Appendix — Butera v. United States

APPENDIX I

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 81-5203

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

JOHN HENRY BUTERA

and

ROBERT ANDREW DeNOMA,

Defendants-Appellants.

Appeal from the United States

District Court

for the Middle District of Florida

June 10, 1982

Al

Before INGRAHAM *, HATCHETT and

ANDERSON, Circuit Judges.

INGRAHAM, Circuit Judge:

Appellants John Henry Butera and Rob-

ert Andrew DeNoma appeal from their on-

vietions for distribution and aiding and

abetting the distribution of cocaine, in vio-

lation of 21 U.S.C. § 841(aX1) (1976) and 18

USC. § 2 (1976). Butera was charged

with distribution in all three counts of the

indictment, while DeNoma was charged

with aiding and abetting such distribution

in only two of the counts: the jury re-

turned guilty verdicts against each appel-

lant on all counts in which they were

named. Butera raises the following issues:

whether the fruits of electronic surveillance

allegedly conducted in violation of state law

should have been suppressed; whether the

district court improperly exempted a

government witness from sequestration and

allowed the witness to take the stand on

four separate occasions; whether comments

by the district court deprived appellant of a

fair trial; whether comments by the prose-

cutor in closing argument deprived appel-

lant of a fair trial; and whether voir dire

was adequate with respect to a particular

panel member. DeNoma contends he was

improperly joined with Butera in the three

count indictment and that severance should

have been granted under Rule 14 of the

Federal Rules of Criminal Procedure, and

also that the evidence was insufficient to

support his conviction on Count 1. As to

the issues raised by Butera and DeNoma's

arguments concerning joinder and sever-

ance, we find no reversible error and, ac-

cordingly, we affirm. We find the concur-

rent sentence doctrine is applicable to De-

Noma’'s final argument and therefore do

A2

not reach the merits of that claim; rather,

following the procedure adopted in United

States v. Cardona, 650 F. 2d 54, 58 (5th Cir.

1981), we vacate the judgment of conviction

on Count 1 as to DeNoma.

I- Background

This case is the result of an undercover

narcotics investigation in Orlando, Florida.

The principal investigator was Agent Mi-

chael Morris, a local police officer on assign-

ment to a United States Drug Enforcement

Administration Task Force. On September

29, 1980, appellant Butera contacted Agent

Morris on a telephone used by the DEA for

undercover operations. (Butera had been

given the telephone number by an individu-

al in Alabama who was cooperating with

federal authorities). Morris and Butera

subsequently met to discuss the possibility

of cocaine sales by Butera to Morris. Dur-

ing these preliminary meetings Butera as-

sured Morris that he could procure large

quantities of high purity cocaine.

In the events underlying Count 1 of the

indictment, Butera and Morris met on Octo-

ber 2 at a restaurant in Orlando. Morris

placed $1650 on the table, whereupon But-

era produced an eyeglass case containing

white powder. At this moment appellant

DeNoma approached the table, picked up

the money as Butera slid it ‘n his direction,

and left the restaurant. Morris stated that

he intended to test the white powder to see

if it was cocaine, but Butera indicated he

should wait until his “man” was safely

gone. Butera then stated that the white

powder was not cocaine, showed Morris ap-

proximately $2000 in his wallet, and ex-

plained that he was being careful in case

Count 1 of the indictment charged Butera

with distribution of cocaine on this occasion,

that took place at a private residence on

Old Cheney Highway in Orlando. Only

Butera and Morris took part in this transac-

tion, in which Butera sold Morris twenty

eight grams of 87% pure cocaine for $2000.

Following additional discussions, the par-

ties all gathered on the night of November

19 at the Old Cheney residence to plan the

first of what was intended to be several

large sales. At this meeting, Morris was

wearing a transmitter that allowed agents

outside the house to monitor and record the

conversations. Butera produced a white

garbage bag filled with white powder. As-

sisted by DeNoma, Butera weighed the bag,

gave a small sample to Morris, and sealed

the bag in a large brown paper bag. This

white powder was subsequently determined

to be nine hundred and ninety-eight grams

nandez, met DeNoma at a motel. DeNoma

and Agent Fernandez, who was carrying

$62,000 ostensibly to be used for the pur-

chase, went to a second motel and

the

Butera there handed over the package that

had been prepared the night before. Both

appellants were thereupon arrested.

Il—Appeliant Butera

A. Admissibility of Recorded Conversa-

tions.

