Petition for Writ of Certiorari — Peaden v. United States

Supreme Court brief1984

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Offic: ourt, U.S.

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, JUW 25 1984

No. 2 ALEXANDER L. STEV

TORR said ee ae

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1983

REUBIN W. PEADEN a/k/a SMOKEY PEADEN,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

PAUL G. KOMAREK

DANIEL, KOMAREK &

MARTINEC, CHARTERED.

P. O. Box 2522

Panama City, FL 32402

(904) 763-6565

ATTORNEYS FOR PETITIONER

QUESTION PRESENTED FOR REVIEW

Does it violate petitioner's rights to

confront his accusors and to due process of

law when the trial court admitted prejudi-

cial hearsay testimony from arrestees that

the petitioner was a drug dealer, where no

rule of evidence or criminal procedure

sanctions it, the arrestees are not shown

to be unavailable, and there is no guarantee

of trustworthiness?

TABLE OF CONTENTS

The Question Presented

Table of Contents .......

Table of Authorities...

Citation to Opinion Below .

eGR 5 6 se le lw

Constitutional Provisions

Involved - <

Statement of the Case —

A. Course of the

Proceedings Below

B. Relevant Facts Necessary

to Determine the Issue

Presented

Argument

Conclusion .

Certificate’of Service

APPENDIX A -- Opinion of Court

of Appeals

iii

vil

TABLE OF AUTHORITIES

CASES PAGE

California v. Green, 399 U.S.

149, 90 S.Ct. 1930, 26 L.Ed.

2d 489 (1970) kis - 39

McMillian v. United States, 363

F.2d 165 (5th Cir. 1966) 21

Ohio v. Roberts, 448 U.S. 56,

AUG BSisGes a435e- 65 &. 8.20

597 (1980) 21

United States v. Bailey, 581 F.2d

341 (3G Cir. 1978) 21

United States v. Love, 592 F.2d

1022, 61 A.L.R. Fed. 906

(8th Cir. 1979) zl

United States v. McKinney, 707

F.2d 381 (9th Cir. 1983) 21

United States v. Peaden, 727

F.2d 1493 (llth Cir. 1984) oe

Appendix A

United States v. Yates, 524 F.2d

Laue hs Coes 1975) 21

STATUTES

18 U.S.C., §2 2

18 U.S.C., §1952 (a) (3) 3

18 U.S.C., §3237 (a) (2) 3

21 U.S.C., §812 ee

21 U.S.C., §841(a) (1) a

21 U.S.C., §846 1

28 U.S.C., §1254(1) Vv

SF |

Table of Authorities

Continued:

RULES

Fed.R.Evid. 801 (c)

OTHER AUTHORITIES

4 Weinstein on Evidence §800[04]

(1981)

United States Consti

Fifth Amendment

United States Consti

Sixth Amendment

tution,

PAGE

Tis

OPINION BELOW

The opinion of the Eleventh Circuit

Court of Appeals, Case No. 82-6050 is

reported in 727 F.2d 1493 (llth Cir. 1984),

and appears at Appendix A. This opinion

affirmed the conviction of the petitioner

in the trial court.

STATEMENT OF GROUNDS ON WHICH

JURISDICTION IS INVOKED

The judgment of the Eleventh Circuit

Court of Appeals was entered on March 26,

1984. The date of the order denying the -

petitioner's petition for rehearing and

Suggestion for rehearing en banc was

April 26, 1984. This petition for a writ

of certiorari was filed less than 60 days

from that date. The jurisdiction of *+his

court is invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

1. The Fifth Amendment to the

States Constitution, which provides

pertinent part:

No person shall... be

deprived of life, liberty,

Or property, without due

process of law

2. The Sixth Amendment to the

tates Constitution, which provides

pertinent part:

In all criminal prosecutions,

the accused shall enjoy the

right .. . to be confronted

with the witnesses against him

United

STATEMENT OF THE CASE

The facts necessary to properly under-

stand the issue raised in this petition,

briefly stated are:

A. Course of the Proceedings Below.

On August 18, 1982, in a cause then

pending in the United States Court for the

Northern District of Florida, entitled The

United States of America v. Reubin W. Peaden,

Case No. PCR 82-432 (Pensacola Division),

petitioner was found guilty by a jury on

an indictment of five counts of all five

counts.

Count I charged that from on or about

October 15, 1979 through August 23, 1980,

the defendant conspired to commit an

offense against the United States of America

to-wit: possessing cocaine with intent to

distribute in violation of Title 21, U.S.C.,

§812 and Title 21, U.S.C., §846; Count II

charged that on April 15, 1980, the

defendant possessed cocaine with intent

to distribute in violation of Title 2l,

GU.8.6.. B6i2 One Fitie. Zi. 0.86.4: OSes

(a) (1), and Title 18, U.S.C., §23; Count

III charged that on or about August 23,

1980 the defendant possessed with intent

to distribute cocaine in violation of the

same statutes cited above; Count IV charged

that on April 20, 1980, the defendant

conspired to use a communication facility

(a telephone) to facilitate an unlawful

activity which was the possession with

intent to distribute cocaine, in violation

of Title 21, U.S.C., §841(a)(1) and Title

18, U.S.C., §2; and in the last Count,

Count V, it was charged that on or about

April 15, 1980, the defendant aided and

abetted others in traveling from Pensacola,

Florida to Houston, Texas, with the intent

to facilitate an unlawful activity which

was the unlawful possession of cocaine

with intent to distribute, in violation

of Title 21, U.S.C., §84l(a) (1), and Title

18, U.S.C., §1952(a) (3), and Title 18,

U.S.C., §3237 (a) (2).

