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March 30, 1982

Keith BUTTS and Clarence Edwards

The opinion of the court was delivered by: SHAPIRO


Keith Butts ("Butts") and a co-defendant Clarence Edwards ("Edwards") were convicted of distributing heroin in violation of 21 U.S.C. § 841(a)(1) and conspiring to distribute heroin and methamphetamine in violation of 21 U.S.C. § 846. Butts was also convicted on separate counts of distributing heroin and methamphetamine in violation of 21 U.S.C. § 841(a)(1). Before the court are their motions for new trial, Edwards' motion for arrest of judgment and Butts' motion for acquittal. For the reasons which follow, their motions for new trial will be granted; Edwards' motion for arrest of judgment and Butts' motion for acquittal will be denied. *fn1"

 At oral argument, counsel put forward three grounds for a new trial: failure to sever the trial of Butts and Edwards, failure to suppress identification testimony and failure to strike testimony due to Jencks Act violations.

 A. Severance

 Edwards' counsel moved for severance on the ground that Edwards would refuse to incriminate Butts and that his failure to take the stand would be detrimental to his own case. (N.T. 1.95). Butts' counsel moved for severance pre-trial on the ground of irreconcilable, antagonistic defenses (N.T. 1.100) and again at trial when counsel for Edwards sought to elicit from undercover narcotics agent Frank Lee ("Lee") the fact that Butts' brother was the heretofore unmentioned third man present at the drug deals. (N.T. 3.99-3.101).

 Edwards' decision not to testify was not based on any valid Fifth Amendment ground and counsel has asserted no legally cognizable prejudice. The Fifth Amendment privilege against compulsory self-incrimination is personal to the defendant and it does not extend to testimony which might incriminate third parties. United States v. Nobles, 422 U.S. 225, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975). Whether or not Edwards testified was a strategic decision for him and his attorney to make. He did not testify and no comments were made on his failure to do so.

 Butts' assertion that defendants' defenses were antagonistic is not itself a sufficient ground for severance. United States v. Barber, 442 F.2d 517 (3d Cir.), cert. denied, 404 U.S. 958, 92 S. Ct. 327, 30 L. Ed. 2d 275 (1971). Defendant must show that the antagonistic defenses were so prejudicial that the jury unjustly inferred the guilt of both defendants from the conflict itself. United States v. Mearns, 443 F. Supp. 1244 (D.Del.1978). So long as the jury can reasonably be expected to compartmentalize the evidence as it relates to each defendant, co-conspirators should be tried jointly even though the evidence against one is more damaging than against the other. United States v. Jackson, 649 F.2d 967 (3d Cir. 1981) (citing United States v. DeLarosa, 450 F.2d 1057 (3d Cir. 1971)).

 Counsel for Butts has characterized Edwards' defense as one which admitted his presence at the drug deal but denied that he committed an offense. Edwards contended that Butts was the principal actor. Butts' defense was that he was not present. On cross-examination of Lee, Edwards' counsel elicited the name of Ray Butts, the brother of defendant Butts (N.T. 3.101-3.106); this was not improper. In light of Lee's independent identification of defendant Keith Butts, we do not believe Keith Butts' case was prejudiced by the vigorous advocacy of Edwards' counsel. The court instructed the jury to consider each defendant's case separately. (N.T. 5.29). *fn2" As Butts makes no showing that the jury was unable to "compartmentalize," prejudice from the fact of a joint trial has not been established. See, United States v. Reicherter, 647 F.2d 397 (3d Cir. 1981). The court's refusal to sever is not an adequate ground for grant of a new trial.

 B. Identification Evidence

 Prior to trial, defendants, contending that Lee's identification of defendants was tainted by his suggestive use of police file photographs, moved to suppress. This motion was denied (N.T. 1.93) and the issue is again raised by post-trial motion.

 At the suppression hearing, Lee testified that after the illicit drug deals were completed, he used the police department photograph file which is indexed by name. Lee had learned Butts' name from a prior investigation (N.T. 1.34-1.35); Edwards' picture was among those indexed under "Keith Butts." (N.T. 1.33). Lee testified that other officers working in the area had suggested a person named Edwards as one allegedly involved in narcotics activities. (N.T. 1.50-1.53). Photographs of persons named "Edwards" were also ordered. (N.T. 1.52). The photograph of each defendant obtained in this manner was given to defense counsel (N.T. 1.57); but all the other photographs from which defendants' photographs were selected had been either returned to the file or destroyed. These other photographs were not available to defense counsel prior to or at trial. (N.T. 1.58-1.60).

 The court does not condone the effective destruction of the array of photographs from which the defendants may have been identified. Butts and Edwards were first described by Lee perhaps as late as April 11, 1980 (Ex. GS-1, N.T. 1.72), fifteen days after last contact with them. That initial description omitted to note that Edwards wore a hat although Lee testified at trial that Edwards delivered heroin packets in his hat. (N.T. 3.70, 3.110). Lee stated he knew Edwards' name in March, 1980 (N.T. 3.102), but he referred to the person later identified as "Edwards" by an alias in the investigative reports he submitted in April, 1980. (N.T. 3.103). Between the time of the critical events and the trial, Lee had participated in some twenty-six or twenty-seven other investigations (N.T. 3.63-3.64), so a potential for confusion did exist. Even if these facts go to the weight of Lee's identification testimony and not its admissibility, Lee did impede defense counsel in testing that testimony by either returning the photographs to the file without record or destroying them.

 But the Supreme Court has held that the corrupting effect of a suggestive identification is to be weighed against: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his prior descriptions of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the trial and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 (1977) (undercover narcotics agent's view of a single police photograph and subsequent incourt identification of defendant held to comport with due process).

 As in Manson, we find that various indicators of Lee's ability and reliability ultimately outweigh any corrupting effect of the challenged identification. Lee encountered both defendants face-to-face in daylight for several hours over the course of three days. (N.T. 1.7-1.14). This exceeded the observation time of the undercover agent in Manson. Lee examined the police photographs within four days of these encounters. (N.T. 1.30, 1.46). Lee was certain that the photographs were those of the persons with whom he dealt. (N.T. 3.94, 1.31-1.32). Lee was not a lay eyewitness but a veteran of the police department for eleven years, approximately eight of which had been spent as a member of a drug enforcement task force. (N.T. 2.36-2.37). Lee viewed the photographs at his leisure and alone. (N.T. 1.17 et seq.). There was little pressure on Lee to "acquiesce in the suggestion that such a display ...

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