At trial the government introduced three

tape recordings of a conversation involving

Butera, DeNoma and Agent Morris which

took place in Butera's residence on the eve-

ning of November 19, 1980. As noted

era's pretrial motion to suppress the record-

ings was denied and his objection to admis-

sion at trial was also unsuccessful.

AS

Butera concedes that the evidence was

admissible as a matter of federal law, in

that neither the Constitution nor the feder-

al wiretapping statute’? require a warrant

or other safeguards before conversations

are overheard or recorded, as in this case,

with the consent of one of the participants

in the conversation. See United States v.

Caceres, 440 U.S. 741, 744, 750-52, 99 S.Ct.

1465, 1467, 1470-71, 59 L.Ed.2d 733 (1979);

United States v. White, 401 U.S. 745, 752,

91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971);

On Lee v. United States, 343 U.S. 747, 72

S.Ct. 967, 96 L.Ed. 1270 (1952); United

States v. Shedan, 651 F.2d 336 (5th Cir.

1981) (citing 18 U.S.C. § 2511) ): Unit-

ed States v. Gorel, 622 F.2d 100, 106 (5th

Cir. 1979), cert. denied, 445 U.S. 943, 100

S.Ct. 1340, 63 L.Ed.2d 777 (1980); United

States v. Nelligan, 573 F.2d 251, 254 (5th

Cir. 1978). Nevertheless, Butera argues

that the recordings should have been sup-

pressed because Agent Morris and others

involved in the investigation were state and

local officials, and the warrantless record-

ings violated the Florida Constitution as

interpreted by its state courts. This argu-

ment is utterly without merit.

J. 2J As we have previously observed,

“it is well settled that federal law governs

the admissibility of tape recordings in fed-

eral criminal cases,” and complaints that

the evidence was obtained in violation of

state law are of no effect. United States v.

A6

Nelligan, 573 F.2d 251, 253 (Sth Cir. 1978)

(cites omitted); see also United States v.

Horton, 601 F.2d 319, (7th Cir.), cert.

denied, 444 U.S. 937, 100 S.Ct. 287, 62

L.Ed.2d 197 (1979); United States v. Testa,

548 F.2d 847 (9th Cir. 1977); United States

v. Shaffer, 520 F.2d 1369, 1372 (3d Cir.

1975), cert. denied sub. nom. Vespe v. Unit-

ed States, 423 U.S. 1051, 96 S.Ct. 779, 46

L.Ed.2d 640 (1976); United States v. Ne-

ville, 516 F.2d 1302, 1309 (8th Cir.), cert.

denied, 423 U.S. 925, 96 S.Ct. 269, 46

L.Ed.2d 251 (1975). But cf. Walinski &

Law, 16 Harv.C.R.-C.L.L.Rev. 1 (1981).

That Agent Morris is a member of the City

of Orlando Police Department does not ai-

fect the application of federal law to this

issue, see Nelligan, supra, 573 F.2d at 253,

particularly when the record reflects that

Agent Morris was on an indefinite special

assignment to the DEA, was under the su-

_pervision of federal authorities at all rele-

vant times, had been deputized as a United

States Deputy Marshal and received part of

his pay from the federal government. Cf.

United States v. Gray, 626 F.2d 102, 105

(9th Cir. 1980) (state agents serving with

DEA were, at time of search, acting in

“federal capacity”; federal law applies).

‘The recordings were properly admitted.

B. Witness Sequestration.

Butera contends that Agent Morris was

improperly exempted from witness seques-

tration under Federal Rule of Evidence 615.

A7

After the government presented Agent

Morris as the principal investigating officer

in the case, the district court ruled that

Morris would be a designated representa-

tive for purposes of Rule 61802) and there-

fore could remain in court to assist the

government in the presentation of its case;

however, the district court also ordered

Morris not to discuss his testimony with the

other witnesses. Morris took the stand on

four separate occasions to describe the un-

derlying events in the case in chronological

order. The district court specifically made

an observation on the record, however, that

Morris had not taken full advantage of the

court's ruling and had not remained in the

courtroom during the testimony of other

witnesses.

[3,4] As a case agent, Morris was clear-

ly exempted under Rule 615(2) and the dis-

trict court’s ruling was entirely correct.

