United States v. David Earl Butler

USCA11 Case: 20-14102 Date Filed: 07/05/2022 Page: 1 of 8

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14102

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID EARL BUTLER,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 7:18-cr-00032-WLS-TQL-1

____________________

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2 Opinion of the Court 20-14102

Before WILLIAM PRYOR, Chief Judge, LUCK, and ED CARNES, Circuit

Judges.

PER CURIAM:

David Butler was convicted of being a convicted felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2). In this direct appeal of that conviction he raises a number

of issues. Because the parties and the district court are aware of the

facts and the procedural history, we will not dwell on them.

I. The Motion to Suppress

Butler contends that the district court erred in failing to

grant his motion to suppress. This contention has four compo-

nents.

1. The Photo Lineup

First, Butler argues that the photo lineup was unduly sug-

gestive and, as a result, evidence that three witnesses had picked

out his photo as the shooter should have been suppressed. The dis-

trict court ruled this issue had been “waived” because Butler failed

to allege any specific facts regarding the photo lineup. In the alter-

native, the court ruled that the photo lineup “did not appear to be

unduly suggestive,” and the identifications were not unreliable.

In his brief, Butler has not even mentioned, much less chal-

lenged, the district court’s alternative ruling that this issue had been

waived because it was not properly presented. Our circuit law is

clear and firm that: “When an appellant fails to challenge properly

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20-14102 Opinion of the Court 3

on appeal one of the grounds on which the district court based its

judgment, he is deemed to have abandoned any challenge of that

ground, and it follows that the judgment is due to be affirmed.”

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.

2014); accord United States v. Maher, 955 F.3d 880, 885 (11th Cir.

2020); Broward Bulldog, Inc. v. U.S. Dep’t of Just., 939 F.3d 1164,

1181 (11th Cir. 2019).

In any event (or “alternatively”), even putting aside that first

ground of the district court’s ruling, we would still affirm because

the district court did not commit clear error in finding that the

photo lineup, which was conducted separately with each of the wit-

nesses, was not unduly suggestive. See United States v. Smith, 967

F.3d 1196, 1203 (11th Cir. 2020) (“We review the district court’s

finding that the identification procedure was not unduly suggestive

only for clear error . . . .”). Not only was that finding not clear er-

ror, but it was not error at all; we agree with the district court that

“nothing in the record indicates that the photos themselves or the

officer’s statements or actions were unduly suggestive.”

2. The Arrest Warrants

The second component of Butler’s motion to suppress was

aimed at the arrest warrants and involved his contention that there

was no probable cause to support them. There was. Three wit-

nesses had individually picked Butler out of the photo lineup as the

shooter, and as we have just held, that lineup was not unduly sug-

gestive. That by itself is enough to establish probable cause.

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4 Opinion of the Court 20-14102

3. The Search Warrant

The third component of Butler’s motion to suppress was

aimed at the search warrant and involved his contention that there

was no probable cause to support it. There was. When the officers

knocked on his door, they smelled marijuana. Some smelled raw

marijuana and some burnt marijuana, but there is no reason there

couldn’t have been both states of it at the apartment. And, in any

event, Butler admitted to the officers that he had recently been

smoking marijuana in the apartment. That is more than enough

to supply probable cause for a warrant to search the house for ma-

rijuana, which is what the warrant authorized.

4. The Confession

The final component of Butler’s motion to suppress in-

volved his videotaped and written confession to possession of the

firearm. He confessed at the police station after he had been ar-

rested, given Miranda warnings, and waived his rights. The warn-

ings and waiver of rights and the confession itself were all recorded

on videotape. Butler contends that his waiver of his rights was not

knowing and intelligent because he, as he puts it in his brief to us,

“had smoked marijuana prior to the arrival of law enforcement”

and may have “still [been] under the influence of marijuana during

his custodial interrogation.” The speculative way Butler words his

argument, without ever actually stating that he was under the in-

fluence, is not enough. And, as the district court pointed out in

rejecting this argument, Butler “alleged no specific facts to indicate

that he did not knowingly waive his rights.” Of course, smoking

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20-14102 Opinion of the Court 5

marijuana is not enough to render a Miranda waiver invalid. Cf.

Atkins v. Singletary, 965 F.2d 952, 962 (11th Cir. 1992) (holding that

a defendant’s “mental impairment and his alcohol and drug con-

sumption” did not invalidate his waiver of his Miranda rights);

United States v. Gaddy, 894 F.2d 1307, 1312 (11th Cir. 1990) (affirm-

ing a Miranda waiver by a defendant with “a history of emotional

problems and addiction to his prescribed drugs”).

