United States v. Drury

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________
.
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-12924 January 18, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00028-CR-01-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARL M. DRURY, JR., M.D.,
Doctor,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
_________________________

(January 18, 2005)

Before BARKETT, MARCUS and ALARCÓN*, Circuit Judges.

MARCUS, Circuit Judge:

*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
 This case comes before us for a second time after this Court, sitting en banc,

vacated an earlier opinion of this panel, United States v. Drury, 344 F.3d 1089

(11th Cir. 2003), and granted rehearing en banc, see United States v. Drury, 358

F.3d 1280 (11th Cir. 2004), and then subsequently vacated the grant of en banc

rehearing in light of a congressional amendment to the statute at issue in the case,

remanding the matter to this panel for further consideration. See United States v.

Drury, ___ F.3d ___ (11th Cir. 2004).

Drury appeals his convictions for violating the federal murder-for-hire

statute, 18 U.S.C. § 1958, and for possessing a firearm in connection with a crime

of violence, in violation of 18 U.S.C. § 924(c). Drury contends that the

jurisdictional element of § 1958(a) is properly interpreted as requiring the

government to prove that he used the telephone in interstate commerce to commit

murder-for-hire, and that it failed to do so at trial. In addition, Drury argues that

the trial court committed reversible error by (1) instructing the jury that a pay

phone or a cellular phone is a “facility in interstate commerce” as a matter of law;

(2) denying him the opportunity to introduce evidence of his character for

truthfulness; (3) excluding testimony from his son regarding a prior consistent

statement Drury allegedly made after his arrest; and (4) declining to give two jury

instructions he requested.

2
 After thorough review, we conclude that the evidence presented was

sufficient to establish the jurisdictional element of § 1958(a) under any reading of

that provision and, therefore, we need not determine whether Drury’s

interpretation is correct. Moreover, we hold that the district court committed no

reversible error as to its evidentiary rulings or its jury instructions. Accordingly,

we AFFIRM.

I.

A.

Dr. Drury’s scheme to procure the murder of his wife, Mary Drury, was

apparently set into motion when Drury invited his friend Steven Whatley to stay in

his home after Whatley separated from his wife in March 2001. Whatley, an

Agent of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) in Brunswick,

Georgia, resided with Drury intermittently for several months. During this time,

Drury complained bitterly and frequently about his wife, telling Whatley that he

needed “some relief” from her, and that “she needed to go.” Drury eventually

made his purpose clear, telling Whatley that “Mary has got to die” and “Mary has

got to go,” and insisting that “it had to look like an accident.” Ultimately, Drury

asked Whatley if he would kill Mary Drury or find someone else to do so.

3
 Whatley reported this conversation to his supervisor at the Federal Law

Enforcement Training Center, who put Whatley in touch with ATF Agents John

Limbach and Louis Valoze. The agents provided Whatley with Valoze’s

undercover cellular telephone number, and instructed him to give Drury the

number if he approached Whatley again about murdering his wife. When Drury

did so, Whatley gave him Agent Valoze’s phone number, with its local South

Georgia area code.

Drury placed a total of four calls to Agent Valoze’s cellular phone. All four

were made from pay phones in Brunswick, Georgia, and both Drury and Valoze

were physically located within the state of Georgia at all times during the four

telephone conversations. Drury first called Agent Valoze on August 7, 2001, and

arranged to meet him at a local restaurant the next day. At that meeting, Drury

formulated a plan with Valoze to procure the murder of Mary Drury. Valoze told

Drury that he required a gun and a fee of $2,000. Drury provided Valoze with

detailed information about his wife and her habits, including her place of

employment, her work schedule, and the type of car she drove. Drury stressed that

“[i]t just needs to be an accident.” He told Valoze that he would call him again in

a few days.

4
 Drury placed his second call to Valoze’s cellular phone on August 9, 2001.

During this conversation, Drury provided Valoze with Mary Drury’s license plate

number. Drury also negotiated the fee for the murder down to $750.

On August 15, 2001, Drury placed a third call to Agent Valoze’s cellular

phone. He arranged to meet Valoze at 9:00 p.m. on August 20, 2001, outside a

restaurant in Darien, Georgia. At that meeting, Drury provided Valoze with an

unloaded .38 caliber handgun and -- after further negotiating the fee -- $250 as

payment for the murder. Drury told Valoze that he wanted to wait to see if his

wife would sign their divorce papers, and if so, he wanted Valoze only “to follow

her” to find out whether she was seeing another man. If she refused to sign the

papers, Drury said, “we’ll go ahead.” Drury and the putative hit-man agreed to

speak again at the end of the week.

Drury place his fourth and final call to Agent Valoze’s cellular phone on

August 24, 2001. During this call, Drury informed Valoze that his wife had not

signed the papers, and that Valoze should proceed with the murder as planned.

Drury advised Valoze that his wife was driving back from her sister’s home in

northern Georgia, and that he “could . . . catch her on the way back, it’ll be a good,

good time.” Drury told Valoze, “you the man,” to which Valoze responded, “all

5
right Doc I’m gonna do this thing.” Following this final conversation, ATF agents

arrested Drury.

