U.S. v. Butler

• Decision Date: 20 December 1989
• Docket Number: No. 88-5022,88-5022
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles BUTLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 195

885 F.2d 195

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

No. 88-5022.

United States Court of Appeals Fourth Circuit.

Argued Jan. 13, 1989.

Decided Sept. 19, 1989.

Rehearing Denied Dec. 20, 1989.

Ira N. Loewy (Donald I. Bierman, Bierman, Shohat & Loewy, P.A., Miami, Fla., on brief), for defendant-appellant.

Donna Helen Triptow, Asst. U.S. Atty. (Breckinridge L. Wilcox, U.S. Atty., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.

ERVIN, Chief Judge.

On July 15, 1987, a jury found Charles Butler guilty of multiple violations of federal narcotics laws. Butler now appeals from his convictions for three of those violations. Specifically he challenges his conviction on one count of engaging in a Continuing Criminal Enterprise ("CCE") in violation of 21 U.S.C. Sec. 848 and two counts of conspiracy to import and distribute heroin in violation of 21 U.S.C. Secs. 952 & 963. Finding no merit in Butler's assertions of error, we affirm his CCE conviction. Butler's conspiracy convictions, however, must be vacated because they were proved by the government as predicates to the CCE violation.

I.

The evidence presented at Butler's thirteen day trial indicates that Butler has been a major player in the Baltimore drug world for some time. Most of this evidence came from the testimony of David Richeson, one of Butler's associates. Together, Butler and Richeson controlled a sham import-export business known as Quazar International. Through Quazar, Butler and Richeson put together an import network that brought heroin into the United States first from Nigeria and later through Pakistan. The testimony of several convicted drug dealers also reveals that Butler orchestrated a sizeable heroin wholesale operation which marketed the heroin he imported into Baltimore.

According to Richeson, Quazar used the services of Emmanuel and Johnmark Nwolise to buy and bring heroin in from Nigeria. In 1982 and 1983, Emmanuel Nwolise made several trips to Nigeria, financed by Butler through Quazar, to purchase heroin. On some of these trips he obtained heroin through a Nigerian Customs Inspector named George Nwokeji. Butler accompanied Emmanuel Nwolise on at least one trip in May of 1983 and returned with one-quarter kilo of heroin. On other trips Emmanuel was accompanied by his brother, Johnmark. Johnmark Nwolise and Naurice Leigh also made an unsuccessful trip for Butler to bring back heroin from Sierra Leone.

By mid-1984, however, relations between Butler and the Nwolise brothers became strained, in part due to the unsuccessful venture in Sierra Leone. About this time Quazar hired Dawar Shaikh, a Pakistani national who was supposed to develop legitimate business for Quazar in the Middle East. Shaikh turned out to have few business skills but did have drug contacts in Pakistan. Richeson testified that he and Shaikh made three trips to purchase heroin in Pakistan. Although Butler provided the cash for each of these trips, Richeson never informed Shaikh of Butler's identity or involvement. Before each trip, Butler instructed Richeson on the quantity and quality of heroin to be brought back. In Pakistan, Shaikh purchased heroin from a jeweler named Mahmood Ul-Hassan. Shaikh then flew back to Toronto, Canada with the heroin. Butler would return separately to the United States and then drive to Toronto to bring Shaikh and the heroin to Baltimore.

These trips came to an end in May of 1985, when Shaikh was arrested. Shaikh agreed to cooperate with authorities who used him to set up a reverse sting operation to catch Richeson. On May 16, 1985, Shaikh called Richeson and offered to sell him a kilo of heroin which he claimed to have purchased with his own funds during their last trip to Pakistan. Richeson met Shaikh at his apartment and, under video surveillance, took possession of a yellow bag containing a small amount of heroin and four kilo's of a lookalike substitute prepared by agents of the Drug Enforcement Administration.

When Richeson left Shaikh's apartment, police followed him to a parking lot in West Baltimore where he met Butler. Officers watched as Richeson took a yellow bag out of his car and gave it to Butler. Butler put the bag in his trunk and each man drove off in different directions. Richeson was stopped and arrested shortly thereafter. The officers decided not to arrest Butler right away, however, and instead tried to follow him in the hope of determining to whom he might be delivering the sham heroin. Butler, though, realized that he was being followed and managed to elude his trackers.

