United States v. Cropp

Filed: November 4, 1997
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 95-5908(L)
(CR-95-16)
United States of America,
Plaintiff - Appellee,
versus
Troy Dennis Cropp, et al,
Defendants - Appellants.
O R D E R
The Court amends its opinion filed October 10, 1997, as
follows:
On the cover sheet, section 2 -- the case number of the
third case is corrected to read " 96-4105."
On page 2, section 3, line 6 -- the "on brief" section is
corrected to read: "Robert P. Crouch, Jr., United States Attorney,
Joseph R. Palmore, Third-year Law Student, University of Virginia
School of Law, Charlottesville, Virginia, for Appellee."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5908
TROY DENNIS CROPP,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5915
CLYDE GARCIA CROPP,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4105
MONTE CLAY MOSLEY,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-95-16)
Argued: November 1, 1996
Decided: October 10, 1997
Before ERVIN, Circuit Judge, BOYLE, United States District
Judge for the Eastern District of North Carolina, sitting by
designation, and JACKSON, United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Ervin wrote the opinion, in
which Judge Boyle and Judge Jackson joined.
_________________________________________________________________
COUNSEL
ARGUED: Bruce Robert Williamson, Jr., WILLIAMSON &
TOSCANO, Charlottesville, Virginia, for Appellant Clyde Cropp;
David Leonard Heilberg, Charlottesville, Virginia, for Appellant Troy
Cropp; Billy Lee Ponds, THE PONDS LAW FIRM, Washington,
D.C., for Appellant Mosley. Ray B. Fitzgerald, Jr., Assistant United
States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF:
Robert P. Crouch, Jr., United States Attorney, Joseph R. Palmore,
Third-year Law Student, University of Virginia School of Law,
Charlottesville, Virginia, for Appellee.
_________________________________________________________________
OPINION
ERVIN, Circuit Judge:
Troy Dennis Cropp (Troy Cropp), Clyde Garcia Cropp (Clyde
Cropp) and Monte Clay Mosley (Monte Mosley) challenge their crim-
inal convictions and the sentences given them by the district court.
Troy and Clyde Cropp and Mosley jointly raise two of the issues in
this appeal, while the remaining issues are raised by only one or two
of the appellants. For the reasons hereinafter explored we affirm all
of the challenged convictions and sentences.
I
The Cropps and Mosley were charged, along with numerous oth-
ers, with conspiracy to distribute crack cocaine in violation of 18
2
U.S.C. § 841 and all three pleaded not guilty. Several of the indicted
co-conspirators cooperated with the government and testified against
the others at trial. The jury found the three appellants guilty, found
two indictees not guilty, and could not reach a verdict with respect to
two other alleged conspirators.
The conspiracy in which appellants were involved distributed crack
in the Jeffersonton area of Culpeper County, Virginia. We will only
undertake a brief and general recitation of some of the evidence intro-
duced at trial, much of which was presented through the testimony of
cooperating coconspirators. The conspiracy began sometime before
January of 1992 and lasted until at least March 9, 1995, the date of
the indictment. In the conspiracy, sources for large quantities of crack
would, often through middlemen, provide street dealers with drugs for
distribution. This crack was then sold in an area in front of two
adjoining houses. One house was owned by Leo Mosley and the other
was owned by an elderly relative of Leo Mosley.
The evidence showed that Monte Mosley, an appellant, acquired
crack in large quantities and provided it to other members of the con-
spiracy in small quantities for distribution in front of the houses.
Other suppliers also provided crack for sale at that location. Troy
Cropp and Clyde Cropp were among the conspirators who sold crack
in small quantities to motorists who drove by the houses.
At least one witness, and in some instances several, testified that
Troy Cropp, Clyde Cropp, and Monte Mosley had each been seen
with various quantities of crack on several occasions. When Troy
Cropp and other dealers were selling crack in front of the houses, they
would cooperate with one another. Specifically, when one dealer took
a break he or she would stash drugs in the woods across the street
from the houses and the other dealers would "keep an eye" on the stash.1
Further, the evidence showed that the traffic in front of the houses
was sometimes backed up five cars or more, and that all of the dealers
took turns approaching cars to sell crack, including Troy Cropp and
Clyde Cropp.
