United States v. Drury , 396 F.3d 1143 ( 2005 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
.
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-12924 January 18, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00028-CR-01-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARL M. DRURY, JR., M.D.,
Doctor,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 18, 2005)
Before BARKETT, MARCUS and ALARCÓN*, Circuit Judges.
MARCUS, Circuit Judge:
*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
This case comes before us for a second time after this Court, sitting en banc,
vacated an earlier opinion of this panel, United States v. Drury, 344 F.3d 1089
(11th Cir. 2003), and granted rehearing en banc, see United States v. Drury, 358
F.3d 1280 (11th Cir. 2004), and then subsequently vacated the grant of en banc
rehearing in light of a congressional amendment to the statute at issue in the case,
remanding the matter to this panel for further consideration. See United States v.
Drury, ___ F.3d ___ (11th Cir. 2004).
Drury appeals his convictions for violating the federal murder-for-hire
statute, 18 U.S.C. § 1958, and for possessing a firearm in connection with a crime
of violence, in violation of 18 U.S.C. § 924(c). Drury contends that the
jurisdictional element of § 1958(a) is properly interpreted as requiring the
government to prove that he used the telephone in interstate commerce to commit
murder-for-hire, and that it failed to do so at trial. In addition, Drury argues that
the trial court committed reversible error by (1) instructing the jury that a pay
phone or a cellular phone is a “facility in interstate commerce” as a matter of law;
(2) denying him the opportunity to introduce evidence of his character for
truthfulness; (3) excluding testimony from his son regarding a prior consistent
statement Drury allegedly made after his arrest; and (4) declining to give two jury
instructions he requested.
2
After thorough review, we conclude that the evidence presented was
sufficient to establish the jurisdictional element of § 1958(a) under any reading of
that provision and, therefore, we need not determine whether Drury’s
interpretation is correct. Moreover, we hold that the district court committed no
reversible error as to its evidentiary rulings or its jury instructions. Accordingly,
we AFFIRM.
I.
A.
Dr. Drury’s scheme to procure the murder of his wife, Mary Drury, was
apparently set into motion when Drury invited his friend Steven Whatley to stay in
his home after Whatley separated from his wife in March 2001. Whatley, an
Agent of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) in Brunswick,
Georgia, resided with Drury intermittently for several months. During this time,
Drury complained bitterly and frequently about his wife, telling Whatley that he
needed “some relief” from her, and that “she needed to go.” Drury eventually
made his purpose clear, telling Whatley that “Mary has got to die” and “Mary has
got to go,” and insisting that “it had to look like an accident.” Ultimately, Drury
asked Whatley if he would kill Mary Drury or find someone else to do so.
3
Whatley reported this conversation to his supervisor at the Federal Law
Enforcement Training Center, who put Whatley in touch with ATF Agents John
Limbach and Louis Valoze. The agents provided Whatley with Valoze’s
undercover cellular telephone number, and instructed him to give Drury the
number if he approached Whatley again about murdering his wife. When Drury
did so, Whatley gave him Agent Valoze’s phone number, with its local South
Georgia area code.
Drury placed a total of four calls to Agent Valoze’s cellular phone. All four
were made from pay phones in Brunswick, Georgia, and both Drury and Valoze
were physically located within the state of Georgia at all times during the four
telephone conversations. Drury first called Agent Valoze on August 7, 2001, and
arranged to meet him at a local restaurant the next day. At that meeting, Drury
formulated a plan with Valoze to procure the murder of Mary Drury. Valoze told
Drury that he required a gun and a fee of $2,000. Drury provided Valoze with
detailed information about his wife and her habits, including her place of
employment, her work schedule, and the type of car she drove. Drury stressed that
“[i]t just needs to be an accident.” He told Valoze that he would call him again in
a few days.
4
Drury placed his second call to Valoze’s cellular phone on August 9, 2001.
During this conversation, Drury provided Valoze with Mary Drury’s license plate
number. Drury also negotiated the fee for the murder down to $750.
On August 15, 2001, Drury placed a third call to Agent Valoze’s cellular
phone. He arranged to meet Valoze at 9:00 p.m. on August 20, 2001, outside a
restaurant in Darien, Georgia. At that meeting, Drury provided Valoze with an
unloaded .38 caliber handgun and -- after further negotiating the fee -- $250 as
payment for the murder. Drury told Valoze that he wanted to wait to see if his
wife would sign their divorce papers, and if so, he wanted Valoze only “to follow
her” to find out whether she was seeing another man. If she refused to sign the
papers, Drury said, “we’ll go ahead.” Drury and the putative hit-man agreed to
speak again at the end of the week.
Drury place his fourth and final call to Agent Valoze’s cellular phone on
August 24, 2001. During this call, Drury informed Valoze that his wife had not
signed the papers, and that Valoze should proceed with the murder as planned.
Drury advised Valoze that his wife was driving back from her sister’s home in
northern Georgia, and that he “could . . . catch her on the way back, it’ll be a good,
good time.” Drury told Valoze, “you the man,” to which Valoze responded, “all
5
right Doc I’m gonna do this thing.” Following this final conversation, ATF agents
arrested Drury.
