. Butler meets Officer Shawn Rollins. He testified there. He is a plainclothes officer. Rollins read him his rights. Rollins asked him whether he understood his rights. He said that he did, and he signed the waiver card. Then Mr. Rollins gives Butler an opportunity to talk. Now, does Butler say, "Okay, I just got the drugs from Porkie, and I was on my way to the police department, and I was going to drop them off, and there were a lot of juveniles"? No.
Rollins says, "Where did you get the drugs from?" And he says, "From the dope boy."
And Rollins asks, "Who is the dope boy?" And he doesn't tell him. Why doesn't he tell him? He says he doesn't trust him.
You saw Rollins on the stand. Did he offer any reason why you shouldn't trust Rollins? Does that make any sense?
He said he wanted to talk to Giardino alone. Why? Because he said he trusted Giardino.
. . . . .
And what does he tell this trustworthy officer? Does he tell him he just ripped off a drug dealer? Does he tell him he was on the way to the police...
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