United States v. Donnell Crews , 856 F.3d 91 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2017 Decided May 9, 2017
No. 14-3089
UNITED STATES OF AMERICA,
APPELLEE
v.
DONNELL CREWS, ALSO KNOWN AS DONNELL C. CREWS, ALSO
KNOWN AS DARNELL C. CREWS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cr-00372-1)
Jerald R. Hess argued the cause for appellant. With him
on the briefs was Charles B. Wayne.
Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Elizabeth
Trosman, Elizabeth H. Danello, and David B. Kent, Assistant
U.S. Attorneys.
Before: GARLAND, Chief Judge, and KAVANAUGH and
PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
2
PILLARD, Circuit Judge: On September 21, 2011, three
men approached Hugh Whitaker, an employee of a cash-in-
transit service, as he exited a CVS in Washington, D.C. One
of the men drew a handgun and demanded the cash Whitaker
had just picked up from the CVS. Whitaker drew his own
handgun and they exchanged gunfire. Whitaker retreated into
the CVS unharmed. The three other men, one of whom had
been shot, fled the scene. The police apprehended Donnell
Crews and his half-brother, Anthony James, a couple of blocks
away. After a witness identified Crews and James as two of
the men who confronted Whitaker at the CVS, the police
arrested them and charged them with attempted robbery. James
agreed to a plea deal and testified against Crews and another
alleged co-conspirator. Crews’s first trial ended with a hung
jury. The government retried him, and the jury found him
guilty.
Crews now claims that two errors in the district court’s
evidentiary rulings require us to vacate his conviction. First,
Crews argues the district court erred by denying his motion for
a mistrial after Joseph Brennan, an emergency room nurse,
testified that a gravely injured alleged co-conspirator arrived at
the hospital with “brain matter that was exposed.” But the
district court remedied what little prejudice Brennan’s
testimony might have produced by giving a curative instruction
to the jury. Second, Crews contends that the district court erred
by striking the entire testimony of his sole witness, Vakeema
Ensley, who, after testifying in Crews’s support, asserted her
constitutional privilege against self-incrimination near the
outset of cross examination by the prosecution. Crews asserts
that the district court should have struck only the testimony that
related to the specific line of questioning corresponding to the
cross-examination questions as to which Ensley invoked the
privilege. But the record shows that Ensley asserted a blanket
privilege against any further cross examination, and that Crews
3
made no contemporaneous objection to the evidentiary
decisions the district court made in response. The district court
did not plainly err by striking the entirety of her testimony.
Detecting no reversible error on either point, we affirm.
I.
According to the government’s evidence, Anthony James
and Appellant Donnell Crews met with two other men the
evening before the attempted robbery, Kirk Dean (the brother
of James’s best friend) and Antwon Crowder (Dean’s brother).
That evening, Dean convinced James and Crews to participate
in a planned robbery. The next day, Dean and Crowder met
James at the home of Crews and James’s grandmother. When
Crews’s fiancée, Vakeema Ensley, drove up in her car, Dean
asked her for the keys, explaining that Crews had told him that
he could drive it. At first Ensley refused, but then she
surrendered the keys and stormed inside. Crews soon joined
the others and the four men set off in Ensley’s car, donning
latex gloves during the drive. Crowder parked the car around
the corner from the CVS and waited in the car.
Whitaker, an employee of Garda Cash Logistics, a secure
cash-in-transit company, arrived at the CVS in an armored
truck just before 11:00 am. While the driver, his co-worker
James Jones, remained in the truck, Whitaker entered the CVS
and accepted approximately $10,000 to be deposited. When
Whitaker exited the store, three men—later identified as Dean,
Crews, and James—confronted him. One of the men began to
draw a gun from his waistband, but the gun momentarily
slipped in his grasp, giving Whitaker enough time to draw his
own handgun. The assailant fired at Whitaker, but missed.
Whitaker returned fire as he retreated into the CVS, managing
to shoot Dean in the jaw and elbow.