As luck would have it, evidence collected in another ongoing drug investigation revealed Butler's actions later that day. As part of an unrelated investigation, police had tapped a phone belonging to Junior Ison, a Baltimore drug dealer. Taped conversations from May 16, 1985, indicate that Butler drove to Ison's home and that Ison purchased the four kilo's of sham heroin. Later taped conversations suggest that this sham heroin caused a great deal of confusion and discontent in Baltimore's drug world. Butler, however, continued to elude the police. He was finally arrested some nineteen months later when police, acting on an informant's tip, discovered Butler at his home.

Following his arrest, a grand jury returned a superseding indictment charging Butler with seventeen violations of federal narcotics and income tax laws. ¹ Counts 14-17, charging income tax evasion, were severed and have since been resolved in separate proceedings. On July 1, 1987, a jury found Butler guilty on all thirteen remaining counts. Butler has not appealed from his convictions for the various narcotics violations charged in counts 4 through 13. Instead he challenges only his convictions under Count 1 for conducting a CCE, and under counts 2 and 3 for conspiracy to import and distribute heroin.

II.

Butler raises three challenges to his CCE conviction. First, he asserts that the trial court erred in dismissing his motion for a bill of particulars on the CCE count. Second, he charges that the trial court abused its discretion by rescinding, for financial reasons, an order summoning Emmanuel Nwolise to testify at government expense. Third, he argues that the government's evidence was insufficient to show that he organized, supervised or managed five or more persons as required by Sec. 848(c). We will discuss each of these challenges in turn.

A. Butler's Motion for a Bill of Particulars

Few federal crimes carry penalties as severe as those which Congress provided for drug kingpins found guilty of conducting a CCE. Section 848(a) provides a minimum penalty of 20 years in prison and a maximum of life without parole. But while the penalties are severe, the government bears a heavy burden of proof. To prove a violation of Sec. 848, the government must show (1) a felony violation of the federal narcotics laws; (2) committed as part of a continuing series of at least three such violations; (3) perpetrated in concert with five or more persons; (4) for whom the defendant acted as an organizer, supervisor, or manager; and (5) that the defendant derived substantial income from this activity. United States v. Lurz 666 F.2d 69, 75 (4th Cir.1981), cert. denied 459 U.S. 843, 103 S.Ct. 95, 74 L.Ed.2d 87 (1982).

Count 1 of the superseding indictment merely tracked the language of the statute. It did not, as better practice recommends, allege specific facts which, if proved, would satisfy the five elements of a CCE offense. Butler recognizes, of course, that a CCE indictment may be superficially valid even if it does not specifically state the predicate acts on which the charge is premised. See United States v. Lurz, supra; United States v. Amend, 791 F.2d 1120 (4th Cir.), cert. denied 479 U.S. 930, 107 S.Ct. 399, 93 L.Ed.2d 353 (1986). Butler argues, though, that the district court erred in denying his motion for a bill of particulars on Count 1. He claims that his defense was prejudiced, in the absence of a bill of particulars, because the indictment did not adequately specify the predicate federal narcotics violations or the particular persons whom Butler organized, supervised or managed.

"The purpose of a bill of particulars is to inform the defendant of the charges against him in sufficient detail and to minimize surprise at trial." United States v. Hawkins, 661 F.2d 436, 451 (5th Cir.1981), cert. denied 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1355 (1982). And "[a]lthough [the] grant of a bill of particulars lies in the discretion of the trial court, the defendant may show abuse of discretion in denying the motion by proving unfair surprise." United States v. Jackson, 757 F.2d 1486, 1491 (4th Cir.), cert. denied 474 U.S. 994, 106 S.Ct. 407, 88 L.Ed.2d 358 (1985). The Government contends that Butler was not surprised by the lack of specificity in the language in Count 1 because that count explicitly incorporated various other counts in the indictment as the necessary predicate narcotics offenses. Since those other counts specified the particular illegal acts charged and named the persons with whom Butler acted, the prosecution claims that there was no need for a bill of particulars. The Government asserts that such a bill would only have reiterated information provided in other counts of the indictment.

The government's argument is well taken. The Fifth Circuit has recognized that, in the context of Sec. 848, allegations contained in other counts of an indictment may obviate the need for a bill of particulars. See United States v. Hawkins, 661 F.2d, at 451-452. See also United States v. Zavala, 839 F.2d 523 (9th Cir.1988) (count charging defendant with use of a telephone to facilitate a drug transaction was not void for vagueness where other counts in indictment stated details of defendant's alleged drug activity), cert. denied --- U.S. ----, 109 S.Ct. 86, 102...