United States of America, Plaintiff-appellee, v. Vernon Duckett, Defendant-appellant.united States of America, Plaintiff-appellee, v. Quinn Brown, Defendant-appellant.united States of America, Plaintiff-appellee, v. Joseph Mel Rhoney, Defendant-appellant.united States of America, Plaintiff-appellee, v. David William Rich, Defendant-appellant.united States of America, Plaintiff-appellee, v. Naomi Rich, Defendant-appellant, 861 F.2d 715 (4th Cir. 1988)

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US Court of Appeals for the Fourth Circuit - 861 F.2d 715 (4th Cir. 1988) Argued: July 29, 1988. Decided: Oct. 24, 1988

George Laughrun, II (Goodman, Carr, Nixon & Laughrun, on brief); Harold Bender (Bender, Lawson & Howerton, on brief); J. Steven Brackett (Rudisill & Brackett, P.A., on brief); C. Thomas Edwards (Ledford & Edwards, on brief), for appellants.

Kenneth Bell (Thomas J. Ashcraft, United States Attorney; Max O. Cogburn, Jr., Assistant United States Attorney, on brief), for appellee.

Before DONALD RUSSELL, WIDENER and K.K. HALL, Circuit Judges.

PER CURIAM:


Vernon Duckett, Quinn Brown, Joseph Mel Rhoney, and David Rich appeal their jury convictions on various drug charges stemming from a single seventeen-count indictment. For the reasons set forth below, we affirm.

At the center of the government's entire case is one person, Daniel Warren, a retail furniture store owner in North Carolina. According to Warren's own testimony at trial, he had a serious cocaine habit and also gambled heavily. The evidence showed that in one way or another Warren was involved in drug deals with each of the defendants between March, 1986, and March, 1987.

Warren routinely placed his bets at a farm house owned by Vernon Duckett who in March of 1986 arranged for Warren to buy cocaine from Quinn Brown, one of Duckett's employees. Duckett guaranteed payment for the cocaine if Warren was unable to pay. After purchasing cocaine from Brown for several months, Warren became afraid of Brown and began buying his cocaine from another Duckett employee, Mel Rhoney. Rhoney's source for the cocaine was David and Naomi Rich. Eventually, however, Warren began buying directly from David Rich and Rhoney was eliminated as the middle man. Later, Warren began using one of his furniture store employees, Danny Sanders, to pick up the cocaine from Rich. In December of 1986, at Warren's request, Sanders put two ounces of cocaine on a chartered plane to Myrtle Beach, South Carolina, where Warren was spending the holidays. The authorities learned about the contents of the package placed on the airplane, and when Warren arrived at the airport to retrieve the cocaine, he was arrested.

In March of 1987, Warren contacted the FBI and based upon information he gave to agents, he and the other defendants were indicted. Warren subsequently entered into a written plea agreement with the government. Pursuant to that agreement, he pleaded guilty to conspiracy and to an unrelated arson charge, and agreed to give testimony related to this case.

The defendants were tried jointly before a jury and Warren was the government's principal witness. All four defendants were convicted of conspiracy to possess with intent to distribute and distribution of cocaine in violation of 21 U.S.C. §§ 841(a) (1), 846. In addition, each was convicted of separate charges of possessing and distributing cocaine and aiding and abetting. David Rich was also convicted of possessing and distributing diazepam. They were each sentenced to twenty years imprisonment on the conspiracy charge and to varying sentences on the other charges.1 

This appeal followed.

On appeal, the appellants raise five issues relating to their trial. Upon review of the record, briefs, and oral argument, we conclude that none of appellants' contentions rise to the level of reversible error. Appellants' objection to the government's reference to polygraph during closing argument does, however, require further discussion.2 

The plea agreement entered into between the government and Warren stated that Warren agreed to provide truthful information about criminal activity within his knowledge and further stated that " [t]his information may be verified by polygraph or any other method which the United States shall choose to employ." Warren was, however, never asked to submit to a polygraph test.

At trial, the government did not question Warren about the polygraph provision of the agreement. On cross-examination, however, defense counsel raised the issue by mentioning the plea agreement and eliciting from Warren that he had not been asked to take a polygraph test. On further cross-examination, counsel raised the issue a second time and Warren again admitted that although he had agreed to do so, he had not been asked to submit to a polygraph test.

During closing argument defense counsel talked at some length about the polygraph provision in the plea agreement, emphasizing the credibility aspect, i.e. if the government thought Warren was telling the truth he would have been tested.3  Counsel repeatedly referred to the importance of polygraph results in verifying credibility.

The government responded to defense counsel's argument, calling the reference by the defense to the polygraph provision "an example of what would be something of a low blow." The government argued the defense's reference to the government's failure to require Warren to take a polygraph test as provided in the plea agreement improperly made it appear that the government was trying to hide something from the jury. The government also stated that no reference had been made because polygraphs have been held to be inadmissible.

