U.S. v. Crockett

• Decision Date: 19 March 1987
• Docket Number: 85-5293,Nos. 85-5292,s. 85-5292
• Citation: 813 F.2d 1310
• Parties: 22 Fed. R. Evid. Serv. 1093 UNITED STATES of America, Appellee, v. Henry A. CROCKETT, Appellant. UNITED STATES of America, Appellee, v. Thressa CREWS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1310

813 F.2d 1310

22 Fed. R. Evid. Serv. 1093

UNITED STATES of America, Appellee, v. Henry A. CROCKETT, Appellant.

UNITED STATES of America, Appellee, v. Thressa CREWS, Appellant.

Nos. 85-5292, 85-5293.

United States Court of Appeals Fourth Circuit.

Argued Oct. 10, 1986.

Decided March 19, 1987.

Aaron Kadish, (Richard Winelander, Baltimore, Md., on brief), for appellants.

Elizabeth H. Trimble, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., James B. Moorhead, Asst. U.S. Atty., Baltimore, Md., on brief), for appellee.

Before PHILLIPS, ERVIN, and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

Henry Alexander Crockett, his wife Regina Armstrong Crockett, and Thressa Crews were indicted in federal court for distributing the drug phencyclidine (PCP). Regina Crockett pled guilty. Mr. Crockett and Ms. Crews were tried and convicted. Mr. Crockett received a 30 year sentence; Ms. Crews received a six month sentence. Mr. Crockett and Ms. Crews now appeal their convictions on five grounds: first, that the trial court improperly limited cross-examination; second, that the evidence against Crews was not sufficient to support her conviction; third, that the jury should have received instructions about multiple conspiracies rather than a single conspiracy; fourth, that defense counsel should have been permitted to define reasonable doubt for the jury in closing argument; and finally, that the government violated the Speedy Trial Act. Finding no merit in these claims, we affirm both convictions.

I.

On May 15, 1981, employees of United Airlines at Los Angeles International Airport discovered a can of PCP in a shipment bound for Baltimore-Washington International Airport. A man and a woman had brought it to the United counter. Later, one of the United employees was given photos of six men and asked whether he could identify the man who brought the can; the employee chose Henry Crockett's photo. At BWI airport, the package was picked up by Susan Clay, who had formerly lived with Crockett and who stated that Crockett had sent her two such packages in the past. She explained that Crockett had asked her to distribute the PCP and to send him a share of the profits.

On September 14, 1984, another package of PCP materialized at Los Angeles International, this time bound for Dulles International in Washington. At Dulles, the package was picked up by Janet Turner, who had also formerly lived with Crockett.

In the fall of 1984, working as an informant pursuant to a plea bargain, Ms. Clay twice bought some PCP from Crockett. In the spring of 1985, she introduced Crockett to Lance Williams, a government agent who was posing as a prospective buyer. Later, in April, Crockett sold a half gallon of PCP to Williams; Mrs. Crockett and her friend Ms. Crews were present at the transaction. Finally, in May, Crockett sold Williams a gallon of the drug; Mrs. Crockett and Ms. Crews were again present. At the close of the purchase, Williams signalled for an arrest. At trial, a government agent testified that one gallon of PCP has a street value of more than $1 million.

II.

Appellants make three claims which raise questions as to the scope of cross-examination in a multiple defendant trial. First, both Crockett and Crews argue that the trial court improperly limited their cross-examination of two prosecution witnesses. Second, Crews argues that the trial court improperly prohibited her cross-examination of Crockett. Third, Crockett argues that the trial court improperly prohibited his cross-examination of Crews. We find that the trial court acted within its discretion in each instance.

Regarding the attempts of the defendants to cross-examine each other, we should note that the trial judge said that each defendant could call the other as part of their respective cases. The trial court ruled, however, that Crews could call Crockett only with his consent, and vice-versa. Both Crews and Crockett withheld their consent. Although both defendants had taken the stand in their own behalf, neither defendant challenged the other's assertion of a Fifth Amendment privilege. Hence the question of the compulsory process rights of one defendant against the Fifth Amendment rights of another who has previously testified is one defendants chose to waive for this appeal. Defendants have not, however, waived their Sixth Amendment rights to confrontation, and it is those contentions that we now address.

A.