At Drury’s trial, the government introduced evidence regarding the paths
traveled by the telephone signals that facilitated the calls between Drury and
Agent Valoze. A representative of BellSouth Telecommunications, the company
that serviced the pay phones Drury used to contact Valoze, testified that all calls
from the telephones Drury used are routed to a switching center in Brunswick,
Georgia, from where they are routed to their intended destination, whether local,
interstate, or international. The signal from a purely local call would not leave
Georgia, but in the case of a call to a cellular phone, it might. A representative of
VoiceStream Wireless, the company that serviced Agent Valoze’s cellular phone,
then testified that Drury’s calls to Valoze’s phone all traveled through a
VoiceStream switching center in Jacksonville, Florida, before being routed back to
Agent Valoze’s cellular phone in Georgia.
Drury’s basic defense at trial was that the whole murder-for-hire scheme
was merely an ATF role-playing exercise. He testified that he never spoke to
Whatley about killing his wife, but merely about his concern that she was having
an affair and his desire to hire a private investigator. Drury claimed that Whatley
then informed him that Drury could participate in an ATF training program,
6
whereby he would pretend to seek a murder-for-hire, and ATF agents would place
Mary Drury under surveillance and provide Drury with a detailed written report of
their findings. Drury denied ever actually intending to have his wife killed, and
stated that his $250 payment to Agent Valoze was simply reimbursement for the
surveillance.
To support his role-playing explanation, Drury noted that the purported
“trigger” for proceeding with the murder of Mary Drury -- her refusal to sign
divorce papers -- was, in fact, a falsification; the couple had no plans to divorce.
Mrs. Drury’s testimony at trial corroborated her husband’s claim that the couple
had never discussed divorce. Whatley, in his trial testimony, denied ever
discussing or engaging in role play with Drury. Drury, in turn, called two
character witnesses, Ted Turner and Joseph Bridgers, who attested to Whatley’s
reputation for untruthfulness.
Drury also attempted to introduce his son Don’s testimony that Drury had
told him about the role-playing exercise while sitting in a police vehicle shortly
after his arrest. The government objected, arguing that the testimony was
inadmissible because Drury had a motive to fabricate the story after his arrest,
since he had not told anyone about the role play beforehand. The district court
excluded Don’s testimony.
7
Drury also sought to introduce testimony about his character for
truthfulness, under Federal Rule of Evidence 608. The government objected,
arguing that Rule 608 was inapplicable since it had questioned only Drury’s
credibility generally, not his character for truthfulness. The district court ruled the
testimony inadmissible.
In addition, Drury submitted, prior to trial, two proposed jury instructions --
one pertaining to the reliability of government investigations, and the other to
witness’ reputations for truthfulness. The trial court gave neither of the requested
instructions. However, the trial court provided the jury with its own instructions
on witness credibility, both before and after trial. The trial court also instructed
the jury that “pay phones and cellular phones are ‘facilities in interstate commerce’
under federal law.” Drury objected to this charge and to the district court’s refusal
to give his requested instructions.
B.
A jury convicted Drury of plotting a murder-for-hire in violation of Title 18
U.S.C. § 1958, and of the related offense of possessing a firearm in connection
with a crime of violence, in violation of 18 U.S.C. § 924(c). At the time of
Drury’s conviction, § 1958 provided:
8
§ 1958. Use of interstate commerce facilities in the
commission of murder-for-hire
(a) Whoever travels in or causes another (including the
intended victim) to travel in interstate or foreign commerce, or uses or
causes another (including the intended victim) to use the mail or any
facility in interstate or foreign commerce, with intent that a murder be
committed in violation of the laws of any State or the United States as
consideration for the receipt of, or as consideration for a promise or
agreement to pay, anything of pecuniary value, or who conspires to
do so, shall be fined under this title or imprisoned for not more than
ten years, or both; and if personal injury results, shall be fined under
this title or imprisoned for not more than twenty years, or both; and if
death results, shall be punished by death or life imprisonment, or shall
be fined not more than $250,000, or both.
(b) As used in this section and section 1959--
(1) “anything of pecuniary value” means anything of value in
the form of money, a negotiable instrument, a commercial interest, or
anything else the primary significance of which is economic
advantage;
(2) “facility of interstate commerce” includes means of
transportation and communication; and
(3) “State” includes a State of the United States, the District of
Columbia, and any commonwealth, territory, or possession of the
United States.
18 U.S.C. § 1958 (2000).1
1
Section 1958 was originally enacted as part of the Interstate Travel in Aid of Racketeering
Statute (“Travel Act”), codified at Title 18 U.S.C. § 1952. The Travel Act, in its original form,
established federal jurisdiction over organized crime and racketeering offenses having a nexus with
interstate commerce, but did not specifically include murder-for-hire within its scope.