4
The three men then ran back to Ensley’s car where
Crowder was waiting for them. Despite sustaining two gunshot
wounds, Dean told the others he wanted to go back after
Whitaker. Crews attempted to usher Dean into the car, urging
him to go to the hospital. A brief struggle ensued, as Dean tried
to pull away, but Crews managed to force Dean into the car.
Crowder drove away with Dean beside him. Crews and James
took off on foot, with James quickly discarding his jacket,
scarf, and latex gloves in an alleyway as they ran. The police
apprehended Crews and James a couple blocks from the CVS.
Jones, the armored truck driver, later identified James and
Crews as two of the participants in the crime, and the police
arrested them both for attempted robbery.
Meanwhile, Crowder raced to the hospital with Dean
bleeding in the passenger seat. Traffic cameras captured a few
images of the exterior of Ensley’s car speeding through the
neighborhood, but no other evidence revealed what happened
during that ride. By the time Crowder reached the hospital,
Dean had sustained another gunshot wound, this time to his
head. Crowder pulled into the hospital’s ambulance parking
area, exited the car, used his shirt to wipe fingerprints from the
door, and hurried away. Emergency room nurse Joseph
Brennan discovered Dean slumped in the passenger seat in
bloody clothing. At trial, the government and the defendants
stipulated that Dean later died as a result of a gunshot wound
unrelated to the attempted robbery—presumably the
unexplained gunshot wound that he sustained while in transit
from the CVS to the hospital. The police later arrested
Crowder in connection with the attempted robbery. The police
recovered physical evidence near the CVS and in Ensley’s car,
including James’s jacket, scarf, and gloves, and a piece of a
latex glove with Crews’s DNA on the inside surface.
5
The government jointly tried Crews and Crowder. The
first trial ended with a hung jury, and re-trial proceeded before
the same district judge. The government called Brennan, the
emergency room nurse, as a witness at both trials. At the first
trial, Brennan testified that he discovered Dean in the passenger
seat of the car, covered in blood, with a head wound and matted
hair. But at the second trial Brennan added that he could see
“brain matter that was exposed” as he examined Dean in the
car. Supp. App. 234. Crowder’s counsel objected. He noted
that the parties had carefully avoided discussing the gunshot
wound that killed Dean. He objected that Brennan’s reference
to exposed brain matter might appear to contradict James’s
testimony that, shot only in the elbow and jaw, Dean ran from
the CVS back to the car. The later gunshot was not at issue in
this case, but Crowder’s counsel argued that the jury would
erroneously infer that Dean’s apparently much more serious,
“drop-and-fall” head wound happened during the attempted
robbery, contradicting testimony about Dean’s actions after
suffering lesser wounds at the CVS and prejudicing the
defense. Supp. App. 237.
Having heard from all counsel and at the defense’s request,
the district judge agreed to address any potential confusion
from Brennan’s testimony by reminding the jury that Dean died
from a gunshot wound unrelated to the attempted robbery. Id.
at 237-42. After cross examination, Crews and Crowder
moved for a mistrial, arguing that it would be impossible to
“un-ring the bell” after the jury heard Brennan’s graphic
testimony. Id. at 241. The district judge denied the motion,
but he instructed the jurors to disregard the testimony they
heard “about brain matter and matted, bloody hair,” and urged
them not to allow sympathy or passion to affect their judgment.
Trial Tr. 123-24, Feb. 20, 2014.
6
Crews’s counsel did not attempt to rebut the government’s
evidence placing him near the CVS when the attempted
robbery occurred. Instead, counsel suggested during his
opening statement that Crews knew about the planned robbery,
sought to avoid participating, but wanted to do so in a way that
would not cause the others to think he had deliberately
abandoned them. In support of that narrative, the defense
called Crews’s fiancée, Vakeema Ensley, as a witness at both
trials to testify how Crews occupied himself elsewhere on the
morning of the robbery. Ensley testified that, during the
morning before the attempted robbery, she and Crews drove to
Beltsville, Maryland to buy a part for her mother’s car. While
in Maryland, a surveillance camera captured Crews entering a
7-Eleven. After running the errand, Ensley and Crews drove
into the District, because they both had a shift scheduled later
that day with the Greater Washington Urban League where
they worked. They first headed to Crews’s grandmother’s
house. As they approached the house, Crews asked Ensley to
drop him off a few blocks away to meet his brother. After she
dropped him off, Ensley parked her car outside the
grandmother’s home, entered and left her keys on the radiator
by the front door, and went upstairs to lie down briefly to wait
for Crews.