At Drury’s trial, the government introduced evidence regarding the paths

traveled by the telephone signals that facilitated the calls between Drury and

Agent Valoze. A representative of BellSouth Telecommunications, the company

that serviced the pay phones Drury used to contact Valoze, testified that all calls

from the telephones Drury used are routed to a switching center in Brunswick,

Georgia, from where they are routed to their intended destination, whether local,

interstate, or international. The signal from a purely local call would not leave

Georgia, but in the case of a call to a cellular phone, it might. A representative of

VoiceStream Wireless, the company that serviced Agent Valoze’s cellular phone,

then testified that Drury’s calls to Valoze’s phone all traveled through a

VoiceStream switching center in Jacksonville, Florida, before being routed back to

Agent Valoze’s cellular phone in Georgia.

Drury’s basic defense at trial was that the whole murder-for-hire scheme

was merely an ATF role-playing exercise. He testified that he never spoke to

Whatley about killing his wife, but merely about his concern that she was having

an affair and his desire to hire a private investigator. Drury claimed that Whatley

then informed him that Drury could participate in an ATF training program,

6
whereby he would pretend to seek a murder-for-hire, and ATF agents would place

Mary Drury under surveillance and provide Drury with a detailed written report of

their findings. Drury denied ever actually intending to have his wife killed, and

stated that his $250 payment to Agent Valoze was simply reimbursement for the

surveillance.

To support his role-playing explanation, Drury noted that the purported

“trigger” for proceeding with the murder of Mary Drury -- her refusal to sign

divorce papers -- was, in fact, a falsification; the couple had no plans to divorce.

Mrs. Drury’s testimony at trial corroborated her husband’s claim that the couple

had never discussed divorce. Whatley, in his trial testimony, denied ever

discussing or engaging in role play with Drury. Drury, in turn, called two

character witnesses, Ted Turner and Joseph Bridgers, who attested to Whatley’s

reputation for untruthfulness.

Drury also attempted to introduce his son Don’s testimony that Drury had

told him about the role-playing exercise while sitting in a police vehicle shortly

after his arrest. The government objected, arguing that the testimony was

inadmissible because Drury had a motive to fabricate the story after his arrest,

since he had not told anyone about the role play beforehand. The district court

excluded Don’s testimony.

7
 Drury also sought to introduce testimony about his character for

truthfulness, under Federal Rule of Evidence 608. The government objected,

arguing that Rule 608 was inapplicable since it had questioned only Drury’s

credibility generally, not his character for truthfulness. The district court ruled the

testimony inadmissible.

In addition, Drury submitted, prior to trial, two proposed jury instructions --

one pertaining to the reliability of government investigations, and the other to

witness’ reputations for truthfulness. The trial court gave neither of the requested

instructions. However, the trial court provided the jury with its own instructions

on witness credibility, both before and after trial. The trial court also instructed

the jury that “pay phones and cellular phones are ‘facilities in interstate commerce’

under federal law.” Drury objected to this charge and to the district court’s refusal

to give his requested instructions.

B.

A jury convicted Drury of plotting a murder-for-hire in violation of Title 18

U.S.C. § 1958, and of the related offense of possessing a firearm in connection

with a crime of violence, in violation of 18 U.S.C. § 924(c). At the time of

Drury’s conviction, § 1958 provided:

8
 § 1958. Use of interstate commerce facilities in the
commission of murder-for-hire

(a) Whoever travels in or causes another (including the
intended victim) to travel in interstate or foreign commerce, or uses or
causes another (including the intended victim) to use the mail or any
facility in interstate or foreign commerce, with intent that a murder be
committed in violation of the laws of any State or the United States as
consideration for the receipt of, or as consideration for a promise or
agreement to pay, anything of pecuniary value, or who conspires to
do so, shall be fined under this title or imprisoned for not more than
ten years, or both; and if personal injury results, shall be fined under
this title or imprisoned for not more than twenty years, or both; and if
death results, shall be punished by death or life imprisonment, or shall
be fined not more than $250,000, or both.

(b) As used in this section and section 1959--

(1) “anything of pecuniary value” means anything of value in
the form of money, a negotiable instrument, a commercial interest, or
anything else the primary significance of which is economic
advantage;

(2) “facility of interstate commerce” includes means of
transportation and communication; and

(3) “State” includes a State of the United States, the District of
Columbia, and any commonwealth, territory, or possession of the
United States.

18 U.S.C. § 1958 (2000).1

1
Section 1958 was originally enacted as part of the Interstate Travel in Aid of Racketeering
Statute (“Travel Act”), codified at Title 18 U.S.C. § 1952. The Travel Act, in its original form,
established federal jurisdiction over organized crime and racketeering offenses having a nexus with
interstate commerce, but did not specifically include murder-for-hire within its scope.