The original Travel Act, entitled “Interstate and foreign travel or transportation in aid of
9
The district court sentenced Drury to 204 months’ imprisonment. He timely
appealed to this Court.
racketeering offenses,” established penalties for anyone who “travels in interstate or foreign
commerce or uses any facility or foreign commerce, including the mail, with intent to (1) distribute
the proceeds of any unlawful in interstate activity; or (2) commit any crime of violence to further any
unlawful activity.” 18 U.S.C. § 1952(a) (1961). The statute provided that “[a]s used in this section
‘unlawful activity’ means (1) any business enterprise involving gambling, liquor on which the
Federal excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of
the State in which they are committed or of the United States, or (2) extortion or bribery in violation
of the laws of the State in which committed or of the United States.” Id. § 1952(b).
In 1984, as part of the Comprehensive Crime Control Act, Congress amended the Travel Act
to include the offense of murder-for-hire. Congress added to the statute § 1952A, whose language
was nearly identical to that of the current § 1958.
Section 1952A, as originally enacted, provided:
(a) Whoever travels in or causes another (including the intended victim) to travel in
interstate or foreign commerce, or uses or causes another
(including the intended victim) to use the mail or any facility in interstate or foreign
commerce, with intent that a murder be committed in violation of the laws of any
State or the United States as consideration for the receipt of, or as consideration for
a promise or agreement to pay, anything of pecuniary value, shall be fined . . . .
(b) As used in this section and section 1952B
(1) “anything of pecuniary value” means anything of value in the form of money, a
negotiable instrument, a commercial interest, or anything else the primary
significance of which is economic advantage; and
(2) “facility of interstate commerce” includes means of transportation and
communication.
18 U.S.C. § 1952A (1984).
Several years later, as part of the Anti-Drug Abuse Act of 1988, Congress removed § 1952A
from the Travel Act, reenacting it in virtually identical terms as a separate statute, 18 U.S.C. § 1958.
Since 1988, Congress has made several slight modifications to § 1958, but the statute before the
Court today is substantively the same as the one Congress originally appended to the Travel Act in
1984 and recast in 1988 as § 1958.
10
C.
This panel initially affirmed Drury’s convictions. United States v. Drury,
344 F.3d 1089 (11th Cir. 2003). By a divided vote, the panel held that § 1958(a)
creates federal jurisdiction only when a murder-for-hire scheme uses in interstate
commerce a facility such as the telephone. Id. at 1104. Accordingly, the panel
concluded that the district court erred in instructing the jury that pay phones and
cellular phones are per se facilities in interstate commerce, but it found this error
to be harmless, in light of the evidence that the cellular phone signal actually
traveled from Georgia into Florida, before bouncing back into Georgia, each time
Drury called Agent Valoze. Id. at 1106. The interstate path of the phone signals,
the panel held, constituted sufficient evidence to satisfy § 1958(a)’s jurisdictional
nexus, and thus to support Drury’s conviction. Id. at 1104-05. The panel also
unanimously held that the district court committed no reversible error in
prohibiting Drury from introducing evidence of his character for truthfulness, id.
at 1110; in refusing to admit testimony from Drury’s son regarding a prior
consistent statement made by Drury after his arrest, id. at 1108-09; or in denying
Drury’s request for certain jury instructions regarding witness credibility and law
enforcement investigative techniques, id. at 1109-10.
11
On February 3, 2004, this Court vacated the panel opinion and directed that
the case be heard en banc. United States v. Drury, 358 F.3d 1280 (11th Cir. 2004)
(en banc). We granted rehearing en banc to consider the important question of
whether a purely intrastate use of a facility of interstate commerce (the
telehphone) satisfies the jurisdictional requirement of § 1958(a).
Notably, after the grant of en banc rehearing, Congress amended § 1958 to
resolve precisely that question, which had been the subject of some interpretive
disagreement among the courts of appeals. The Sixth Circuit, in United States v.
Weathers, 169 F.3d 336 (6th Cir. 1999), interpreted the phrase “[w]hoever . . . uses
. . . any facility in interstate . . . commerce” as requiring that the relevant facility
actually be used in interstate commerce.2 In contrast, the Fifth Circuit, in United
States v. Marek, 238 F.3d 310 (5th Cir. 2001), interpreted that language as
covering any use -- intra- or interstate -- of an interstate commerce facility. The
Seventh Circuit, in United States v. Richeson, 338 F.3d 653 (7th Cir. 2003),
similarly read § 1958's jurisdictional language as “requir[ing] that the facility, and
not its use, be in interstate or foreign commerce.” Id. at 660.
2
It bears noting, however, that the Sixth Circuit subsequently disavowed the reasoning of
Weathers and limited its holding to the facts of that case, adopting instead the Fifth Circuit’s
construction of the statute in Marek. See United States v. Cope, 312 F.3d 757, 771 (6th Cir. 2002).
12
The principal source of the courts’ interpretive difficulty with § 1958
seemed to be the mismatch between the jurisdictional section’s use of the phrase
“facility in interstate . . . commerce,” see § 1958(a), and the definitional section’s
use of the similar but not identical phrase “facility of interstate commerce,” see §
1958(b)(2) (providing that “‘facility of interstate commerce’ includes means of
transportation and communication”), coupled with the possibility of reading “in
interstate . . . commerce” as modifying the immediately preceding noun “facility”
or the more remote verb “uses.” See, e.g., Weathers, 169 F.3d at 340; Marek, 238
F.3d at 313.