During her direct examination Ensley testified that she did
not know Antwon Crowder or Kirk Dean before the arrests. At
the first trial, the government attempted to impeach Ensley by
asking about her grand jury testimony, in which she referred to
“Kirk” as Crews’s friend. She explained that she only learned
that Crews and Kirk Dean were friends after the police arrested
Crews. At the second trial, Ensley once again disavowed any
prior acquaintance with Crowder or Dean. This time, the
government focused on Crowder. When the prosecutor asked
Ensley if she had ever received a call from Crowder, she
answered that she had not. The government then began to ask
7
Ensley about a recorded phone conversation between her and
Crews while he was detained awaiting trial, but before Crowder
had been arrested. In the recording, Ensley is heard telling
Crews that she had received a call from Crowder which she
returned. But before the government could ask about the
recording, the district judge interrupted the cross examination
and held a sidebar. Once it became clear that the government
believed Ensley had perjured herself by denying pre-arrest
acquaintance with Crowder, the court appointed an attorney to
represent her.
After consulting with Ensley, the government, and defense
counsel, Ensley’s attorney acknowledged that there was “a
potential problem based upon her earlier testimony” because
the “jail call transcript” arguably contradicted her testimony
that she had never received a phone call from Crowder. Trial
Tr. 107, March 5, 2014. “But more importantly,” he added,
“it’s my impression that this is not the only source of potential
impeachment that they may have for Ms. Ensley.” Id. Ensley’s
attorney also said the Government took the position that the
testimony Ensley gave before the grand jury and at the first trial
“may not have been entirely accurate.” Id. Because of that, the
attorney explained, Ensley decided that “she’s going to assert
her Fifth [Amendment privilege against self-incrimination,]
. . . and she will not answer any further questions.” Id. at 108.
Ensley confirmed on the record that she wished to assert her
constitutional privilege and acknowledged that by doing so she
was giving up her right to testify. Supp. App. 400-01.
The parties then turned to what to do about Ensley’s direct
testimony. Crews’s counsel urged the district judge not to
require Ensley to assert her Fifth Amendment privilege in the
presence of the jury. The government, for its part, encouraged
the district judge to strike all of Ensley’s testimony—the direct
testimony as well as the cross examination. Crews’s counsel
8
did not state an objection to the government’s request, but
raised a concern that the jurors might infer that they should also
ignore the surveillance video taken outside the Maryland 7-
Eleven, which placed Crews in the suburbs doing errands with
Ensley on the morning of the robbery.
The district judge allowed the 7-Eleven security video to
remain in the record because the parties had stipulated to its
authenticity, and did not require Ensley to assert her privilege
before the jury. With those issues resolved, the district judge
instructed the jury to disregard the entirety of Ensley’s
testimony. After deliberating, the jury found Crews guilty of
attempted robbery.
II.
On appeal, Crews argues that the district court erred in
handling Brennan’s and Ensley’s testimony. He contends that
the district court should have granted his motion for a mistrial
after Brennan’s testimony, or at least should have considered a
remedy more limited than striking all of Ensley’s testimony
after she asserted her privilege against self-incrimination. We
disagree on both points and hold that the district court did not
err in its treatment of either witness’s testimony.
A.
