# Appendix — Butera v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1221%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1108

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1221%3A2. Public record. Not legal advice.