In the time since these cases were decided, and since this panel issued its
original opinion in this case, Congress has amended § 1958 to eliminate precisely
these problems, making the statute’s jurisdictional reach crystal clear. As part of
the Intelligence Reform and Terrorism Prevention Act of 2004, which passed the
House of Representatives December 7 and the Senate December 8, and was signed
into law by the President on December 17, Congress amended 18 U.S.C. § 1958 to
change the phrase “facility in” to “facility of.” The amendment provides:
Section 1958 of title 18, United States Code, is amended--
(1) in subsection (a), by striking “facility in” and inserting
“facility of”; and
13
(2) in subsection (b)(2), by inserting “or foreign” after
“interstate”.
Intelligence Reform and Terrorism Prevention Act of 2004, § 6704, Pub. L. No.
108-458, 118 Stat. 3638.
Thus, the new version of § 1958 reads, “Whoever . . . uses . . . any facility of
interstate or foreign commerce . . . .” This amendment makes absolutely clear that
§ 1958 establishes federal jurisdiction whenever any “facility of interstate
commerce” is used in the commission of a murder-for-hire offense, regardless of
whether the use is interstate in nature (i.e. the telephone call was between states)
or purely intrastate in nature (i.e. the telephone call was made to another telephone
within the same state).
Because this amendment obviates for all future convictions under § 1958
the precise question of statutory construction that we granted rehearing en banc to
resolve, we determined that the case no longer merited en banc consideration. The
full Court thus vacated the order granting rehearing en banc, and referred the case
back to this panel for further consideration. United States v. Drury, ___ F.3d ____
(11th Cir. 2004).
The opinion we issue today addresses Drury’s challenges to his conviction
under the previous version of § 1958 without resolving any broader question of
14
statutory construction, since Drury’s own conviction stands under either of the
competing interpretations of § 1958(a). On reconsideration, we once again find
that the uncontroverted evidence that Drury, in arranging for the murder of his
wife, used a telephone on four separate occasions to place calls that actually
crossed an interstate border, is sufficient to support his conviction regardless of
how we read § 1958(a)’s jurisdictional language. In addition, we again conclude
that the district court committed no reversible error in its evidentiary rulings or its
instructions to the jury. We therefore AFFIRM Drury’s convictions.
II.
A.
Drury first argues that the government offered insufficient evidence at trial
to establish the he used a facility in interstate commerce, as he alleges is required
by § 1958(a). Drury does not dispute the government’s expert testimony that each
of the four calls he placed to Agent Valoze’s cellular phone was routed from
Georgia through VoiceStream’s Jacksonville, Florida switching center, and then
15
back into Georgia,3 but he nevertheless contends that these interstate contacts do
not satisfy § 1958(a)’s jurisdictional requirement.
The government argues that § 1958(a) requires only proof that Drury used a
facility that, based on its interstate capabilities rather than actual interstate use,
qualifies inherently as a “facility in interstate commerce.” Alternatively, the
government contends that even if the statute requires that a facility actually be
used in interstate commerce, the routing of Drury’s calls from Georgia through
Florida fully satisfies this requirement.
Whether there is sufficient evidence to support a conviction is a question of
law, which we review de novo. United States v. Tarkoff, 242 F.3d 991, 993 (11th
Cir. 2001). “We will affirm a jury’s verdict if a reasonable trier of fact could
conclude that the evidence establishes guilt beyond a reasonable doubt. In
determining a sufficiency of the evidence claim, we view the evidence in the light
most favorable to the government, with all reasonable inferences and credibility
choices made in the government’s favor.” United States v. Miles, 290 F.3d 1341,
1355 (11th Cir. 2002) (citation omitted).
3
Drury does, however, mistakenly refer to the telephone signal as a radio signal. This is
incorrect. Prior to reaching the cellular tower closest to the target user’s cellular phone, a telephone
signal sent from a land line travels entirely through terrestrial means. It is only after that call has
been switched by the cellular provider to the cellular tower closest to the target subscriber that the
signal passes via radio signals.
16
In evaluating Drury’s sufficiency of the evidence claim, we do not decide
whether § 1958(a) actually requires that a facility be used in interstate commerce,
since it suffices here to observe that uncontroverted evidence establishes that the
relevant facility (the telephone) was so used. Drury argues that the interstate
routing of the four telephone calls he placed from Georgia pay phones to Agent
Valoze’s Georgia cellular phone is inadequate to establish that he used the
telephone in interstate commerce, since a “signal sent unintentionally and
inadvertently across state lines” is a “tenuous and insufficient” contact. This
argument is unpersuasive.
Drury points to nothing in the statute, and we can find nothing that suggests
the telephone’s use in interstate commerce must be knowing or intentional. We
see no reason that unintentional use in interstate commerce would not qualify as
use in interstate commerce, and this Circuit’s precedent suggests that there is none.
