United States v. Drayton Curry, A/K/A Mr. C.

993 F.2d 43, 1993 U.S. App. LEXIS 10487, 1993 WL 145296
CourtCourt of Appeals for the Fourth Circuit
DecidedMay 7, 1993
Docket92-5162
StatusPublished
Cited by35 cases

This text of 993 F.2d 43 (United States v. Drayton Curry, A/K/A Mr. C.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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. Drayton Curry, A/K/A Mr. C., 993 F.2d 43, 1993 U.S. App. LEXIS 10487, 1993 WL 145296 (4th Cir. 1993).

Opinion

OPINION

WILLIAMS, Circuit Judge:

Drayton Curry was arrested on June 14, 1991, as he was leaving a hotel room with a suitcase of heroin. Curry had met with Bernadette Scott and Arthur Watson in the hotel room to discuss a drug transaction. This meeting was video and audio taped by the Drug Enforcement Agency (DEA).

*44 A jury convicted Curry of conspiracy to possess with intent to distribute more than one kilogram of heroin and five or more kilograms of cocaine, and possession with intent to distribute one kilogram or more of heroin. 21 U.S.C. §§ 841(a)(1), 846 (1988). The jury also ordered forfeiture of Curry’s interest in his residence and his Mercedes-Benz automobile. On January 17, 1992, the district court sentenced Curry to life in prison.

On appeal, Curry challenges: (1) the denial of his request to review the master jury list prior to trial; (2) the refusal to strike the testimony of a government witness who invoked the Fifth Amendment on cross-examination; and (3) the denial of his motion for a mistrial based on the government’s improper bolstering and vouching for the credibility of government witnesses. 1 We will address each of these issues seriatim.

I.

Prior to trial, Curry moved for disclosure of grand jury matters, including the master list of jurors from which the grand jury indicting him was selected. Curry asserted that under 28 U.S.C. § 1867 (1988) and Test v. United States, 420 U.S. 28, 30, 95 S.Ct. 749, 750, 42 L.Ed.2d 786 (1975), he had an unqualified right to inspect the jury list in order to determine if there was a factual basis for a motion challenging the jury selection procedures. Curry contends that the district court’s denial of his request was error. We agree.

In Test, the Supreme Court held that § 1867(f)

makes clear that a litigant has essentially an unqualified right to inspect jury lists. It grants access in order to aid parties in the “preparation” of motions challenging jury-selection procedures. Indeed, without inspection, a party almost invariably would be unable to determine whether he has a potentially meritorious jury challenge. Thus, an unqualified right to inspection is required....

420 U.S. at 30, 95 S.Ct. at 750 (footnotes omitted). Under Test, Curry was entitled to inspect, reproduce, and copy the master jury list to support a motion for a new trial based upon a substantial failure to comply with the provisions of 28 U.S.C. §§ 1861-68 (“the Act”) in selecting the grand or petit jury.

The Government contends that under United States v. Davenport, 824 F.2d 1511, 1513-15 (7th Cir.1987), and United States v. Buckner, 830 F.2d 102, 104 (7th Cir.1987), Curry is required to submit a sworn affidavit showing why the list would be necessary. These eases are distinguishable. In Davenport, the Seventh Circuit noted that under Test a defendant had an unqualified right to the jury list, but that § 1867(f) did not entitle him to the juror qualification questionnaires without some demonstration of necessity. 824 F.2d at 1514-15. Buckner involved a defendant who, after receiving the grand jury composition lists, filed an unsworn motion asserting that the lists were insufficient for analysis. 830 F.2d at 104. The Seventh Circuit held that while a defendant “had a statutory right to data sufficient to assess the composition of the panel,” the statute does not automatically permit disclosure of other jury information absent a sworn statement of facts which, if true, would constitute a substantial failure to comply with the Act. Id.

Even though the district court erred in denying Curry’s request to inspect the master jury list, this error does not necessarily warrant reversal of his conviction. United States v. Studley, 783 F.2d 934, 938 (9th Cir.1986). Instead, on remand Curry is entitled to review the jury list and may move for a new trial under 28 U.S.C. § 1867(a). If upon timely motion Curry can demonstrate a violation of the Act which prejudices him, the district court shall grant his motion for a new *45 trial. Id. See also United States v. Beaty, 465 F.2d 1376, 1382 (9th Cir.1972).

II.

During Curry’s cross-examination of Arthur Watson, Curry’s counsel asked him when he last dealt drugs prior to his arrest. 2 Rather than respond to this question, Watson invoked the Fifth Amendment. After Watson was excused, Curry’s counsel moved to strike the testimony on the ground that Curry was denied his constitutional right under the Sixth Amendment to confront this witness. We review the district court’s refusal to strike Watson’s testimony for abuse of discretion. United States v. Zapata, 871 F.2d 616, 624 (7th Cir.1989).

The primary case relied on by Curry is Lawson v. Murray, 837 F.2d 653 (4th Cir.), cert. denied, 488 U.S. 831, 109 S.Ct. 87, 102 L.Ed.2d 63 (1988). In Lawson, the magistrate judge granted habeas relief because the trial court had stricken the testimony of a defense witness who invoked the Fifth Amendment during cross-examination. Id. at 655. We reversed. In so doing we stated that “[wjhen a prosecution witness cuts off cross-examination by invoking the fifth amendment privilege against self-incrimination, the criminal defendant’s constitutional right of confrontation is directly implicated.” Id. at 655. Nevertheless, striking the entire testimony is a drastic remedy and is not to be lightly done. Id. at 656. In fact no action at all might be appropriate, or the court might strike only a portion of the testimony, if the fifth amendment privilege was invoked “to avoid cross-examination on purely collateral matters.” Id. Striking all of the testimony might be the only appropriate remedy, however, if the refusal to answer frustrates the defendant’s ability “to test the credibility of the witness and the truthfulness of his earlier testimony.” Id.

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Bluebook (online)
993 F.2d 43, 1993 U.S. App. LEXIS 10487, 1993 WL 145296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-drayton-curry-aka-mr-c-ca4-1993.