The original Travel Act, entitled “Interstate and foreign travel or transportation in aid of

9
 The district court sentenced Drury to 204 months’ imprisonment. He timely

appealed to this Court.

racketeering offenses,” established penalties for anyone who “travels in interstate or foreign
commerce or uses any facility or foreign commerce, including the mail, with intent to (1) distribute
the proceeds of any unlawful in interstate activity; or (2) commit any crime of violence to further any
unlawful activity.” 18 U.S.C. § 1952(a) (1961). The statute provided that “[a]s used in this section
‘unlawful activity’ means (1) any business enterprise involving gambling, liquor on which the
Federal excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of
the State in which they are committed or of the United States, or (2) extortion or bribery in violation
of the laws of the State in which committed or of the United States.” Id. § 1952(b).

In 1984, as part of the Comprehensive Crime Control Act, Congress amended the Travel Act
to include the offense of murder-for-hire. Congress added to the statute § 1952A, whose language
was nearly identical to that of the current § 1958.

Section 1952A, as originally enacted, provided:

(a) Whoever travels in or causes another (including the intended victim) to travel in
interstate or foreign commerce, or uses or causes another
(including the intended victim) to use the mail or any facility in interstate or foreign
commerce, with intent that a murder be committed in violation of the laws of any
State or the United States as consideration for the receipt of, or as consideration for
a promise or agreement to pay, anything of pecuniary value, shall be fined . . . .

(b) As used in this section and section 1952B

(1) “anything of pecuniary value” means anything of value in the form of money, a
negotiable instrument, a commercial interest, or anything else the primary
significance of which is economic advantage; and

(2) “facility of interstate commerce” includes means of transportation and
communication.

18 U.S.C. § 1952A (1984).

Several years later, as part of the Anti-Drug Abuse Act of 1988, Congress removed § 1952A
from the Travel Act, reenacting it in virtually identical terms as a separate statute, 18 U.S.C. § 1958.
Since 1988, Congress has made several slight modifications to § 1958, but the statute before the
Court today is substantively the same as the one Congress originally appended to the Travel Act in
1984 and recast in 1988 as § 1958.

10
 C.

This panel initially affirmed Drury’s convictions. United States v. Drury,

344 F.3d 1089 (11th Cir. 2003). By a divided vote, the panel held that § 1958(a)

creates federal jurisdiction only when a murder-for-hire scheme uses in interstate

commerce a facility such as the telephone. Id. at 1104. Accordingly, the panel

concluded that the district court erred in instructing the jury that pay phones and

cellular phones are per se facilities in interstate commerce, but it found this error

to be harmless, in light of the evidence that the cellular phone signal actually

traveled from Georgia into Florida, before bouncing back into Georgia, each time

Drury called Agent Valoze. Id. at 1106. The interstate path of the phone signals,

the panel held, constituted sufficient evidence to satisfy § 1958(a)’s jurisdictional

nexus, and thus to support Drury’s conviction. Id. at 1104-05. The panel also

unanimously held that the district court committed no reversible error in

prohibiting Drury from introducing evidence of his character for truthfulness, id.

at 1110; in refusing to admit testimony from Drury’s son regarding a prior

consistent statement made by Drury after his arrest, id. at 1108-09; or in denying

Drury’s request for certain jury instructions regarding witness credibility and law

enforcement investigative techniques, id. at 1109-10.

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 On February 3, 2004, this Court vacated the panel opinion and directed that

the case be heard en banc. United States v. Drury, 358 F.3d 1280 (11th Cir. 2004)

(en banc). We granted rehearing en banc to consider the important question of

whether a purely intrastate use of a facility of interstate commerce (the

telehphone) satisfies the jurisdictional requirement of § 1958(a).

Notably, after the grant of en banc rehearing, Congress amended § 1958 to

resolve precisely that question, which had been the subject of some interpretive

disagreement among the courts of appeals. The Sixth Circuit, in United States v.

Weathers, 169 F.3d 336 (6th Cir. 1999), interpreted the phrase “[w]hoever . . . uses

. . . any facility in interstate . . . commerce” as requiring that the relevant facility

actually be used in interstate commerce.2 In contrast, the Fifth Circuit, in United

States v. Marek, 238 F.3d 310 (5th Cir. 2001), interpreted that language as

covering any use -- intra- or interstate -- of an interstate commerce facility. The

Seventh Circuit, in United States v. Richeson, 338 F.3d 653 (7th Cir. 2003),

similarly read § 1958's jurisdictional language as “requir[ing] that the facility, and

not its use, be in interstate or foreign commerce.” Id. at 660.

2
It bears noting, however, that the Sixth Circuit subsequently disavowed the reasoning of
Weathers and limited its holding to the facts of that case, adopting instead the Fifth Circuit’s
construction of the statute in Marek. See United States v. Cope, 312 F.3d 757, 771 (6th Cir. 2002).

12
 The principal source of the courts’ interpretive difficulty with § 1958

seemed to be the mismatch between the jurisdictional section’s use of the phrase

“facility in interstate . . . commerce,” see § 1958(a), and the definitional section’s

use of the similar but not identical phrase “facility of interstate commerce,” see §

1958(b)(2) (providing that “‘facility of interstate commerce’ includes means of

transportation and communication”), coupled with the possibility of reading “in

interstate . . . commerce” as modifying the immediately preceding noun “facility”

or the more remote verb “uses.” See, e.g., Weathers, 169 F.3d at 340; Marek, 238

F.3d at 313.