Judgments were entered by the District

Court on September 29, 1982, in accordance

with the verdicts of guilt returned by the

jury. The petitioner, Reubin W. Peaden, was

given a total sentence of fourteen (14) years

imprisonment, Twenty Five Thousand Dollars

($25,000.00), in fines, and three (3) years

Special parole term.

The judgment and sentence were con-

firmed by the Court of Appeais for the

Eleventh Circuit, United States v. Peaden,

Case No. 82-6050, 727 F.2d 1493 (1984), and

a petition to this court for a writ of

certiorari was timely filed, after a denial

of a petition for rehearing and suggestion

for rehearing en banc was denied on

April 26, 1984.

All references to the Record of these

proceedings is abbreviated by "R"; the

Transcript of the trial is referred to

by "T", succeeded by page numbers.

B. Relevant Facts Necessary To

Determine The Issue Presented.

Succinctly stated the petitioner

Submits, as the issue was posed by the

Eleventh Circuit Court of Appeals, "that

the district court erred in admitting,

over objection, the hearsay statements

by the two unnamed arrestees that Peaden

was ‘a large man in the area in the drug

business'", and that the Court of Appeals

erred in finding no error.

At the trial, prior to the presenta-

tion of the rebuttal evidence complained

of here, the judge overruled the petitioner's

numerous objections to the prejudicial

evidence (T 699, 701, 754).

The facts relevant herein were set

forth in the decision of the Court of

Appeals:

Peaden defended by denying any

wrongdoing and accusing the govern-

ment of constructing its case

against him from perjured testimony.

He admitted his longtime associa-

tion with Hencye and Jimmy Davis,

but cast it in an innocent light.

According to Peaden, they were

drug users and he was merely try-

ing 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 enforce-

ment in investigating drug

trafficking in the Florida

panhandle.

Peaden took the stand, and

began by denying that he had

ever dealt in drugs. He pro-

ceeded 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 air-

port. 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 any-

thing 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 enforce-

ment 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

esas ecereypppeeprenereerenereen om eee

EE a a aT 2 a

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.

Peaden's attorney objected

on the ground that the state-

ment 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 instruc-

tion.

When examining West before

the jury, the prosecutor asked

first about the telephone call

of March 18. West replied

that he had a vivid recollec-

tion 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 had implicated

as a major local drug dealer.

The prosecutor then asked

whether West and Peaden had

actually discussed the subjects

Peaden had mentioned in his

testimony. West denied speak-

ing with Peaden about anything

but some unnamed man who might

be flying drugs into the area.

On cross-examination, defense

counsel sought to show that the

two arrestees were not connected

with this case. After hearing

all the evidence, the jury con-

victed Peaden on all five counts.

727 F.2d at 1496-98.

The government's rebuttal witness agent

Don West testified as to what two individuals,

unrelated to the conspiracy charged against

the petitioner, who were not shown to be

unavailable, had told him about the petition-

er. Specifically West testified in part

that:

A. On March 15, 1980, in, just

outside of Milton, in Santa Rosa

County, Florida, myself and

fellow agents of the Florida

Department of Law Enforcement,

along with other agencies, namely

the Escambia County and Santa Rosa

County Sheriff's Departments, had

arrested two persons for traffick-

ing in cocaine. Subsequent to

their arrest and while at the Santa

Rosa County Jail, I, along with

Special Agent Larry Smith, had

occasion to interview these two

persons. And at this time, in

giving intelligence in a spirit

of cooperation, both of these

defendants identified Smokey

Peaden as a large man in this

area in the drug business

(T 754-55).

The trial was hotly contested; the

government's other witnesses were impeached,

some were admitted perjurers, and the peti-

tioner took the stand and denied the charges

made against him. However, he could never

cross-examine the two unnamed arrestees.

ARGUMENT

If this is truly a nation of laws and

not of men, then this case must be reversed.

The Court of Appeals below has rendered a

decision that is not only unjust but will

serve as a precedent for federal prosecutors

which will not only abrogate the hearsay rule

but will also deny future defendants of

the right to confront their accusors.

This Court has stated:

While it may readily be conceded

that hearsay rules and the Confronta-

tion Clause are generally designed

to protect similar values, it is

quite a different thing to suggest

that the overlap is complete and

that the Confrontation Clause is

nothing more or less than a codifi-

cation of the rules of hearsay and

their exceptions as they existed

historically at common law. Our

decisions have never established

such a congruence; indeed, we have

more than once found a violation

of confrontation values even though

the statements in issue were admitted

under an arguably recognized hearsay

exception.

California v. Green, 399 U.S. 149, 155-56,

90 §.Ct. 1930, 1933, 26 L.Ed.za 469 (i970).

The Sixth Amendment to the United States

Constitution states in part:

In all criminal prosecutions,

the accused shall enjoy the

right . .. to be confronted

with the witnesses against him

Nevertheless, the Eleventh Circuit

Court of Appeals has rendered an opinion

which not only violated the Constitution,

by denying due process and the right to

confront the witnesses, but does so with

no citation to any authority whatever. The

opinion is contrary to the numerous opinions

of other circuits, this High Court, the

Constitution, and the rules of evidence.

This may seem an exaggerated statement but

it will be shown that it is not.

The complete testimony of agent West

at trial regarding the March 18, 1980 call

to him by Peaden, the petitioner, is set

forth, as it was in footnote 7 to the Court

of Appeals' opinion:

A. The first call I received

from (Mr. Peaden] was on March

18 of 1980.

