U.S. v. Crump

• Decision Date: 11 July 1991
• Docket Number: No. 90-3018,90-3018
• Citation: 934 F.2d 947
• Parties: 33 Fed. R. Evid. Serv. 83 UNITED STATES of America, Appellee, v. Dewey G. CRUMP, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 947

934 F.2d 947

33 Fed. R. Evid. Serv. 83

UNITED STATES of America, Appellee, v. Dewey G. CRUMP, Appellant.

No. 90-3018.

United States Court of Appeals Eighth Circuit.

Submitted April 11, 1991.

Decided May 30, 1991.

Rehearing Denied July 11, 1991.

Jane C. Hogan, St. Louis, Mo., for appellant.

James K. Seitz, St. Louis, Mo., for appellee.

Before FAGG and BEAM, Circuit Judges, and DOTY, ^* District Judge.

DOTY, District Judge.

Dewey G. Crump appeals his conviction following a jury trial of one count of distributing phentermine HCL and two counts of distributing cocaine. Crump contends that the district court ¹ erred in not holding that he was entrapped as a matter of law, in limiting the cross-examination of a government witness, and in admitting the testimony of another government witness regarding Crump's prior bad acts. For the reasons discussed below, we affirm Crump's conviction.

On February 15, 1990, Robert Feigen-baum ("Feigenbaum") was arrested while purchasing cocaine from an undercover detective from the St. Louis Metropolitan Police Department. Feigenbaum is a former member of the Missouri House of Representatives who has suffered from chronic depression, alcoholism, and drug addiction. After his arrest, Feigenbaum revealed to law enforcement officers the names of people who had supplied him with cocaine and with whom he had used cocaine. One of the names Feigenbaum disclosed was Dewey G. Crump ("Crump"), a Missouri state representative. Approximately 10 days after his arrest, Feigenbaum spoke with agents of the Drug Enforcement Agency ("DEA") and agreed to cooperate with the DEA and the U.S. Attorney's office in an investigation of Crump.

Feigenbaum and Crump had known one another when Feigenbaum was a member of the Missouri House of Representatives. At trial, Feigenbaum testified that during his term in the Missouri House he and Crump had used drugs together. Feigenbaum further testified that he had paid or offered to pay Crump for the drugs on one or two occasions.

Prior to the investigation, Crump had no criminal record and had been a Missouri state representative for nearly 12 years. Feigenbaum testified at trial that at the time the investigation was undertaken, neither he nor the DEA knew whether Crump was still involved in drugs. Indeed, at the time of his arrest, Feigenbaum had not seen or talked to Crump for over a year.

Pursuant to his agreement to cooperate in an investigation of Crump, Feigenbaum traveled to Jefferson City, Missouri to reestablish his friendship with Crump and determine if Crump was still involved with drugs. Feigenbaum approached Crump on the floor of the House of Representatives and asked if they could talk later in Crump's office. Once in Crump's office, Feigenbaum motioned to a radio which was shaped like a Coca Cola bottle and asked Crump if he was "still doing that." Feigenbaum testified that Crump nodded his head in the affirmative and instructed Feigenbaum to be quiet. Crump warned Feigenbaum to be careful about discussing drugs in Jefferson City, but also said that he would work on obtaining some cocaine. After the meeting, Feigenbaum reported to a DEA agent that he had confirmed Crump's involvement with cocaine.

Feigenbaum and Crump met briefly at least ten times in the following seven weeks. Feigenbaum initiated the meetings and the conversations which transpired between the two were not tape-recorded. Although these conversations were not recorded, Feigenbaum submitted several written statements memorializing his meetings with Crump. On March 7, 1990, Feigenbaum submitted a written statement which indicated that Crump had supplied drugs to "campaign workers, elected officials, state and local, and his staff." The written statement did not indicate the names of the people to whom Crump had supplied drugs. On April 20, 1990, in their first tape-recorded conversation, Feigenbaum and Crump spoke on the telephone. Feigenbaum urged Crump to obtain drugs for him and the two arranged a meeting for the following day at Crump's apartment.

The following day Feigenbaum traveled to Crump's apartment. Feigenbaum was wearing a "wire" which the DEA had provided for the purpose of recording Feigenbaum and Crump's exchange. Crump suspected that Feigenbaum might be wearing such a recording device and patted down Feigenbaum twice after Feigenbaum had entered the apartment. Despite his efforts, Crump failed to detect the wire. Although the two met in Crump's apartment as planned, Crump did not produce the cocaine. After Feigenbaum indicated that he would accept drugs other than cocaine, Crump searched through his apartment and handed over one tablet of phentermine HCL and four white tablets of a non-controlled substance. Crump also outlined a code which was to be used when the two were discussing drugs. "Booze" was to be substituted for cocaine, and "wine coolers" was to be substituted for "white crosses" which is a type of "speed."

