U.S. v. Drury

• Decision Date: 18 January 2005
• Docket Number: No. 02-12924.,02-12924.
• Citation: 396 F.3d 1303
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl M. DRURY, Jr., M.D., Doctor, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

396 F.3d 1303

UNITED STATES of America, Plaintiff-Appellee, v. Carl M. DRURY, Jr., M.D., Doctor, Defendant-Appellant.

No. 02-12924.

United States Court of Appeals, Eleventh Circuit.

January 18, 2005.

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James K. Jenkins, Maloy & Jenkins, Atlanta, GA, Thomas A. Withers, Gillen, Dailey, Cromwell & Withers, LLC, Savannah, GA, for Defendant-Appellant.

Amy Lee Copeland, Savannah, GA, Edmund A. Booth, Jr., Augusta, GA, for Plaintiff-Appellee.

William A. Norris, Edward P. Lazarus, Akin, Gump, Strauss, Hauer & Feld LLP, Los Angeles, CA, Leeza R. Cherniak, Law Office of Leeza R. Cherniak, Atlanta, GA, for Edward M. Kennedy, Amicus Curiae.

Appeal from the United States District Court for the Southern District of Georgia.

Before BARKETT, MARCUS and ALARCON^*, Circuit Judges.

MARCUS, Circuit Judge:

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, 396 F.3d 1143 (11th Cir.2005).

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.

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.

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.

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 placed 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 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, 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.

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...