[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 13, 2007
No. 06-13637 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00502-CR-2-VEH-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HANNIBAL SONNY CRUMPLER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 13, 2007)
Before HULL and MARCUS, Circuit Judges, and BARZILAY,* Judge.
*
Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting
by designation.
BARZILAY, Judge:
This case arises on appeal from Defendant-Appellant Hannibal Sonny
Crumpler’s (“Crumpler” or “Defendant-Appellant”) conviction for conspiracy to
commit fraud and for providing false statements to auditors, pursuant to 15 U.S.C.
§§ 78j(b), 78ff, 78m(a) & (b)(2), 18 U.S.C. §§ 2, 371, and 17 C.F.R. §§ 240.10b-5,
240.13b2-1, 240.13b2-2(a), and the resulting forfeiture under 18 U.S.C.
§ 981(a)(1)(C) and 28 U.S.C. § 2461(c). Crumpler raises five principal arguments
in his appeal. He maintains (1) that the district court abused its discretion by
determining that his notes did not qualify for admission under the business records
exception to the hearsay rule; (2) that the court improperly imposed and enforced
general guidelines for questioning witnesses; (3) that the court abused its discretion
when it denied Crumpler’s attempt to question a witness about whether the witness
had previously claimed under oath to be the smartest man in the world; (4) that the
application of the Civil Asset Forfeiture Reform Act (“CAFRA”) to proceeds that
Crumpler obtained before the law’s effective date violated the Ex Post Facto
Clause of the United States Constitution; and (5) that the jury’s forfeiture verdict
based upon Crumpler’s stock options should have assessed the stocks’ value at the
time that he exercised his options, rather than when he sold the stock. For the
reasons stated below, the Court affirms the district court on all grounds.
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I. Jurisdiction and Standard of Review
This Court has jurisdiction over appeals from the judgment of criminal
conviction from the District Court of Northern Alabama pursuant to 28 U.S.C.
§ 1291.
II. Exclusion of Evidence Under the Business Records Exception
“The district court has broad discretion in ascertaining admissibility of
business record evidence, which should not be disturbed on review in absence of
abuse.” United States v. Garnett, 122 F.3d 1016, 1018 (11th Cir. 1997) (per
curium); accord United States v. Petrie, 302 F.3d 1280, 1285 (11th Cir. 2002). In
keeping with this deferential standard of review, this Court “review[s] factual
findings regarding the admissibility of business records . . . under a clearly
erroneous standard.” Petrie, 302 F.3d at 1285. If the Court finds an abuse of
discretion, it still will not reverse the lower court’s decision “unless the evidence
had a substantial impact on the verdict,” i.e., was not harmless. United States v.
Campbell, 73 F.3d 44, 47 (5th Cir. 1996) (per curium); accord United States v.
Fallen, 256 F.3d 1082, 1091 (11th Cir. 2001). The Court, in turn, determines
whether an error was harmless “by weighing the record as a whole, . . . examining
‘the facts, the trial context of the error, and the prejudice created thereby as
juxtaposed against the strength of the evidence of [the] defendant’s guilt.’” United
3
States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999) (quoting United States v.
Reed, 700 F.2d 638, 646 (11th Cir. 1983)). “Harmless error review . . . does not
require [the court] to view witnesses’ credibility in the light most favorable to the
government.” Id. at 1330 n.23.
Rule 803(6) of the Federal Rules of Evidence permits into evidence
[a] memorandum, report, record, or data compilation, in any form, of
acts, events, conditions, opinions, or diagnoses, made at or near the
time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to
make the memorandum, report, record or data compilation, all as
shown by the testimony of the custodian or other qualified witness, or
by certification that complies with Rule 902(11), Rule 902(12), or a
statute permitting certification, unless the source of information or the
method or circumstances of preparation indicate lack of
trustworthiness.
Fed. R. Evid. 803(6). “It is not necessary for the person who actually prepared the
documents to testify so long as there is other circumstantial evidence and testimony
to suggest the trustworthiness of the documents.” Garnett, 122 F.3d at 1019.
Likewise, “it is not necessary that a sponsoring witness be employed by the
business at the time of the making of each record. The witness must only be in a
position to attest to its authenticity.” United States v. Evans, 572 F.2d 455, 490
(5th Cir. 1978) (internal citation omitted).1
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions handed down by the former Fifth Circuit before
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A. The District Court Properly Refused to Allow the Notes into Evidence
During the trial, Crumpler sought to enter into evidence six handwritten and
typed notes that he wrote which concerned his actions relating to the fraud and
conspiracy for which he was convicted. See Appellant’s Ex. 18-A–F; R.E.2 Tab E.