_________________________________________________________________
1 It is not clear whether Clyde Cropp participated in this scheme or not.
3
Troy Cropp received crack from at least three different direct sup-
pliers, at least one of whom obtained crack in bulk from Monte Mos-
ley. Clyde Cropp sold crack that he received from at least one source,
and that source obtained drugs on certain occasions from Monte Mos-
ley. Several witnesses stated that they had seen Troy or Clyde Cropp
sell drugs at the houses, and that they had purchased drugs from Troy
or Clyde Cropp. Both Troy and Clyde Cropp stipulated that, on two
occasions each, they sold crack to different undercover officers in
front of the crack houses.
Three persons testified that they obtained large quantities of crack
from Monte Mosley and then resold the drugs. At least two of those
witnesses indicated that the drugs purchased from Monte Mosley
were sold either directly or through another dealer in front of the
crack houses.
The evidence indicated that Troy and Clyde Cropp both used crack.
No evidence suggested that Monte Mosley used crack. While a great
deal of other evidence was presented regarding other conspirators, or
regarding specific instances involving the appellants, we do not find
it necessary to recount that evidence.
II
Troy and Clyde Cropp and Monte Mosley all assert that the district
court improperly limited their right to cross-examine government wit-
nesses about the incentive to lie created by the witnesses' cooperation
agreements. We do not agree. We review the district court's decision
to limit cross-examination for an abuse of discretion. United States v.
Ambers, 85 F.3d 173, 175 (4th Cir. 1996).
At trial below most of the government's witnesses were co-
conspirators. The credibility of those witnesses was very relevant to
the case against all of the defendants. Prior to the start of cross-
examination of the first cooperating witness, the district court ruled
that the defense could not ask about the specific penalties that the
cooperators would have received absent cooperation, or about the spe-
cific penalties they hoped to receive due to their cooperation. The dis-
trict court suggested that asking witnesses about the sentences they
expected to receive would impinge upon the court's discretion to ulti-
4
mately decide those sentences. The district court was also concerned
that if the jury could infer the very long sentences faced by the appel-
lants from knowing the sentences faced by the co-conspirators, the
jury members would hesitate to find the appellants guilty even if the
evidence proved their guilt. Ultimately the court did allow defense
counsel to ask witnesses whether they had signed plea agreements,
whether they faced a "severe penalty" prior to cooperating, and
whether they expected to receive a lesser sentence as a result of the
cooperation, but the court did not allow questions about the specific
penalties at stake.
The Supreme Court has stated that a defendant's right to cross-
examine cooperating witnesses about sources of potential bias is guar-
anteed by the Confrontation Clause of the Constitution. Delaware v.
Van Arsdall, 475 U.S. 673, 678-79 (1986). In Van Arsdall the Court
found the trial judge had unconstitutionally refused to allow defen-
dants to inquire in any way about cooperation. Id. However, the Court
also made clear that trial courts retain "wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness' safety, or
interrogation that is repetitive or only marginally relevant." Id. at 679.
In the instant case, we do not credit the district court's first ground
for not allowing the questioning, namely that to do so would impinge
upon his discretion. As the appellants made clear in their brief and at
trial, they did not intend to explore the actual sentences that the wit-
nesses would receive, as that remained in the sole discretion of the
sentencing judge. Rather, the defense sought to inquire about what the
witnesses believed their sentences would have been and what they
hoped to receive by virtue of their cooperation. We agree that the wit-
ness' expectations, rather than the actual sentence eventually given,
were the potential sources of their possible bias. See Hoover v.
Maryland, 714 F.2d 301, 305 (4th Cir. 1983); Ambers, 85 F.3d at 176.
We do, however, agree with the district court's concern that the
jury might "nullify" its verdict if it knew the extreme penalties faced
by the appellants. Although we have not yet squarely decided whether
limitations such as those employed in this case are proper remedies
for jury nullification, we have made several related decisions which
5
guide us in this matter. In Ambers, 85 F.3d at 175, we affirmed a dis-
trict court's decision not to allow the defense to question witnesses
about the specific Sentencing Guideline ranges they faced before and
after cooperation. We found that the district court in Ambers had been
correctly concerned that a discussion of the mechanics of the Guide-
lines would needlessly confuse the jury. Id. at 176. Relying on Van
Arsdall, we held that the trial judge is allowed to impose reasonable
limits upon cross-examination. Id.Similarly in United States v. Odom, 736 F.2d 104, 108 (4th Cir.
1984), we affirmed a trial court's decision not to allow further cross-
examination about bias when the witness had already answered
enough questions to show that she did indeed possess a reason to lie.