II. The Exclusion of Evidence Involving Matchett

Butler complains about a number of rulings the district court

made involving evidence from and about Ieshia Matchett who was

unavailable to testify because her counsel assured the court that if

called to testify she would invoke her Fifth Amendment right not

to do so. A defendant does not have the right to require a witness

to invoke her Fifth Amendment privilege in front of the jury. See

United States v. Beechum, 582 F.2d 898, 909 (5th Cir. 1978) (en

banc); United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.

1974) (“If it appears that a witness intends to claim the privilege as

to essentially all questions, the court may, in its discretion, refuse

to allow him to take the stand.”) (quotation marks omitted). 1

Butler also contends that the district court abused its discre-

tion in refusing to let him put into evidence an affidavit that Mat-

chett had signed stating that the gun in question was hers, and not

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),

we adopted as binding precedent all decisions of the former Fifth Circuit

handed down before October 1, 1981.

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6 Opinion of the Court 20-14102

Butler’s. Unfortunately for Butler, before trial Matchett recanted

that affidavit and signed another one swearing that Butler had

talked her into signing the first affidavit to “claim the gun to help

him out.” That statement, she swore in her second affidavit, “was

a lie . . . saying that [the gun] was [hers].”

Butler argues Matchett’s recanted affidavit was admissible as

a statement against interest under Fed. R. Evid. 804(b)(3). The dis-

trict court correctly ruled it was not because there was an absence

of the required “corroborating circumstances [that] clearly indicate

the trustworthiness of the statement.” United States v. Thomas,

62 F.3d 1332, 1337 (11th Cir. 1995). Butler also argues that the re-

canted affidavit was admissible under the Fed. R. Evid. 807(a) re-

sidual hearsay rule, but it did not qualify under that rule either be-

cause it lacked “circumstantial guarantees of trustworthiness” and

“attributes of trustworthiness not possessed by the general run of

hearsay statements.” United States v. Fernandez, 892 F.2d 976, 980

(11th Cir. 1989) (quotation marks omitted).

Butler sought to introduce evidence that Matchett had un-

successfully sought to purchase a firearm and later succeeded in

doing so, although the firearm she purchased was different from

the one that Butler was convicted for possessing. One way Butler

wanted to get those facts before the jury was by forcing Matchett

to testify to them. But the district court ruled that she would not

be compelled to testify on that subject given her Fifth Amendment

privilege against self-incrimination. (Apparently, the thought was

that Matchett may have had some criminal exposure as an aider

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20-14102 Opinion of the Court 7

and abettor of Butler’s crime if she was purchasing the firearm for

him.) The district court also reasoned that since this was not the

actual firearm involved in the case the probative value of allowing

evidence about it would have been outweighed by the danger of

confusing the jury. See United States v. Machado, 886 F.3d 1070,

1085 (11th Cir. 2018); Fed. R. Evid. 403. The district court did not

abuse its discretion in making that judgment call.

Nor did the district court’s ruling violate Butler’s Fifth or

Sixth Amendment right to present evidence favorable to him, es-

pecially since the evidence was only barely, if at all, favorable to

him. See United States v. Gillis, 938 F.3d 1181, 1195 (11th Cir. 2019)

(“[T]o show he was deprived of his constitutional right to present

a defense, [the defendant] must demonstrate a compelling reason

for making an exception to” the rules of evidence.).

And, then, there is the fact that if the exclusion of any of the

evidence Butler wanted to present was error, that error was harm-

less beyond a reasonable doubt. As the district court pointed out:

“The evidence of Butler’s guilt here is very strong. Shortly after his

arrest, Butler confessed immediately in an interview that the gun

was his, described how he purchased the gun and the seller, de-

scribed the gun, and identified the exact location where the gun

was located in the apartment” where the evidence indicates he

lived.

III. Miscellaneous

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8 Opinion of the Court 20-14102

Butler also contends that the evidence was insufficient to

convict him, but it was plenty sufficient.

And he contends the cumulative effect of the errors the dis-

trict court committed deprived him of a fair trial. But, as we have

discussed, the district court did not commit any errors. He was not

deprived of a fair trial.

AFFIRMED. 2

2 This case was originally scheduled for oral argument, but under 11th Cir. R.

34–3(f) it was removed from the oral argument calendar by unanimous con-

sent of the panel.