Filed: November 4, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 95-5908(L)

(CR-95-16)

United States of America,

Plaintiff - Appellee,

versus

Troy Dennis Cropp, et al,

Defendants - Appellants.

ORDER

The Court amends its opinion filed October 10, 1997, as

follows:

On the cover sheet, section 2 -- the case number of the

third case is corrected to read " 96-4105."

On page 2, section 3, line 6 -- the "on brief" section is

corrected to read: "Robert P. Crouch, Jr., United States Attorney,

Joseph R. Palmore, Third-year Law Student, University of Virginia

School of Law, Charlottesville, Virginia, for Appellee."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5908

TROY DENNIS CROPP,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5915

CLYDE GARCIA CROPP,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4105

MONTE CLAY MOSLEY,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Charlottesville.

James H. Michael, Jr., Senior District Judge.

(CR-95-16)

Argued: November 1, 1996

Decided: October 10, 1997
Before ERVIN, Circuit Judge, BOYLE, United States District

Judge for the Eastern District of North Carolina, sitting by

designation, and JACKSON, United States District Judge for the

Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Ervin wrote the opinion, in

which Judge Boyle and Judge Jackson joined.

_________________________________________________________________

COUNSEL

ARGUED: Bruce Robert Williamson, Jr., WILLIAMSON &

TOSCANO, Charlottesville, Virginia, for Appellant Clyde Cropp;

David Leonard Heilberg, Charlottesville, Virginia, for Appellant Troy

Cropp; Billy Lee Ponds, THE PONDS LAW FIRM, Washington,

D.C., for Appellant Mosley. Ray B. Fitzgerald, Jr., Assistant United

States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF:

Robert P. Crouch, Jr., United States Attorney, Joseph R. Palmore, 

Third-year Law Student, University of Virginia School of Law, 

Charlottesville, Virginia, for Appellee.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Troy Dennis Cropp (Troy Cropp), Clyde Garcia Cropp (Clyde

Cropp) and Monte Clay Mosley (Monte Mosley) challenge their criminal convictions and the sentences given them by the district court.

Troy and Clyde Cropp and Mosley jointly raise two of the issues in

this appeal, while the remaining issues are raised by only one or two

of the appellants. For the reasons hereinafter explored we affirm all

of the challenged convictions and sentences.

I

The Cropps and Mosley were charged, along with numerous others, with conspiracy to distribute crack cocaine in violation of 18

 2
U.S.C. § 841 and all three pleaded not guilty. Several of the indicted

co-conspirators cooperated with the government and testified against

the others at trial. The jury found the three appellants guilty, found

two indictees not guilty, and could not reach a verdict with respect to

two other alleged conspirators.

The conspiracy in which appellants were involved distributed crack

in the Jeffersonton area of Culpeper County, Virginia. We will only

undertake a brief and general recitation of some of the evidence introduced at trial, much of which was presented through the testimony of

cooperating coconspirators. The conspiracy began sometime before

January of 1992 and lasted until at least March 9, 1995, the date of

the indictment. In the conspiracy, sources for large quantities of crack

would, often through middlemen, provide street dealers with drugs for

distribution. This crack was then sold in an area in front of two

adjoining houses. One house was owned by Leo Mosley and the other

was owned by an elderly relative of Leo Mosley.

The evidence showed that Monte Mosley, an appellant, acquired

crack in large quantities and provided it to other members of the conspiracy in small quantities for distribution in front of the houses.

Other suppliers also provided crack for sale at that location. Troy

Cropp and Clyde Cropp were among the conspirators who sold crack

in small quantities to motorists who drove by the houses.

At least one witness, and in some instances several, testified that

Troy Cropp, Clyde Cropp, and Monte Mosley had each been seen

with various quantities of crack on several occasions. When Troy

Cropp and other dealers were selling crack in front of the houses, they

would cooperate with one another. Specifically, when one dealer took

a break he or she would stash drugs in the woods across the street

from the houses and the other dealers would "keep an eye" on the stash.1

Further, the evidence showed that the traffic in front of the houses

was sometimes backed up five cars or more, and that all of the dealers

took turns approaching cars to sell crack, including Troy Cropp and

Clyde Cropp.