See also United States v. Dorta, 783 F.2d 1179, 1182 (4th Cir. 1986)
(finding that the court properly halted questions into maximum total
sentence expected when several other questions already revealed sig-
nificant incentives to lie). But see Hoover v. Maryland, 714 F.2d 301(4th Cir. 1983) (reversing conviction when defense was precluded
from examining penal benefits from witness' cooperation in any
way).
Admittedly, there is a distinction between the instant case and most
of our prior decisions affirming limitations placed upon cross-
examination. In this case the appellants were not permitted to ask any
quantitative questions whatsoever about the benefits which witnesses
expected to receive for their cooperation. In much of the Fourth Cir-
cuit authority cited by the government in support of its position, the
defense had been allowed to ask at least some questions about the
length of sentences at issue. See, e.g., Ambers, 85 F.3d at 175; Dorta,
783 F.2d at 1182 & n.6. The appellants argue that the length of the
possible benefit in years and months is itself relevant to the issue of
bias of government witnesses; presumably the greater a sentence
faced by a witness absent cooperation, the less believable the testi-
mony of the witness.
We do not find that this small distinction between our prior author-
ity and the instant case requires us to depart from the direction of our
precedent. We are guided by a recent First Circuit case which
affirmed a trial court's decision to disallow all inquiry into years of
confinement faced by witnesses. United States v. Luciano-Mosquera,
6
63 F.3d 1142, 1153 (1st Cir. 1995), cert. denied, 116 S.Ct. 1879(1996). The Luciano-Mosquera court found that any probative value
from the jury's knowledge of the actual number of years faced was
slight compared to its certain prejudicial impact. Id. at 1153. The
court specified that the proper inquiry for a reviewing court is
whether the jury possesses sufficient evidence to enable it to make a
"discriminating appraisal" of bias and incentives to lie on the part of
the witnesses. Id. See also Delaware v. Fensterer, 474 U.S. 15, 20
(1985) (per curiam) ("[T]he Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the defense
may wish.").
We embrace the reasoning enunciated in Luciano-Mosquera. The
appellants in the instant case have been unable to explain why ques-
tions about exact sentences feared and sentences hoped for were
necessary when the jury was already well aware that the witnesses
were cooperators facing severe penalties if they did not provide the
government with incriminating information. Against whatever slight
additional margin of probative information gained by quantitative
questions, we must weigh the certain prejudice that would result from
a sympathetic jury when it learns that its verdict of guilty will result
in sentences of ten and twenty years in prison. Finding no abuse of
discretion, we therefore affirm the limitations placed on cross-
examination by the district court in this case.
III
Troy Cropp, Clyde Cropp, and Monte Mosley next argue that the
district court gave a modified Allen charge that impermissibly coerced
jurors in the minority to change their views. Allen v. United States,
164 U.S. 492 (1896). An Allen charge is given by a trial court when
a jury has reached an impasse in its deliberations and is unable to
reach a consensus. Id. We must review the district court's decision to
give an Allen charge and the content of that charge for an abuse of
discretion. United States v. Antonio Burgos, 55 F.3d 933, 935 (4th
Cir. 1995).
Our recent decision in Antonio Burgos provides an excellent sum-
mary and assessment of our extensive precedent exploring the proper
7
scope of Allen charges. Id. at 936-41. As Antonio Burgos made clear,
an Allen charge must not coerce the jury, and it must be fair, neutral
and balanced. Id. at 936. See also Carter v. Burch, 34 F.3d 257, 264
(4th Cir. 1994) (discussing the required components of an Allen
charge). Courts must be extremely careful not to suggest that jurors
give up firmly held convictions, although courts may instruct jurors
to reconsider the evidence and the views of other jurors. "The most
egregious mistake that can be made in the context of an Allen charge
is for a district court to suggest, in any way, that jurors surrender their
conscientious convictions." Antonio Burgos, 55 F.3d at 939. We have
often emphasized that a proper and non-coercive charge must instruct
the jurors in the minority to reconsider the views of the majority and
must instruct the majority to reconsider the minority position. Id. at
937, 940; United States v. Sawyers, 423 F.2d 1335, 1342-43 (4th Cir.
1970).
Applying these standards to the instant case, we do not believe that
the instructions given were impermissibly coercive. The district court
gave the jurors a lengthy Allen charge after the jurors expressed an
inability to reach a consensus. In this charge the court properly told
both the majority and the minority to consider the views of the other
side and told the jurors not to surrender their firm convictions. The
next morning the judge further instructed the jury about several mat-
ters before releasing them to resume their deliberations. In this second
charge the court explicitly reminded the jury that it should add the
new instruction to the instructions which they had already received.