In the time since these cases were decided, and since this panel issued its

original opinion in this case, Congress has amended § 1958 to eliminate precisely

these problems, making the statute’s jurisdictional reach crystal clear. As part of

the Intelligence Reform and Terrorism Prevention Act of 2004, which passed the

House of Representatives December 7 and the Senate December 8, and was signed

into law by the President on December 17, Congress amended 18 U.S.C. § 1958 to

change the phrase “facility in” to “facility of.” The amendment provides:

Section 1958 of title 18, United States Code, is amended--

(1) in subsection (a), by striking “facility in” and inserting
“facility of”; and

13
 (2) in subsection (b)(2), by inserting “or foreign” after
“interstate”.

Intelligence Reform and Terrorism Prevention Act of 2004, § 6704, Pub. L. No.

108-458, 118 Stat. 3638.

Thus, the new version of § 1958 reads, “Whoever . . . uses . . . any facility of

interstate or foreign commerce . . . .” This amendment makes absolutely clear that

§ 1958 establishes federal jurisdiction whenever any “facility of interstate

commerce” is used in the commission of a murder-for-hire offense, regardless of

whether the use is interstate in nature (i.e. the telephone call was between states)

or purely intrastate in nature (i.e. the telephone call was made to another telephone

within the same state).

Because this amendment obviates for all future convictions under § 1958

the precise question of statutory construction that we granted rehearing en banc to

resolve, we determined that the case no longer merited en banc consideration. The

full Court thus vacated the order granting rehearing en banc, and referred the case

back to this panel for further consideration. United States v. Drury, ___ F.3d ____

(11th Cir. 2004).

The opinion we issue today addresses Drury’s challenges to his conviction

under the previous version of § 1958 without resolving any broader question of

14
statutory construction, since Drury’s own conviction stands under either of the

competing interpretations of § 1958(a). On reconsideration, we once again find

that the uncontroverted evidence that Drury, in arranging for the murder of his

wife, used a telephone on four separate occasions to place calls that actually

crossed an interstate border, is sufficient to support his conviction regardless of

how we read § 1958(a)’s jurisdictional language. In addition, we again conclude

that the district court committed no reversible error in its evidentiary rulings or its

instructions to the jury. We therefore AFFIRM Drury’s convictions.

II.

A.

Drury first argues that the government offered insufficient evidence at trial

to establish the he used a facility in interstate commerce, as he alleges is required

by § 1958(a). Drury does not dispute the government’s expert testimony that each

of the four calls he placed to Agent Valoze’s cellular phone was routed from

Georgia through VoiceStream’s Jacksonville, Florida switching center, and then

15
back into Georgia,3 but he nevertheless contends that these interstate contacts do

not satisfy § 1958(a)’s jurisdictional requirement.

The government argues that § 1958(a) requires only proof that Drury used a

facility that, based on its interstate capabilities rather than actual interstate use,

qualifies inherently as a “facility in interstate commerce.” Alternatively, the

government contends that even if the statute requires that a facility actually be

used in interstate commerce, the routing of Drury’s calls from Georgia through

Florida fully satisfies this requirement.

Whether there is sufficient evidence to support a conviction is a question of

law, which we review de novo. United States v. Tarkoff, 242 F.3d 991, 993 (11th

Cir. 2001). “We will affirm a jury’s verdict if a reasonable trier of fact could

conclude that the evidence establishes guilt beyond a reasonable doubt. In

determining a sufficiency of the evidence claim, we view the evidence in the light

most favorable to the government, with all reasonable inferences and credibility

choices made in the government’s favor.” United States v. Miles, 290 F.3d 1341,

1355 (11th Cir. 2002) (citation omitted).

3
Drury does, however, mistakenly refer to the telephone signal as a radio signal. This is
incorrect. Prior to reaching the cellular tower closest to the target user’s cellular phone, a telephone
signal sent from a land line travels entirely through terrestrial means. It is only after that call has
been switched by the cellular provider to the cellular tower closest to the target subscriber that the
signal passes via radio signals.

16
 In evaluating Drury’s sufficiency of the evidence claim, we do not decide

whether § 1958(a) actually requires that a facility be used in interstate commerce,

since it suffices here to observe that uncontroverted evidence establishes that the

relevant facility (the telephone) was so used. Drury argues that the interstate

routing of the four telephone calls he placed from Georgia pay phones to Agent

Valoze’s Georgia cellular phone is inadequate to establish that he used the

telephone in interstate commerce, since a “signal sent unintentionally and

inadvertently across state lines” is a “tenuous and insufficient” contact. This

argument is unpersuasive.

Drury points to nothing in the statute, and we can find nothing that suggests

the telephone’s use in interstate commerce must be knowing or intentional. We

see no reason that unintentional use in interstate commerce would not qualify as

use in interstate commerce, and this Circuit’s precedent suggests that there is none.

