U.S. v. Buchannan

• Decision Date: 27 May 1997
• Docket Number: Nos. 96-1198,96-1233,96-1426,s. 96-1198
• Citation: 115 F.3d 445
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Edward L. BUCHANNAN, Jr., Defendant-Appellant, Cross-Appellee, and Isaac Lee, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 445

115 F.3d 445

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Edward L. BUCHANNAN, Jr., Defendant-Appellant, Cross-Appellee and Isaac Lee, Defendant-Appellant.

Nos. 96-1198, 96-1233, 96-1426.

United States Court of Appeals Seventh Circuit.

Argued Dec. 13, 1996.

Decided May 27, 1997.

Ralph M. Friederich (argued), James Porter, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Bradley S. Dede (argued), Clayton, MO, for Isaac Lee.

Edwin R. McCullough (argued), Chicago, IL, William D. Stiehl, Jr., Wimmer & Stiehl, Belleville, IL, for Edward L. Buchannan, Jr.

Before CUDAHY, RIPPLE and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

Edward Buchannan and Isaac Lee sold cocaine to a police informant. Several weeks later, the duo attempted to sell wax that they claimed was cocaine to an undercover DEA agent. When the agent refused to buy the wax, Buchannan assaulted him with a triple-beam scale and stole the agent's marked money. Ultimately, both men were charged with, and convicted of, distribution of cocaine, conspiracy to distribute cocaine, assaulting a federal officer and robbery of federal funds. Each now appeals and the government cross-appeals.

Buchannan claims that the district court improperly refused to instruct the jury on his theory of defense, that there was insufficient evidence to sustain his conviction for assault with a deadly weapon and that he was improperly sentenced. Lee claims that he should have been granted a judgment of acquittal on the assault and robbery charges. The government cross-appeals arguing that Buchannan's case must be remanded for resentencing because the district court failed to make sufficient factual findings to support the sentence.

I. Factual Background

Early in 1994, Edward Buchannan was residing in the Jackson County Jail, for parole violations, when he was approached by Timothy Legere, an officer with the Murphysboro, Illinois, police force. Legere approached Buchannan as a possible source of information about drug dealers in and around Murphysboro and met with Buchannan at least twice while he was in custody. At these meetings, Buchannan gave Legere some information about himself and his drug contacts, and Legere arranged for Buchannan to be released from custody.

After his release, Buchannan continued to meet with Legere and an ATF agent to discuss Buchannan's potential role as a police informant. At these meetings, Buchannan was cultivated as a possible undercover informant. Legere told Buchannan that he should stay in constant contact with the police regarding his whereabouts and his knowledge of drug activities and that they would contact him if they needed him to participate in an undercover drug purchase or sale. After a short while, Buchannan stopped contacting the police and, because the police ultimately determined that Buchannan was too violent to participate in undercover operations, they never contacted him again.

At about the same time, DEA agent Larry Gregory was making arrangements for Terrel Kempfer to act as an informant and assist in conducting an undercover drug sting. Kempfer advised Agent Gregory that he could arrange a drug purchase from Edward Buchannan and Isaac Lee. Kempfer was willing to help Agent Gregory because the pair allegedly cheated him in earlier transactions. Thus, Kempfer agreed to wear a concealed microphone and to participate in a controlled drug purchase in Carbondale, Illinois, on March 11, 1994. After meeting Buchannan and Lee at a K-Mart parking lot in Carbondale and following them to a nearby Kentucky Fried Chicken, Kempfer exchanged DEA funds for 11 rocks of crack cocaine. A lab analysis determined that the purchased substance consisted of 6.5 ounces of cocaine base.

Kempfer arranged for a second purchase from Lee on May 3, 1994. At this meeting, Agent Gregory, acting undercover, assumed the role of purchaser. Kempfer and Agent Gregory met Buchannan and Lee at the Martin Food Store in Murphysboro. After a half-hour wait, Buchannan and Lee said they were ready but that they needed to travel to a remote location in order to consummate the deal. To that end, Buchannan and Gregory drove Kempfer's truck to a nearby apartment building. Kempfer and Lee followed in Lee's car. Because Agent Gregory refused to go beyond the entryway of the building with Buchannan, the deal took place in the foyer of the building, with Kempfer and Lee waiting outside in Lee's car.

