U.S. v. Peco, s. 85-1162
| Decision Date | 26 February 1986 |
| Docket Number | 85-1163,Nos. 85-1162,s. 85-1162 |
| Citation | 784 F.2d 798 |
| Parties | 19 Fed. R. Evid. Serv. 1657 UNITED STATES of America, Plaintiff-Appellee, v. Peter PECO and Edwin Hoffman, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Nicholas A. DeJohn, Nicholas A. DeJohn & Assoc., Ltd., Patrick A. Tuite, Chicago, Ill., for defendants-appellants.
Patty Stembler, Appellate Sec., Crim. Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Before CUDAHY and RIPPLE, Circuit Judges, and SWYGERT, Senior Circuit Judge.
Following a jury trial, Peter Peco and Edwin Hoffman were convicted of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. Sec. 846. Peco also was convicted of cocaine distribution in violation of 21 U.S.C. Sec. 841(a)(1), and Hoffman was convicted of carrying a firearm during the commission of a felony in violation of 18 U.S.C. Sec. 924(c)(2). Alleging that certain trial errors affected the jury's decision to convict, Peco and Hoffman filed this timely appeal. We affirm the convictions.
The government's case at trial consisted of evidence which, if accepted by the jury, tended to show that the appellants were involved in a cocaine ring with several other individuals, including a Mario D'Andrea who sold cocaine out of a garage in Chicago. According to the government's submission, Peco purchased cocaine from D'Andrea with the financial assistance of Hoffman.
In May or June 1981, Drug Enforcement Agency (DEA) Agent Raleigh Lopez met Doug Hardin, a Chicago "career criminal." Hardin became an informer for the DEA. On September 2, 1981, Hardin introduced Agent Lopez to Peco as "Tony Herrera," a pseudonym indicating a connection to a Mexican drug family. During the course of the transaction, they discussed D'Andrea. The deal was consummated--one ounce of cocaine for $2500.
On September 6, through Hardin, Agent Lopez and Peco met again. Peco asked Agent Lopez to sell some cocaine for him and to find a volume buyer. He also indicated that he was dissatisfied with D'Andrea. Peco gave Agent Lopez one ounce of cocaine for which Lopez was to pay $2400; he told Lopez to stay in touch with Hardin. On September 8, having withdrawn $2400 in government funds, Agent Lopez and a female DEA agent, posing as his girlfriend, met Peco at a fast food restaurant and paid him for the ounce of cocaine. Peco identified Hoffman as his financier and promised to deliver one ounce of cocaine to Lopez. Peco also told Agent Lopez that an associate was bringing a kilogram of cocaine back to Chicago and discussed Agent Lopez' potential "buyer."
On September 10, in a Chicago restaurant parking lot, Hardin introduced two more DEA agents to Peco. The two agents, posing as cocaine dealers, offered to sell Peco two ounces of a substance they claimed was cocaine. They refused to allow Peco to sample the substance until he showed them the purchase money. The two agents and Peco then walked over to the van in which Hoffman was seated. Hoffman showed the agents the cash and asked if the "dealers" would be able to deliver five kilograms of cocaine each week. The surveilling agents then arrested the participants, including the defendants. At the time of the arrest, Hoffman was carrying a gun, and another loaded gun was found in his van. On October 1, following a confrontation, Agent Lopez shot and killed D'Andrea.
At trial, neither Peco nor Hoffman testified. Hoffman's defense counsel attempted to show that Hoffman, who collected stock cars, believed that he was purchasing a car on the night of his arrest. Evidence was submitted which tended to show, and counsel argued, that Hoffman was an honest businessman with a hobby of stockcar racing--a hobby which requires large quantities of cash since most transactions in that area are conducted on that basis. Peco's attorney showed that Peco worked for D'Andrea and stored a race car in D'Andrea's garage. However, the defense was based, in large measure, on attacks on the credibility of the government's witnesses. The principal allegation was that Lopez, seemingly without authority, promised Hardin immunity from prosecution for his past acts which included eight murders, two arsons, two kidnappings, thefts and narcotics offenses.
On appeal, Peco and Hoffman urge us to find that certain behavior by the prosecutors at their trial denied them a fair trial. They claim that the scope of the government's redirect examination of Agent Lopez
impermissibly exceeded the scope of the cross-examination. They allege that Lopez' testimony regarding alleged "death threats" aimed at him and his family prejudiced the jury against them. Further, they claim that the government's improper closing rebuttal remarks impaired the likelihood that they would receive a fair trial. We shall examine each of these issues separately.