Crews claims that the district court abused its discretion by
denying his motion for a mistrial after emergency room nurse
Joseph Brennan testified that Dean appeared gravely wounded,
and in particular that he had “what looked like brain matter that
was exposed.” Supp. App. 234. Crews argues that the district
judge’s curative instructions did not mitigate the prejudice to
him from Brennan’s “brain matter” testimony. We review the
district court’s denial of Crews’s motion for a mistrial for abuse
of discretion. United States v. Gartmon, 146 F.3d 1015, 1027
9
(D.C. Cir. 1998). “A mistrial is a severe remedy—a step to be
avoided whenever possible, and one to be taken only in
circumstances manifesting a necessity therefor.” United States
v. McLendon, 378 F.3d 1109, 1112 (D.C. Cir. 2004) (quoting
United States v. Clarke, 24 F.3d 257, 270 (D.C. Cir. 1994)). A
mistrial is warranted if inadmissible evidence is erroneously
presented to the jury that is so “highly prejudicial” that the jury
cannot reasonably be expected to ignore it. United States v.
Eccleston, 961 F.2d 955, 961-62 (D.C. Cir. 1992). On review,
we must therefore determine “the extent to which the defendant
was unfairly prejudiced.” McLendon, 378 F.3d at 1112. To
that end, we “consider a number of factors, including the force
of the unfairly prejudicial evidence, whether that force was
mitigated by curative instructions, and the weight of the
admissible evidence that supports the verdict.” Id.
All three of these factors weigh against Crews. First,
Brennan’s testimony, while graphic, had only the slightest
prejudicial potential. Crews contends that the testimony may
have led the jury to conclude that Crews callously left Dean to
die. Alternatively, he suggests that the jury may have believed
that Dean became gravely injured during the attempted robbery
(rather than after James and Crews left the scene), which would
contradict James’s testimony that Dean was able to run back to
the car. But Brennan’s “comment was brief, and, viewed in
context, less harmful to [Crews] than [he] maintains.” United
States v. Wheeler, 753 F.3d 200, 207 (D.C. Cir. 2014).
Multiple witnesses testified that all three men ran from the
CVS. Thus, the only plausible inference is that Dean sustained
his fatal injury after he and Crowder separated from Crews and
James. By the same token, the jury had no reason to believe
that Crews abandoned Dean to die; in fact, the evidence was
uniformly to the contrary. James testified that after he, Dean,
and Crews ran to the car, Dean turned to go back to re-engage
in a firefight with Whitaker. It was only because Crews
10
physically prevented Dean from doing so and forced him into
the getaway car that Dean was taken to the hospital.
Second, the district judge mitigated any prejudice from
Brennan’s testimony by his curative instructions to the jury.
We generally presume that “a jury will follow an instruction to
disregard inadmissible evidence inadvertently presented to it”
absent “an overwhelming probability that the jury will be
unable to follow the court’s instructions.” Greer v. Miller, 483
U.S. 756, 766 n.8 (1987). At the close of Brennan’s testimony,
the district judge reminded the jurors that Dean died from an
unrelated gunshot wound and instructed them to “disregard the
testimony [they] heard about brain matter and matted, bloody
hair.” Trial Tr. 123-24, Feb. 20, 2014. The district judge also
warned the jurors not to allow sympathy or passion to affect
their judgment. Crews claims those instructions did not cure
the prejudice because they were “neither immediate nor
emphatic.” Appellant Br. 29. But the district court gave the
curative instruction at the close of Brennan’s testimony. And
the quality of the instruction was consistent with curative
instructions that this court has previously viewed as sufficiently
emphatic. Compare Trial Tr. 123-24, Feb. 20, 2014, with
McLendon, 378 F.3d at 1113 (characterizing the district court’s
instruction “reminding the jury . . . to disregard” the testimony
as “stern[]”).
Third, the government provided ample evidence to support
the jury’s verdict, making it exceedingly unlikely that
Brennan’s testimony that he saw “brain matter” changed a
possible acquittal to a conviction. See McLendon, 378 F.3d at
1112. Crews argues otherwise. He likens the prosecution’s
case against him to the evidence presented in United States v.