_________________________________________________________________

1 It is not clear whether Clyde Cropp participated in this scheme or not.

 3
Troy Cropp received crack from at least three different direct suppliers, at least one of whom obtained crack in bulk from Monte Mosley. Clyde Cropp sold crack that he received from at least one source,

and that source obtained drugs on certain occasions from Monte Mosley. Several witnesses stated that they had seen Troy or Clyde Cropp

sell drugs at the houses, and that they had purchased drugs from Troy

or Clyde Cropp. Both Troy and Clyde Cropp stipulated that, on two

occasions each, they sold crack to different undercover officers in

front of the crack houses.

Three persons testified that they obtained large quantities of crack

from Monte Mosley and then resold the drugs. At least two of those

witnesses indicated that the drugs purchased from Monte Mosley

were sold either directly or through another dealer in front of the

crack houses.

The evidence indicated that Troy and Clyde Cropp both used crack.

No evidence suggested that Monte Mosley used crack. While a great

deal of other evidence was presented regarding other conspirators, or

regarding specific instances involving the appellants, we do not find

it necessary to recount that evidence.

II

Troy and Clyde Cropp and Monte Mosley all assert that the district

court improperly limited their right to cross-examine government witnesses about the incentive to lie created by the witnesses' cooperation

agreements. We do not agree. We review the district court's decision

to limit cross-examination for an abuse of discretion. United States v.

Ambers, 85 F.3d 173, 175 (4th Cir. 1996).

At trial below most of the government's witnesses were coconspirators. The credibility of those witnesses was very relevant to

the case against all of the defendants. Prior to the start of crossexamination of the first cooperating witness, the district court ruled

that the defense could not ask about the specific penalties that the

cooperators would have received absent cooperation, or about the specific penalties they hoped to receive due to their cooperation. The district court suggested that asking witnesses about the sentences they

expected to receive would impinge upon the court's discretion to ulti-

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mately decide those sentences. The district court was also concerned

that if the jury could infer the very long sentences faced by the appellants from knowing the sentences faced by the co-conspirators, the

jury members would hesitate to find the appellants guilty even if the

evidence proved their guilt. Ultimately the court did allow defense

counsel to ask witnesses whether they had signed plea agreements,

whether they faced a "severe penalty" prior to cooperating, and

whether they expected to receive a lesser sentence as a result of the

cooperation, but the court did not allow questions about the specific

penalties at stake.

The Supreme Court has stated that a defendant's right to crossexamine cooperating witnesses about sources of potential bias is guaranteed by the Confrontation Clause of the Constitution. Delaware v.

Van Arsdall, 475 U.S. 673, 678-79 (1986). In Van Arsdall the Court

found the trial judge had unconstitutionally refused to allow defendants to inquire in any way about cooperation. Id. However, the Court

also made clear that trial courts retain "wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits on

such cross-examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness' safety, or

interrogation that is repetitive or only marginally relevant." Id. at 679.

In the instant case, we do not credit the district court's first ground

for not allowing the questioning, namely that to do so would impinge

upon his discretion. As the appellants made clear in their brief and at

trial, they did not intend to explore the actual sentences that the witnesses would receive, as that remained in the sole discretion of the

sentencing judge. Rather, the defense sought to inquire about what the

witnesses believed their sentences would have been and what they

hoped to receive by virtue of their cooperation. We agree that the witness' expectations, rather than the actual sentence eventually given,

were the potential sources of their possible bias. See Hoover v.

Maryland, 714 F.2d 301, 305 (4th Cir. 1983); Ambers, 85 F.3d at 176.

We do, however, agree with the district court's concern that the

jury might "nullify" its verdict if it knew the extreme penalties faced

by the appellants. Although we have not yet squarely decided whether

limitations such as those employed in this case are proper remedies

for jury nullification, we have made several related decisions which

 5
guide us in this matter. In Ambers, 85 F.3d at 175, we affirmed a district court's decision not to allow the defense to question witnesses

about the specific Sentencing Guideline ranges they faced before and

after cooperation. We found that the district court in Ambers had been

correctly concerned that a discussion of the mechanics of the Guidelines would needlessly confuse the jury. Id. at 176. Relying on Van

Arsdall, we held that the trial judge is allowed to impose reasonable

limits upon cross-examination. Id.

Similarly in United States v. Odom, 736 F.2d 104, 108 (4th Cir.

1984), we affirmed a trial court's decision not to allow further crossexamination about bias when the witness had already answered

enough questions to show that she did indeed possess a reason to lie.