See United States v. Alvarado, 647 F.2d

537, 540 (5th Cir. 1981); In re United

States, 584 F.2d 666 (5th Cir. 1978); United

States v. Auten, 570 F.2d 1284, 1285 (5th

Cir.), cert. denied, 439 U.S. 899, 99 S.Ct. 264,

58 L.Ed.2d 247 (1978); S.Rep.No.93-1277,

93d Cong., 2d Sess. (1974), reprinted in

[1974] U.S. Code Cong. & Ad.News 7051,

7073. To the extent Butera is complaining

of the sequential presentation of Morris’

testimony, this is a matter entrusted to the

district court's discretion under Federal

Rule of Evidence 611(a), and appellant has

shown neither an abuse of that discretion

nor any significant prejudice resulting from

that procedure. By prior understanding be-

tween the court and all counsel, Agent Mor-

A8

ris was subject to eross- examination at each

appearance as to matters covered during

that portion of direct examination. See

United States v. Jackson, 549 F.2d 517, 528

(8th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct.

1682, 52 L.Ed.2d 379 (1977).

C. Kemarks by District Court.

Appellant Butera's sole theory of defense

was entrapment.’ According to appellant's

theory, a suspect under investigation for

firearms violations in Mobile, Alabama, of-

fered his services to the government to

uncover other firearms and narcotics deal-

ers in exchange for leniency in his own case.

The Drug Enforcement Administration pro-

vided this suspect with Agent Morris’ un-

dercover name and telephone number in

Orlando, Florida, and the suspect passed

along this information to Butera ostensibly

with the message that “Byron,” Agent Mor-

ris’ undercover identity, was interested in

purchasing cocaine. Appellant attempted

to analogize this arrangement with, among

other cases, the situation in United States

v. Twigg, 588 F.2d 373 (3d Cir. 1978) (rever-

sal based not on entrapment but because

government involvement through informer

constituted due process violation).

Although the district court expressed

some doubt, outside the presence of the

jury, as to the legal and evidentiary support

for appellant's entrapment theory, e court

allowed appellant to fully pursue this mat-

ter during the trial and did give an instruc-

AQ

tion on entrapment. Appellant neverthe-

less complains of “derogatory” remarks in

connection with the entrapment defense,

made both in the presence of the jury and

outside the jury, that he contends deprived

him of a fair trial. Specifically, the court

observed that inquiries into the prior legal

difficulties of the suspect in Alabama were

“getting far afield” and that it was unclear

how such matters related to the case at

hand. In a related complaint, appeilant

contends that the court improperly prevent-

ed him from addressing some of these earli-

er events during his closing argument. Sig-

nificantly, the court’s comments were di-

rected at both the defense and the prosecu-

tion, to the extent the government was

pursuing the matter in its cross-examina-

tion, and at no time did the court prevent

further examination or interrupt a line of

questioning. Appellant complains that

when a telephone company official was tak-

ing the stand to testify as to telephone

records in his custody, the court stated,

Let's proceed. This gentleman ought to be

out of here in three minutes. I don"t know

what more he can testify to.” Appellant

also claims his counsel was “unnerved” by

the discussions outside the presence of the

jury, in which the court expressed its doubt

that entrapment had been established but

nevertheless decided to submit the issue to

the jury.

A10

[5,6] Consideration of allegations of ju-

dicial misconduct must start with the prin-

ciple that a “trial judge has a duty to

conduct the trial carefully, patiently, and

‘impartially. He must be above even the

appearance of being partial to the prosecu-

tion.” Herman v. United States, 289 F.2d

362, 365 (5th Cir.), cert. denied, 368 U.S.

897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961). As

we have observed on many occasions, how-

ever, the trial judge is not a mere modera-

tor or observer, but is responsible for the

tone and tempo of the proceedings, may

comment on the evidence and may exercise

his discretion to curtail pursuit of irrelevant

matters. See United States v. Perez, 651

F.2d 268, 271 (5th Cir. 1981); United States

v. Bartlett, 633 F.2d 1184, 1188 (5th Cir.),

cert. denied, 454 U.S. 820, 102 S.Ct. 101,

70 L.Ed.2d 91 (1981); Moore v. United

States, 598 F.2d 439, 442 (5th Cir. 1979);

United States v. Davis, 546 F.2d 617, 622

(5th Cir. 1977).

[7] After a careful review of the entire

transcript we conclude that appellant's

characterization of the district court's re-

marks is simply not supported by the rec-

ord. The record as a whole does not indi-

cate any of the hostility or antagonism ex-

hibited in United States v. Candelaria-Gon-

zales, 547 F.2d 291 (5th Cir. 1977), or Bur-

sten v. United States, 395 F.2d 976 (5th Cir.

