Filed: Mar. 01, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D March 1, 2007 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk _ No. 06-20396 (Summary Calendar) _ UNITED STATES OF AMERICA, Plaintiff-Appellee versus ERIC EARL CRAFT, Defendant-Appellant - Appeal from the United States District Court for the Southern District of Texas (4:04-CR-442-13) - Before SMITH, WIENER and OWEN, Circuit Judges. PER CURIAM:* Defendant-Appellant Eric Earl Craft appeals his convict
Summary: United States Court of Appeals Fifth Circuit F I L E D March 1, 2007 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk _ No. 06-20396 (Summary Calendar) _ UNITED STATES OF AMERICA, Plaintiff-Appellee versus ERIC EARL CRAFT, Defendant-Appellant - Appeal from the United States District Court for the Southern District of Texas (4:04-CR-442-13) - Before SMITH, WIENER and OWEN, Circuit Judges. PER CURIAM:* Defendant-Appellant Eric Earl Craft appeals his convicti..
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United States Court of Appeals
Fifth Circuit
F I L E D
March 1, 2007
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 06-20396
(Summary Calendar)
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
ERIC EARL CRAFT,
Defendant-Appellant
---------------------
Appeal from the United States District Court
for the Southern District of Texas
(4:04-CR-442-13)
---------------------
Before SMITH, WIENER and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Eric Earl Craft appeals his conviction by
a jury on multiple counts of conspiracy and aiding and abetting in
the unlawful distribution of controlled substances, money
laundering promotion and concealment, and voluntary transactions in
property derived from specified unlawful activities, all in
connection with or arising from the operations of a large and
lengthy prescription drug ring in Houston, Texas. Involved were a
physician, several pharmacists, and numerous associates. Craft’s
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
appeal of his conviction focuses entirely on the contention that
his Fifth Amendment rights against self-incrimination ——
specifically, his right not to testify and not to have the jury
infer anything negative therefrom —— were violated when one among
numerous cooperating government witnesses answered a question posed
on cross examination in a way that could have been taken by the
jury as implicating Craft’s eventual failure to testify. Further,
the asking of that question by defense counsel and counsel’s
failure to object and to seek a mistrial following the witness’s
response underpin Craft’s second claim on appeal, ineffective
assistance of counsel. Concluding that the witness’s response to
defense counsel’s question on cross examination, in context and in
light of the totality of the circumstances of the trial and all the
evidence, does not rise to the level of reversible error or
constitute actionable ineffective assistance of counsel, we affirm.
I. Facts and Proceedings
After Craft was successful in obtaining a trial severance, his
case was heard by a jury. The trial lasted seven days, during
which the government adduced massive documentary and testimonial
evidence of the multi-year prescription drug conspiracy and Craft’s
substantial role in it, viz., obtaining large numbers of bogus
prescriptions, purchasing the controlled substances prescribed from
co-conspirator pharmacists, and distributing huge quantities
through illicit sales to his “customers.” In the course of the
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government’s case, the prosecution adduced extensive testimony
from, inter alia, (1) Callie Herpin, M.D., the principal physician
in the conspiracy, who testified that Craft was among the largest
purchasers of fraudulent prescriptions written by her; (2) Etta Mae
Williams, Dr. Herpin’s office manager, who also testified about
Craft’s role as a substantial purchaser of prescriptions written by
Dr. Herpin; and (3) Darryl Armstrong, a pharmacist who testified
about filling Herpin’s prescriptions for Craft and about Craft’s
interaction with Armstrong and others. It suffices that the
combined testimony of Herpin, Williams, and Armstrong —— augmented
by considerable documentary evidence and testimony from other
witnesses —— constructed a case against Craft that is only
trivialized by referring to it as overwhelming.
