U.S. v. Peaden, 82-6050

• Decision Date: 26 March 1984
• Docket Number: No. 82-6050,82-6050
• Citation: 727 F.2d 1493
• Parties: 15 Fed. R. Evid. Serv. 557 UNITED STATES of America, Plaintiff-Appellee, v. Reubin W. PEADEN, a/k/a Smokey Peaden, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1493

727 F.2d 1493

15 Fed. R. Evid. Serv. 557

UNITED STATES of America, Plaintiff-Appellee, v. Reubin W. PEADEN, a/k/a Smokey Peaden, Defendant-Appellant.

No. 82-6050.

United States Court of Appeals, Eleventh Circuit.

March 26, 1984.

Paul G. Komarek, Panama City, Fla., for defendant-appellant.

Kevin Moore, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before TJOFLAT and HILL, Circuit Judges, and SIMPSON, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

In August 1982, Reubin Peaden was convicted in the district court, after a jury trial, of five offenses that he committed while participating in a cocaine distribution operation in Florida and Texas from October 15, 1979, to August 23, 1980. ¹ He appeals questioning the sufficiency of the evidence to sustain his conviction of two of the offenses ² and several of the trial judge's evidentiary rulings. We affirm.

I.

Seven people from the Florida panhandle were involved in the cocaine distribution ring in this case: Peaden; Jimmy Davis, Peaden's closest friend and business partner; Clarence Davis, Jimmy Davis' nephew; Gerry Hencye, Peaden's cousin; James Cohron, Hencye's business associate; Bill Norrie; and Sarah Smith. Their activities came to light because Sarah Smith, in June 1980, reported their conduct to the police, and thereafter provided the police with some highly incriminating evidence concerning her cohorts' actions. By the spring of 1981, a federal grand jury had indicted all the members of the ring except Peaden and Sarah Smith. She was not indicted because she agreed to testify for the government. Peaden was not indicted because the government's case against him at that time was weak.

Hencye, Cohron, and Norrie pled guilty ³ and thereafter cooperated with the authorities. Jimmy Davis and Clarence Davis were convicted following jury trials. Then, Peaden was indicted. He pled not guilty, went to trial, and was convicted. The government's case against Peaden was strengthened because everyone involved in the drug ring, including the Davises, testified against him. Collectively, they established the following facts.

In the fall of 1979, Peaden and Hencye discussed a plan to sell cocaine in the Pensacola, Florida, area. Peaden would furnish Hencye with the cocaine or the money to buy the cocaine; Hencye would dilute or "cut" it, sell it, and deliver the proceeds to Peaden. They contemplated the possibility that Peaden, who had been a member of the Florida legislature, would become Sheriff of Escambia County, so he could protect their drug business. Hencye contributed $4,000 to Peaden's campaign for that office, but Peaden never ran for election. By November 1979, the cocaine plan had become a reality. Peaden had arranged for Jimmy Davis to finance the cocaine purchases; Peaden operated as middleman, transmitting the proceeds of the cocaine Hencye sold to Davis and sharing with him in the profit.

One specific drug transaction provides the context for two of Peaden's claims of error on this appeal. It took place in April 1980, after Sarah Smith had become involved in the dealings. Hencye hired her to answer the telephone at his residence and to take down messages concerning cocaine transactions. On one occasion she took a message from Peaden. She gave it to Hencye, and within forty-five minutes he obtained a pound of cocaine from Peaden and Jimmy Davis. Hencye cut and bagged the cocaine, and took steps to sell it. He made no sales, however; his price was apparently too high.

Hencye then decided to sell the cocaine in Texas where he thought he could get a better price. For the trip Peaden provided him with a car that was titled in Peaden's daughter's name. The daughter, at Peaden's request, signed the title over to Hencye. Hencye, Smith and Norrie drove to Texas, and sold cocaine in Houston, Dallas and Austin. ⁴ The sales went well, and Hencye so advised Peaden by telephone from Austin. ⁵

In time, Hencye and Norrie returned to Pensacola, having left Sarah Smith in Texas to dispose of the remaining cocaine. A short while later she too returned to Pensacola. She asked Hencye for her "share" of the profits they had made in Texas, but Hencye refused to pay her anything. When she persisted, Hencye had Cohron beat her up. It was then that Smith went to the Escambia County Sheriff's office. After confessing her part in the cocaine operation, she agreed to assume an undercover role in the Sheriff's investigation of her cohorts. Over the next several weeks, she surreptitiously tape recorded incriminating conversations with several of the participants in the operation. None, however, implicated Peaden, which is apparently why he was not indicted along with the others.