According to Defendant-Appellant, “[t]he only specific evidence that tied [him] to
the conspiracy was the testimony of Weston Smith and Bill Owens regarding the
March 2002 confirmation letters,” without which “the Government would not have
proven Defendant Crumpler’s guilt beyond a reasonable doubt.” Appellant’s Br.
23. Appellant claims that these documents would have undermined Smith and
Owens’ testimony because they “established [Crumpler’s] good faith and lack of
criminal intent with respect to the confirmation letters by showing that he did not
act in concert with the conspirators at HealthSouth.” Appellant’s Br. 24.
During the evidentiary hearing, Michael A. Plaia, once Senior Vice
President of Planning and Development for Source Medical, later Senior Vice
President Chief Operating Officer, and a custodian of HealthSouth’s records,
testified that he recognized the documents in question, verified that Crumpler
created them at the time of the audit confirmation process at HealthSouth, and
the close of business on September 30, 1981.
2
“R.E.” stands for Record Excerpts.
5
attested to the fact that Crumpler had knowledge of the events detailed within the
documents. He also confirmed that Crumpler created the documents as a part of
his regular business practice, one shared by most of HealthSouth’s management.
See Appellant’s R.E. Tab D 17–28. Likewise, Larry D. Carr, an accountant with
no formal ties to HealthSouth, testified that he recognized the documents, helped
Crumpler draft some of them, and believed the contents of the documents to
accurately reflect what he knew of the events discussed within them, though this
knowledge apparently came from Crumpler himself. See Appellant’s R.E. Tab D
33, 35–36, 47–49.
The district court ruled the documents inadmissable on several grounds.
First, it found Larry Carr unqualified to attest to their authenticity since he did not
work for HealthSouth. See Appellant’s R.E. Tab D 58. It also held Mr. Plaia’s
testimony inadequate because he “did not testify that it was [Crumpler’s] and
Source Medical Solutions Incorporated’s practice to maintain these notes in the
files as a part of the regular course of [its] business” and “[could] not testify that
the notes are accurate.” Appellant’s R.E. Tab D 59–60. The court also declared
that “the source of information in the notes is the defendant, who is accused of
fraud in the very dealings his writings seek to explain. Thus, the source of the
information indicates lack of trustworthiness.” Appellant’s R.E. Tab D 59–60.
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Finally, the court reasoned that the testimony of Carr and Plaia did not sufficiently
demonstrate that Crumpler had not prepared the documents in anticipation of
criminal or civil litigation. See Appellant’s R.E. Tab D 61.
Though the district court erred in portions of its analysis, its decision to
exclude the documents from evidence was not an abuse of discretion. First,
contrary to the court’s assertion, the hearing transcript clearly demonstrates that
Mr. Plaia testified that creating and maintaining the documents in question was a
business practice of HealthSouth management and Crumpler himself. See
Appellant’s R.E. Tab D 22–23. Moreover, that Plaia could not testify to the
accuracy of the information contained within the notes is immaterial. See
Rosenberg v. Collins, 624 F.2d 659, 665 (5th Cir. 1980) (“Any person in a position
to attest to the authenticity of certain records is competent to lay the foundation for
the admissibility of the records; he need not have been the preparer of the record,
nor must he personally attest to the accuracy of the information contained in the
records.”). However, while it is generally understood that “[t]he bare fact that the
man who supervised the making of the records relies on them is no bar to their
admission into evidence” as business records, the circumstances of this case
arguably warranted departure from this stance. Lind v. Schenley Indus., Inc., 278
F.2d 79, 88 (3d Cir. 1960). Neither Plaia nor Carr could
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testify about the initial link in the chain producing the record[s] – that
is, whether the circumstances surrounding the origination and
compilation of the documents indicate reliability and trustworthiness.
In this case, such testimony is particularly necessary because this case
revolves around allegations of fraudulent transactions involving
financial documents drafted by the very parties who created the
documents the defendant now seeks to introduce . . . .
Petrie, 302 F.3d at 1288 (quotations & citations omitted); see also United States v.
N.Y. Foreign Trade Zone Operators, Inc., 304 F.2d 792, 797 (2d Cir. 1962) (citing
Palmer v. Hoffman, 318 U.S. 109, 113, 114, 63 S. Ct. 477, 480, 481 (1943)). The
lower court was not clearly erroneous in finding that Crumpler did not satisfy the
trustworthiness element of the business records exception and, therefore, could not
submit the notes into evidence.