In United States v. Davila, 592 F.2d 1261 (5th Cir. 1979),4 the former Fifth Circuit
held that the “purely incidental” interstate routing of a Western Union wire
transfer satisfied the interstate commerce requirement of the federal wire fraud
statute, 18 U.S.C. § 1843. In Davila, funds transferred between two banks located
4
The Eleventh Circuit has adopted as precedent the decisions of the former Fifth Circuit
rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
17
in the state of Texas were, unbeknownst to the defendant, routed through the state
of Virginia. In spite of the fact that the interstate routing was wholly incidental to
the wire fraud offenses with which the defendant was charged, the Court rejected
the defendant’s argument that the interstate nexus was “too minimal and
incidental” to satisfy the statute’s jurisdictional element, reasoning that the wire
transfers “were essential” to carrying out the offenses charged, “and they went of
necessity on interstate facilities.” Id. at 1264.
The interstate routing of Drury’s willful calls to Agent Valoze was similarly
necessary for their completion, and the calls themselves were essential in
facilitating the murder-for-hire plot. The calls were not accidentally or
incidentally placed, but rather were made knowingly to further a scheme to
commit murder-for-hire. Accordingly, whether Drury knew or intended that they
would travel across state lines is immaterial. This situation is no different than if
Agent Valoze had himself been located in Florida when he received Drury’s calls
to his cellular phone -- Drury might not have had any intention of placing an out-
of-state call, but undoubtedly he would have done so.
That Drury did in fact use the telephone in interstate commerce to facilitate
murder-for-hire fully establishes the jurisdictional element of § 1958(a). We,
therefore, conclude that the government presented sufficient evidence at trial for a
18
reasonable jury to have “found the essential elements of the crime beyond a
reasonable doubt,” Tarkoff, 242 F.3d at 993, and we reject Drury’s sufficiency of
the evidence claim.
B.
Drury next argues that, regardless of whether the government presented
sufficient evidence to establish the requisite jurisdictional nexus, the district court
erred in instructing the jury that “pay telephones and cellular telephones are
‘facilities in interstate commerce’ under federal law.” This instruction, Drury
contends, violated his right to have a jury decide whether he “is guilty of every
element of the crime with which he is charged, beyond a reasonable doubt,”
United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444
(1995) (citation omitted), by removing from the jury’s consideration an essential
element of a § 1958 violation: the interstate nexus.
The propriety of the trial court’s jury instruction is a question of law, which
we review de novo. United States v. Leonard, 138 F.3d 906, 908 (11th Cir. 1998).
The jurisdictional requirement of § 1958(a) is a substantive element of the
offense of murder-for-hire. See United States v. Tinoco, 304 F.3d 1088, 1105
(11th Cir. 2002) (observing that the identically worded jurisdictional requirement
of § 1958's predecessor statute, the Travel Act, “is a substantive element of Travel
19
Act offenses that must be decided by a jury”). Drury, therefore, has a
constitutional right to have a jury determine whether the requirement is satisfied.
See Gaudin, 515 U.S. at 522-23 (“The Constitution gives a criminal defendant the
right to have a jury determine, beyond a reasonable doubt, his guilt of every
element of the crime with which he is charged.”); id. at 513 (observing that there
is a “historical and constitutionally guaranteed right of criminal defendants to
demand that the jury decide guilt or innocence on every issue, which includes
application of the law to the facts”).
However, we need not decide whether the trial judge’s instruction that
telephones are “facilities in interstate commerce” violated Drury’s right to a jury
determination of every element of the charged offense, since the instructions are
subject to harmless error review. As the Supreme Court observed in Chapman v.
California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), “there may be
some constitutional errors which in the setting of a particular case are so
unimportant and insignificant that they may, consistent with the Federal
Constitution, be deemed harmless, not requiring the automatic reversal of the
conviction.” Plainly, a jury instruction that omits an element of the charged
offense -- the error Drury alleges here -- is subject to harmless error analysis. See
Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)
20
(“[A]n instruction that omits an element of the offense does not necessarily render
a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt
or innocence.”); Ross v. United States, 289 F.3d 677, 681 (11th Cir. 2002). The
appropriate inquiry is “whether it appears ‘beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.’” Neder, 527 U.S.
at 15 (quoting Chapman, 386 U.S. at 24).
Here, it is clear beyond reasonable doubt that instructing the jury that
telephones are “facilities in commerce” did not contribute to their rendering of a
guilty verdict. At trial, the government presented clear and uncontradicted
evidence that all four telephone calls Drury placed to Agent Valoze traveled from
Georgia into Florida, and then back into Georgia. Drury did not dispute this
evidence at trial, nor does he challenge it on appeal. Since the factual foundation
for the jurisdictional component of § 1958(a) is uncontested, we cannot conclude
that Drury’s constitutional rights were impaired by the challenged jury instruction,
even if it was improperly given. We have no reasonable doubt that the jury would
have reached the same result with or without that instruction, and thus conclude
that even if the district court’s instruction on § 1958(a)’s jurisdictional element
was erroneous, any such error was harmless.
C.
