U.S. v. Drury, Jr.
| Decision Date | 02 September 2003 |
| Docket Number | No. 02-12924.,02-12924. |
| Citation | 344 F.3d 1089 |
| 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 |
William E. Bubsey, McCord, Bubsey, Ketchum & Donohue, LLP, Tallahassee, FL, Thomas A. Withers, Gillen, Dailey, Cromwell & Withers, LLC, Savannah, Ga, Edward T.M. Garland, Donald Samuel, Garland, Samuel & Loeb, P.C., Atlanta, GA, for Defendant-Appellant.
Amy Lee Copeland, Savannah, GA, Edmund A. Booth, Jr., Augusta, GA, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before BARKETT, MARCUS and ALARCÓN*, Circuit Judges.
Dr. Carl M. Drury, Jr. appeals his convictions for using a facility in interstate commerce to effect a murder-for-hire scheme, in violation of 18 U.S.C. § 1958(a), 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 government failed to adduce sufficient evidence at trial to establish the jurisdictional element of § 1958(a). In addition, Drury argues that the district court committed reversible error by: 1) instructing the jury that the use of a pay or cellular phone constitutes a per se use of a facility in interstate commerce, as that phrase is used in § 1958(a); 2) prohibiting him from introducing evidence of his character for truthfulness; 3) refusing to admit testimony from his son regarding a prior consistent statement that Drury made after his arrest; and 4) denying his requested jury instructions.
We find that the evidence presented at trial sufficiently established the requisite jurisdictional nexus under § 1958(a) and that the district court committed no reversible error. Therefore, we AFFIRM Drury's convictions.
The unusual sequence of events that culminated in Drury's convictions began with Bureau of Alcohol, Tobacco, and Firearms ("ATF") Agent Steven Whatley's separation from his wife. Drury, a longtime friend and family physician, offered to let Whatley reside at his home. Whatley accepted this offer and stayed with Drury for the next several months.
During their time together, Drury complained bitterly about his wife Mary. Drury told Whatley that he needed "some relief" from his wife and joked that "it had to look like an accident." Eventually, Drury asked Whatley if he might be able to find someone to kill his wife. Drury also inquired whether Whatley could modify a pistol to make it fully automatic and "quieter."
Whatley reported this conversation to his supervisor at the Federal Law Enforcement Training Center ("FLETC"), who arranged a meeting with ATF Agents John Limbach and Louis Valoze. The agents provided Whatley with Agent Valoze's undercover cellular phone number and instructed him to give Drury the number upon request. Valoze's cellular phone number was registered in a South Georgia area code. Drury called Agent Valoze's cellular phone from a pay phone, introduced himself as Whatley's friend, and arranged to meet Valoze the next day. This telephone call was recorded. During the call, and all subsequent phone conversations between Agent Valoze and Drury, both men were physically located in Georgia.
As planned, Drury met with Valoze the next day to discuss the murder of Drury's wife. At the meeting, Valoze told Drury that he required a gun and a fee of $2,000. Drury provided Valoze with detailed information regarding his wife, including her place of employment, the type of car she drove, her work schedule, and her habits. He stressed to Valoze that "[i]t just needs to be an accident." At the conclusion of the meeting, Drury informed Valoze that he would call him in a couple of days. Drury did so and provided Valoze with the tag number of his wife's car. He also negotiated Valoze's price for the murder down to $250.
The men met again several days later, and Drury provided Valoze both the $250 and a .38 caliber Taurus handgun. Drury told Valoze that if his wife agreed to sign their divorce papers, the money would only be "to follow her" and see if she was seeing another man. But if Mary refused to sign the papers, "we'll go ahead." The men agreed that Drury would call Valoze at the end of the week with this information.
When Drury called Agent Valoze, he indicated that Mary had not signed the papers, that he should proceed with the plan, and that his wife was staying at her sister's home, so he could Valoze informed Drury that he would "get it done." Following this conversation, ATF agents arrested Drury.
At trial, the government introduced expert testimony from representatives of BellSouth Telecommunications, the company that serviced the pay telephones Drury used to contact Valoze, and VoiceStream Wireless, the company that serviced Valoze's cellular phone. The BellSouth representative testified that all calls from the phones that Drury used are routed to the Brunswick, Georgia switching center where they are switched to the requested destination, be it local, interstate, or international. The signal from a purely local call would not leave Georgia, but a call to a cellular phone might. The VoiceStream representative testified that Drury's calls to Valoze's cellular phone were all routed out of Georgia to the company's Jacksonville, Florida switching center.
Drury based his defense on the theory that the entire murder-for-hire scheme was, in reality, just an ATF role-playing exercise. He testified at trial that he never spoke with Whatley about killing his wife. Rather, their conversations centered on the possibility that Mary was having an affair. According to Drury, he informed Whatley that he wanted to hire a private investigator to surveil Mary, but could not afford to do so. Whatley had then advised Drury about a role-playing training program at the ATF.1 Whatley told Drury that if he entered the program and pretended to seek a murder-for-hire, ATF agents would place Mary under surveillance as part of the exercise. Drury testified that all conversations between himself and Agent Valoze were a product of his belief that they were engaged in role-play. He denied ever actually intending to have Mary killed and stated that he thought the $250 fee was simply reimbursement for the surveillance. As evidence of his belief that the scheme was a role-playing exercise, Drury noted that the purported "trigger" for going ahead with the plan — Mary signing the divorce papers — was, in fact, a falsification; the couple had no plans to divorce. Mary's testimony at trial corroborated the fact that the two had never discussed divorce.
Drury also attempted to introduce testimony from his son, Don, recounting a conversation they had the night Drury was arrested. Don had spoken to Drury immediately following the arrest, while Drury was still in the arresting officer's vehicle, and sought to testify that Drury had told him of the role-playing exercise. The government objected, arguing that the testimony was not admissible because Drury had a motive to fabricate the story after his arrest since he had not informed anyone of the role-playing exercise prior to his arrest. The district court ruled Don's testimony inadmissible.
Drury additionally sought to introduce testimony regarding his character for truthfulness under Rule 608 of the Federal Rules of Evidence. The government responded that Rule 608 did not apply because it had never questioned Drury's character, only his credibility. The district court agreed and excluded the testimony.
Prior to trial, Drury had submitted two requested jury charges regarding improper government investigations and witness credibility as follows:
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 11th Circuit Pattern Jury Instruction (Criminal Cases), Basic Instruction 6.7 at 30 (West 1997):
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.
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 that:
[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 the trial, the...
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