In United States v. Davila, 592 F.2d 1261 (5th Cir. 1979),4 the former Fifth Circuit

held that the “purely incidental” interstate routing of a Western Union wire

transfer satisfied the interstate commerce requirement of the federal wire fraud

statute, 18 U.S.C. § 1843. In Davila, funds transferred between two banks located

4
The Eleventh Circuit has adopted as precedent the decisions of the former Fifth Circuit
rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

17
in the state of Texas were, unbeknownst to the defendant, routed through the state

of Virginia. In spite of the fact that the interstate routing was wholly incidental to

the wire fraud offenses with which the defendant was charged, the Court rejected

the defendant’s argument that the interstate nexus was “too minimal and

incidental” to satisfy the statute’s jurisdictional element, reasoning that the wire

transfers “were essential” to carrying out the offenses charged, “and they went of

necessity on interstate facilities.” Id. at 1264.

The interstate routing of Drury’s willful calls to Agent Valoze was similarly

necessary for their completion, and the calls themselves were essential in

facilitating the murder-for-hire plot. The calls were not accidentally or

incidentally placed, but rather were made knowingly to further a scheme to

commit murder-for-hire. Accordingly, whether Drury knew or intended that they

would travel across state lines is immaterial. This situation is no different than if

Agent Valoze had himself been located in Florida when he received Drury’s calls

to his cellular phone -- Drury might not have had any intention of placing an out-

of-state call, but undoubtedly he would have done so.

That Drury did in fact use the telephone in interstate commerce to facilitate

murder-for-hire fully establishes the jurisdictional element of § 1958(a). We,

therefore, conclude that the government presented sufficient evidence at trial for a

18
reasonable jury to have “found the essential elements of the crime beyond a

reasonable doubt,” Tarkoff, 242 F.3d at 993, and we reject Drury’s sufficiency of

the evidence claim.

B.

Drury next argues that, regardless of whether the government presented

sufficient evidence to establish the requisite jurisdictional nexus, the district court

erred in instructing the jury that “pay telephones and cellular telephones are

‘facilities in interstate commerce’ under federal law.” This instruction, Drury

contends, violated his right to have a jury decide whether he “is guilty of every

element of the crime with which he is charged, beyond a reasonable doubt,”

United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444

(1995) (citation omitted), by removing from the jury’s consideration an essential

element of a § 1958 violation: the interstate nexus.

The propriety of the trial court’s jury instruction is a question of law, which

we review de novo. United States v. Leonard, 138 F.3d 906, 908 (11th Cir. 1998).

The jurisdictional requirement of § 1958(a) is a substantive element of the

offense of murder-for-hire. See United States v. Tinoco, 304 F.3d 1088, 1105

(11th Cir. 2002) (observing that the identically worded jurisdictional requirement

of § 1958's predecessor statute, the Travel Act, “is a substantive element of Travel

19
Act offenses that must be decided by a jury”). Drury, therefore, has a

constitutional right to have a jury determine whether the requirement is satisfied.

See Gaudin, 515 U.S. at 522-23 (“The Constitution gives a criminal defendant the

right to have a jury determine, beyond a reasonable doubt, his guilt of every

element of the crime with which he is charged.”); id. at 513 (observing that there

is a “historical and constitutionally guaranteed right of criminal defendants to

demand that the jury decide guilt or innocence on every issue, which includes

application of the law to the facts”).

However, we need not decide whether the trial judge’s instruction that

telephones are “facilities in interstate commerce” violated Drury’s right to a jury

determination of every element of the charged offense, since the instructions are

subject to harmless error review. As the Supreme Court observed in Chapman v.

California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), “there may be

some constitutional errors which in the setting of a particular case are so

unimportant and insignificant that they may, consistent with the Federal

Constitution, be deemed harmless, not requiring the automatic reversal of the

conviction.” Plainly, a jury instruction that omits an element of the charged

offense -- the error Drury alleges here -- is subject to harmless error analysis. See

Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)

20
(“[A]n instruction that omits an element of the offense does not necessarily render

a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt

or innocence.”); Ross v. United States, 289 F.3d 677, 681 (11th Cir. 2002). The

appropriate inquiry is “whether it appears ‘beyond a reasonable doubt that the

error complained of did not contribute to the verdict obtained.’” Neder, 527 U.S.

at 15 (quoting Chapman, 386 U.S. at 24).

Here, it is clear beyond reasonable doubt that instructing the jury that

telephones are “facilities in commerce” did not contribute to their rendering of a

guilty verdict. At trial, the government presented clear and uncontradicted

evidence that all four telephone calls Drury placed to Agent Valoze traveled from

Georgia into Florida, and then back into Georgia. Drury did not dispute this

evidence at trial, nor does he challenge it on appeal. Since the factual foundation

for the jurisdictional component of § 1958(a) is uncontested, we cannot conclude

that Drury’s constitutional rights were impaired by the challenged jury instruction,

even if it was improperly given. We have no reasonable doubt that the jury would

have reached the same result with or without that instruction, and thus conclude

that even if the district court’s instruction on § 1958(a)’s jurisdictional element

was erroneous, any such error was harmless.

C.