See also United States v. Dorta, 783 F.2d 1179, 1182 (4th Cir. 1986)

(finding that the court properly halted questions into maximum total

sentence expected when several other questions already revealed significant incentives to lie). But see Hoover v. Maryland, 714 F.2d 301

(4th Cir. 1983) (reversing conviction when defense was precluded

from examining penal benefits from witness' cooperation in any

way).

Admittedly, there is a distinction between the instant case and most

of our prior decisions affirming limitations placed upon crossexamination. In this case the appellants were not permitted to ask any

quantitative questions whatsoever about the benefits which witnesses

expected to receive for their cooperation. In much of the Fourth Circuit authority cited by the government in support of its position, the

defense had been allowed to ask at least some questions about the

length of sentences at issue. See, e.g., Ambers, 85 F.3d at 175; Dorta,

783 F.2d at 1182 & n.6. The appellants argue that the length of the

possible benefit in years and months is itself relevant to the issue of

bias of government witnesses; presumably the greater a sentence

faced by a witness absent cooperation, the less believable the testimony of the witness.

We do not find that this small distinction between our prior authority and the instant case requires us to depart from the direction of our

precedent. We are guided by a recent First Circuit case which

affirmed a trial court's decision to disallow all inquiry into years of

confinement faced by witnesses. United States v. Luciano-Mosquera,

 6
63 F.3d 1142, 1153 (1st Cir. 1995), cert. denied, 116 S.Ct. 1879

(1996). The Luciano-Mosquera court found that any probative value

from the jury's knowledge of the actual number of years faced was

slight compared to its certain prejudicial impact. Id. at 1153. The

court specified that the proper inquiry for a reviewing court is

whether the jury possesses sufficient evidence to enable it to make a

"discriminating appraisal" of bias and incentives to lie on the part of

the witnesses. Id. See also Delaware v. Fensterer, 474 U.S. 15, 20

(1985) (per curiam) ("[T]he Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-examination

that is effective in whatever way, and to whatever extent, the defense

may wish.").

We embrace the reasoning enunciated in Luciano-Mosquera. The

appellants in the instant case have been unable to explain why questions about exact sentences feared and sentences hoped for were

necessary when the jury was already well aware that the witnesses

were cooperators facing severe penalties if they did not provide the

government with incriminating information. Against whatever slight

additional margin of probative information gained by quantitative

questions, we must weigh the certain prejudice that would result from

a sympathetic jury when it learns that its verdict of guilty will result

in sentences of ten and twenty years in prison. Finding no abuse of

discretion, we therefore affirm the limitations placed on crossexamination by the district court in this case.

III

Troy Cropp, Clyde Cropp, and Monte Mosley next argue that the

district court gave a modified Allen charge that impermissibly coerced

jurors in the minority to change their views. Allen v. United States,

164 U.S. 492 (1896). An Allen charge is given by a trial court when

a jury has reached an impasse in its deliberations and is unable to

reach a consensus. Id. We must review the district court's decision to

give an Allen charge and the content of that charge for an abuse of

discretion. United States v. Antonio Burgos, 55 F.3d 933, 935 (4th

Cir. 1995).

Our recent decision in Antonio Burgos provides an excellent summary and assessment of our extensive precedent exploring the proper

 7
scope of Allen charges. Id. at 936-41. As Antonio Burgos made clear,

an Allen charge must not coerce the jury, and it must be fair, neutral

and balanced. Id. at 936. See also Carter v. Burch, 34 F.3d 257, 264

(4th Cir. 1994) (discussing the required components of an Allen

charge). Courts must be extremely careful not to suggest that jurors

give up firmly held convictions, although courts may instruct jurors

to reconsider the evidence and the views of other jurors. "The most

egregious mistake that can be made in the context of an Allen charge

is for a district court to suggest, in any way, that jurors surrender their

conscientious convictions." Antonio Burgos, 55 F.3d at 939. We have

often emphasized that a proper and non-coercive charge must instruct

the jurors in the minority to reconsider the views of the majority and

must instruct the majority to reconsider the minority position. Id. at

937, 940; United States v. Sawyers, 423 F.2d 1335, 1342-43 (4th Cir.

1970).

Applying these standards to the instant case, we do not believe that

the instructions given were impermissibly coercive. The district court

gave the jurors a lengthy Allen charge after the jurors expressed an

inability to reach a consensus. In this charge the court properly told

both the majority and the minority to consider the views of the other

side and told the jurors not to surrender their firm convictions. The

next morning the judge further instructed the jury about several matters before releasing them to resume their deliberations. In this second

charge the court explicitly reminded the jury that it should add the

new instruction to the instructions which they had already received.