Q. And did you attach any signi-

ficance to the call that you received?

A. Yes, Sat. i @2é.

Q. Where did you receive the call?

A. It was at my residence, located

in Milton, Florida.

Q. And did you attach any signi-

ficance to the fact that you were

being called at your residence?

A. Well, it was late in the

evening when I received the call.

I normally get such calls at my

office.

Q. And you had never received

or communicated by telephone with

Mr. Peaden on any prior occasion?

A. Not to my knowledge and best

recollection, no, sir.

Q. What, if any-what was the

Significance that you attached

to the call?

A. Well, the significance was,

number one, it was the first time

I had ever received an official

call or any call from Mr. Peaden.

Secondly, it was late in the

evening and it was at my residence.

And, thirdly, on the preceding

Saturday, which was March the

15th of 1980-

MR. DANIEL: Your Honor, a continuing

objection.

THE COURT: All right, overruled.

A. On March 15, 1980, in just

outside of Milton, in Santa Rosa

County, Florida, myself and fellow

agents of the Florida Department of

Law Enforcement, along with other

agencies, namely the Escambia

County and Santa Rosa County

Sheriff's Departments, had

arrested two persons for traffick-

ing in cocaine. Subsequent to

their arrest and while at the

————————EeE

Santa Rosa Jail, I, along with

Special Agent Larry Smith, iad

occasion to interview these

two persons. And at this time,

in giving intelligence in a

Spirit of cooperation, both

of these defendants identified

Smokey Peaden as a large man in

this area in the drug business.

Also on this same day or this

same night subsequent to the

arrest of these two individuals

one of the defendants, with his

consent, had placed two telephone

calls to Mr. James Cohron, during

which time drugs were discussed.

This had occurred on the preceding

Saturday, March 15th, and I

received this call at home on

the night of March 18th, which

is a Tuesday night.

Q. So the significance then was

the fact of the call three days

after, by Mr. Peaden, when three

days earlier you'd received

information about him?

A. That's correct, sir.

Q. Now, in that conversation-

by the way, did you make a report

of it?

A. No, sir, I did not.

Q. Did you make a report of the

interview of the individuals that

you had busted three days earlier?

A Bee... C6233. Gams

Q. Now, in your conversation with

Mr. Peaden, what was that conversa-

tion about?

; .

A. Well, it was a very

lengthy conversation. The

essence of the conversation

was that Mr. Peaden was

reporting on an airplane

from the Pensacola area

which was either going or

had already gone down south

to pick up a load of cocaine.

(T 753-56).

This testimony by agent West was offered

in response to the prosecutor's question as

to “whether Peaden had actually discussed

the subjects Peaden had mentioned in his

testimony. West deniec speaking with Peaden

about anything but some unnamed man who

might be flying drugs into the area."

727 F.2d at 1497.

The Court of Appeals conceded that the

evidence was prejudicial. As it was set

forth in its opinion: “The jury heard two

men unrelated to the particular group at

the trial saying that Peaden was known to

be a major drug dealer in the area." 727

F.2d at 1499. Continuing: "He had no

opportunity to discredit the hearsay

declarants. Their ‘testimony' may have

made the jury more likely to believe the

charges against Peaden than they otherwise

would have been." 727 F.2d 1499-1500. The

government did not show that the arrestees

were unavailable to be called to trial.

It may be asked, what was the reason

for allowing this evidence in the first

place?

The government's answer, argued at

trial was that it was to prove modus operandi,

that Peaden called investigators to find out

what the authorities knew regarding him after

he had been "fingered" by the two arrestees.

The Court of Appeals demolished this argu-

ment in footnote 9 to its opinion. 727 F.2d

at 1499. One reason was that the government

never showed that the petitioner "knew of or

was responding to the arrests when he called."

Id.

It may be asked, what was the reason

that the Court of Appeals found so persuasive

as to override the petitioner's constitutional

) .

right to have this prejudicial evidence

excluded?

The Court of Appeals stated it thus:

The statement by the two

arrestees that Peaden was in-

volved in the local drug

business had a hearsay use

and a limited non-hearsay use.

If offered for its truth, i.e.,

to show that Peaden was in fact

a large man in the drug business,

it would be hearsay. Peaden

would have no opportunity to

cross-examine the two hearsay

declarants who would be, in

effect witnesses against him.

The statements had a non-hearsay

purpose, 1.e., to show that agent

West's ability to recall the

substance of the March 18 conversa-

tion with Peaden to which he was

testifying was sharpened. The

statement would thus be offered

not for its truth, but merely to

show that it was said. Indeed,

the statements of the hearsay

declarants would have been

relevant for the point offered

even if they were false. The

only issue would be whether

the in-court declarant heard

the statements and what effect

they had on him three days later

when Peaden called. The in-court

declarant could testify from

personal knowledge to whether

the statements were said and-

their effect on him, and would

be subject to cross-examination.

The evidence was substantially

probative of agent West's ability

to recall the substance of the

conversation with Peaden

727 F.2d at 1498-99(footnote omitted;

emphasis added).

The Court of Appeals in its lengthy

analysis of this one point cited no

authority for its conclusion; no cases,

no statutes, no rule of evidence, no rule

of procedure.

The offending statement was offered

to show - not the truth, the Court stated -

but to show that it was said. That it was

said, however, was not relevant to the

proceedings. That the government needed

to show that agent West had a “sharpened”

memory is no different a situation than

with any witness in any trial ever held.