Furthermore, even if the district court erred, the exclusion of the documents
would have constituted harmless error. An examination of the record demonstrates
that most of the content in the documents that Crumpler deemed crucial to his
defense entered the record through the confirmation letters, his responses to those
letters, and the testimony of Daryl Brown. See, e.g., Trial Tr. (“Tr.”) vol. 15,
66–73, 82, Nov. 15, 2005; Tr. vol. 16, 5–9, 15, 44–45, 47–48, Nov. 16, 2005.
Their exclusion therefore minimally prejudiced Defendant-Appellant’s case, if at
all. In addition, the testimony of Emery Harris, Bill Owens, Weston Smith, and
Kenneth Livesay proved so incriminating that admission of the notes into evidence
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would not have had a discernable impact on the trial’s outcome. See, e.g., Trial Tr.
vol. 11, 86, 88, 149, 168, Nov. 8, 2005; Tr. vol. 14, 16–17, Nov. 14, 2005; Tr. vol.
12, 60–65, Nov. 9, 2005; see also Tr. vol. 11, 153–55. The district court’s decision
not to allow Crumpler’s notes into evidence is affirmed.
III. The Questioning of Witnesses at Trial
Defendant-Appellant also objects to the district court’s imposition and
enforcement of general restrictions on the questioning of witnesses. More
specifically, according to Crumpler, the district court violated the Confrontation
Clause when it refused to allow him to ask Bill Owens, one of the government’s
key witnesses, whether in prior judicial proceedings he asserted that he believed
himself to be the smartest man in the world.
The Sixth Amendment guarantees a criminal defendant the right “‘to be
confronted with the witnesses against him’” – a right which includes “the right to
conduct reasonable cross-examination.” Olden v. Kentucky, 488 U.S. 227, 231,
109 S. Ct. 480, 482–83 (1988) (per curium) (quoting U.S. Const. amend. VI.);
accord United States v. Arias-Izquierdo, 449 F.3d 1168, 1178 (11th Cir. 2006),
cert. denied, 127 S. Ct. 521 (2006); 127 S. Ct. 996 (2007); 127 S. Ct. 1001 (2007);
127 S. Ct. 1041 (2007). In practice, this guarantee means that “the cross-examiner
has traditionally been allowed to impeach . . . the witness,” since “the exposure of a
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witness’ motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.” Olden, 488 U.S. at 231, 109
S. Ct. at 483 (quotations & citation omitted); see Arias-Izquierdo, 449 F.3d at 1178
(“[T]he Confrontation Clause requires a defendant to have some opportunity to
show bias on the part of a prosecution witness.”). Accordingly, “[a] defendant’s
confrontation rights are satisfied when the cross-examination permitted exposes the
jury to facts sufficient to evaluate the credibility of the witness and enables defense
counsel to establish a record from which he properly can argue why the witness is
less than reliable.” Arias-Izquierdo, 449 F.3d at 1178 (quotations & citation
omitted). Nevertheless, “[t]rial judges retain wide latitude to impose reasonable
limits on cross-examination based on concerns about, among other things,
confusion of the issues or interrogation that is repetitive or only marginally
relevant.” Id. (quotations & citation omitted) (brackets in original); accord Olden,
488 U.S. at 231, 109 S. Ct. at 483.
If the trial court violated the defendant’s right to impeach a witness, this
Court must determine
“whether, assuming that the damaging potential of the cross-
examination were fully realized, a reviewing court might nonetheless
say that the error was harmless beyond a reasonable doubt. Whether
such an error is harmless in a particular case depends upon a host of
factors, all readily accessible to the reviewing courts. These factors
include the importance of the witness’ testimony in the prosecution’s
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case, whether the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the prosecution’s
case.”
Olden, 488 U.S. at 232–33, 109 S. Ct. at 483–84 (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986)) (emphasis added); see
United States v. Mills, 138 F.3d 928, 938 (11th Cir. 1998) (“[T]he ‘harmless
beyond a reasonable doubt standard’ already respects the constitutional origin of
the right and elevates it over mere statutory or evidence-rule rights.”); Wasko v.
Singletary, 966 F.2d 1377, 1383 (11th Cir. 1992).