It is against that backdrop and context that Craft complains
about the answer given by Armstrong to a question posed by Craft’s
attorney during cross examination. In an apparent effort either to
impeach Armstrong or weaken the probative value of his adverse
testimony —— or possibly set the stage for favorable testimony by
subsequent witnesses —— Craft’s counsel posed the following
questions and Armstrong provided the following answers:
Q. So —— and wouldn’t you agree with me that the only
person that could corroborate what you said about
these conversations with John Wiley and Paul Henry
and Mr. Craft is you?
A. No, sir.
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Q. No?
A. Mr. Craft could.
Q. Mr. Craft and who else?
A. John Wiley, Sir.
Q. John Wiley. And how about Paul Henry?
A. Paul Henry, yes, Sir.
Q. So they would be good witnesses, wouldn’t they, to what
they saw and heard; right?
A. Yes. All three of them, yes, Sir.
Even though Mr. Armstrong’s answers do not expressly or
directly comment on the defendant’s eventual failure to testify,
and contain no pejorative comment about that, there is no question
that, given Mr. Armstrong’s identification of Mr. Craft as one who
could corroborate or dispute the conversation at issue and Mr.
Craft’s ultimate failure to take the stand, this was at least
implicitly a comment on such failure. And we speculate that, given
a chance, defense counsel, with hindsight, would likely rephrase
the question in a way that only Mr. Wiley and Mr. Henry —— and not
Mr. Craft —— could be identified by Armstrong as potential
corroborators.
In that context we further observe that counsel’s question and
Armstrong’s response occurred in the course of a lengthy and
continuing cross examination. Counsel’s failure to object likely
served to downplay any untoward implication from Craft’s eventual
failure to take the stand. Likewise, counsel’s continuing the flow
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of questioning without objecting to Armstrong’s answer, and
following it with references to Wiley and Henry, likely minimized
any possible negative effect, and possibly prevented recognition by
the jury of the implication of Craft’s remaining silent. Thus,
among other things, counsel’s failing to object and proceeding
without interruption could well have been an intentional tactic to
keep any effect of Armstrong’s answer below the jury’s radar.
Furthermore, the able and experienced district judge who
conducted the trial correctly instructed the jury, at the end of
trial and thus well after Armstrong’s response, that “no inference
whatsoever may be drawn from the election of a defendant not to
testify.” And, finally, the absence of objection establishes our
standard of review on appeal as plain error; not only that, but
also “invited error” inasmuch as the inference in Armstrong’s
answer was in response to a question posed by defense counsel. We
review invited error for manifest injustice.1 Similarly, when we
review for plain error, we must find that there is an error that is
plain and obvious and that affects the defendant’s substantial
rights.2 Moreover, even when we find these elements present, we do
not exercise our discretion to correct such error unless it
1
United States v. Solis, 299 F.3d 420, 452 (5th Cir.
2002)(quoting United States v. Green,
272 F.3d 748, 754 (5th Cir.
2001)).
2
United States v. Olano, 507 U.S. 725, 732 (1993).
5
“seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.”3
II. Analysis
Having carefully reviewed the trial record in this case,
particularly the exchange between Armstrong and defense counsel,
the instructions to the jury, and all the testimony and documentary
evidence adduced by the government, we are satisfied beyond cavil
that any implication conceivably recognized by the jury regarding
Craft’s failure to testify is de minimis in the absolute, and
completely harmless in the context of all the facts and
circumstances. The incident complained of does not approach the
level of manifest injustice. Any possible effect that Armstrong’s
answer could have had on the jury, which observed the demeanor of
all the government’s witnesses, heard all that they had to say, and
weighed all the evidence against Craft, eschews any possibility of
contributing to the guilty verdict in any meaningful way. In sum,
the error complained of by Craft constitutes no reversible error,
whether plain or otherwise.
As noted, Craft also asks us to reverse his conviction and
grant a new trial on the basis of ineffective assistance of
counsel. And, also as noted, his assertion is grounded in (1) the
question his defense counsel posed to Armstrong, which opened the
door and invited Armstrong to identify Craft as one who could ——
3
Id. (Internal citations and quotations omitted).