The appellants contend that they were prejudiced by the government's remarks about the polygraph and that they are entitled to a new trial because of them. Appellants' principal objection to the remarks is not that the prosecutor mentioned the polygraph but that he told the jury that Warren was not tested because polygraphs are not admissible in court. In appellants' view, this statement impugned the integrity of defense counsel by intimating to the jury that counsel intentionally tried to mislead them on a legal issue. We are not persuaded by this argument.

Evidence that the accused or a witness has taken a polygraph test is inadmissible. United States v. Brevard, 739 F.2d 180 (4th Cir. 1984). In addition, evidence of a plea agreement containing a provision that the government's witness has agreed to take a polygraph test to verify trial testimony constitutes improper bolstering of a witness's testimony and is not admissible. United States v. Porter, 821 F.2d 968 (4th Cir. 1987). The government quite properly in this case, therefore, avoided any reference in its direct examination of Daniel Warren to the polygraph provision in Warren's plea agreement.

The appellants argue that the admission of polygraph evidence is a matter left to the discretion of the court. United States v. Webster, 639 F.2d 174 (4th Cir. 1981). Therefore, they argue, the prosecutor in this case misstated the law when he said polygraphs are not admissible and made it appear to the jury that defense counsel misled the jury on this issue.

We have not yet had occasion to rule definitively on whether to admit polygraph evidence which has been traditionally excluded. United States v. Morrow, 731 F.2d 233 (4th Cir. 1984). Webster involved a non-jury trial in which the defendant wanted to admit the results of a polygraph test. Although we held that it was within the discretion of the court to admit or deny such evidence, we have not addressed that issue within the context of the government's ability to introduce polygraph results.

Under the circumstances, we cannot say that the prosecutor committed reversible error in saying that " [p]olygraphs have been ruled by the court not to be admissible in court." Whether this ultimately proves to be an exactly accurate statement of the law, there is no reason to believe that it constituted a willful misstatement or that it affected the jury's vital assessment of Daniel Warren's credibility. Moreover, we do not see that the prosecutor's remark cast any particular doubt upon the factual credibility of defense counsel. At most, the remark called into question counsel's legal knowledge. There is simply no evidence that the statement prejudiced the appellants in any way. It must also be remembered that the appellants thoroughly opened the door to the polygraph issue. They have nothing to complain about now.

Accordingly, the judgment of the district court is affirmed.

AFFIRMED.

 1

Naomi Rich was also convicted of conspiracy and of separate charges of possessing and distributing cocaine and aiding and abetting. In addition, she was convicted of possessing and distributing diazepam. Although she was sentenced to prison, the court suspended the sentences and placed her on probation. She did not appeal

 2

The appellants also raise as issues: (1) insufficient evidence; (2) the limiting of cross-examination of the government's primary witness; (3) the court's refusal to grant their severance motions; and (4) the length of their sentences. We have reviewed these issues and find them to be without merit

 3

The relevant portion of the defense's closing argument follows:

You know, when Mr. Warren entered his plea agreement, Mr. Edwards hit on this, and we asked him. Polygraphs usually aren't admissible in court. Lie detectors. We asked Dan Warren, and it's in here. He agrees to take a polygraph to see if he's telling the truth. Let's say the government didn't do that. Mr. Warren testified to about 11:00 o'clock on Wednesday. Why didn't the government take him out? He's been here the whole time. He's here now. Why didn't they strap him to that machine, and if he passed, call another witness. It's the government's burden. Put that polygrapher on the stand and ask him, "Did Warren tell the truth in here? What did the machine say?" What did the machine--when it measures blood pressure, measures increase in breathing, measures sweat from your fingertips, then you're not telling the truth. Why didn't they do that? Ask Mr. Cogburn when he comes back up here. And I'm sure he'll have an explanation for you. It's easy to explain away things. Keep in mind, as Mr. Brackett told you a few minutes ago, they have had unlimited resources. They've had two, three, four agents in here the whole time. Mr. Respeth, Mr. Warren's lawyer, has been here the whole time and would have made him available. In your everyday affairs, you're asked to judge people. When you go to make an application for a job, they're going to want references. What are your qualifications? Do they hire you based on your word alone? Usually not. They may, but they want to call up and verify what you've done in the past. Want to verify your qualifications. Something you can hang your hat on. If they come in here and the polygrapher says, "In my opinion, he told the truth," and based on the plea agreement--but the government couldn't do that. We opened the door to that on cross-examination. We asked Dan Warren, "Well, did you take it?" "I haven't been asked." Wouldn't that add more credence to his version? Isn't that something to go back in the jury room and say, "Well, Mr. Juror, he passed the polygraph. Madam Juror, he passed the polygraph." Doesn't that lend some credence to his story? But you don't have that.