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 Drury next challenges the district court’s exclusion of evidence of his

truthful character. Drury claims that the government attacked his credibility at

trial, entitling him to introduce rehabilitative evidence pursuant to Federal Rule of

Evidence 608(a)(2). Rule 608(a)(2) provides that “evidence of truthful character

is admissible only after the character of the witness for truthfulness has been

attacked by opinion or reputation evidence or otherwise.”

Drury does not suggest that the government presented any opinion or

reputation evidence about his character, but argues that his character was

“otherwise” attacked. He offers as the basis for this contention a series of

scattered questions asked by the prosecutor during cross-examination of Drury.5

Among the examples of what Drury cites as the prosecution’s “credibility-laden

questions” are these: “Are you telling us that you told an arresting officer that you

wanted to make a statement and he wouldn’t let you?”; “Are you saying that he

hushed you up?”; “Is that what you want this jury to believe?”; “You don’t think

the officer had any reason to think that you were trying to offer him a bribe?”; and

5
Drury also contends that the government displayed its intention to attack his character during
a sidebar conference with the trial judge, when the prosecutor stated: “This is not a collateral
material, he has made character an issue in his defense.” Drury takes this statement entirely out of
context. In reality, the quoted statement was referring not to Drury’s “character for truthfulness,”
but to the “character of the relationship” between himself and Whatley, as is made clear from the
prosecutor’s immediately preceding statement, that “this defendant has made it a linchpin of his
defense that his relationship with Mr. Whatley was of a particular character.”

22
“Is that what you are telling us?” Based on these and several other remarks of

similar tenor, Drury sought to introduce testimony from six witnesses prepared to

attest to his truthful character.

We review a trial court’s evidentiary rulings for a clear abuse of discretion.

Tinoco, 304 F.3d at 1119. “The application of an abuse-of-discretion review

recognizes the range of possible conclusions the trial judge may reach.” United

States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). “By definition .

. . under the abuse of discretion standard of review there will be occasions in

which we affirm the district court even though we would have gone the other way

had it been our call. That is how an abuse of discretion standard differs from a de

novo standard of review. As we have stated previously, the abuse of discretion

standard allows ‘a range of choice for the district court, so long as that choice does

not constitute a clear error of judgment.’” Id. (quoting Rasbury v. I.R.S. (In re

Rasbury), 24 F.3d 159, 168 (11th Cir. 1994) (citations and internal quotation

marks omitted); see also Kern v. TXO Prod. Corp., 738 F.2d 968, 971 (8th Cir.

1984) (“The very concept of discretion presupposes a zone of choice within which

the trial courts may go either way.”). “Thus, when employing an

abuse-of-discretion standard, we must affirm unless we find that the district court

has made a clear error of judgment, or has applied the wrong legal standard.” Id.

23
 Evidentiary errors “do not constitute grounds for reversal unless there is a

reasonable likelihood that they affected the defendant’s substantial rights; where

an error had no substantial influence on the outcome, and sufficient evidence

uninfected by error supports the verdict, reversal is not warranted.” United States

v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990). “The trial judge is given broad

discretion in ruling on the admissibility of character testimony.” United States v.

Solomon, 686 F.2d 863, 874 (11th Cir. 1982).

After careful review of the pertinent exchanges between the government’s

counsel and Drury, we conclude that the district court did not abuse its discretion

in excluding the proffered testimony. As we have previously observed, under

Federal Rule of Evidence 608(a)(2), “evidence of a witness’ truthful character is

admissible only after [his] character for truthfulness has been attacked.” United

States v. Hilton, 772 F.2d 783, 786 (11th Cir. 1985). An “attack” that consists

only of “Government counsel pointing out inconsistencies in testimony and

arguing that the accused’s testimony is not credible does not constitute an attack

on the accused’s reputation for truthfulness within the meaning of Rule 608.”

United States v. Danehy, 680 F.2d 1311, 1314 (11th Cir. 1982). However, that is

precisely the sort of “attack” Drury claims the prosecution to have launched during

its cross-examination. Because such an attack is insufficient to authorize

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rehabilitation under Rule 608, we have little trouble concluding that the district

court did not abuse its discretion in excluding Drury’s proffered reputation-for-

truthfulness testimony.

D.

Drury’s next challenge is to the trial court’s exclusion of testimony

concerning a prior consistent statement Drury allegedly made to his son, Don.

Drury’s son would have testified that Drury told him immediately after his arrest

that he had been participating in a role-playing exercise with Agent Valoze. Drury

argues that his son’s testimony was admissible on two grounds. First, he claims it

was admissible to rehabilitate his credibility, which he says the prosecution

impeached on cross-examination by insinuating that he had fabricated the role-

playing story. Specifically, Drury cites the question, “Is that where you got the

idea to claim that you believed this was all role playing?” as a prosecutorial attack

on his credibility. Second, Drury argues that his son’s testimony is admissible

under Federal Rule of Evidence 801(d)(1)(B), as a prior statement “consistent with

the declarant’s testimony and . . . offered to rebut an express or implied charge

25
against the declarant of recent fabrication or improper influence or motive.” Fed.