21
Drury next challenges the district court’s exclusion of evidence of his
truthful character. Drury claims that the government attacked his credibility at
trial, entitling him to introduce rehabilitative evidence pursuant to Federal Rule of
Evidence 608(a)(2). Rule 608(a)(2) provides that “evidence of truthful character
is admissible only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.”
Drury does not suggest that the government presented any opinion or
reputation evidence about his character, but argues that his character was
“otherwise” attacked. He offers as the basis for this contention a series of
scattered questions asked by the prosecutor during cross-examination of Drury.5
Among the examples of what Drury cites as the prosecution’s “credibility-laden
questions” are these: “Are you telling us that you told an arresting officer that you
wanted to make a statement and he wouldn’t let you?”; “Are you saying that he
hushed you up?”; “Is that what you want this jury to believe?”; “You don’t think
the officer had any reason to think that you were trying to offer him a bribe?”; and
5
Drury also contends that the government displayed its intention to attack his character during
a sidebar conference with the trial judge, when the prosecutor stated: “This is not a collateral
material, he has made character an issue in his defense.” Drury takes this statement entirely out of
context. In reality, the quoted statement was referring not to Drury’s “character for truthfulness,”
but to the “character of the relationship” between himself and Whatley, as is made clear from the
prosecutor’s immediately preceding statement, that “this defendant has made it a linchpin of his
defense that his relationship with Mr. Whatley was of a particular character.”
22
“Is that what you are telling us?” Based on these and several other remarks of
similar tenor, Drury sought to introduce testimony from six witnesses prepared to
attest to his truthful character.
We review a trial court’s evidentiary rulings for a clear abuse of discretion.
Tinoco, 304 F.3d at 1119. “The application of an abuse-of-discretion review
recognizes the range of possible conclusions the trial judge may reach.” United
States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). “By definition .
. . under the abuse of discretion standard of review there will be occasions in
which we affirm the district court even though we would have gone the other way
had it been our call. That is how an abuse of discretion standard differs from a de
novo standard of review. As we have stated previously, the abuse of discretion
standard allows ‘a range of choice for the district court, so long as that choice does
not constitute a clear error of judgment.’” Id. (quoting Rasbury v. I.R.S. (In re
Rasbury), 24 F.3d 159, 168 (11th Cir. 1994) (citations and internal quotation
marks omitted); see also Kern v. TXO Prod. Corp., 738 F.2d 968, 971 (8th Cir.
1984) (“The very concept of discretion presupposes a zone of choice within which
the trial courts may go either way.”). “Thus, when employing an
abuse-of-discretion standard, we must affirm unless we find that the district court
has made a clear error of judgment, or has applied the wrong legal standard.” Id.
23
Evidentiary errors “do not constitute grounds for reversal unless there is a
reasonable likelihood that they affected the defendant’s substantial rights; where
an error had no substantial influence on the outcome, and sufficient evidence
uninfected by error supports the verdict, reversal is not warranted.” United States
v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990). “The trial judge is given broad
discretion in ruling on the admissibility of character testimony.” United States v.
Solomon, 686 F.2d 863, 874 (11th Cir. 1982).
After careful review of the pertinent exchanges between the government’s
counsel and Drury, we conclude that the district court did not abuse its discretion
in excluding the proffered testimony. As we have previously observed, under
Federal Rule of Evidence 608(a)(2), “evidence of a witness’ truthful character is
admissible only after [his] character for truthfulness has been attacked.” United
States v. Hilton, 772 F.2d 783, 786 (11th Cir. 1985). An “attack” that consists
only of “Government counsel pointing out inconsistencies in testimony and
arguing that the accused’s testimony is not credible does not constitute an attack
on the accused’s reputation for truthfulness within the meaning of Rule 608.”
United States v. Danehy, 680 F.2d 1311, 1314 (11th Cir. 1982). However, that is
precisely the sort of “attack” Drury claims the prosecution to have launched during
its cross-examination. Because such an attack is insufficient to authorize
24
rehabilitation under Rule 608, we have little trouble concluding that the district
court did not abuse its discretion in excluding Drury’s proffered reputation-for-
truthfulness testimony.
D.
Drury’s next challenge is to the trial court’s exclusion of testimony
concerning a prior consistent statement Drury allegedly made to his son, Don.
Drury’s son would have testified that Drury told him immediately after his arrest
that he had been participating in a role-playing exercise with Agent Valoze. Drury
argues that his son’s testimony was admissible on two grounds. First, he claims it
was admissible to rehabilitate his credibility, which he says the prosecution
impeached on cross-examination by insinuating that he had fabricated the role-
playing story. Specifically, Drury cites the question, “Is that where you got the
idea to claim that you believed this was all role playing?” as a prosecutorial attack
on his credibility. Second, Drury argues that his son’s testimony is admissible
under Federal Rule of Evidence 801(d)(1)(B), as a prior statement “consistent with
the declarant’s testimony and . . . offered to rebut an express or implied charge
25
against the declarant of recent fabrication or improper influence or motive.” Fed.
