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[DO NOT PUBLISH]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.