1968), cert. denied, 409 U.S. 843, 93 S.Ct. 44,

34 L.Ed.2d 83 (1972). On the contrary, the

remarks by the court below were temperate

and restrained, and evidently motivated by

a desire to keep all counsels’ attention fo-

cused on the issues in the case. The re-

marks did not prejudice the appellant or

infringe his right to a fair trial.

Ali

D. Prosecutor’s Comments.

In its final closing argument, the prosecu-

tion, addressing Butera's entrapment claim,

stated:

The evidence of predisposition is over-

whelming. Mr. Butera is a man greedy

for money, dealt in illicit drugs and dealt

with the wrong person. He dealt with

Mr. Morris. He got caught. And he’s

guilty. And he was not—

The ensuing objection by Butera’s counsel

and the district court’s response were as

follows:

MR. RUSS [Counsel for Butera}: I ob-

ject to that statement, Judge. I object to

the Government attorney's expression of

opinion on the ultimate issue of —

THE COURT: Objection sustained.

The counsel, ladies and gentlemen of the

jury, are not permitted to express their

own opinions. The opinion must be found

by you as to what the facts may be.

In its charge to the jury the district court

again admonished that the statements and

arguments of counsel were not evidence.

{8] It is clearly improper for the prose-

_cution to express its personal belief in the

accused's guilt. See United States v. Garza,

608 F.2d 659 (5th Cir. 1979); United States

v. Morris, 568 F.2d 396 (Sth Cir. 1978);

United States v. Diharce-Estrada, 526 F.2d

637, 641 (5th Cir. 1976); McMillian v. Unit-

ed States, 363 F.2d 165 (5th Cir. 1966);

Model Code of Professional Responsibility

DR 7-105(cX3) & (4) (1979); ABA Stan-

dards Relating to the Prosecution Function

3-5.8(b) (1980). This kind of comment is

412

disapproved for several reasons; for exam-

ple, the jury may be left with a1. impression

that the prosecutor's statement is based in

part on facts beyond those in evidence. See

United States v. Weinrich, 586 F.2d 481, 497

(5th Cir. 1978), cert. denied, 441 U.S. 927, 99

S.Ct. 2041, 60 L.Ed.2d 402 (1979); Gradsky

v. United States, 373 F.2d 706 (5th Cir.

1967). More importantly, it is highly im-

proper for a prosecutor to attempt to use

his personal status as the government's rep-

resentative, or the authority of the govern-

ment itself, as a basis for obtaining a con-

viction. Garza, supra, 608 F.2d at 663, cit-

ing Berger . United States, 295 U.S. 78, 55

S.Ct. 629, 79 L.Ed. 1314 (1934).

{9} We need not speculate whether the

comments in this case may be justified as

proper rebuttal of the entrapment defense,

or whether the prosecutor intended to make

a statement urging a conclusion permissibly

inferable from the evidence. Cf. United

States v. Morris, 568 F.2d 396, 402 (5th Cir.

1978). Prosecutorial misconduct alone does

not require reversal unless the misconduct

deprives the defendant of a fair trial. See

Smith v. Phillips, —— U.S. 102 S.Ct.

940, 947, 71 L.Ed.2d 78 (1982). The relevant

question is whether a prosecutor's actions

“prejudicially affected substantial rights of

the defendant.” United States v. Dorr, 636

F.2d 117, 120 (5th Cir. 1981).

A13

{10,11} Prosecutorial misconduct can be

considered harmless error where the district

court gives an immediate curative instruc-

tion, and the evidence of the defendant's

guilt is overwhelming. See United States

v. Mack, 643 F.2d 1119, 1124 (5th Cir. 1981);

United States v. Booher, 641 F.2d 218, 221

(5th Cir. 1981); United States v. Georgalis,

631 F.2d 1199, 1203-04 (5th Cir. 1980); Unit-

ed States v. Lichenstein, 610 F.2d 1272,

1281-82 (5th Cir.), cert. denied, 447 U.S.

907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980).

Both of these elements are present in this

case. Although appellant criticizes the

form of the court's curative instruction, the

instruction is substantially the same as

those approved in United States v. Handly,

591 F.2d 1125 (5th Cir. 1979), and United

States v. Siegel, 587 F.2d 721, 727 (5th Cir.