The Court of Appeals "quickly disposed”

of petitioner's constitutional violation

claims, in footnote 1l of the opinion

(727 F.2d at 1500), as follows:

Since the statement was

admitted for its nonhearsay

value, we can quickly dispose

of Peaden's theories that the

citi

edmission of the statement

was hearsay, and violated

his sixth amendment “right

to confront." The court

plainly indicated when it

admitted the testimony that

it was not admitting the

statement for its truth,

but rather for its nonhearsay

value (see Fed.R.Evid. 801l(c)).

While the confrontation clause

is not coextensive with the

hearsay rules, see California v.

Green, 399 U.S. 149, 90 S.Ct.

1930, 26 L.Ed.2d 489 (1970),

4 Weinstein on Evidence §800

[04} (1981), the principles of

the two protections are similar.

We find no cases indicating that

the confrontation clause protec-

tion extends to evidence that is

not hearsay. This is perfectly

compatible with the principles

underlying the confrontation clause,

which protects the defendant's right ©

fully to cross-examine under oath a

witness against him, thus high-

lighting for the jury weaknesses

in the witness' statement or

demeanor. Green, 399 U.S. at

158, 90 S.Ct. at 1935. The value

of a statement offered for nonhear-

Say purposes lies in its being said

rather than in its content. The

only person the defendant needs to

cross-examine, therefore, is the

person who heard it, and is testify-

ing to its utterance from personal

knowledge.

This incredible opinion is in conflict

with every other circuit as well as the

Constitution and the reasoned precedent

of this Court. If federal appellate

courts are to be merely forums to find

any superficially reasonable explanation

whatever to uphold every criminal convic-

tion in the lower courts then the public

should know. This decision by the Court

of Appeals is absurd and should not be

allowed to stand for other prosecutors

to rely on in future prosecutions. For

if it does stand, it effectively swallows

up the protections peekie tena ie boasted

of in our system of justice. Calling this

Statement not hearsay, and thus stripping

the petitioner of his constitutional rights

to due process of law and to confront his

accusors is both dangerous and unfair. zt

is apparently still true that "the King can

do no wrong".

The decision of the Court of Appeals

directly conflicts with the following

eee,

decisions of the other circuits (the list

is not all inclusive):

McMillian v. United States, 363 F.2d

165 (Sth Cir. 1966);

United States v. Love, 592 F.2d 1022,

61A.L.R. Fed. 906 (8th Cir. 1979);

United States v. McKinney, 707 F.2d

381 (9th Cir. 1983);

United States v. Bailey, 581 F.2d 341

(3d Cir. 1978);

United States v. Yates, 524 F.2d 1282

(D.C. Car. i973).

Additionally, the decision below

directly conflicts with the principles

ennunciated by this Court in Ohio v.

Roberts, 448 U.S. 56, 100 S.Ct. 2531,

65 L.Ed. 2d 597 (1980). As Justice

Blackmun stated in Roberts:

In sum, when a hearsay

declarant is not present

for cross-examination at

trial, the Confrontation

Clause normally requires

a showing that he is un-

available. Even then, his

statement is admissible only

if it bears adequate “indicia

of reliability.” Reliability

can be inferred without more

in a case where the evidence

falls within a firmly rooted

hearsay exception. In other

cases, the evidence must be

excluded, at least absent a

showing of particularized

guarantees of trustworthiness.

Roberts, 448 U.S. at 6€.

This Court should reaffirm the

principle so expressed to prevent a

grave miscarriage of justice in this

instance, as well as to prevent a

dangerous precedent to be set by the

Eleventh Circuit, which is in contraven-

tion of all prior legal authority.

CONCLUSION

This Court should grant this

Petition for Writ of Certiorari in

order to reconcile the decision of the

Eleventh Circuit Court of Appeals with

the other Courts of Appeal, the prior

decisions of this Court, and the

Constitution of the United States.

Respectfully submi ,

AUL G. KOMAREK

JOHN F. DANIEL

DANIEL, KOMAREK &

MARTINEC, CHARTERED

P. ©. Box 2522

Panama City, FL 32402

(904) 763-6565

ATTORNEYS FOR PETITIONER

REUBIN W. PEADEN a/k/a

SMOKEY PEADEN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that all parties

required to be served have been served,

including the Solicitor General, Department

of Justice, Washington, D.C. 20530, by

regular U. S. Mail with the foregoing

Petition For A Writ Of Certiorari, this

Abth day of July, 1984.

Lig I Lovet

PAUL G. KOMAREK

JOHN F. DANIEL

. DANIEL, KOMAREK &

MARTINEC, CHARTERED

PP. ©. Bom 2522

Panama City, FL 32402

(904) 763-6565

ATTORNEYS FOR PETITIONER

REUBIN W. PEADEN a/k/a

SMOKEY PEADEN

_—

UNITED STATES of America,

Plaintiff-Appellee,

Reubin W. PEADEN, a/k/a Smokey

Peaden, Defendant-Appellant.

No. 82-6050

United States Court of Appeals,

Eleventh Circuit

March 26, 1984

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,

guestioning the sufficiency of the

evidence to sustain his conviction of

two of the offenses* and several of the

trial judge's evidentiary rulings. We

affirm.

