United States v. Andrew Crumbly

215 F. App'x 983
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 2, 2007
Docket06-11387
StatusUnpublished

This text of 215 F. App'x 983 (United States v. Andrew Crumbly) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Andrew Crumbly, 215 F. App'x 983 (11th Cir. 2007).

Opinion

PER CURIAM:

Andrew Crumbly appeals his convictions for possession with intent to distribute cocaine base. On appeal, Crumbly argues that the trial court erred by limiting cross-examination of a government witness, Gabriel Whitfield, as to Whitfield’s bias, prior untruthfulness, and prior convictions. Because we find no reversible error, we AFFIRM.

I. BACKGROUND

A federal grand jury indicted Crumbly on three counts of knowingly and willfully possessing with intent to distribute and for distributing crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. The indictment charged sales on three separate dates in 2005: 21 May, 1 June, and 4 June.

At trial, the prosecutor advised the jury in his opening statement that it would be hearing first from Gabriel Whitfield, a paid informant for the Drug Enforcement Administration (“DEA”), who had known Crumbly for several years before he bought the crack cocaine from him on the three dates in question. Crumbly’s counsel’s opening statement focused on the credibility of Whitfield, outlining a burglary he committed in 1990. Whitfield had provided the government with information about others involved in the burglary and had only received two and a half years of prison, rather than a possible life sentence. *985 When defense counsel began to outline a 1997 offense, the prosecutor objected that “defense counsel [was] making highly prejudicial statements about [the] underlying conduct of a Government witness.” R6 at 184. The government indicated that it had not been given advanced notice about Crumbly’s intent to rely upon this 1990 conviction. The prosecutor also argued that the details of Whitfield’s prior criminal conduct, particularly to the extent that it was eight or nine years old, had no bearing on his bias. Defense counsel responded that Whitfield’s relationship with the police department over a number of years was relevant to show bias. The district court sustained the objection to the opening statement, advising defense counsel that he had crossed the line into argument.

On direct examination, Whitfield testified that the DEA paid him in connection with the purchases that he made from Crumbly and that he was not subject to any criminal charges at that time. Whitfield identified the audiotapes of the telephone calls he made to Crumbly before the buys and testified that they were accurate. The videos show that the actual exchanges lasted only seconds, and none of the videos captured the exchange of money and drugs.

The issue of Whitfield’s prior offenses came up again during Crumbly’s counsel’s cross-examination of Whitfield. The district court advised defense counsel that he could not ask Whitfield about convictions more than ten years old. With respect to the convictions the defense could ask about, the district court instructed counsel to “stick to the basic facts,” that is, the fact of the conviction and the nature of the crime. Id. at 185-86. On cross-examination, defense counsel brought out that Whitfield was charged with burglary and grand theft in 2002, that he eventually pled guilty to grand theft, and that he received probation. Whitfield agreed that he received probation, which normally was reserved for first offenders, even though he “had been through the system before.” Id. at 198-99. Whitfield also testified that he was arrested for selling counterfeit drugs, in violation of the terms of his probation, he gave a false name when he was arrested, and he received a year for the offense.

After Whitfield testified, defense counsel proffered that he would have elicited on cross-examination that on 31 October 1990, Whitfield and another person with a gun entered a store after it closed, held a gun to the employees, ordered them down to the floor, took $9,000 from the office, and then locked the employees in a meat locker. Crumbly’s defense counsel continued that when the investigation focused on Whitfield, he provided the government with the identities of the gunman and a former store employee who had given them information. Whitfield then received a sentence of two and a half years. Defense counsel also wanted to cross-examine Whitfield about a 1997 traffic stop and 2002 burglary. During the 1997 traffic stop he tried to run away on foot, even after officers tackled him, handcuffed him, and sprayed him with pepper spray. Whitfield was charged with escape, a felony, but was allowed to plead to a misdemeanor of resisting arrest without violence. In 2002, defense counsel continued, Whitfield stole a diamond necklace from the home of someone he knew. Whitfield lied to the victim when she confronted him but later admitted to police that he had sold the necklace. Defense counsel conceded that he was permitted to establish that Whitfield was convicted of grand theft, instead of burglary, and was sentenced to probation. Defense counsel also conceded that he was able to elicit that Whitfield was arrested later that year for *986 selling drugs, but proffered that the police records indicated that Whitfield stated that he sold “fake crack cocaine to white boys because [they were] too dumb to know the difference.” Id. at 224. Defense counsel argued that this behavior was relevant to Crumbly’s defense that Whitfield was a dishonest con man who orchestrated the crime Crumbly allegedly committed.

After hearing defense counsel’s proffer and argument from both parties, the district court concluded that the facts of the 1990 conviction for armed robbery and the 1997 misdemeanor conviction for resisting arrest were not relevant and that, even if they were, their prejudicial effect outweighed any probative value under Federal Rule of Evidence 403. The court further found that defense counsel had been given sufficient opportunity to cross-examine "Whitfield with respect to his bias and motive.

The government next called Emmanuel Noudewo, the DEA agent who worked with Whitfield on the alleged transactions with Crumbly. Noudewo testified that he instructed Whitfield to call Crumbly each time, recorded the telephone conversations, and placed a hidden video camera on Whitfield’s person. Before the 21 May 2005 transaction, Noudewo searched Whitfield, including his person, pockets, shoes, and socks to ensure that he did not have any drugs or weapons. Noudewo drove Whitfield to a location a block away from Crumbly’s residence, and Whitfield called Crumbly to tell him that he was in the vicinity. Noudewo did not see the actual transaction because it took place while he was turning his car around. Noudewo did see Whitfield walk away from a man whom Noudewo believed to be Crumbly and return to the car with suspected crack cocaine.

Before the second transaction, Noudewo again had Whitfield call Crumbly’s residence to arrange a drug purchase, searched Whitfield, and determined that he was not carrying any drugs or weapon before giving him the audio and video equipment. On the second and third transactions, on June 1 st and 4th, Noudewo parked so that he could observe the exchanges and identify Crumbly.

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Bluebook (online)
215 F. App'x 983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-andrew-crumbly-ca11-2007.