A. The General Guidelines for Questioning Witnesses
Near the commencement of the trial, the district court distributed to parties’
counsel a handout with instructions on how to question witnesses throughout the
trial. It read:
1. Except when the last sentence of Rule 611(c) is clearly applicable,
do not lead on direct. Ask questions in a fashion which does not
suggest the answer.
2. On cross-examination, leading questions should be succinct and not
loaded or long, rambling statements. The evidence should not be
recounted. The question should be a question within itself. Do not
make a long, rambling, compound statement and then say
“Did you?”
“Isn’t that true?”
“Have you?”
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“Do you agree?”
“Correct?” etc.
Do not argue.
Again, with emphasis:
1. Do not lead on direct.
2. On cross, do not lead, ramble, or make long, rambling compound
statements followed by:
“Isn’t it true,” “correct,” “do you agree,” etc. or other second
questions.
Ask succinct, one sentence questions, even when leading.
To do the contrary[] leads to excessive delays. Repeated violations
will result in sanctions. Interim violations may result in open court
corrections.
Do not make argumentative asides or engage in repartee with
opposing counsel.
Appellee’s Br. 34; see Appellant’s Br. 40 n.14. The district court issued these
instructions to facilitate the flow of the trial and to avoid unnecessary delays or
confusion, and they appear well-tailored to achieve this purpose. None of the
listed interrogatory prohibitions inhibited Crumpler from effectively cross-
examining the government’s witnesses. See, e.g., Tr. vol. 11, 7–8, 10–11, 14–18;
12
Tr. vol. 12, 21–22, 27–28, 34, 43, 55–57, 70–72; Tr. vol. 13, 123–25, 134–35,
138–40, Nov. 10, 2005. The instructions consequently do not fall afoul of the
Sixth Amendment.
B. The Smartest Man in the World
Similarly, no Sixth Amendment violation occurred when the district court
refused to allow Crumpler to ask Bill Owens whether he previously stated that he
was the “smartest man on earth.” Crumpler insists that only this line of
questioning could have lead the jury to doubt the veracity of Owens’ testimony,
specifically (1) Owens’ frequent inability to recall facts about which he previously
testified, (2) his last-minute recollection of an incriminating conversation with
Crumpler that he claims he had despite never mentioning it in any previous
interview or investigation, and (3) his supposed inability to understand how to
discuss fraudulent activities with Crumpler while wearing a body recorder.
The court correctly held that the proposed line of questioning lacked
relevance and, even if it were relevant, was unduly prejudicial to the government.
As Crumpler himself concedes, he managed to have Owens testify that he would
be sentenced for his convictions three weeks after he appeared in Crumpler’s trial.
See Appellant’s Br. 42–43. Though Owens claimed that this timing had no effect
on his behavior, the jury easily could have concluded that Owens had motivation to
13
give false testimony against Crumpler in return for a possibly lighter sentence. See
United States v. Lankford, 955 F.2d 1545, 1548 (11th Cir. 1992) (“The importance
of . . . cross-examination does not depend upon whether or not some deal in fact
exists between the witness and the government. What counts is whether the
witness may be shading his testimony in an effort to please the prosecution.”)
(citation omitted). Furthermore, a jury would not have missed the striking contrast
between Owens’ repeated forgetfulness and his wondrous recollection of a never-
before-mentioned incriminating conversation. Crumpler could have – and indeed
appears to have – exposed Owens’ duplicitous motivations for providing testimony
without depending on the fact that Owens once fancied himself the “smartest man
in the world” be revealed in open court. See, e.g., Tr. vol. 13, 123–25, 134–35,
138–40. Compare Tr. vol. 13, 123 (“A [Owens:] I don’t know what a perjury
conviction is.”), with 134 (“Q [Counsel:] But you drew the line at perjury? A
[Owens:] I did.”) and 135 (“A [Owens:] I came to the conclusion that to keep the
house of cards together, I would have to commit perjury. And that was a line that I
was not willing to cross.”). See United States v. King, 713 F.2d 627, 630 (11th Cir.