Even in this brief reminding charge the court told the jurors not to

give up their firmly held convictions.

The appellants assign error to the very brief second charge because

it did not contain all of the elements of an Allen charge required by

Antonio Burgos, and because they assert it reflected the court's impatience with the jury and was therefore impermissibly coercive.2

_________________________________________________________________

2 The court told the jury, in part: "This case has extended over some

five days of testimony, though it has not moved as smoothly and continuously as both Court and counsel would desire. Where there's a trial

involving a prosecution with seven individual defendants, the complications encountered add unavoidably to the interruptions . . . ."

 8
We do not find these arguments to be persuasive. First, we do not

evaluate a judge's instructions in isolated segments, but we look at the

instructions given as a whole. United States v. Muse, 83 F.3d 672, 677

(4th Cir.), cert. denied, 117 S. Ct. 261 (1996). Moreover, we do not

adopt appellants' characterization that the second brief charge

revealed impatience with the jury. In fact the impatience in the tone

of the charge, if there was any, was directed at the court, the lawyers,

and the delays associated with a multi-defendant trial. The court's

other interactions with the jury also did not suggest impatience.

Rather, the court provided the jury with replays of evidence it

requested both before and after the second charge and answered the

jury's questions about whether it could return seven separate verdicts

for the seven defendants, all in a calm, respectful manner.

Finally, the jury's own behavior reassures us that they were not

coerced by the instruction or anything else. Following the second

charge, the jury deliberated for an additional seven hours before

reaching verdicts. Although the length of deliberations following an

Allen charge is not certain evidence that the jury was not coerced by

that charge, Antonio Burgos, 55 F.3d at 940 n.7, lengthy deliberations

can reassure a reviewing court that coercion did not occur. United

States v. Russell, 971 F.2d 1098, 1108 (4th Cir. 1992) (finding that

three hours of deliberations were evidence that a jury was not

coerced). Not only did the jury in the instant case deliberate for a long

time, but they returned several different verdicts, including some notguilty verdicts and some dead-locks. We find it unlikely that a jury

independent enough to return not-guilty verdicts for some defendants

could have been coerced by the court with respect to others. Therefore, we hold that the district court did not abuse its discretion in

instructing the jury in this case.

IV

Troy and Clyde Cropp argue that the jury did not possess sufficient

evidence to convict them of conspiracy to distribute crack. Specifically, they argue that no evidence proved the existence of an actual

conspiracy and that, at best, the evidence suggested several completely independent dealers working in the same geographic area. "In

Glasser [v. United States], the Supreme Court explained that a jury

verdict `must be sustained if there is substantial evidence, taking the

 9
view most favorable to the Government, to support it.'" United States

v. Frank Burgos, 94 F.3d 849, 862 (4th Cir. 1996), cert. denied, 117

S. Ct. 1087 (1997) (quoting Glasser, 315 U.S. 60, 80 (1942)).

"[S]ubstantial evidence is evidence that a reasonable finder of fact

could accept as adequate and sufficient to support a conclusion of a

defendant's guilt beyond a reasonable doubt." Id. To sustain its burden at trial the government was required to prove that a conspiracy

existed, that the Cropps both knew it existed, and that they knowingly

entered into the conspiracy. Frank Burgos, 94 F.3d at 857. Proof of

a conspiracy can be circumstantial, and the government need not

prove that all participants knew of all aspects of the conspiracy. Id.

at 858.

Having thoroughly reviewed the record, we are satisfied that there

was ample evidence to convince a reasonable jury of the guilt of Troy

and Clyde Cropp beyond a reasonable doubt. Rather than recount all

of the evidence adduced at trial we will simply highlight some of the

testimony proving the elements of conspiracy.

With respect to the existence of a conspiracy, testimony proved

that many dealers worked in front of the houses at a given time; that

they took turns approaching cars; that certain dealers spoke with one

another about a shortage of drugs and the need to obtain additional

supply; and that the many sellers were supplied by the same few suppliers. Testimony even showed that the dealing in front of the houses

occurred in a similar manner almost every day for years. This combination of circumstantial and direct evidence certainly supports a

jury's finding that a conspiracy to distribute crack existed.

