Originally created 06/17/04

Cell phone case gets 2nd appeal

ATLANTA - A federal appeals court took the rare step this week of allowing lawyers a second chance to argue the case of a Coastal Georgia doctor convicted of trying to arrange his wife's murder.

Dr. Carl M. Drury, a former state lawmaker and physician from Brunswick, already lost an appeal in September before a three-judge panel of the 11th U.S. Circuit Court of Appeals.

But the Atlanta-based court agreed earlier this year to give Dr. Drury one more opportunity to dispute the 17-year prison sentence he is serving - this time before all 12 judges of the 11th Circuit.

Known as an "en banc" hearing, the procedure occurs only a few times each year when the court decides a ruling by one of its three-member panels might need clarification or refinement, said Michael Wells, a University of Georgia law professor.

"It's not a routine matter," Mr. Wells said. "Sometimes it's just that it's a very important issue and a number of judges on the court as a whole aren't convinced that they would agree with what the panel has done."

One of the main issues before the full court is whether it was correct to try Dr. Drury's case in federal court.

Amy Lee Copeland, a federal prosecutor, told the 11th Circuit judges Tuesday that Dr. Drury went to trial in federal court because he used a cell phone to call a hitman, who was actually an undercover agent.

Although both men were in Georgia during the calls, the phone signal bounced off a cellular tower in Jacksonville, Fla.

When that signal crossed state lines, the Drury case came under the jurisdiction of the U.S. government's murder-for-hire statute, Ms. Copeland said.

Dr. Drury says he believed he was engaged in a training exercise when he discussed killing his wife with the undercover agent.

Dr. Drury's attorney, James Jenkins, said the murder-for-hire statute written by Congress is unclear because it fails to specify how prosecutors must prove a facility of interstate commerce - such as the postal system or a road - was "used" in a crime.

Mr. Jenkins argued that the way Dr. Drury was convicted - a case in which only a cell phone signal crossed state lines - would also allow prosecutors to file federal charges against someone who rides a bicycle or a car across town to discuss a crime with someone in the same state.

"We're talking about a statute that is ambiguous," Mr. Jenkins said.

Ms. Copeland rejected Mr. Jenkins' bicycle example, explaining that the cellular system relies on an interstate system of towers, which are used for business on a daily basis.

"Undoubtedly, a bicycle is a means of transportation, but it has never been recognized as a facility of interstate commerce," she said.

The court is expected to rule in the matter sometime later this year.

Mr. Wells, the UGA professor, said there is no way to say whether it's a good or bad sign for Dr. Drury that the full court chose to rehear the appeal.

"I don't think you can make a prediction based on that," he said. "You certainly could predict that they think it's important. I'm sure they would like to have a definitive, circuitwide ruling, and the only way to be confident of that is to have this en banc decision."

Reach Brian Basinger at (404) 589-8424 or brian.basinger@morris.com.


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