Agent Gregory showed the money to Buchannan, and Buchannan presented him with a package. Gregory weighed the package on a triple beam scale that he had brought into the building. When Gregory refused to purchase the package because it weighed only 19 grams instead of the agreed upon 1 ounce (28 grams), Buchannan took the package outside to Lee's car and returned with a "second" package that was in all respects similar to the first. Because the second package weighed the same as the first, Agent Gregory again refused to complete the deal. Buchannan became infuriated and began kicking and hitting Gregory. When Gregory refused to give Buchannan the money, Buchannan accused Gregory of being a cop and began hitting him with the scale.

Outside, Lee told Kempfer to go into the building to see what was taking so long. After Kempfer went inside, Lee left. When Kempfer entered the apartment building and saw Buchannan hitting Agent Gregory with the scale, he urged Agent Gregory to give Buchannan the money. Eventually, Gregory gave Buchannan $980 in marked DEA funds. As soon as he received the money, Buchannan threw down the scale and left the package, which was later determined to contain wax, not cocaine.

When Buchannan was arrested later the same day and Lee two days later, each was carrying a portion of the marked DEA money. Both were indicted and ultimately convicted on four counts: conspiracy to distribute cocaine, distribution of cocaine, assaulting a federal officer and robbery of federal funds.

On appeal, Buchannan argues that he was denied a fair trial because the trial court refused to instruct the jury on his theory of defense, namely, that he held a reasonable belief that he was acting on behalf of the government during the drug sale to Kempfer and with respect to the drug conspiracy. Additionally, while he admitted assaulting and robbing Gregory, he argues that his assault conviction should be vacated because there was insufficient evidence that he used a dangerous or deadly weapon. Finally, he argues that the sentencing enhancement for obstruction of justice must be reversed because the district court failed to make a specific finding that he committed perjury.

Lee does not challenge his conviction under the drug counts. Rather, he claims that the district court erred when it refused to grant his motion for judgment of acquittal on the charges of assault and robbery of a federal officer. Lee argues that he cannot be held vicariously liable for Buchannan's attack and robbery because it was not reasonably foreseeable and it was outside the scope of the conspiracy.

The government cross-appeals, asking us to vacate Buchannan's sentence and to remand the case for resentencing because the district court failed to make the required factual findings at Buchannan's sentencing hearing regarding the amount and type of drugs attributable to Buchannan.

We affirm the convictions, but vacate Buchannan's sentence and remand his case for resentencing.

II. U.S. v. Buchannan

On appeal, Buchannan argues that the district court's refusal to give his proffered jury instruction deprived him of a fair trial with respect to the drug charges. He also contends that there was insufficient evidence to support his assault conviction. Finally, he urges reversal of his sentencing enhancement for obstruction of justice because the judge failed to make an explicit finding that he committed perjury. The government cross-appeals Buchannan's sentence seeking remand for findings of the amount and type of drugs that Buchannan handled.

A. Jury Instructions

Buchannan testified that he was only involved in the transaction with Lee and Kempfer on March 11 because he was attempting to gather information for Officer Legere. The district court rejected each of the three instructions offered by Buchannan that related to this testimony. ¹ As a result, Buchannan appeals his conviction claiming that he was entitled to have his theory of defense presented to the jury as a potential ground for acquittal.

A defendant is entitled to an instruction on his theory of defense if: (1) he proposes a correct statement of the law, (2) the theory is supported by the evidence, (3) the theory is not otherwise part of the charge and (4) the failure to include an instruction on the defendant's theory of defense would deny him a fair trial. See, e.g., United States v. Neville, 82 F.3d 750, 761 (7th Cir.1996) (citing United States v. Howell, 37 F.3d 1197, 1203 (7th Cir.1994)), cert. denied, --- U.S. ----, 117 S.Ct. 249, 136 L.Ed.2d 177 (1996). If, viewing the jury charge as a whole, the defendant can show that these four conditions applied, the failure to give the instruction is reversible error. See United States v. Edwards, 36 F.3d 639, 645-46 (7th Cir.1994).

Buchannan's proposed Instruction No. 1 held the defendant to a purely subjective standard: if the jury found that Buchannan believed that he was acting as a government agent, they should find him not guilty regardless of how unreasonable that belief may have been. The trial court properly refused to give this instruction because it misstates the law. The defendant's mistaken belief that he is acting as a government agent only shields the defendant from prosecution if the defendant's belief is objectively reasonable. See, e.g., Neville, 82 F.3d at 761; United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.1994) (defendant's reliance must be actual and reasonable). However,...