Eccleston, 961 F.2d 955. There, we vacated the conviction of
a defendant after the jury heard inadmissible hearsay testimony
related to a fact central to the prosecution’s case: whether the
11
defendant currently lived at his mother’s house when the police
discovered drugs and weapons inside. Id. at 960-61. The
defendant claimed he had moved out of the house and was
living in a nearby apartment. But an investigating officer
testified that he stopped three men walking toward the house
who told him they were on their way to purchase drugs from
the defendant. The district judge instructed the jury to
disregard the hearsay testimony, but denied the defendant’s
motion for a mistrial. We reversed, explaining that “the danger
of prejudice” was particularly severe “because of the weakness
of the government’s case,” which relied on “wholly
circumstantial” evidence, including ambiguous statements by
the defendant’s parents and suggestions that the defendant
lived at his mother’s house in the past. Id. The prejudicial
hearsay thus could not be cured, necessitating a mistrial.
Here, by contrast, the evidence that Crews engaged in the
attempted robbery was direct and strong. Crews claims that the
evidence only placed him in the general vicinity of the CVS.
But that ignores James’s testimony that Crews came with him
and Dean to the confrontation with Whitaker at the CVS.
Jones, the driver of the Garda armored truck, also identified
Crews after police apprehended him a few blocks from the
store as one of the three men who participated in the robbery
attempt. And the police discovered Crews’s DNA on the inside
of a piece of a latex glove found in Ensley’s car. Noting that
the first trial ended in a mistrial, Crews suggests that Brennan’s
graphic testimony at the second trial tipped the jury against
him, but “the fact that [the] case previously ended in a mistrial
is not sufficient to establish that the case was close.”
McLendon, 378 F.3d at 1115. Given the weight of the evidence
against him, there is no reasonable chance that Brennan’s
testimony had a material effect on the jury.
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B.
We are also unpersuaded by Crews’s argument that the
district court violated his constitutional right to call witnesses
in his defense when it struck the entire testimony of his sole
witness, Vakeema Ensley, in response to her invocation of her
privilege against self-incrimination. Ensley initially invoked
the privilege in response to a cross-examination question about
whether she knew Antwon Crowder before the arrests but,
following colloquy among counsel and the court, Ensley
received appointed counsel and asserted a blanket privilege
against any further testimony. The district court, at the
government’s request, responded by striking all of Ensley’s
direct testimony. Crews’s trial counsel requested that Ensley
not have to invoke the privilege on the stand and that the 7-
Eleven security video remain in evidence, but did not object to
the striking of Ensley’s direct testimony.
Having failed to argue in the district court that Ensley’s
direct testimony could be retained consistently with her
invocation of the Fifth Amendment, Crews now faults the
district court for failing to inquire sua sponte into the scope of
Ensley’s privilege. Under our precedent, blanket assertions of
the privilege against self-incrimination are disfavored. See
United States v. Thornton, 733 F.2d 121, 125-26 (D.C. Cir.
1984). We have made clear, however, that “the district court’s
failure to inquire sua sponte whether the witness was entitled
to assert a blanket privilege” does not result in plain error if the
district court had some basis in the record supporting the
witness’s broad assertion. United States v. Ortiz, 82 F.3d 1066,
1073 (D.C. Cir. 1996).
Despite the absence of a contemporaneous objection,
Crews urges us to review the decision for abuse of discretion
rather than plain error, relying primarily on United States v.
13
Wilson, 605 F.3d 985 (D.C. Cir. 2010). In Wilson, we reviewed
the district court’s evidentiary ruling for abuse of discretion
when it was “apparent from the context” of the district court’s
reasoning that the defendant had raised a Confrontation Clause
claim. Id. at 1011-12. But it is not “apparent from the context”
here that Crews raised a constitutional objection to the district
court’s decision to allow Ensley’s broad invocation of her
constitutional privilege and then remedy any prejudice to the
government by striking her testimony. We therefore review for
plain error. See Ortiz, 82 F.3d at 1072-73. To prevail, Crews
must show “(1) that there was an error, (2) that the error was
clear or obvious, (3) that it affected [his] substantial rights, and
(4) that it seriously affected the fairness, integrity, or public
reputation of the judicial proceedings.” United States v.
Gooch, 665 F.3d 1318, 1332 (D.C. Cir. 2012) (citing United
States v. Olano, 507 U.S. 725, 732-37 (1993)).