R. Evid. 801(d)(1)(B). Both arguments are unavailing.6

As to Drury’s first argument, we find again that his credibility was not

attacked. Drury argues that “[a] prior consistent statement may be used for

rehabilitation when the statement has a probative force bearing on credibility

beyond merely showing repetition.” United States v. Pierre, 781 F.2d 329, 333

(2d Cir. 1986). This may well be true, but it does not change the fact that Federal

Rule of Evidence 608 permits rehabilitative evidence only when a witness’s

reputation for truthfulness has actually been attacked. See Fed. R. Evid. 608(a)(2).

As we observed previously, the prosecution’s questioning the veracity of the

accused’s testimony and calling attention to inconsistencies therein does not

constitute an attack on the accused’s reputation for truthfulness permitting

rehabilitative testimony. See Danehy, 680 F.2d at 1314. Again, Drury has pointed

to nothing but a few cross-examination questions to support his claim that the

prosecution attacked his character for truthfulness.

6
Drury makes the additional claim that the trial court improperly ruled that Federal Rule of
Evidence 613 barred Don Drury’s testimony. However, Drury has taken the trial court’s reference
to Rule 613 completely out of context. Rule 613(b) governs admissibility of prior inconsistent
statements, see Fed. R. Evid. 613(b), and accordingly the trial court applied it in determining the
admissibility of alleged prior inconsistent statements by Mr. Whatley, who served as a trial witness.
The trial court did not, however, cite Rule 613 as a ground for excluding Don Drury’s testimony, and
thus we do not address Appellant Drury’s argument that the trial court erroneously applied that rule.

26
 Moreover, and perhaps more significant, prior consistent statements are

treated as admissible non-hearsay only if they are offered to rebut a specific

allegation of recent fabrication, not to rehabilitate credibility that has been

generally called into question. See Tome v. United States, 513 U.S. 150, 157, 115

S. Ct. 696, 130 L. Ed. 2d 574 (1995) (“The Rules do not accord this weighty,

nonhearsay status to all prior consistent statements. To the contrary, admissibility

under the Rules is confined to those statements offered to rebut a charge of ‘recent

fabrication or improper influence or motive’ . . . .” (quoting Fed. R. Evid.

801(d)(1)(B)). The Supreme Court has made perfectly clear that “[p]rior

consistent statements may not be admitted to counter all forms of impeachment or

to bolster the witness merely because she has been discredited.” Id. Accordingly,

the trial court did not abuse its discretion in ruling Don Drury’s testimony

inadmissible to rehabilitate Appellant Drury’s credibility.

As to Drury’s second argument, we find that the trial court committed no

abuse of discretion in declining to admit Don Drury’s testimony as a prior

consistent statement. “A district court is granted broad discretion in determining

the admissibility of a prior consistent statement under Fed. R. Evid. 801(d)(1)(B)

and will not be reversed absent a clear showing of abuse of discretion.” United

States v. Prieto, 232 F.3d 816, 819 (11th Cir. 2000). Of particular importance

27
here, “whether a witness had a motive to fabricate when a prior consistent

statement was made is a factual question properly decided by the district court and

subject to reversal only for a clear abuse of discretion.” Id. at 822.

A prior consistent statement is admissible only if it was “made before the

alleged influence, or motive to fabricate, arose.” Tome, 513 U.S. at 158. Drury,

however, claims that the district court abused its discretion by applying a

“temporal litmus test,” under which the fact that Drury’s statement to his son was

made post-arrest rendered it inadmissible, on the theory that his arrest gave Drury

a motive to fabricate. In United States v. Prieto, this Court declined to adopt a

“bright line rule that motive to fabricate necessarily and automatically attaches

upon arrest.” Prieto, 232 F.3d at 822. However, the record does not show that the

trial court applied such a rule in this case. In fact, the trial judge excluded the

statement because he found that “the conditions established by [United States v.

Tome] of admissibility of such a statement have not been established here.”

Although more specific findings on this subject would have eased our inquiry, the

record provides ample support for the trial court’s determination that Drury,

subsequent to his arrest, had motive and opportunity to fabricate the story he told

his son. Accordingly, we hold that the trial court did not abuse its discretion in

ruling the statement inadmissible.

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 E.

Drury’s final challenge is to the trial court’s refusal to give his two

requested jury instructions. The first proposed instruction, concerning government

investigations, read:

I instruct you that you may consider such evidence, including
improper investigative techniques, in evaluating the credibility of the
government witnesses. In other words, an investigation that is
thorough and conducted in good faith may lead to more credible
evidence than an investigation that is incomplete, negligent, or
conducted in bad faith. In deciding the credibility of law enforcement
witnesses, you may consider whether the investigation was conducted
according to proper protocol and was complete.

I further instruct you that if the government improperly, or
inadequately investigated one aspect of this case, you may infer that
the government inadequately, or improperly investigated other
aspects of the case, as well. Based on this inference alone, you may
disbelieve certain government witnesses.