Seven people from the Florida pan-

handle 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 Sai th:

Their activities came to light because

Sarah Smith, in June, 1980, reported

their conduct tc the police, and there-

after 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 Pea-

den and Sarah Smith. She was not in-

dicted 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

3 and thereafter cooperated with

guilty

the authorities. Jimmy Davis and Clar-

ence 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

A-3

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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 mes-

sages 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 co-

caine, 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

A-5

cocaine in Houston, Dallas and Austin.4

The sales went well, and Hencye so ad-

vised Peaden by telephone from Austin.°

In time, Hencye and Norrie returned

to Pensacola, having left Sarah Smith in

Texas to dispose of the remaining co-

caine. 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, Hen-

cye 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 co-

horts. Over the next several weeks, she

Surreptitiously tape recorded incrimi-

nating conversations with several of the

A-6

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 accom-

plices. Sarah Smith and Hencye testi-

fied 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. Jim-

my 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 affirma-

tively 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 Flo-

rida Department of Criminal Law Enforce-

ment, and had expressed to West his deep

concern about Hencye's continued use of

A-9

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 tele-

phoned West again. A deputy sheriff,

Fred Price, had called Peaden to say

that Peaden was being suspected of hav-

ing fled from the scene of Jimmy Davis'

arrest. Peaden calied West to voice

general concern. West returned his call

and they later met at Peader.'s resi

dence; 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 com

mented on two pieces of evidence that

were vital to the government's charges

in counts IV and V of indictment--the

A-10

long distance telephone conversations he

had with Hencye on April 20, 1980, anda

his provision of the car Hencye used to

travel to Texas. He admitted partici-

pating 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 esta-

blish Jimmy Davis as the financier o

the drug operation. He called a Pensa-

cola bank officer who testified that

Davis had borrowed thirty thousand dol-

lars from his bank on two occasions,

February and April 19860. On cross

examination, the government, attempting

to show that Peaden would nave borrowe:

the money but could not because he fa

A-11

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 ques-

tion and moved to strike the answer. The

court sustained his objection and in-

structed the jury to disregard the ques-

tioin and the answer.

On rebuttal, tie government called,

among others, agent West, to refute

Peaden'’s statement that he had provided

West with detailed information on local

drug activity in kis telephone calls.

Peaden's attorney moved the court in the

absence of he jury to instruct the

prosecutor not to ask West about a con

versation he had had three days prior tc

Peaden's March 18, 1980, call. In that

conversation, two nen who had just been

arrested had told West that Peaden was a

“large man” in the local drug business. ©

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 state-

ment in as bearing on the modus operan-

di, not for its truth. Peaden's attor-

ney 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 ar-

rested three days before had implicated

A-13

as amajor local drug dealer. The prose-

cutor then asked whether West and Peaden

had actually discussed the subjects

Peaden had mentioned in his testimony.

West denied speaking with Peaden about

anything but some unnamed man who might

be flying drugs into the area.’ On

cross-examination, defense counsel

sought to show that the two arrestees

were not connected with this case. Af-

ter hearing all the evidence, the jury

convicted Peaden on all five counts.

(1-3]) In this appeal Peaden pre-

sents five claims of error: (1) that

the district court erred in allowing the

government to question the banker about

Peaden's “insufficient funds (NSF)

checks; (2) that the district court

erred in admitting, over objection, the

hearsay statements Dy the two unnamed

A-14

aes

arrestees that Peaden was "a large man

in the area in the drug business"; (3)

that there was insufficient evidence to

Support the conviction under Count IV,

conspiracy to use the telephone to faci-

litate an unlawful activity; and (5)

that the district court erroneously

limited Peaden's presentation of his

defense. We discuss only the second

claim; the others are clearly without

merit. ®

Peaden contends that the trial

judge's admission of the statement from

the arrestees to agent West was rever-

Sible error because it was hearsay,

because it violated his due process

rights to a fair trial, and because it

violated his sixth amendment right to

confront witnesses against Nim.

(4, 5] Determinations of the admis-

Siblity of evidence rest largely within

the discretion of the trial judge and

will not be disturbed on appeal absent a

clear showing of an abuse of discretion.

United States v. Russell, 703 F.2d 1243

(llth Cir.1983). Admission of any evi-

dence that violated the defendant's due

process or confrontation rights would

automatically constitute an abuse of

discretion. We proceed first with a

general evaluation of the evidence to

aid us in determining whether the trial

judge abused his discretion in admitting

The statement by the two arrestees

that Peaden was involved in the local

drug business had a hearsay use and a

limited non-hearsay use. If offered for

[tS CrUen, -i:.¢; to show that Peaden was

in fact a large man in the drug busi-

ness, it would be hearsay. Peaden would

have no opportunity to cross-examine the

two hearsay Ceclarants who would be, in

effect, witnesses against him. The

statements had a nonhearsay purpose,

i.e., to show that agent West's ability

to recall the substance of the March 18

conversation with Peaden to which he was

testifying was sharpened.? The state-

ment would thus be offered not for its

truth, but merely to show that it was

said. Indeed, tne statements of the

hearsay declarants would have been rele-

vant for the point offered even if they

were false. The only issue would be

whether the in-court declarant heard the

Statemerts and what effect they had on

him three days later when Peaden called.

The in-court declarant could testify

A-17

from personal knowledge to whether the

statements were said and their effect on

him, and would be subject to cross-

examination.

The evidence was substantially pro-

bative of agent West's ability to recall

the substance of the conversation with

Peaden. The call to West was a vital

piece of evidence to Peaden; without it

he would have no story that he had an

Ongoing relationship with law enforce-

ment officers, as a concerned citizen,

to ferret out drug activity. The timing

was important because in March the co-

Caine ring had already completed several

deals and was about to make the Texas

trip. This conversation bridged the gap

between the August 1979 conversations

with Curtis Golden and Wayne Smith, and

the August 1980 contact with West; it

maintained the illusion of regular

cooperation with the authorities. The

call itself took place almost two and a

half years before the trial and the

conversation was not taped. The jury

was faced with a swearing match between

accounts of this vital conversation.