Likewise the trial evidence proved that Troy and Clyde Cropp were

knowingly involved in the conspiracy. Multiple witnesses testified

that they saw Troy and Clyde Cropp with drugs in their possession

and saw them selling drugs in front of the houses. One supplier specifically testified that Troy and Clyde Cropp both sold crack at that

location, crack that he or other dealers had provided. Further, both

Troy and Clyde Cropp stipulated that, on two occasions each, they

sold crack in front of the houses to undercover officers. The testimony

showed that the Cropps both obtained crack from the same small

number of suppliers who sold to the other members of the conspiracy.

 10
The evidence presented at trial, when taken in the light most favorable to the government, is adequate to sustain the convictions of Troy

and Clyde Cropp.

V

Troy Cropp argues that the district court violated his Due Process

rights by refusing to grant his request for a psychiatric evaluation

prior to determining his sentence. Cropp requested the evaluation so

that he could better argue for a downward departure for significantly

reduced mental capacity pursuant to § 5K2.13 of the Guidelines. We

believe that the power of a judge to grant or deny requests for psychiatric evaluations for sentencing purposes is a question of first impression in this Circuit.

As a preliminary matter, we must decide whether we have the

authority to review the district court's decision regarding this issue.

As we have repeatedly made clear, a decision to deny a departure

request may generally only be reviewed when a judge has misunderstood his or her legal authority to grant a departure. United States v.

Underwood, 970 F.2d 1336, 1338 (4th Cir. 1992); United States v.

Bayerle, 898 F.2d 28, 31 (4th Cir. 1990). In this case the district court

knew that it possessed the power to depart and decided that the evidence did not move him to grant that departure. On that basis the government urges that we lack authority to consider this question further.

We agree with Cropp that the right at issue is a Due Process right

to present evidence relevant to sentencing and that this right must not

be left to the sole discretion of the court. We have previously recognized a specific right to have one's sentence correctly determined and

have reviewed district court decisions when that right was at issue.

See, e.g., United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th

Cir. 1989). In Urrego-Linares we further stated that defendants have

a right to offer evidence relevant to mitigation. Id. Given this authority, we find that we cannot characterize this issue as a case in which

the judge has simply decided not to depart, and therefore we cannot

treat it as non-reviewable.3 Rather, the question before us is whether

_________________________________________________________________

3 We are also mindful of the Supreme Court's recent decision in United

States v. Koon, 116 S.Ct. 2035 (1996), which stated that a district court's

decision to depart in an "atypical case" is to be reviewed for an abuse of

discretion, although that decision is not controlling in the instant case.

 11
a judge may take steps which effectively limit an indigent defendant's

ability to present evidence relevant to a downward departure.

The commentary to the Sentencing Guidelines requires that a

defendant be given an adequate opportunity at sentencing to present

information regarding disputed facts relevant to the sentencing determination. U.S.S.G. § 6A1.3, commentary; see also United States v.

Cantu, 12 F.3d 1506, 1511 (9th Cir. 1993) (interpreting § 6A1.3). The

commentary further specifies that a judge must tailor the process for

presenting evidence at sentencing to "the nature of the dispute, its relevance to the sentencing determination, and applicable case law."

U.S.S.G. § 6A1.3, commentary; see also Cantu, 12 F.3d at 1511. In

Cantu the Ninth Circuit explored the relevant Guidelines provisions

and decided that the process adopted by a trial judge to address downward departure for diminished mental capacity pursuant to U.S.S.G.

§ 5K2.13 must be "more than simply a neutral process." Cantu, 12

F.3d at 1511. "The court's inquiry into the defendant's mental condition and the circumstances of the offense must be undertaken `with

a view to lenity, as section 5K2.13 implicitly recommends.'" Id.

(quoting United States v. Chatman, 986 F.2d 1446, 1454 (D.C. Cir.

1993)). While the court in Cantu was addressing an issue distinct

from the one before us in this case, its guidance is relevant.

Troy Cropp has asserted that the above analysis provided by our

sister circuits and several of our own previous decisions support his

position that he is entitled to a court-appointed psychiatric evaluation.