1983) (holding that limitation on scope and breadth of cross-examination did not
significantly curtail effectiveness of witness’ cross-examination because cross-
examination was lengthy and extensive). Not only was Crumpler’s proposed line
14
of questioning irrelevant to his defense, see Petrie, 302 F.3d at 1287; Wasko, 966
F.2d at 1381 (“[T]he sixth amendment only protects cross-examination that is
relevant . . . .”), but exposing Owens’ hubris probably would have compelled the
jury to disregard Owens’ testimony not because of its internal inconsistencies, but
because of Owens’ unflattering personality. See King, 713 F.2d at 631 (noting that
Fed. R. Evid. 403 “permits the trial court to exclude evidence otherwise admissible
because the ‘probative value’ of that evidence ‘is substantially outweighed by the
danger of unfair prejudice.’ . . . . The major function of Rule 403 is limited to
excluding matter of scant or cumulative probative force, dragged in by the heels for
the sake of its prejudicial effect.”) (quotations omitted). See generally Hands, 184
F.3d at 1326–29. The district court did not err by prohibiting Crumpler from
asking Owens whether he styled himself the “smartest man on earth.”
IV. The Use & Application of the Civil Asset Forfeiture Reform Act
Crumpler asserts that the application of CAFRA to the conspiracy proceeds
that he obtained before the effective date of the Act violated the Ex Post Facto
Clause. Even if the Court finds no violation, he contests the jury’s verdict of
forfeiture based upon his stock options, which set their fair market value at the
stock price when he exercised his options rather than when he sold the stock.
15
The application of a forfeiture statute, in this case 18 U.S.C. § 981(a)(1)(C),
and whether it violates the Ex Post Facto Clause is a question of law, and the court
therefore reviews the findings of the district court de novo. See United States v.
Hersh, 297 F.3d 1233, 1244 (11th Cir. 2002). The Ex Post Facto Clause “prohibits
the enactment of statutes that punish as a crime an act previously committed which
was innocent when done.” Id. “[W]hen a defendant is charged with a conspiracy
that continues after the effective date of the statute,” however, no violation occurs.
Id.
The jury in the trial court convicted Crumpler of such a “straddling”
conspiracy. Although the conspiracy began prior to the August 23, 2000, date
upon which CAFRA became effective, it continued beyond that date through
March 2002, rendering all proceeds that Crumpler acquired due to the conspiracy
– specifically the stock options that he exercised in 1997 and the bonuses that he
received from 1996 through May 2000 – subject to the forfeiture statute. The
district court’s application of CAFRA to these proceeds thus did not violate the Ex
Post Facto Clause.
Crumpler further argues that the court improperly valued the proceeds of the
stock he fraudulently acquired by treating the date that he exercised his stock
options as dispositive. He avers that the district court should have valued the stock
16
at the time he sold it because prior to that event, the stock’s value merely
constituted unrealized gains. See Appellant’s Br. 49. Crumpler’s argument,
however, has no basis in statutory or case law; rather, it appears to derive from
capital gains taxation accounting practices. As demonstrated by the statute itself,
“[a]ny property, real or personal, which constitutes or is derived from proceeds
traceable to . . . a conspiracy to commit such an offense” is subject to forfeiture.
18 U.S.C. § 981(a)(1)(C) (emphasis added). Congress did not limit the statute’s
reach to liquid assets or cash. Accordingly, Crumpler need not have sold his stock
to render the proceeds subject to forfeiture. See 28 U.S.C. § 2461(c) (ordering
forfeiture under CAFRA to be exercised as described under 18 U.S.C. § 3554); 18
U.S.C. § 3554 (ordering forfeiture under section to occur in accordance with 18
U.S.C. § 1963); 18 U.S.C. § 1963 (RICO forfeiture statute); United States v.
Conner, 752 F.2d 566, 575 (11th Cir. 1985) (stating that “[e]very property interest,
including a right to profits or proceeds[,] may be described as an interest in
something” when applying RICO forfeiture statute) (emphasis added), 576 (“Since
the forfeiture is in personam, it follows the defendant as a part of the penalty and
thus it does not require that the government trace it . . . . It matters not that the
government received the identical money which the defendants received as long as
the amount that was received . . . is known.”); United States v. Simmons, 154 F.3d
17
765, 770 (8th Cir. 1998) (noting that under 18 U.S.C. § 1963, “[d]efendants . . .
must forfeit any property constituting, or derived from, any proceeds which the
person obtained”) (defining “proceeds” under RICO forfeiture statute as meaning
“gross receipts of the illegal activity”). Moreover, it would be absurd to permit a
criminal to mitigate the value of property that he must forfeit by squandering or
poorly investing the illegally acquired proceeds, which Crumpler’s argument
essentially proposes. The district court applied the forfeiture statute appropriately,
and its holding is affirmed.
V. Conclusion
After review and oral argument, and for the reasons outlined above, we
affirm the actions of the district court on all matters contested by Defendant-
Appellant.
AFFIRMED.
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