Therefore, exposure to reasons agent

West might have for accurately remember-

ing a conversation in the distant past

would help the jury. The statement

certainly imprinted the conversation

with Peaden on March 18 in agent West's

mind in away that the call being to his

home and at night ine not have.

The evidence was also prejudicial.

The jury heard two men unrelated to the

particular group at the trial saying

that Peaden was known to be a major drug

dealer inthe area. Peaden, on cross-

examination, had shown some of the in-

court witnesses against him to be less

than perfectly truthful, and had pointed

out that some of them had cooperated

with the government in exchange for

leniency. He had no opportunity to

discredit the hearsay declarants. Their

"testimony" may have made the jury more

likely to believe the charges against

Peaden than they otherwise would have

been. The prejudice was minimized in

one respect; the prosecutor did not use

the statement against Peaden in closing

argument.

[6 ] The district court did not

admit the statement at trial for its

truth but rather for a nonhearsay pur-

pose. See Fed.R.Evid. B0l(c)!9, As

such we are concerned not with whether

the statement was hearsay or violated

the confrontation clause!?} but rather

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how the trial judge could have abused

his discretion in admitting the evidence

for its nonhearsay value. He could have

abused his discretion in admitting the

evidence because, since it had only a

limited nonhearsay use, there was too

great a danger the jury would use the

statement as evidence that Peaden was in

fact a major area drug dealer. This is

essentially Peaden's due process claim;

it also tracks our supervisory review of

whether the trial court erroneously

concluded that the probative value of

the evidence was not substantially out-

weighed by its prejudicial effect. See

Fed.R.Evid. 403.

There are two subcategories of

cases we would reverse on this theory.

The first group would include those

cases in which the admission of the

A-21

statement, even if accompanied by a

limiting instruction, would constitute

error. See Bruton v. United States, 391

U.S. 123, 68 S.Ct. 1620, 20 Li. 84.20 476

(1966). In such a case, the danger of

the jury's being unable to avoid using

the hearsay declaration for its truth

would be so great that we would consider

the jury unable to follow instruction

from the judge not to consider the evi-

dence for its truth. The second group

consists of those cases in het ets! ae

admission of the evidence, if it had

been accompanied by a limiting instruc-

tion, would have been appropriate, but

because no limiting instruction was

given the admission was error. If Pea-

den's facts fall within this -second

group, before we reverse for the court's

failure to give a limiting instruction

we must undertake the further analysis

of whether Peaden's failure to request a

limiting instruction is fatal to his

Claim. See Fed.R.Evid. 103(a).

This statement does not fall within

the first category, it is not the type

of statement which, if it had been ad-

mitted accompanied by a limiting in-

struction, woulda have been erroneous.

In Bruton, the High Court found that

limiting instructions were insufficient

as a matter of law to allow the admis-

sion of a codefendant's confession

implicating Bruton into their joint

trial, when the codefendant did not take

the stand. While Bruton is a confronta-

tion clause case, the Court cited cases

decided on due process grounds to sup-

port its conclusion. The Court stated

the governing principle to be whether

the procedure used posed a "substantial

threat" to the constitutional right,

r2cognizing that "there are some con-

texts in which the risk that the jury

will not, or cannot, follow instruc-

tions, and the consequences of failure

so vital to the defendant, that the

practice 1 and human limitations of the

jury system cannot be ignored." Id. at

135-7, 88 S#t. at 1627-8. Few cases

warrant such treatment. See Spencer v.

Texas, 385 U.S. 554, 87 S.Ct. 648, 17

L.Ed.2d 606, reh'g denied, 386 U.S. 969,

S7 S.Ct. i015, 16 O.86€.20 i25 (1967)

(discussing efficacy of limiting in-

structions).

[7] In Peaden's case, an appro-

priate limiting instruction woulau not

have required so much mental gymnastics

that the jury could not have (or would

not have) followed it. Nor would the

consequences of the jury's failure to

A-24

follow the instruction have been a "sub-

stantial threat" to Peaden's right to a

fundamentally fair trial. The statement.

was not harmless, but neither was it of

strong prejudicial value. It was a

brief, vague statement not nearly as

incriminating as the specific, strong

web of conspiracy spun by the prosecu-

tion in its case in chief. The state-

ment looms far larger inthis analysis

than it did at Peaden's trial in the

midst of all the testimony against him.

If the judge had given a limiting in-

struction that the statement could not

be considered for its truth but only to

show why agent West had reason to remem-

ber clearly the contents of his conver-

sation with Peaden, we would find the

admission of the statement to be within

the judge's discretion.

A-25

In determining whether the state-

ment requires reversal because no limit-

ing instruction was in fact given, we

must first decide at whose door we lay

the failure to give the instruction. If

the court committed plain error in fail-

ing to recognize the need for the limit-

ing instruction sua sponte, we must

reverse. See Fed.R.Crim.P. 52(b); Fed.-

R.Evid. 103(d). However, if Peaden was

required to request the instruction, his

failure to do so caused its absence.

See id. at 103(a). Since for strategic

reasons counsel may have chosen not to

request an instruction, we would be

reluctant to determine as a matter of

law that counsel's strategic choice gave

rise to a due process violation.

United States v. Barnes, 586 F.2d

1052 (5th Cir. 1978), is instructive on

how we review the court's failure to

A-26

give an instruction in this context.

There, evidence of Barnes’ prior drug

deals was admitted only to show intent.