R. Evid. 801(d)(1)(B). Both arguments are unavailing.6
As to Drury’s first argument, we find again that his credibility was not
attacked. Drury argues that “[a] prior consistent statement may be used for
rehabilitation when the statement has a probative force bearing on credibility
beyond merely showing repetition.” United States v. Pierre, 781 F.2d 329, 333
(2d Cir. 1986). This may well be true, but it does not change the fact that Federal
Rule of Evidence 608 permits rehabilitative evidence only when a witness’s
reputation for truthfulness has actually been attacked. See Fed. R. Evid. 608(a)(2).
As we observed previously, the prosecution’s questioning the veracity of the
accused’s testimony and calling attention to inconsistencies therein does not
constitute an attack on the accused’s reputation for truthfulness permitting
rehabilitative testimony. See Danehy, 680 F.2d at 1314. Again, Drury has pointed
to nothing but a few cross-examination questions to support his claim that the
prosecution attacked his character for truthfulness.
6
Drury makes the additional claim that the trial court improperly ruled that Federal Rule of
Evidence 613 barred Don Drury’s testimony. However, Drury has taken the trial court’s reference
to Rule 613 completely out of context. Rule 613(b) governs admissibility of prior inconsistent
statements, see Fed. R. Evid. 613(b), and accordingly the trial court applied it in determining the
admissibility of alleged prior inconsistent statements by Mr. Whatley, who served as a trial witness.
The trial court did not, however, cite Rule 613 as a ground for excluding Don Drury’s testimony, and
thus we do not address Appellant Drury’s argument that the trial court erroneously applied that rule.
26
Moreover, and perhaps more significant, prior consistent statements are
treated as admissible non-hearsay only if they are offered to rebut a specific
allegation of recent fabrication, not to rehabilitate credibility that has been
generally called into question. See Tome v. United States, 513 U.S. 150, 157, 115
S. Ct. 696, 130 L. Ed. 2d 574 (1995) (“The Rules do not accord this weighty,
nonhearsay status to all prior consistent statements. To the contrary, admissibility
under the Rules is confined to those statements offered to rebut a charge of ‘recent
fabrication or improper influence or motive’ . . . .” (quoting Fed. R. Evid.
801(d)(1)(B)). The Supreme Court has made perfectly clear that “[p]rior
consistent statements may not be admitted to counter all forms of impeachment or
to bolster the witness merely because she has been discredited.” Id. Accordingly,
the trial court did not abuse its discretion in ruling Don Drury’s testimony
inadmissible to rehabilitate Appellant Drury’s credibility.
As to Drury’s second argument, we find that the trial court committed no
abuse of discretion in declining to admit Don Drury’s testimony as a prior
consistent statement. “A district court is granted broad discretion in determining
the admissibility of a prior consistent statement under Fed. R. Evid. 801(d)(1)(B)
and will not be reversed absent a clear showing of abuse of discretion.” United
States v. Prieto, 232 F.3d 816, 819 (11th Cir. 2000). Of particular importance
27
here, “whether a witness had a motive to fabricate when a prior consistent
statement was made is a factual question properly decided by the district court and
subject to reversal only for a clear abuse of discretion.” Id. at 822.
A prior consistent statement is admissible only if it was “made before the
alleged influence, or motive to fabricate, arose.” Tome, 513 U.S. at 158. Drury,
however, claims that the district court abused its discretion by applying a
“temporal litmus test,” under which the fact that Drury’s statement to his son was
made post-arrest rendered it inadmissible, on the theory that his arrest gave Drury
a motive to fabricate. In United States v. Prieto, this Court declined to adopt a
“bright line rule that motive to fabricate necessarily and automatically attaches
upon arrest.” Prieto, 232 F.3d at 822. However, the record does not show that the
trial court applied such a rule in this case. In fact, the trial judge excluded the
statement because he found that “the conditions established by [United States v.
Tome] of admissibility of such a statement have not been established here.”
Although more specific findings on this subject would have eased our inquiry, the
record provides ample support for the trial court’s determination that Drury,
subsequent to his arrest, had motive and opportunity to fabricate the story he told
his son. Accordingly, we hold that the trial court did not abuse its discretion in
ruling the statement inadmissible.
28
E.
Drury’s final challenge is to the trial court’s refusal to give his two
requested jury instructions. The first proposed instruction, concerning government
investigations, read:
I instruct you that you may consider such evidence, including
improper investigative techniques, in evaluating the credibility of the
government witnesses. In other words, an investigation that is
thorough and conducted in good faith may lead to more credible
evidence than an investigation that is incomplete, negligent, or
conducted in bad faith. In deciding the credibility of law enforcement
witnesses, you may consider whether the investigation was conducted
according to proper protocol and was complete.
I further instruct you that if the government improperly, or
inadequately investigated one aspect of this case, you may infer that
the government inadequately, or improperly investigated other
aspects of the case, as well. Based on this inference alone, you may
disbelieve certain government witnesses.