The trial court limited cross-examination by Crews of two government witnesses. First, counsel for Crews sought to ask Susan Clay about Crockett's earlier drug arrest in 1979. The trial court ruled that the proffered question was "too remote" from the conspiracy with which Crockett had been charged. That ruling was properly within the trial court's discretion; a court can place reasonable limits on cross-examination to reduce potential confusion of the jury and potential prejudice to a codefendant. See United States v. Bodden, 736 F.2d 142, 145 (4th Cir.1984).

Second, counsel for Crews sought to ask an undercover agent about a phone call he had made. Two agents called Crews' home to listen to her answering machine. In this way, they hoped to confirm that Crews used the nickname "Petey," which was also the name given by a woman who repeatedly called Janet Turner to leave messages for Crockett. One agent called during the investigation and one called after the trial started. Counsel for Crews sought to ask about the second call. The court stated that testimony about events occurring after the trial began was not admissible. (The trial court had previously ruled that the government could not introduce testimony based on the recordings.) Such a limitation is within the court's discretion. Bodden, supra.

B.

Crews sought to cross-examine Crockett. The trial judge refused her request, noting that Crockett's testimony did not incriminate her; Crockett did not indicate that Crews was at all involved in the conspiracy. Accordingly, the trial judge applied our decision in United States v. Mercks, 304 F.2d 771 (4th Cir.1962), where we explained the scope of the right to cross-examine a codefendant under the Confrontation Clause of the Sixth Amendment. We held squarely that a defendant has a right to cross-examine a codefendant only if the codefendant's testimony was incriminatory. Id. at 772.

We do not think that the trial judge erred in characterizing Crockett's testimony as non-incriminatory. The judge was present throughout the trial, and his sense of the import of Crockett's testimony merits substantial deference. ^* Not only did Crockett fail to testify that Crews participated in the distribution of PCP, he denied having much contact with her at all. In connection with Crockett's testimony that "someone else" obtained the PCP and that he gave the money from the drug sale to "someone else," Crews argues that the jury might have inferred that Crockett was referring to her. The trial court found, and we agree, that Crockett was clearly referring to his wife Regina, who had pled guilty.

Crockett consistently attempted in his testimony to pin responsibility on Regina and on Susan Clay, but not on Crews. He testified that Susan kept barrels of Piperidine (a chemical used in the production of PCP) in her garage; that Susan was a drug dealer; and that Susan and Regina had become "very good friends." In contrast, Crockett's testimony discloses no reason at all to believe he was incriminating Crews. In fact, the trial judge found that the testimony of Crockett and Crews about each other would, if believed, be exculpatory.

Under Mercks, therefore, Crews was not entitled to cross-examine Crockett. Our holding in Mercks is consistent with the purpose of the Confrontation Clause. The Confrontation Clause provides the defendant with a right "to be confronted with the witnesses against him." The right of confrontation does not give defendants a plenary right to elicit friendly testimony. That is the purpose of the Sixth Amendment right of a defendant "to have compulsory process for obtaining witnesses in his favor."

Neither does the right to confrontation arise merely from the status of the witness as a codefendant. Granting a defendant an unrestricted right to cross-examine a non-hostile codefendant could have adverse effects. First, counsel would possess an unrestricted right to ask leading questions. See Fed.R.Evid. 611(c). Second, favorable testimony from a cooperative codefendant may possess false credibility in the eyes of the jury if obtained on cross-examination. A witness called by defendant is understood to be the defendant's own; cross-examination, on the other hand, might, as the district court noted, enable counsel to smuggle "self-serving statements" into trial under the cloak of hostility.

The cases of this circuit and of the Supreme Court have thus understandably justified the right of confrontation on the basis of defendant's right to impeach and otherwise challenge adverse testimony. Trial courts need not assess the adverse nature of testimony according to formalistic categories--by whether a co-conspirator was called by the government, or is testifying on his own behalf or on behalf of a codefendant. The critical matter is not the formal status of a witness but the actual content of his testimony. See Fed.R.Evid. 607. Nonetheless, the right to confrontation is most often a right to confront opposing witnesses:

The constitutional right of confrontation guaranteed to a state criminal defendant by the fourteenth amendment has as one of its most important aspects the right to cross-examine a hostile witness in order to undermine the credibility of the witness by highlighting the possible influence of bias on the testimony of the witness.

Hoover v. State of Maryland, 714 F.2d 301, 305 (4th Cir.1983); see also Chavis v. State of North Carolina, 637 F.2d 213, 225 (4th Cir.1980). Given the text of the Sixth Amendment and its animating...