Even in this brief reminding charge the court told the jurors not to
give up their firmly held convictions.
The appellants assign error to the very brief second charge because
it did not contain all of the elements of an Allen charge required by
Antonio Burgos, and because they assert it reflected the court's impa-
tience with the jury and was therefore impermissibly coercive.2
_________________________________________________________________
2 The court told the jury, in part: "This case has extended over some
five days of testimony, though it has not moved as smoothly and continu-
ously as both Court and counsel would desire. Where there's a trial
involving a prosecution with seven individual defendants, the complica-
tions encountered add unavoidably to the interruptions . . . ."
8
We do not find these arguments to be persuasive. First, we do not
evaluate a judge's instructions in isolated segments, but we look at the
instructions given as a whole. United States v. Muse, 83 F.3d 672, 677
(4th Cir.), cert. denied, 117 S. Ct. 261 (1996). Moreover, we do not
adopt appellants' characterization that the second brief charge
revealed impatience with the jury. In fact the impatience in the tone
of the charge, if there was any, was directed at the court, the lawyers,
and the delays associated with a multi-defendant trial. The court's
other interactions with the jury also did not suggest impatience.
Rather, the court provided the jury with replays of evidence it
requested both before and after the second charge and answered the
jury's questions about whether it could return seven separate verdicts
for the seven defendants, all in a calm, respectful manner.
Finally, the jury's own behavior reassures us that they were not
coerced by the instruction or anything else. Following the second
charge, the jury deliberated for an additional seven hours before
reaching verdicts. Although the length of deliberations following an
Allen charge is not certain evidence that the jury was not coerced by
that charge, Antonio Burgos, 55 F.3d at 940 n.7, lengthy deliberations
can reassure a reviewing court that coercion did not occur. United
States v. Russell, 971 F.2d 1098, 1108 (4th Cir. 1992) (finding that
three hours of deliberations were evidence that a jury was not
coerced). Not only did the jury in the instant case deliberate for a long
time, but they returned several different verdicts, including some not-
guilty verdicts and some dead-locks. We find it unlikely that a jury
independent enough to return not-guilty verdicts for some defendants
could have been coerced by the court with respect to others. There-
fore, we hold that the district court did not abuse its discretion in
instructing the jury in this case.
IV
Troy and Clyde Cropp argue that the jury did not possess sufficient
evidence to convict them of conspiracy to distribute crack. Specifi-
cally, they argue that no evidence proved the existence of an actual
conspiracy and that, at best, the evidence suggested several com-
pletely independent dealers working in the same geographic area. "In
Glasser [v. United States], the Supreme Court explained that a jury
verdict ``must be sustained if there is substantial evidence, taking the
9
view most favorable to the Government, to support it.'" United States
v. Frank Burgos, 94 F.3d 849, 862 (4th Cir. 1996), cert. denied, 117
S. Ct. 1087 (1997) (quoting Glasser, 315 U.S. 60, 80 (1942)).
"[S]ubstantial evidence is evidence that a reasonable finder of fact
could accept as adequate and sufficient to support a conclusion of a
defendant's guilt beyond a reasonable doubt." Id. To sustain its bur-
den at trial the government was required to prove that a conspiracy
existed, that the Cropps both knew it existed, and that they knowingly
entered into the conspiracy. Frank Burgos, 94 F.3d at 857. Proof of
a conspiracy can be circumstantial, and the government need not
prove that all participants knew of all aspects of the conspiracy. Id.
at 858.
Having thoroughly reviewed the record, we are satisfied that there
was ample evidence to convince a reasonable jury of the guilt of Troy
and Clyde Cropp beyond a reasonable doubt. Rather than recount all
of the evidence adduced at trial we will simply highlight some of the
testimony proving the elements of conspiracy.
With respect to the existence of a conspiracy, testimony proved
that many dealers worked in front of the houses at a given time; that
they took turns approaching cars; that certain dealers spoke with one
another about a shortage of drugs and the need to obtain additional
supply; and that the many sellers were supplied by the same few sup-
pliers. Testimony even showed that the dealing in front of the houses
occurred in a similar manner almost every day for years. This combi-
nation of circumstantial and direct evidence certainly supports a
jury's finding that a conspiracy to distribute crack existed.