1979). We conclude that there was no un-

due prejudice to any substantial rights of

appellant. Cf. United States v. Roe, 670

F.2d 956, 970-71 (11th Cir. 1982).

We emphasize that the prosecutor's com-

ments in this case evince no willful or mali-

cious design to unfairly prejudice the de-

fendants. Nevertheless, we once again ex-

press our concern over the persistence of

issues involving improper prosecutorial

comments that are presented for review.

See United States v. Handly, 591 F.2d 1125,

1132 (5th Cir. 1979); United States v. Coro-

na, 551 F.2d 1386 (5th Cir. 1977); United

States v. Brown, 451 F.2d 1231 (5th Cir.

1971). In a proper case reversal will cer-

tainly be mandated. Eg, Corona, supra.

We join, however, in the sentiments of our

brethren in the Second Circuit that it may

be necessary to consider more direct sanc-

tions to deter prosecutorial misconduct.

United States v. Modica, 663 F.2d 1173,

1182-86 (2d Cir. 1981). We encourage the

district courts in this circuit to remain vigi-

lant, give appropriate curative instructions

when called for, and consider more formal

disciplinary action in cases of persisteut or

flagrant misconduct.

.

Al4

E. Veir Dire.

During the initial examination of the jury

panel, panel member Reynolds stated that

he had “had dealings” with appellant But-

era's counsel. The district court then asked

whether such contact would affect him in

determining the guilt or innocence of the

defendants, and Reynolds answered “Proba-

bly not.” At the bench appellant's counsel

stated he did not recognize Reynolds and

would like to find out whether he had been

a client, or a witness in one of the counsel's

cases. The court then asked Reynolds

whether he had been a client of appellant's

counsel. Reynolds responded that he was

not, but one of his neighbor's sons was

killed by a driver who had been drinking

and the driver was represented by appel-

lant's counsel. At the close of questioning

all counsel indicated they had no further

questions. When Reynolds was drawn, ap-

pellant's counsel unsuccessfully moved to

strike him for cause. Counsel then exer-

cised his last peremptory challenge on

Reynolds. Counsel asked for an additional

peremptory challenge and this request was

also denied. The juror selected in Reynold's

place had demonstrated no grounds for

challenge for cause in the preceding ques-

tioning.

[12] We interpret appellant's arguments

on this matter to raise two separate issues.

The first issue is whether the voir dire

questioning was adequate. This is a matter

firmly entrusted to the district court's dis-

cretion. United States v. Brooks, 670 F.2d

148, 152 (Iich Cir. 1982), citing United

States v. Bocher, 641 F.2d 218 (Sch Cir.

1981). We perceive no abuse of that discre-

tion. The district court questioned Reyn-

olds twice, the second time specifically seek-

ing the information requested by appel-

lant's counsel. Counsel then had no further

A15

questions, and still has not suggested, on

this appeal, any additional questions which

would have been helpful or necessary in

order to further expose any possibility of

juror prejudice.

[13,14] The second issue is whether the

challenge for cause was improperly denied,

thereby unfairl. requiring appellant's coun-

sel to exercise his last peremptory chal-

lenge“ Although “as a general rule it is

error for a court to force a party to exhaust

his peremptory challenges on persons who

should be excused for cause, for this has the

effect of abridging the right to exercise

peremptory challenges,” United States v.

Nell, 526 F. 2d 1223, 1229 (5th Cir. 1976), the

decision whether to excuse for cause is com-

mitted to the discretion of the district court.

See Irvin v. Dowd, 366 U.S. 717, 723-24, 81

S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961);

United States v. Salinas, 654 F.2d 319, 328

(5th Cir. 1981). The previous contact with

appellant's counsel revealed by Reynolds in

this case does not automatically disqualify

him or suggest implied or presumed bias.

See United States v. Nadaline, 471 F.2d 340

(5th Cir.), cert. denied, 411 U.S. 951, 93 S.Ct.

1924, 36 L.Ed.2d 414 (1973); Lane v. United

States, 321 F.2d 573 (Sth Cir. 1963), cert.

denied, 377 U.S. 936, 84 S.Ct. 1340, 12

L.Ed.2d 299 (1964); Roberson v. United

States, 249 F.2d 737 (Sth Cir. 1957), cert.

denied, 356 U.S. 919, 78 S.Ct. 704, 2 L.Ed.2d

715 (1958). Appellant provides no basis,

and we find none, for concluding that the

district court abused its discretion in deny-

ing the challenge for cause. Cf. Copeland

v. Gulf Oil Corp., 672 F.2d 867 (Iith Cir.