Here, the first two prongs of the plain error test—whether
there was an error that was clear or obvious—are dispositive.
The parties agree that we should assess the district court’s
decision to strike Ensley’s testimony under the standard the
Second Circuit used in United States v. Cardillo, 316 F.2d 606
(2d Cir. 1963). In that case, a government witness testified on
direct examination but avoided being impeached during cross
examination because he invoked his privilege against self-
incrimination. Id. at 611-13. The defendants’ attorneys
unsuccessfully urged the district court to allow them to proceed
with cross examination or, in the alternative, that the court
should strike the direct testimony. Id. at 611-12. In holding
that the district court’s handling of the privilege was reversible
error, the Second Circuit developed an analytic rubric that other
courts have found useful.
To illustrate how the measures a court must take to avoid
prejudice vary by context, the Cardillo court distinguished
14
three situations in which a witness might refuse to respond to
questions, and the corresponding cures: First, refusal to
respond where “the answer would have been so closely related
to the commission of the crime that the entire testimony of the
witness should be stricken”; second, refusal to answer
questions “connected solely with one phase of the case in
which event a partial striking might suffice”; and, third, refusal
to answer questions involving “collateral matters or cumulative
testimony concerning credibility which would not require a
direction to strike,” but could instead be handled by issuing a
curative instruction to the jury. Id. at 613. The court explained
that a “distinction must be drawn between cases in which the
assertion of the privilege merely precludes inquiry into
collateral matters which bear only on the credibility of the
witness and those cases in which the assertion of the privilege
prevents inquiry into matters about which the witness testified
on direct examination.” Id. at 611. Even as it reversed the
district court’s failure to strike the witness testimony, the court
of appeals stressed that not every refusal to answer “requires
the striking of [a witness’s] testimony or a part thereof.” Id. at
613. Other circuits have embraced Cardillo, see, e.g., United
States v. Gary, 74 F.3d 304, 310 (1st Cir. 1996); Denham v.
Deeds, 954 F.2d 1501, 1503 (9th Cir. 1992); Carlos v. Wyrick,
753 F.2d 691, 693 (8th Cir. 1985), but we have not yet had
occasion to do so.
We note at the outset the potential confusion engendered
by Crews’s reliance on Cardillo, the facts of which do not
cleanly map onto those in Crews’s case. The defendants in
Cardillo sought to cross examine a government witness who
invoked his privilege against self-incrimination. 316 F.2d at
611-12. Allowing the witness to avoid cross examination
without striking any of his direct testimony would have
impaired the defendants’ Sixth Amendment right to confront
witnesses against them. But here, the tables are turned. It is
15
the government that sought to cross examine a defense witness
who invoked her privilege against self-incrimination. The
potential prejudice to the government from preventing its cross
examination of Ensley, unlike the prejudice to the defendants
in Cardillo, has no constitutional dimension. Whereas in
Cardillo the defendants’ confrontation rights required that
witness testimony be stricken, Crews argues the inverse: that
his constitutional right to present witnesses in his favor forbade
the court from striking Ensley’s testimony. Cardillo’s
underlying analysis sheds light on Crews’s claim, but it does
not pick up on Crews’s important point about his constitutional
right to present witness testimony in his defense. See Denham,
954 F.2d at 1503 (“Cardillo and cases like it do not address the
tension inherent, when the witness is defendant’s, between the
prosecution’s need to cross-examine and the defendant’s right
to call witnesses on her own behalf.”).
Even assuming, as both parties do, that the Cardillo
framework applies, it does not support Crews’s claim of error.
Crews would have us treat his claim under the third category,
viewing Ensley’s assertion of privilege as preventing cross
examination only into the “collateral” matter of her
“credibility.” 316 F.2d at 613. The court thus erred, says
Crews, by striking Ensley’s entire testimony rather than
retaining it with curative jury instructions. Appellant Br. 19.