Drury’s second proposed jury instruction was Eleventh Circuit Pattern Jury
Instruction (Criminal Cases), Basic Instruction 6.7, at 30 (West 1997), which
reads:
There may also be evidence tending to show that a witness has
a bad reputation for truthfulness in the community where the witness
resides, or has recently resided; or that others have an unfavorable
opinion of the truthfulness of the witness. You may consider those
matters also in deciding whether to believe or disbelieve such
witness.
29
The district court did not give either instruction. Instead, as part of its
preliminary instructions prior to opening statements, the district court instructed
the jury:
[Y]ou are the only people who can determine the credibility or the
believability of the witnesses. You are the sole judges of the
credibility of the witnesses and the weight to be accorded to the
testimony and the evidence . . . . What you are going to see is that in
determining the credibility of the witnesses you will use the same
criteria that you use in your daily life. The same things that you use
to determine the credibility or the believability of the witnesses, are
exactly the same sorts of things that you use in your daily lives when
you are trying to decide whether or not you can believe somebody
about a very important matter.
At the close of trial, the judge further instructed the jury:
In deciding whether you believe or do not believe any witness, I
suggest that you ask yourself a few questions: Did the witness
impress you as one who was telling the truth? Did the witness have
any particular reason not to tell the truth? Did the witness have a
personal interest in the outcome of the case? Did the witness seem to
have a good memory? Did the witness have the opportunity and
ability to observe accurately the things he or she testified about? Did
the witness appear to understand the questions clearly and answer
them directly? Did the witness’s testimony differ from other
testimony or other evidence?
“Our review of a trial court’s jury instructions is limited; if the instructions
accurately reflect the law, the trial judge is given wide discretion as to the style
and wording employed in the instruction. Under this standard, ‘we examine
30
whether the jury charges, considered as a whole, sufficiently instructed the jury so
that the jurors understood the issues and were not misled.’” United States v.
Fulford, 267 F.3d 1241, 1245 (11th Cir. 2001) (citation omitted) (quoting Carter v.
DecisionOne Corp., 122 F.3d 997, 1005 (11th Cir. 1997) (citation and internal
quotation marks omitted)); see also United States v. Gold, 743 F.2d 800, 819 (11th
Cir. 1984) (“[T]he district court has broad discretion in formulating its charge so
long as the charge accurately reflects the law and the facts.”). “The district court’s
refusal to give the requested instruction is reversible only if (1) the instruction is
substantially correct, (2) the instruction was not addressed in the charge actually
given, and (3) the failure to give the requested instruction seriously impaired the
defendant’s ability to present an effective defense.” United States v. De La Mata,
266 F.3d 1275, 1298 (11th Cir. 2001).
We find no error in the district court’s decision not to give Drury’s
requested instructions. Drury’s proffered non-pattern jury charge was superfluous,
since the trial court’s general instructions on evaluating evidence and witness
credibility were sufficient to guide the jury in its deliberations. Accordingly, the
trial court’s failure to give Drury’s proposed instruction on the reliability of
government investigations did not seriously impair his ability to present an
effective defense, and thus we can find no abuse of discretion.
31
Nor did the district court abuse its discretion in declining to give Eleventh
Circuit Pattern Jury Instruction 6.7. Applying the three-part reversibility analysis
outlined above, we conclude that this charge is clearly “substantially correct”
under the first prong. As to the second prong, whether the charge the trial court
gave covered the same territory as the pattern instruction Drury requested is a
closer question. The requested instruction refers specifically to a witness’
“reputation for truthfulness in the community,” whereas the one actually given
covers only witness credibility in more general terms. However, even if we found
the content of the proposed instruction inadequately addressed in the actual
instruction, satisfying the second prong of the analysis, Drury’s assignment of
error nevertheless fails under the third prong. Drury has shown no substantial
impediment to his ability to present an effective defense as a result of the trial
court’s failure to give the pattern instruction, and we perceive none.
Drury argues that he needed that instruction because Whatley, the witness
Drury characterizes as the crux of the government’s case, was shown at trial to
have a bad reputation for truthfulness in the community. Indeed, the trial court
permitted Drury to vigorously argue as much to the jury, through direct
examination of two character witnesses, cross-examination of Whatley, and
closing argument. These opportunities to impugn Whatley’s character for
32
truthfulness, coupled with the trial court’s general instructions on witness
credibility, persuade us that the trial court did not abuse its discretion in declining
to give Drury’s proposed pattern jury charge. Cf. United States v. Ryan, 289 F.3d
1339, 1345 (11th Cir. 2002) (“In light of the opportunities afforded the jury to
consider Ryan’s entrapment defense, we find that the failure to include specific
instructions on the issue did not seriously impair presentation of the defense.”);
United States v. Chirinos, 112 F.3d 1089, 1101 (11th Cir. 1997) (holding that
failure to instruct did not impair a defendant’s ability to argue that he did not
intend to steal cocaine as charged, but rather money, in light of the defendant’s
opportunities to elicit supporting testimony and to make closing arguments on the
issue).
III.
Based on the foregoing analysis, we AFFIRM Drury’s murder-for-hire
conviction under 18 U.S.C. § 1958, and his conviction for possession of a firearm
in connection with a crime of violence under 18 U.S.C. § 924(c).
AFFIRMED.
33