Likewise the trial evidence proved that Troy and Clyde Cropp were
knowingly involved in the conspiracy. Multiple witnesses testified
that they saw Troy and Clyde Cropp with drugs in their possession
and saw them selling drugs in front of the houses. One supplier spe-
cifically testified that Troy and Clyde Cropp both sold crack at that
location, crack that he or other dealers had provided. Further, both
Troy and Clyde Cropp stipulated that, on two occasions each, they
sold crack in front of the houses to undercover officers. The testimony
showed that the Cropps both obtained crack from the same small
number of suppliers who sold to the other members of the conspiracy.
10
The evidence presented at trial, when taken in the light most favor-
able to the government, is adequate to sustain the convictions of Troy
and Clyde Cropp.
V
Troy Cropp argues that the district court violated his Due Process
rights by refusing to grant his request for a psychiatric evaluation
prior to determining his sentence. Cropp requested the evaluation so
that he could better argue for a downward departure for significantly
reduced mental capacity pursuant to § 5K2.13 of the Guidelines. We
believe that the power of a judge to grant or deny requests for psychi-
atric evaluations for sentencing purposes is a question of first impres-
sion in this Circuit.
As a preliminary matter, we must decide whether we have the
authority to review the district court's decision regarding this issue.
As we have repeatedly made clear, a decision to deny a departure
request may generally only be reviewed when a judge has misunder-
stood his or her legal authority to grant a departure. United States v.
Underwood, 970 F.2d 1336, 1338 (4th Cir. 1992); United States v.
Bayerle, 898 F.2d 28, 31 (4th Cir. 1990). In this case the district court
knew that it possessed the power to depart and decided that the evi-
dence did not move him to grant that departure. On that basis the gov-
ernment urges that we lack authority to consider this question further.
We agree with Cropp that the right at issue is a Due Process right
to present evidence relevant to sentencing and that this right must not
be left to the sole discretion of the court. We have previously recog-
nized a specific right to have one's sentence correctly determined and
have reviewed district court decisions when that right was at issue.
See, e.g., United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th
Cir. 1989). In Urrego-Linares we further stated that defendants have
a right to offer evidence relevant to mitigation. Id. Given this author-
ity, we find that we cannot characterize this issue as a case in which
the judge has simply decided not to depart, and therefore we cannot
treat it as non-reviewable.3 Rather, the question before us is whether
_________________________________________________________________
3 We are also mindful of the Supreme Court's recent decision in United
States v. Koon, 116 S.Ct. 2035 (1996), which stated that a district court's
decision to depart in an "atypical case" is to be reviewed for an abuse of
discretion, although that decision is not controlling in the instant case.
11
a judge may take steps which effectively limit an indigent defendant's
ability to present evidence relevant to a downward departure.
The commentary to the Sentencing Guidelines requires that a
defendant be given an adequate opportunity at sentencing to present
information regarding disputed facts relevant to the sentencing deter-
mination. U.S.S.G. § 6A1.3, commentary; see also United States v.
Cantu, 12 F.3d 1506, 1511 (9th Cir. 1993) (interpreting § 6A1.3). The
commentary further specifies that a judge must tailor the process for
presenting evidence at sentencing to "the nature of the dispute, its rel-
evance to the sentencing determination, and applicable case law."
U.S.S.G. § 6A1.3, commentary; see also Cantu, 12 F.3d at 1511. In
Cantu the Ninth Circuit explored the relevant Guidelines provisions
and decided that the process adopted by a trial judge to address down-
ward departure for diminished mental capacity pursuant to U.S.S.G.
§ 5K2.13 must be "more than simply a neutral process." Cantu, 12
F.3d at 1511. "The court's inquiry into the defendant's mental condi-
tion and the circumstances of the offense must be undertaken ``with
a view to lenity, as section 5K2.13 implicitly recommends.'" Id.(quoting United States v. Chatman, 986 F.2d 1446, 1454 (D.C. Cir.
1993)). While the court in Cantu was addressing an issue distinct
from the one before us in this case, its guidance is relevant.
Troy Cropp has asserted that the above analysis provided by our
sister circuits and several of our own previous decisions support his
position that he is entitled to a court-appointed psychiatric evaluation.