6
but ultimately did not —— corroborate the discussions at issue, and
(2) counsel’s failure to object to that answer and seek a mistrial.
As the government has acknowledged in its brief on appeal, we
seldom “entertain ineffective assistance of counsel claims on
direct appeal when they have not been raised before the trial
court, as the trial court is the proper place to develop the record
necessary for their resolution.”4 Nevertheless, Craft’s claim on
appeal that his counsel was thus ineffective places this case in
the small minority of those in which such a claim may be disposed
of on direct appeal without requiring that it be considered first
by the district court or await habeas review.
We consider claims of ineffective representation of counsel,
in violation of the Sixth Amendment under the oft-repeated rubric
of Strickland v. Washington5: The complaining defendant has the
burden of proving both prongs of the Strickland test, viz., (1)
that counsel’s performance was deficient when measured against the
level of performance expected of competent criminal defense
counsel, and (2) that the deficiency was so extreme as to produce
prejudice and thereby deprive the defendant of a fair trial.6 Not
only must Craft overcome the Strickland presumption that his
4
United States v. Palmer, 122 F.3d 215, 221 (5th Cir. 1997);
see also United States v. Higdon,
832 F.2d 312, 313-14 (5th Cir.
1987) cert. denied,
484 U.S. 1075 (1988).
5
466 U.S. 668 (1984).
6
Id. at 686.
7
attorney performed within a broad range of reasonable assistance,
but he must also show a reasonable probability that “but for
counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”7
Based on essentially the same considerations that led us to
determine that counsel’s question and Armstrong’s response did not
rise to the level of manifest injustice or seriously affect the
fairness, integrity, or public reputation of these proceedings, we
also reject Craft’s claim of ineffective assistance of counsel. As
the two-pronged test of Strickland is conjunctive, Craft’s failure
to bear his burden on either prong is fatal. In the interest of
brevity, therefore, we assume without granting that counsel’s
performance was deficient and proceed to test such presumed
deficiency for prejudice.
At the risk of redundancy, we reiterate that in Armstrong’s
response to counsel’s question, who could corroborate Armstrong’s
testimony about certain conversations, he identified Craft as one
who could. In an obvious effort to minimize any possible damage
from the implications of that unexpected response, counsel moved
right along and elicited names of two others who could so testify.
Counsel’s election to refrain from objecting contemporaneously
avoided highlighting and overemphasizing possible implications of
7
Id. at 694.
8
Armstrong’s answer in the Fifth Amendment context; and the district
court’s instructions at the end of the trial, remote as it was from
Armstrong’s testimony, left the jury with the rule fresh in mind
that no inference could be made from Craft’s failure to testify.
Although the unfortunate answer on cross produced error vel non,
the enormity of the prosecution’s case against Craft bars any
possible conclusion of prejudice. Even if we were to assume that
the jury was able to connect the dots, recognize that Armstrong’s
response to counsel’s question somehow implicated Craft’s ultimate
failure to take the stand, and read anything negative into that, it
would have so paled in comparison to the overwhelming evidence
against Craft as to be insusceptible of rising to the level of
Strickland prejudice. This plenteous record convinces us that
Craft was not prejudiced by his counsel’s performance.
III. Conclusion
We hold that any inferences the jury might have drawn from
Armstrong’s response to counsel’s question fall far short of
manifest injustice and could not have seriously affected the
fairness, integrity, or public reputation of Craft’s trial.
Neither was his attorney’s performance prejudicial to Craft in the
sense of Strickland and thus did not deprive him of his Sixth
Amendment right to effective counsel. We reject Craft’s
contentions that the implied comment of Armstrong’s response on the
failure to testify or his lawyer’s failure to object and seek a
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mistrial entitle him to a reversal of his conviction and a new
trial. Accordingly, Craft’s conviction and sentence are, in all
respects,
AFFIRMED.
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