1982). Appellant was accordingly not un-

fairly forced to use his last peremptory

challenge. Cf. United States v. Garza, 574

F.2d 298, 303 (Sth Cir. 1978).

A16

I1l—Appellant DeNoma

A. Joinder and Severance.

Appellant DeNoma contends that the in-

dictment in this case improperly joined him

with appellant Butera under Federal Rule

of Criminal Procedure Xb), and even if

joinder was initially proper that the district

court should have granted his motion for

severance under Federal Rule of Criminal

Procedure 14. As briefly described above,

the indictment charged the appellants as

follows: Count 1 alleged a sale of twenty-

eight grams of cocaine on October 2, 1980,

by Butera, aided and abetted by DeNoma;

Count 2 charged Butera alone with a sale of

twenty-eight grams of cocaine on October

16; Count 3 alleged a sale of nine hundred

and ninety-eight grams of cocaine on No-

vember 20 by Butera, aided an ] abetted by

DeNoma.

Where multiple defendants are involved,

joinder is governed by Rule & b), rather

than &a). United States v. Marionneaux,

514 F.2d 1244, 1248 (Sth Cir. 1975), cert.

denied sub. nom. Partin v. United States,

434 U.S. 903, 98 S.Ct. 298, 54 L.Ed2d 189

(1977). Rule &b) provides:

Two or more defendants may be charged

in the same indictment or information if

they are alleged to have participated in

the same act or transaction or in the

same series of acts or transactions consti-

tuting an offense or offenses. Such de-

fendants may be charged in one or more

counts together or separately and all of

the defendants need not be charged in

each count.

A/

115] In order to demonstrate that the

defendants have engaged in the “same se-

ries of acts or transactions” the government

must show that the acts alleged are “uni-

fied by some ‘substantial identity of facts or

participants United States „ Dennis,

645 F.2d 517, 520 (5th Cir.), cert. denied,

454 U.S. 1034, 102 S.Ct. 573, 70 L.Ed2d

478 (1981), citing United States v. Nettles,

570 F.2d 547, 551 (Sth Cir. 1978), and Mari-

onneaux, supra, 514 F.2d at 1248-49. This

requirement is designed to prevent joinder

of separate and unrelated offenses in multi-

ple defendant situations. See United

States v. Levine, 546 F.2d 658 (5th Cir.

1977) (two entirely separate conspiracies;

misjoinder); United States v. Gentile, 495

F.2d 626 (5th Cir. 1974) (separate and indi-

vidualized drug sales; misjoinder); United

States v. Bova, 493 F.2d 33 (5th Cir. 1974)

(no indication that events are part of series;

misjoinder).

(16) The offenses charged in this indict-

ment, however, are related and the facts as

alleged and proved show a substantial iden-

tity of facts and participants. The indict-

ment itself reflects sales of increasing

quantity. In its pretrial response to DeNo-

mas motion for severance, the government

stated that the facts at trial would show a

single objective, that is, a large-scale nar-

transaction was meant to lead up to the

succeeding transaction. These allegations

were indeed borne out by the facts devel-

oped at trial. See United States v. Leach,

613 F.2d 1295, 1299 (Sth Cir. 1980) (proprie-

ty of joinder determined from indictment,

pretrial proceedings and record at trial).

Not only did the quantity of cocaine in-

crease in each transaction, but the quality

A118

also increased, consistent with the ex-

pressed intent of the parties, from 59% pu-

rity in the October 2nd sale to 90% purity

by the November 20th sale. It was evident

from the recorded conversations between

Agent Morris and the appellants, and from

Morris’ live testimony, that the earlier con-

tacts were intended to be preliminary dem-

onstrations of the willingness and ability of

both parties to enter into large narcotic

transactions, and that there was a clear

understanding that the quantity and quali-

ty of cocaine involved would increase as a

relationship of trust and familiarity devel-

oped.

In this regard, this case is strikingly simi-

lar to United States v. Metz, 608 F.2d 147

(5th Cir. 1979), cert. denied, 449 U.S. 821,

101 S.Ct. 80, 66 L.Ed.2d 24 (1980). The

indictment in Metz alleged a conspiracy to

possess cocaine with intent to distribute.’