However, we do not agree that any of this precedent compels such a

holding. In United States v. Mason, 52 F.3d 1286 (4th Cir. 1995), we

reversed a conviction because the trial judge refused to order a hearing to determine defendant's competence to stand trial. That decision,

however, was grounded in a statute which plainly requires judges to

grant a competency hearing when a defendant has shown "reasonable

cause." Id. at 1289 (relying upon 18 U.S.C. § 4241(a)). No statute

similarly requires trial judges to grant hearings before sentencing proceedings. Likewise, in both United States v. Hoover, No. 93-5441,

1994 WL 144330 (4th Cir. Apr. 22, 1994), and United States v.

Benson, No. 93-5204, 1993 WL 385213 (4th Cir. Sept. 30, 1993), two

unpublished opinions relied upon by Troy Cropp, the district court

had considered psychiatric and psychological evidence presented by

defendants. However, in neither case did we suggest that defendants

 12
always have a right to develop the relevant evidence. Moreover, we

are unaware of a decision by any other circuit in which the court has

concluded that defendants are entitled to psychological testing prior

to being sentenced.

Despite the lack of binding or persuasive authority on this issue, we

decline to adopt the position advocated by the government. We do not

hold that it could never be reversible error for a court to refuse to

order a psychiatric evaluation prior to sentencing. It is important that

judges make critical sentencing decisions with the benefit of all available and relevant evidence. It is also important that all defendants,

even indigent ones, have an opportunity to gather necessary psychiatric evidence when the court, in the exercise of its discretion, determines that such evidence is relevant to determine the defendant's

mental capacity.

However, we hold that in the instant case the district court did not

abuse its discretion by declining to order an evaluation for Troy

Cropp. Cropp presented very little evidence to indicate that he in fact

suffered from a mental impairment; the evidence he did submit was

very old, and even if taken as current, did not indicate that Cropp suffered from mental incapacity. Moreover, the district court in this case

did consider the evidence before it, and listened to and considered

Cropp's assertion that he suffered brain damage and mental illness as

a result of years of crack cocaine use. Cropp is unable to suggest what

additional information would have been gained by a formal psychiatric evaluation.

VI

Monte Mosley finally argues that the district court erred when it

excluded the testimony of his witness, Chris Carter (Carter), for a violation of the court's sequestration order. We find that Mosley's challenge does not require reversal. Federal Rule of Evidence 615

addresses the exclusion and sequestration of witnesses. The rule and

its common-law antecedents are designed to prevent the tainting of

witness testimony by precluding them from hearing the trial testimony of other witnesses. The Supreme Court has long recognized that

a trial court may employ one of three remedies when a sequestration

order has been violated: sanction of the witness; instructions to the

 13
jury that they may consider the violation toward the issue of credibility; or exclusion of the witness' testimony. See, e.g., Holder v. United

States, 150 U.S. 91 (1893). The remedy of exclusion is so severe that

it is generally employed only when there has been a showing that a

party or a party's counsel caused the violation. See Braswell v.

Wainwright, 463 F.2d 1148, 1152-53 (5th Cir. 1972); United States

v. Hobbs, 31 F.3d 918, 922 (9th Cir. 1994). Because exclusion of a

defense witness impinges upon the right to present a defense, we are

quite hesitant to endorse the use of such an extreme remedy.

In the instant case, the right to present a defense has come into

direct conflict with the protection against tainted testimony. Carter

was called as a witness for Monte Mosley. Carter testified that he had

never purchased any drugs from Mosley, and that he had never seen

Mosley with drugs. During his testimony, it became clear that Mosley

talked to Carter prior to Carter's turn on the stand in plain violation

of the sequestration order. In fact it appears that Mosley told Carter

that his name had been mentioned in the previous day's testimony.

Although Mosley denies it, it is possible that Mosley in fact told Carter that there had been previous testimony that Carter had purchased

crack from Mosley on numerous occasions. The district court therefore decided to exclude Carter's testimony by telling the jury to disregard what he had said on the stand.

We believe that the court would have been well advised to employ

a lesser sanction to punish the violation because to do so would have

preserved both the purpose of the sequestration rule and the defendant's right to present a defense. We also find that the court should

perhaps have more closely examined Carter in voir dire to determine

the extent of the taint of his testimony and the causes of that taint

prior to excluding him. However, we have found no precedent in

which we have overturned the decision of a district judge to exclude

a defense witness when the violation was plainly the fault of the

defendant or defendant's counsel. And given that it is clear that Mosley himself was behind this violation in some way, we do not find that

the district court abused its discretion. We are particularly unwilling

to overturn the district court's judgment on this issue given that the

defense did not argue to the court during trial that the exclusion of

Carter was excessive or unconstitutional.

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VII

We find that none of the challenges raised by Troy Cropp, Clyde

Cropp, and Monte Mosley to their convictions or to their sentences

merit reversal. Therefore we

AFFIRM.

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