* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

March 1, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

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
2

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
3

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. 
4

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
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

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
3 Id. (Internal citations and quotations omitted).

6

“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 ——
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

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
7 Id. at 694.

8

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
9

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
10

mistrial entitle him to a reversal of his conviction and a new

trial. Accordingly, Craft’s conviction and sentence are, in all

respects,

AFFIRMED.