The court held that a preliminary sale of

cocaine, a larger transaction three months

later and intervening preparations includ-

ing money-laundering plans demonstrated a

single overall scheme, “a large scale narcot-

ies transaction,” accordingly, joinder of

multiple defendants was proper even

though the indictment did not charge the

defendants with active participation in each

phase of the conspiracy. 608 F.2d at 152-

53.“ See also United States v. Burns, 662

F.2d 1378, 1384 (Iich Cir. 1981); United

States v. Dennis, 645 F.2d 517, 50-21 (5th

Cir.), cert. denied, 454 U.S. 1034, 102 S.Ct.

573, 70 L.Ed.2d 478 (1981); United States v.

Leach, 613 F.2d 1295, 1301-03 (5th Cir.

1980); United States v. Zicree, 605 F.2d

1381, 1387 (Sth Cir. 1979), cert. denied sub.

nom. Kaufman v. United States, 445 U.S.

966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980).

The government has adequately shown that

the indictment in this case charges acts in

the same series.

A19

{17,18} A motion for severance under

Rule 14 is entrusted to the discretion of the

district court, and a defendant must show

that a denial of severance resulted in specif-

ie and compelling prejudice in order to ob-

tain reversal. United States v. Kabbaby,

672 F.2d 857 (11th Cir. 1982); United States

v. Bulman, 667 F.2d 1374, 1380 (11th Cir.

1982); United States v. Grapp, 653 F.2d

189, 192-93 (5th Cir. 1981). Denial of sev-

erance was not an abuse of discretion here.

The trial was not so difficult or complex

that the jury could not have properly dif-

ferentiated the evidence as to each individ-

ual defendant. Cf. United States v. Marsz-

alkowski, 669 F.2d 655, 660 (11th Cir. 1982)

(cites omitted). In addition, the district

court gave repeated cautionary instructions,

apparently at every request of DeNoma's

counsel, that evidence relating solely to

Butera not be considered with regard to

DeNoma. Cf. United States v. Morrow, 537

F.2d 120, 136 (5th Cir. 1976), cert. denied,

430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806

(1977). It is evident from a reading of the

record that the district court adequately

protected against undue prejudice from the

joint trial of appellants and the motion for

severance was properly denied.

A20

B. Sufficiency of Evidence.

{19] DeNoma attacks the sufficiency of

the evidence underlying his conviction on

Count 1. He does not challenge, however,

the conviction and sentence under Count 3.

DeNoma received a sentence of seven years

imprisonment, plus a $10,000 fine and a

special three year parole term, on each

count to run concurrently. We will follow

the government's suggestion in this situa-

tion and apply the concurrent sentence doc-

trine rather than examine the sufficiency of

evidence claim in detail. See generally

United States v. Warren, 612 F. 2d 887, 891-

96 (5th Cir.) (en banc) (Roney and Hill, JJ.,

concurring and dissenting), cert. denied, 446

U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815

(1980).

The concurrent sentence doctrine is a

“rule of judicial convenience,” Benton v.

Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056,

2060, 23 L.Ed.2d 707 (1969). When concur-

rent sentences are imposed, this court has

frequently elected not to reach the merits

of a challenge to one count when the sen-

tence and conviction under another count

are valid. See United States v. Ortiz, 610

F.2d 280, 282 (5th Cir.), cert. denied, 445

U.S. 930, 100 S.Ct. 1320, 63 L.Ed.2d 764

(1980); United States v. Littrell, 574 F.2d

828, 831 (Sth Cir. 1978); United States v.

Ashley, 569 F.2d 975, 984 (5th Cir.), cert.

denied, 439 U.S. 853, 99 S.Ct. 163, 58

A21

In United States v. Cardona, 650 F.2d 54

(5th Cir. 1981), the court adopted the prac-

tice of the D.C. Circuit in United States v.

Hooper, 432 F.2d 604 (D.C.Cir.1970), to

avoid the problem of adverse collateral con-

sequences. The Hooper approach is to va-

cate only the judgment of conviction on the

challenged count, leaving intact the jury

verdict itself. The Cardona court, quoting

from Hooper, explained that vacating the

judgment is “equivalent in practical effect

to a suspension of the imposition of sen-

tence. If it later develops that the interest

of justice so requires, the sentence can be

reimposed on a concurrent basis. The con-

viction could then be subject to appellate

review.” 650 F.2d at 58, quoting 482 F.2d

at 606 n.8. This procedure is appropriate

here. Accordingly, the judgment of convic-

tion on Count 1 as to DeNoma is vacated.

