United States v. Roland Eugene Butler

988 F.2d 537, 1993 U.S. App. LEXIS 6885, 1993 WL 97617
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 5, 1993
Docket92-1328
StatusPublished
Cited by39 cases

This text of 988 F.2d 537 (United States v. Roland Eugene Butler) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Roland Eugene Butler, 988 F.2d 537, 1993 U.S. App. LEXIS 6885, 1993 WL 97617 (5th Cir. 1993).

Opinion

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 *540 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.”

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Cite This Page — Counsel Stack

Bluebook (online)
988 F.2d 537, 1993 U.S. App. LEXIS 6885, 1993 WL 97617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-roland-eugene-butler-ca5-1993.