Appellants' first claim on this appeal is that the redirect examination of Agent Lopez relating to death threats against him and his family was irrelevant, prejudicial and violative of the hearsay rule. In reviewing these claims, we are mindful "that the district court has broad discretion to assess the relevancy of proffered evidence." United States v. West, 670 F.2d 675, 682 (7th Cir.), cert. denied, 457 U.S. 1139, 102 S.Ct. 2972, 73 L.Ed.2d 1359 (1982). Our deference to the evidentiary decisions of the trial judge is based on the fact that "trial judges are much closer to the pulse of a trial than we can ever be...." United States v. Juarez, 561 F.2d 65, 71 (7th Cir.1977), quoted in United States v. Covelli, 738 F.2d 847 (7th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 211, 83 L.Ed.2d 141 (1985). Therefore, we will reverse an evidentiary ruling only if we find that the district court clearly abused its discretion. Id. The appellants' contention can be assessed adequately only in the context of the entire record. It is necessary, therefore, that we explore rather fully the trial transcript at this point.
As we noted in the foregoing paragraph, the appellants' defense was based, to a great extent, on an attack on the credibility of the government's witnesses. 1 Special Q. Agent Lopez, you gave Mr. Hardin immunity, didn't you?
emphasis was placed on Lopez' promise of immunity to Hardin--a promise that was unauthorized and unusually broad in its scope. On cross-examination of Lopez, Hoffman's counsel inquired at length about this matter:
A. Yes, sir.
Q. After October 1, 1981, you debriefed him, didn't you?
A. Yes, sir, I did.
Q. You promised him what you told him would not be used against him, didn't you?
A. Yes, sir, I did.
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Q. And you knew at the time that was giving him immunity for any crimes he told you about, didn't you?
A. Yes, sir.
Q. And then he proceeded to tell you that he had participated in eight murders, didn't he?
A. Yes, sir, he did.
Q. And two kidnappings?
A. Yes, sir.
Q. And two arsons?
A. Yes, sir.
Q. He was in a stolen car ring?
A. Yes, sir.
Q. Numerous other crimes against property?
A. Yes, sir.
Q. And many drug deals, correct?
A. Yes, sir.
Q. You didn't have authority to promise him immunity on that occasion, did you?
A. Yes, sir, that is correct.
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Q. You knew at that time that the Justice Department was the only organ of the Federal Government who could grant someone immunity, didn't you?
A. Yes, sir, I did.
Q. And you didn't bother to consult with the people in the Justice Department about your promise of immunity, did you?
A. That is correct, sir.
Hoffman's counsel then asked Lopez whether Hardin was given immunity as a reward for his part in the investigation. Tr.Tr. 439. Counsel then questioned Lopez about the arrest itself. After gleaning from Lopez that Hoffman's van and his $50,000 were seized and forfeited pursuant to the arrest, he intimated that effecting the seizure was the entire basis for the DEA's investigation of Hoffman--the intimation being that the charges against Hoffman were trumped up to justify the seizure of the money and the expensive van:
Q. Now, let me talk--let me ask you a few questions about this seizure of the van and the money.
Now, is it the usual procedure after you make a seizure for the Government to bring what is called a civil forfeiture action in federal court?
A. Yes, sir.
Q. And if no one opposes the forfeiture, does the Government get to keep what you seized?
A. Yes, sir.
Q. And this was a nice van that you had seized from Mr. Hoffman, wasn't it?
A. Yes, sir, it was.
Q. Have you had vans or automobiles forfeited in the past?
A. Yes, sir.
Q. And are the agents able to keep the vans after they are forfeited, not personally, but to use them in their Governmental activities?
A. Repeat the question, please.
MR. HANDLER: Could the question be read back, please?
(The question was read.)
BY THE WITNESS:
A. On occasions.
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Q. And if this forfeiture of this particular van and the $50,000 came off, that would be a nice feather in your cap, wouldn't it?
A. No, sir, it would not.
Q. Mr. Hoffman did oppose the forfeiture, didn't he?
A. I don't know, sir; I am not involved in that civil proceeding.
After Hoffman's counsel finished questioning Lopez, Peco's counsel cross-examined him regarding the death of D'Andrea on October 1st:
Q. Now, prior to you shooting and killing Mr. D'Andrea, Mr. D'Andrea had made approximately five sales of cocaine to you, is that right?
A. Yes, it is.
Q. And at the time that you shot him, he fell foward [sic] and was found lying on his face, is that right?
A. That is correct.
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Q. And likewise all records from the gas...
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