As in Cardona, if the government subse-

quently determines that the interests of

justice require reimposition of the sentence,

it may renew its response to DeNoma's

challenge and the conviction in Count 1

would be open to full appellate review.

1V—Conclusion

Butera's convictions on Counts 1, 2 and 3

are affirmed. DeNoma's conviction on

Count 3 is affirmed, and the judgment of

conviction on Count 1 is vacated.

AFFIRMED IN PART; VACATED IN

PART.

APPENDIX II

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 81-5203

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

JOHN HENRY BUTERA

and

ROBERT ANDREW DeNOMA,

Defendants-Appellants.

Denial of Petition for Renearing

September 27, 1982

Before INGRAHAM, HATCHETT, and ANDERSON

Circuit Judges

, »

FOOT NOTES

22

* This section reviews the general transactions

undertying the appeal. More specific facts will

be discussed as they relate to individual issues.

2. Title Il of the Omnibus Crime Control and

Safe Streets Act of 1968, 18 U.S.C. §§ 2510-

2520 (1976).

3. 18 U.S.C. § 2511 ) provides that, “It shall

not be unlawful under this chapter for a person

acting under color of law to intercept a wire or

oral communication, where such person is a

party to the communication or one of the par-

ties to the communication has given prior con-

sent to such interception.”

4. Butera relies on United States v. Manfredi,

488 F.2d 588 (2d Cir. 1973), cert. denied, 417

U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974),

and United States v. Rizzo, 491 F.2d 215 (2d

Cir.), cert. denied 416 U.S. 990, 94 S.Ct. 2399,

40 l Ed 2d 769 (1974), for the proposition that

more restrictive state rules should be given

plained in United States v. Sotomayor, 592 F.2d

1219 (2d Cir.), cert. denied, 442 U.S. 919, 99

S.Ct. 2842, 61 L.Ed.2d 286 (1979), and United

States v. Vasquez, 605 F.2d 1269 (2d Cir.), cert.

denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d

408 (1979), the Manfredi case and its progeny

relate only to evidence obtained by a state

officer acting under a state court order issued

pursuant to a state statute. See 573 F.2d at

254; 592 F.2d at 1225. Such a setting is envi-

sioned in Section 2516(2) of Title Ill, authoriz-

ing state prosecutors to seek court

wiretaps. This is plainly not the factual situa-

tion before us; § 2516(2) and Manfredi are

inapplicable to this case.

A23

3. No issue has been raised on appeal as to the

theory of this defense itself, or as to any in-

struction given or denied concerning entrap-

ment. We, of course, do not mean to suggest

any opinion on the merits of such a defense in

this case.

6. The new Fifth Circuit Court of Appeals

recently rejected a similar argument ir, United

States v. Dozier, 672 F.2d 531, 547-48 (Sth Cir.,

1982), relying in part on former Fifth Circuit

precedent that binds us as well. See Bonner v.

City of Prichard, 661 F.2d 1206, 1209-10 (11th

Cir. 1981) (en banc). Although we are not

bound by Dozier we decide this issue on the

same principles stated in that case.

7. The absence of a conspiracy charge in the

case before us is of no significance in the Rule

(b) analysis.

8. Because Rule 8(b) expressly provides that

each defendant need not be named in each

count, the absence of DeNoma in Count 2 is

immaterial.

FOR THE ELEVENTH CIRCUIT F ed

SEP 27 1982

Norman k. Zoller

Clerk

No. 81-5203

- UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Before

versus

JOHN HENRY BUTERA,

ROBERT ANDREW DeNOMA,

Defendants-Appellants. .

Appeal from the United States District Court for the

MIDDLE DISTRICT OF FLORIDA

ON PETITIONS FOR REHEARING

SEP 27 992

Ingraham*, HATCHETT, and ANDERSON, Circuit Judges.

PER CURIAM:

in the

hereby

IT IS ORDERED that the petitions for rehearing filed

ae

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies of

the Petition for Writ of Certiorari were fur-

nished by United States mail, postage prepaid,

to: DEPARTMENT OF JUSTICE, Ottice of the

Solicitor General , Room 5614, 10th & Consti-

tution Avenues, N.W., Washington, D.C. 20530,

this 24th day of December, 1982. I further

certify that all parties required to be served

Abl.

Attorney

have been served.