In U.S. v. Drury, No. 02-12924 (Jan. 18, 2005), the Court (Barkett, Marcus, Alarcon b.d.), considering the case for second time after the grant of en banc rehearing was vacated, affirmed a conviction for violating the federal murder-for-hire statute, and for possessing a firearm in connection with a crime of violence, in violation of 18 U.S.C. §§ 1958(a), 924(c).
Drury’s conviction arose out of four cell phone calls he placed in which he planned the killing of his wife. The recipient of the phone calls was located, like Drury, in Georgia, but the cell phone switching system caused the call to go through Jacksonville, Florida, i.e. interstate. The Court found that this interstae nexus sufficed to establish the murder for hire statute’s interstate nexus. The Court rejected the argument that no interstate nexus could exist since Drury had no idea his cell phone would be routed out of state, pointing out that intent to place an interstate call in not a requirement of the statute and for all Drury knew the recipient of his cell phone call could have been out of state at the time of the call.
The Court also rejected Drury’s challenge to the jury instruction which withdrew from the jury the element of the interstate nexus. The Court noted the uncontroverted evidence that the phone calls went out of state, and, citing Neder v. U.S., 527 U.S. 1 (1999), held that the failure to instruct the jury on an essential element of the statute was harmless error.
The Court found no abuse of discretion in the district court’s preclusion of evidence of the truthful character of the defendant, finding that the prosecutor’s comments about the defendant’s credibility did not rise to the level of an “attack” under Fed. R. Evid. 608(a)(2).
The Court also found no abuse of discretion in the trial court’s exclusion of a prior consistent statement Drury allegedly made to his son regarding the “role-playing exercise” that was going on when Drury was arranging for his wife’s murder. The Court again found that Drury’s credibility had no been attacked to the point where a prior consistent statement was admissible, and further noted that the statement was not offered, as the rule requires, to rebut a claim of recent fabrication. The Court also noted that the statement was made at a time when the defendant already had a motive to fabricate a story for his son.
Finally, the Court found no error in the trial court’s refusal to give requested jury instructions regarding credibility, finding one “superfluous” and the other unnecessary to Drury’s presentation of an effective defense.