Cardillo’s analysis of credibility issues is more nuanced
than Crews suggests. It does not treat all questions concerning
credibility as “collateral,” nor does it suggest that the related
testimony of a witness who refuses to answer questions going
only to credibility need never be stricken. That would make no
sense; witness credibility is sometimes the linchpin of an entire
defense. See Harbor Ins. Co. v. Schnabel Found. Co., 946 F.2d
930, 935 (D.C. Cir. 1991). Rather, Cardillo’s third category
refers to privilege invocations that defeat a defendant’s ability
16
to elicit “cumulative testimony concerning credibility,” where
the type of testimony concerns the “general unsavory character
of the witness.” Cardillo, 316 F.2d at 613 (emphasis added).
Indeed, the Cardillo court itself found reversible error in the
trial court’s failure to strike related testimony where the
privilege claim prevented the defendant from challenging the
witness’s credibility through cross examination that “might
have established untruthfulness with respect to specific events
of the crime charged.” Id.
Ensley’s invocation of her privilege against self-
incrimination fell within Cardillo’s first category, not its third.
The government attempted not merely to question Ensley’s
general credibility by, for example, asking about her own
involvement in crime or her reputation for truthfulness, see id.
at 612-13, but sought to question her regarding “specific events
of the crime charged,” id. at 613, namely, the likelihood that
Ensley willingly gave her car keys to the alleged co-
conspirators. If the jury were to credit Ensley’s testimony that
she did not know Dean and Crowder, it would be less likely to
believe James’s testimony that Ensley loaned them her car.
The government’s questions about her knowledge of Crowder
thus related to an event the government sought to prove.
Crews contends that the jury should have been able to rely
on the bulk of Ensley’s direct testimony, as it had at the first
trial. But he fails to acknowledge that Ensley did not limit her
invocation of the privilege. Ensley’s court-appointed counsel
not only noted that “there is a jail call transcript which
arguably” contradicted her testimony about Crowder, but he
also told the district judge that his conversations with the
prosecution left him with the impression that the government
had other sources of “potential impeachment” evidence. Supp.
App. 392. In view of the government’s position that Ensley
had also perjured herself before the grand jury and during her
17
testimony in the previous trial, however, Ensley’s counsel
stated that “she will not answer any further questions.” Supp.
App. 393 (emphasis added). Ensley likewise acknowledged
without qualification that she wished to give up her right to
testify.
Finally, in support of his claim that striking Ensley’s
testimony in its entirety was error, Crews offers alternatives
less damaging to his defense that he contends the district court
could have explored, including reading to the jury the transcript
of Ensley’s testimony from the first trial. See Appellant Br. 21-
24. Crews does not argue that the Constitution required the
district court to employ the alternatives he suggests, but raises
them to demonstrate that the “district court had multiple ways
in which it could have reconciled the government’s right to
cross examine Ensley with Crews’[s] constitutional rights to
call witnesses and present a defense.” Appellant Reply Br. 13-
14. We are willing to assume that the district court had viable
alternatives, but Crews did not suggest any at trial. The court
did not plainly err by failing to consider them sua sponte. See
Ortiz, 82 F.3d at 1072-73; see also United States v. Hargrove,
No. 99-3298, 2000 WL 1227895, at *2 n.1 (10th Cir. Aug. 30,
2000) (“That the district court did not give a limiting
instruction or consider ‘evidentiary alternatives’” did not
establish reversible error if the defendant “neither requested an
instruction nor presented ‘alternatives’ during the course of
trial.”).
We acknowledge that the district court could have done
more to test the precise basis and scope of Ensley’s invocation
of her privilege, but the court’s failure to inquire further is
unsurprising where none of the parties asked it to do so at the
time. On plain error review, we cannot say it was “clear or
obvious,” Gooch, 665 F.3d at 1332, that Ensley had asserted
her Fifth Amendment privilege against self-incrimination only
18
with respect to certain, limited questions. Thus, the district
court did not plainly err by excluding all of her direct
testimony.
* * *
Because the district court did not commit reversible error
by denying Crews’s motion for a mistrial or striking Ensley’s
testimony, we affirm the judgment of conviction.
So ordered.