Drury’s second proposed jury instruction was Eleventh Circuit Pattern Jury

Instruction (Criminal Cases), Basic Instruction 6.7, at 30 (West 1997), which

reads:

There may also be evidence tending to show that a witness has
a bad reputation for truthfulness in the community where the witness
resides, or has recently resided; or that others have an unfavorable
opinion of the truthfulness of the witness. You may consider those
matters also in deciding whether to believe or disbelieve such
witness.

29
 The district court did not give either instruction. Instead, as part of its

preliminary instructions prior to opening statements, the district court instructed

the jury:

[Y]ou are the only people who can determine the credibility or the
believability of the witnesses. You are the sole judges of the
credibility of the witnesses and the weight to be accorded to the
testimony and the evidence . . . . What you are going to see is that in
determining the credibility of the witnesses you will use the same
criteria that you use in your daily life. The same things that you use
to determine the credibility or the believability of the witnesses, are
exactly the same sorts of things that you use in your daily lives when
you are trying to decide whether or not you can believe somebody
about a very important matter.

At the close of trial, the judge further instructed the jury:

In deciding whether you believe or do not believe any witness, I
suggest that you ask yourself a few questions: Did the witness
impress you as one who was telling the truth? Did the witness have
any particular reason not to tell the truth? Did the witness have a
personal interest in the outcome of the case? Did the witness seem to
have a good memory? Did the witness have the opportunity and
ability to observe accurately the things he or she testified about? Did
the witness appear to understand the questions clearly and answer
them directly? Did the witness’s testimony differ from other
testimony or other evidence?

“Our review of a trial court’s jury instructions is limited; if the instructions

accurately reflect the law, the trial judge is given wide discretion as to the style

and wording employed in the instruction. Under this standard, ‘we examine

30
whether the jury charges, considered as a whole, sufficiently instructed the jury so

that the jurors understood the issues and were not misled.’” United States v.

Fulford, 267 F.3d 1241, 1245 (11th Cir. 2001) (citation omitted) (quoting Carter v.

DecisionOne Corp., 122 F.3d 997, 1005 (11th Cir. 1997) (citation and internal

quotation marks omitted)); see also United States v. Gold, 743 F.2d 800, 819 (11th

Cir. 1984) (“[T]he district court has broad discretion in formulating its charge so

long as the charge accurately reflects the law and the facts.”). “The district court’s

refusal to give the requested instruction is reversible only if (1) the instruction is

substantially correct, (2) the instruction was not addressed in the charge actually

given, and (3) the failure to give the requested instruction seriously impaired the

defendant’s ability to present an effective defense.” United States v. De La Mata,

266 F.3d 1275, 1298 (11th Cir. 2001).

We find no error in the district court’s decision not to give Drury’s

requested instructions. Drury’s proffered non-pattern jury charge was superfluous,

since the trial court’s general instructions on evaluating evidence and witness

credibility were sufficient to guide the jury in its deliberations. Accordingly, the

trial court’s failure to give Drury’s proposed instruction on the reliability of

government investigations did not seriously impair his ability to present an

effective defense, and thus we can find no abuse of discretion.

31
 Nor did the district court abuse its discretion in declining to give Eleventh

Circuit Pattern Jury Instruction 6.7. Applying the three-part reversibility analysis

outlined above, we conclude that this charge is clearly “substantially correct”

under the first prong. As to the second prong, whether the charge the trial court

gave covered the same territory as the pattern instruction Drury requested is a

closer question. The requested instruction refers specifically to a witness’

“reputation for truthfulness in the community,” whereas the one actually given

covers only witness credibility in more general terms. However, even if we found

the content of the proposed instruction inadequately addressed in the actual

instruction, satisfying the second prong of the analysis, Drury’s assignment of

error nevertheless fails under the third prong. Drury has shown no substantial

impediment to his ability to present an effective defense as a result of the trial

court’s failure to give the pattern instruction, and we perceive none.

Drury argues that he needed that instruction because Whatley, the witness

Drury characterizes as the crux of the government’s case, was shown at trial to

have a bad reputation for truthfulness in the community. Indeed, the trial court

permitted Drury to vigorously argue as much to the jury, through direct

examination of two character witnesses, cross-examination of Whatley, and

closing argument. These opportunities to impugn Whatley’s character for

32
truthfulness, coupled with the trial court’s general instructions on witness

credibility, persuade us that the trial court did not abuse its discretion in declining

to give Drury’s proposed pattern jury charge. Cf. United States v. Ryan, 289 F.3d

1339, 1345 (11th Cir. 2002) (“In light of the opportunities afforded the jury to

consider Ryan’s entrapment defense, we find that the failure to include specific

instructions on the issue did not seriously impair presentation of the defense.”);

United States v. Chirinos, 112 F.3d 1089, 1101 (11th Cir. 1997) (holding that

failure to instruct did not impair a defendant’s ability to argue that he did not

intend to steal cocaine as charged, but rather money, in light of the defendant’s

opportunities to elicit supporting testimony and to make closing arguments on the

issue).

III.

Based on the foregoing analysis, we AFFIRM Drury’s murder-for-hire

conviction under 18 U.S.C. § 1958, and his conviction for possession of a firearm

in connection with a crime of violence under 18 U.S.C. § 924(c).

AFFIRMED.

33