Feigenbaum and Crump's next meeting occurred on April 27, 1990. In a tape-recorded telephone conversation, Feigenbaum asked Crump if he had obtained any cocaine and indicated that he wanted some. Crump responded that he had acquired a quantity of cocaine. Later that day, the two met at Crump's apartment and Crump gave Feigenbaum a vial of cocaine.

The next exchange occurred on May 11, 1990. In a tape-recorded telephone conversation, Feigenbaum and Crump once again talked about obtaining drugs. Crump indicated that he would not provide Feigenbaum with any drugs until Feigenbaum brought with him two women with whom Crump liked to socialize. Crump reiterated this position in a tape-recorded conversation which took place on May 22, 1990.

Feigenbaum again telephoned Crump on May 29, 1990, and this time reached him at his boat on the Lake of the Ozarks. During the conversation the two set up a meeting for the following day in St. Louis. The two met the next day as planned and again discussed Feigenbaum purchasing drugs from Crump. On the following day, May 31, 1990, the two met once again at Crump's apartment where Crump provided Feigenbaum with cocaine in exchange for $300.

Crump was arrested on June 13, 1990. On June 15, 1990, a four count indictment was filed against Crump. Count I of the indictment alleged conspiracy to possess and distribute phentermine HCL, cocaine, and marijuana from 1976 through 1990. Count II alleged distribution of phentermine HCL on April 21, 1991. Count III alleged distribution of cocaine on April 27, 1990. Count IV alleged distribution of cocaine on May 31, 1991. On June 27, 1990, a superseding indictment was filed against Crump. The superseding indictment included Counts I through IV of the original indictment and added six counts alleging the possession of various drugs. ²

In September 1990, defendant's jury trial began in the Federal District Court for the Eastern District of Missouri. In his opening statement, defense counsel indicated to the jury that Crump's defense was entrapment. In its case-in-chief the government called Feigenbaum and had him testify about the investigation which led to Crump's indictment. On cross-examination of Feigenbaum, defense counsel attempted to elicit the names of campaign workers, elected officials and staff members to whom Crump had allegedly distributed drugs. The court disallowed this cross-examination, however, holding that such information was collateral to the issues at trial. The government also called Lisa Clark. Clark testified that from 1984 through 1989 she had a sexual relationship with Crump, that she had strong feelings about him and that he had provided her with drugs. Defense counsel attempted to limit Clark's testimony on the grounds that it was unfairly prejudicial. The court held that the probative value of Clark's testimony outweighed its prejudicial effect and admitted the testimony.

At the close of the government's case, the court entered a judgment of acquittal on Count I. The court denied Crump's motion for judgment of acquittal on Counts II through X at the close of the government's case-in-chief and at the close of all the evidence. In accordance with Crump's request, the court instructed the jury on the affirmative defense of entrapment. On September 12, 1990, the jury returned its verdict finding Crump guilty on Counts II, III and IV, and not guilty on Counts V through X.

Crump appeals his conviction on three grounds. First, Crump contends that the district court erred in failing to enter a judgment of acquittal because the evidence established that he was entrapped as a matter of law. Second, Crump argues that the district court denied him his right to confrontation by limiting the cross-examination of Feigenbaum. Finally, Crump maintains that the district court erred in admitting the testimony of Clark regarding Crump's prior bad acts because those acts were not reasonably close in time to the charges before the jury and were not relevant. Crump also argues that Clark's testimony created unfair prejudice which substantially outweighed its probative value.

All three of the grounds on which Crump bases his appeal go to the issue of entrapment and more specifically to Crump's predisposition to commit the crimes of which he was convicted. Consequently, we will first address Crump's evidentiary arguments and conclude with a discussion of the entrapment defense.

I. Limitation on Cross-Examination

On March 7, 1990, Feigenbaum provided a written statement to government agents which alleged that Crump had supplied drugs to "campaign workers, other elected officials, state and local, and his staff." At trial, the government questioned Feigenbaum about the statement, but did not ask him to identify the particular individuals to whom Crump had allegedly distributed drugs. Rather, the government limited its direct examination to Crump's actions and statements as they related to the investigation and the charges which were the subject of the...