Barnes contended that the trial court

should have given a limiting instruc-

tion. The court, on appeal, described

the basic facts (similar to those at

Peaden's trial), and the resulting rule

of law:

Although Barnes’ counsel argued

strenuously at trial that this

evidence was entirely inadmis-

Sible, once the evidence was

admitted he made no request

for a limiting instruction.

The question, therefore, is

whether the trial court commit-

ted plain error in failing sua

Sponte to give the instruction.

SeeFed.R.Crim.Pro. 52(b);

e.g., United States v. Roger,

465 F.2c 996 (Sth Cir. 1972).

"Plain error appears only when

the fadmitted statement] is

extremely damaging, the need

for the instruction is obvious,

and the failure to give it is

so prejudicial as to affect the

substantial rights of the ac-

cused.” United States v. Gar-

cia, 530 F.2d 650, 656 (5th

Cir. 1976), citing Upham v.

United eae 328 F.2d 661

(Sth Cir. 1964).

586 F.2d at 1058.

We cannot say, applying this test,

that the court in Peaden's case commit-

ted plain error in failing sua sponte to

instruct the jury that the statements by

the arrestees to West were not admis-

sible for their truth. The need for the

instruction is not so obvious, nor the

prejudice to the defendant so strong as

to meet the high standard that this test

articulates. See Barnes, 586 F.2d at

1058-59; United States v. Garcia, 530

F.2d 650, 654-56 (Sth Cir. 1976); United

tates v. Sisto, 534 F.2d 616, 622-26

(Stn Cis. 1976).

Thus, the trial court acted within

its discretion in admitting the state-

ment by the arrestees for its nonhearsay

purpose. The trial court neither abused

its discretion in letting the jury hear

the evidence at all, nor in letting it

hear the evidence without a limiting

instruction. Accordingly, the district

court's judgment is

AFFIRMED.

l. Peaden was charged in a five-count

indictment as follows: count I alleged

that from October 15, 1979, through

August 23, 1980, Peaden conspired to

possess cocaine with intent to

distribute in violation of 21 U.S.C.

§812(1982) and id. §846; count II

alleged that on April 15, 1980, Peaden

possessed cocaine with intent to

Giatritute if VWielation.. of “26.

§84l(a)(1), and 18 U.S.C. §2(1982);

count III alleged that on August 23,

1980, Peaden possessed cocaine with

intent to distribute in violation of the

same statutes as in count II; count IV

alleged that on April 20, 1980, Peaden

conspired to use a telephone to faci-

litate an unlawful activity, possession

with intent to distribute cocaine, in

violation of 21 U.S.C. §841(a)(1)(1982)

and 18 U.S.C. §2(1982); and count V

alleged that on April 15, 1980, Peaden

aided and abetted others in traveling

from Pensacola, Florida, to Houston,

Texas, with the intent to facilitate an

unlawful activity, possession of cocaine

A-

with intent to distribute, in violation

of 21 U.S.C. §841(a)(1)(1982), 18 U.S.C.

§1952(a)(3) (1982), and id. §3237(a),

and id. §2.

2. Peaden challenges the sufficiency of

the evidence with respect to counts IV

and V of the indictment.

ae Hencye and Norrie pled guilty to

distributing cocaine, and Cohron pled

guilty to a charge of conspiracy to

distribute cocaine.

4. This conduct provided the basis for

the charge in count V of the indictment.

5. This conduct provided the basis for

the charge in count IV of the indict-

ment.

6. This arrest concededly had nothing

to do with the conspiracy of which

Peaden was convicted.

7. Agent West's complete testimony

Surrounding the March 18 call and the

challenged statements by the two drug

offenders was the following:

. A. The Ticeset caisi Fz

received from [Mr. Peaden] was

on March 18 of 1980.

Q. And did you attach

any significance to the call

that you received?

A. ¥OO,; Ot, 2 se.

Q. Where did you receive

the call?

A. It was at my resi-

dence, located in Milton,

Florida.

Q. And did you attach

any Significance to the fact

that you were being called at

your residence?

A. Well, it was late in

the evening when I received the

C@ii. I normally get such

calls at my office.

Q. And you had never

received or communicated by

telephone with Mr. Peaden on

any prior occasion?

A. Not to my knowledge

and best recollection, no, sir.

Q. What, if any--what

was the significance that you

attached to the call?

A. Well, the signifi-

cance was, number one, it was

the first time I had ever re-

ceived an official call or any

call from Mr. Peaden. Se-

condly, it was late in the

evening and it was at my resi-

dence. And, thirdly, on the

preceding Saturday, which was

March the 15th of 1980--

MR. DANIEL: Your Honor,

a continuing objection.

THE COURT: All right,

overruled.

A. On March 15, 1980,

in, just outside of Milton, in

Santa Rose County, Florida,

myself and fellow agents of the

Florida Department of Law En-

forcement, along with other

agencies, namely the Escambia

County and Santa Rosa County

Sheriff's Departments, had ar-

rested two persons for traf-

ficking in cocaine. Subsequent

to their arrest and while at

the Santa Rosa County Jail, I,

along with Special Agent Larry

Smith, had occasion to inter-

view these two persons. And at

this time, in giving intelli-

gence ina spirit of coopera-

tion, both of these defendants

identified Smokey Peaden as a

large man in this area in the

drug business. Also on this

same day or this same night

subsequent to the arrest of

these two individuals one of

the defendants, with his con-

sent, had placed two telephone

calls to Mr. James Cohron,

during which time drugs were

discussed. This had occurred

on the preceding Saturday,

March 15th, and I received this

call at home on the night of

March 18th, which is a Tuesday

night.