However, we do not agree that any of this precedent compels such a
holding. In United States v. Mason, 52 F.3d 1286 (4th Cir. 1995), we
reversed a conviction because the trial judge refused to order a hear-
ing to determine defendant's competence to stand trial. That decision,
however, was grounded in a statute which plainly requires judges to
grant a competency hearing when a defendant has shown "reasonable
cause." Id. at 1289 (relying upon 18 U.S.C. § 4241(a)). No statute
similarly requires trial judges to grant hearings before sentencing pro-
ceedings. Likewise, in both United States v. Hoover, No. 93-5441,
1994 WL 144330 (4th Cir. Apr. 22, 1994), and United States v.
Benson, No. 93-5204, 1993 WL 385213 (4th Cir. Sept. 30, 1993), two
unpublished opinions relied upon by Troy Cropp, the district court
had considered psychiatric and psychological evidence presented by
defendants. However, in neither case did we suggest that defendants
12
always have a right to develop the relevant evidence. Moreover, we
are unaware of a decision by any other circuit in which the court has
concluded that defendants are entitled to psychological testing prior
to being sentenced.
Despite the lack of binding or persuasive authority on this issue, we
decline to adopt the position advocated by the government. We do not
hold that it could never be reversible error for a court to refuse to
order a psychiatric evaluation prior to sentencing. It is important that
judges make critical sentencing decisions with the benefit of all avail-
able and relevant evidence. It is also important that all defendants,
even indigent ones, have an opportunity to gather necessary psychiat-
ric evidence when the court, in the exercise of its discretion, deter-
mines that such evidence is relevant to determine the defendant's
mental capacity.
However, we hold that in the instant case the district court did not
abuse its discretion by declining to order an evaluation for Troy
Cropp. Cropp presented very little evidence to indicate that he in fact
suffered from a mental impairment; the evidence he did submit was
very old, and even if taken as current, did not indicate that Cropp suf-
fered from mental incapacity. Moreover, the district court in this case
did consider the evidence before it, and listened to and considered
Cropp's assertion that he suffered brain damage and mental illness as
a result of years of crack cocaine use. Cropp is unable to suggest what
additional information would have been gained by a formal psychiat-
ric evaluation.
VI
Monte Mosley finally argues that the district court erred when it
excluded the testimony of his witness, Chris Carter (Carter), for a vio-
lation of the court's sequestration order. We find that Mosley's chal-
lenge does not require reversal. Federal Rule of Evidence 615
addresses the exclusion and sequestration of witnesses. The rule and
its common-law antecedents are designed to prevent the tainting of
witness testimony by precluding them from hearing the trial testi-
mony of other witnesses. The Supreme Court has long recognized that
a trial court may employ one of three remedies when a sequestration
order has been violated: sanction of the witness; instructions to the
13
jury that they may consider the violation toward the issue of credibil-
ity; or exclusion of the witness' testimony. See, e.g., Holder v. United
States, 150 U.S. 91 (1893). The remedy of exclusion is so severe that
it is generally employed only when there has been a showing that a
party or a party's counsel caused the violation. See Braswell v.
Wainwright, 463 F.2d 1148, 1152-53 (5th Cir. 1972); United States
v. Hobbs, 31 F.3d 918, 922 (9th Cir. 1994). Because exclusion of a
defense witness impinges upon the right to present a defense, we are
quite hesitant to endorse the use of such an extreme remedy.
In the instant case, the right to present a defense has come into
direct conflict with the protection against tainted testimony. Carter
was called as a witness for Monte Mosley. Carter testified that he had
never purchased any drugs from Mosley, and that he had never seen
Mosley with drugs. During his testimony, it became clear that Mosley
talked to Carter prior to Carter's turn on the stand in plain violation
of the sequestration order. In fact it appears that Mosley told Carter
that his name had been mentioned in the previous day's testimony.
Although Mosley denies it, it is possible that Mosley in fact told Car-
ter that there had been previous testimony that Carter had purchased
crack from Mosley on numerous occasions. The district court there-
fore decided to exclude Carter's testimony by telling the jury to disre-
gard what he had said on the stand.
We believe that the court would have been well advised to employ
a lesser sanction to punish the violation because to do so would have
preserved both the purpose of the sequestration rule and the defen-
dant's right to present a defense. We also find that the court should
perhaps have more closely examined Carter in voir dire to determine
the extent of the taint of his testimony and the causes of that taint
prior to excluding him. However, we have found no precedent in
which we have overturned the decision of a district judge to exclude
a defense witness when the violation was plainly the fault of the
defendant or defendant's counsel. And given that it is clear that Mos-
ley himself was behind this violation in some way, we do not find that
the district court abused its discretion. We are particularly unwilling
to overturn the district court's judgment on this issue given that the
defense did not argue to the court during trial that the exclusion of
Carter was excessive or unconstitutional.
14
VII
We find that none of the challenges raised by Troy Cropp, Clyde
Cropp, and Monte Mosley to their convictions or to their sentences
merit reversal. Therefore we
AFFIRM.
15