At Peaden's trial, the government's case in chief was built in the main on the testimony of Sarah Smith, who had been given immunity, and Peaden's accomplices. Sarah Smith and Hencye testified at length about the drug operation. Hencye established Peaden as the person who had supplied some bulk cocaine and financed other cocaine buys. Norrie, Cohron and Clarence Davis corroborated Smith and Hencye's testimony generally, except for Peaden's participation. Jimmy Davis completely implicated Peaden in the drug scheme. He testified to four drug transactions that he and Peaden had consummated, including those Hencye had described.

Peaden defended by denying any wrongdoing, and accusing the government of constructing its case against him from perjured testimony. He admitted his longtime association with Hencye and Jimmy Davis, but cast it in an innocent light. According to Peaden, they were drug users and he was merely trying to help them out of familial concern for their welfare. Finally, Peaden affirmatively portrayed himself to the jury as a law abiding citizen who had a long history of aiding law enforcement in investigating drug trafficking in the Florida panhandle.

Peaden took the stand, and began by denying that he had ever dealt in drugs. He proceeded to tell the jury of the efforts he had made, as a concerned citizen, to expose local drug activity. In August 1979, he had met twice with a local prosecutor, Curtis Golden, and his investigator, Wayne Smith, to discuss such activity. He told them he had heard about several sheriff's deputies who had been selling confiscated drugs, about a Pensacola law firm that might be involved in drug activity, and about a local man who "others" suspected of flying drugs into a local airport. He also said that he thought his cousin, Hencye, and James Cohron had been using drugs. Peaden said he asked Golden and Smith what if anything he should do, and they told him to do nothing.

Peaden said that on March 18, 1980, he had given the same information by telephone to agent Don West of the Florida Department of Criminal Law Enforcement, and had expressed to West his deep concern about Hencye's continued use of drugs. His explanation for calling agent West, whom he had never met, was that he had heard of West "through law enforcement circles."

On August 23, 1980, Peaden telephoned West again. A deputy sheriff, Fred Price, had called Peaden to say that Peaden was being suspected of having fled from the scene of Jimmy Davis' arrest. Peaden called West to voice general concern. West returned his call and they later met at Peaden's residence; Peaden repeated his concerns about all the drug activities he had earlier reported to the prosecutor's office and to West.

During his testimony, Peaden commented on two pieces of evidence that were vital to the government's charges in counts IV and V of indictment--the long distance telephone conversation he had with Hencye on April 20, 1980, and his provision of the car Hencye used to travel to Texas. He admitted participating in the telephone conversation, but denied that it dealt with cocaine. He also admitted giving his daughter's car to Hencye, but stated that he did so to enable Hencye to "straighten his life out," not to sell cocaine in Texas.

In addition to the foregoing strategies, Peaden undertook to establish Jimmy Davis as the financier of the drug operation. He called a Pensacola bank officer who testified that Davis had borrowed thirty thousand dollars from his bank on two occasions, in February and April 1980. On cross-examination, the government, attempting to show that Peaden would have borrowed the money but could not because he had a poor credit rating, asked the officer whether Peaden had a reputation for passing bad checks. The officer replied that he did not have that information. Peaden's attorney objected to the question and moved to strike the answer. The court sustained his objection and instructed the jury to disregard the question and the answer.

On rebuttal, the government called, among others, agent West, to refute Peaden's statement that he had provided West with detailed information on local drug activity in his telephone calls. Peaden's attorney moved the court in the absence of the jury to instruct the prosecutor not to ask West about a conversation he had had three days prior to Peaden's March 18, 1980, call. In that conversation, two men who had just been arrested had told West that Peaden was a "large man" in the local drug business. ⁶ Peaden's attorney objected on the ground that the statement would be hearsay. The government argued that the statement was admissible on the issue of Peaden's modus operandi.

The court agreed to let the statement in as bearing on the modus operandi, not for its truth. Peaden's attorney requested no limiting instruction.

When examining West before the jury, the prosecutor asked first about the telephone call of March 18. West replied that he had a vivid recollection of the call and that it was significant to him for several reasons; the call was at night, at his home, from someone he did not know, whom two men he had arrested three days before...