G. So the significance

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a. 7 = f

then was the fact of the call

three days after, by Mr. Pea-

den, when three days earlier

you'd received information

about him?

A. That's correct, sir.

Q. Now, in that conver-

sation--by the way, did you

make a report of it?

=. Sey, 8if, I did not.

Q. Did you make a report

of the interview of the indivi-

duals that you had busted three

days earlier?

Re wee, Sir, I did.

Q. Now, in your conver-

Sation with Mr. Peaden, what

was that conversation about?

A. Well, it was a very

lengthy conversation. The es-

sence of the conversation was

that Mr. Peaden was reporting

on an airplance from the Pensa-

cola area which was either

going or had already gone down

south to pick up a load of

cocaine.

8. There was clearly sufficient evi-

dence before the jury in Hencye's testi-

mony for the jury to have found that

Peaden used the telephone to facilitate

the distribution of cocaine, and aidea

Hencye in traveling to Texas to distri-

bute cocaine.

The question to the bank officer

regarding the NSF checks yielded only

the response that the bank officer was

not familiar with Peaden's record. This

response was not damaging, and when

Peaden's counsel objected, the question

and answer were stricken from the record

and the jury was cautioned to ignore

them. Any prejudice was thus removed;

this circuit has long recognized the

cower of the trial court to neutralize

an improperly asked question by curative

instruction. See United States v. Rat-

ner, 464 F.2d 169, 172 (Sth Cir. 1972)

(discussing efficacy of curative in-

struction).

‘Finally, the district court did not

prejudicially limit Peaden's presenta-

tion of his defense. Peaden only points

to one instance where he was limited on

direct examination, where Peaden was

attempting to testify to the place Hen-

cye or Hencye's mother told him Hencye

got his drugs. This information could

easily have been pursued on cross-

examination of Hencye. In addition, it

is hearsay. The district court did not

abuse its discretion in sustaining the

prosecutor's objection to the questions.

The trial transcript shows that the

court was evenhanded during the defen-

dant's and government's presentation of

evidence.

9. The evidence might arguably be pro-

bative of Peaden's modus operandi. The

government indicated that it wished to

use the evidence of this purpose, con-

)

«4

ment

en es eae eae

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tending that Peaden's calls to West,

like Peaden's calls to Wayne Smith, were

for the purpose of finding out what the

authorities knew regarding him after he

had been "fingered" by the two ar-

restees.

This argument fails, however, to

the extent that it would allow in the

statement that Peaden was "a large man"

in local drug dealing. The government

showed no pattern that proved Peaden's

calls were tied to arrests that impli-

cated him. Although the government's

claim that Peaden's modus operandi was

to maintain a close relationship with

the police is colorable, that claimis

not furthered by the substance of the

arrestees' statements. Peaden's perio-

dic making of the calls to the police

alone would be needed to support that

modus operandi claim.

The government, to show that Pea-

den's call after the arrestees' "finger-

ing" of him was part of the modus

operandi (thus making the substance of

the arrestees' statements relevant),

would need to show a pattern of prior

arrests likely to implicate or implicat-

ing Peaden preceding each call, or would

need to show that the arrestees’' state-

ments had been communicated to Peaden.

The government could argue, not convinc-

ingly, that the August 26 call following

the Davis arrest established such a

pattern. The August 26 call responded

specifically to the deputy’s August 24

contract with Peaden, however. Peaden,

who had known of the arrest when he

called Davis’ home the night of August

23, found out from the deputy's call

that he was suspected. His response to

a direct accusal was natural, to call a

policeman with whom he had been in con-

tact to explain himself. These circum-

stances rendered the August 26 call

sufficiently different from the March

calls that it did not establish a pat-

tern. Since none of the other police

cotacts Peaden made were in response to

arrests possibly incriminating Peaden,

the substance of the statements was not

relevant to the modus operandi. Also,

the government made no showing that

Peaden knew of or was responding to’the

arrests when he called. The arrestees'

statements thus were not relevant to

show Peaden's modus operandi.

10. Though the court admitted the

statement for the nonhearsay purpose of

showing modus operandi, not the nonhear-

Say purpose of showing Agent West's

sharpened memory, he made it clear to

the attorneys that he would not admit

the statement for its truth.

ll. Since the statement was admitted

for its nonhearsay value, we can quickly

dispose of Peaden's theories that the

admission of the statement was hearsay,

and violated his sixth amendment "right

to confront". The court plainly indi-

cated when it admitted the testimony

that it was not admitting the statement

for its truth, but rather for its non-

hearsay value (see Fed.R.Evid. 801l(c)).

While the confrontation clause is not

coextensive with the hearsay rules, see

California v. Green, 399 U.S. 149, 0

§.ct. £930, 26 L.BG.2a 4639 (2970),

Weinstein on Evidence §800[04] (1981),

the principles of the two protections

are Similar. We find no cases indicat-

ing that the confrontation clause pro-

tection extends to evidence that is not

hearsay. This is perfectly compatible

with the principles underlying the con-

frontation clause, which protects the

defendant's right fully to cross-examine

under oath a witness against him, thus

highlighting for the jury weaknesses in

the witness' statement or demeanor.

Green, 399 U.S. at 155, 90 S.Ct. at

1935. The value of a statement offered

for nonhearsay purposes lies in its

being said rather than in its content.

The only person the defendant needs to

cross-examine, therefore, is the person

who heard it, and is “estifying to its

utterance from personal knowledge.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.