United States v. Buford L. Peak & Bennie L. Peak

856 F.2d 825
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 10, 1988
Docket87-1251, 87-1252
StatusPublished
Cited by68 cases

This text of 856 F.2d 825 (United States v. Buford L. Peak & Bennie L. Peak) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Buford L. Peak & Bennie L. Peak, 856 F.2d 825 (7th Cir. 1988).

Opinions

CUDAHY, Circuit Judge.

Appellants, Buford and Bennie Peak, were convicted of conspiring to possess with intent to distribute marijuana and cocaine, in violation of 21 U.S.C. § 846. They appeal their convictions on a variety of grounds. In their consolidated brief on appeal, Buford and Bennie contend that the district court committed reversible error by giving the jury a supplemental instruction while it was deliberating and by unduly restricting the cross-examination of the government’s key witness. In his separate pro se briefs, Bennie argues that there was reversible error in excluding hearsay statements of Bennie’s state of mind and in refusing to give Bennie’s proposed instruction on his “capture” theory of defense, and that his due process rights were violated when the government knowingly used perjured testimony to obtain his conviction. The Peaks also submitted a reply brief adopting the issues raised by Buford and Bennie separately. Here, Buford adopted Bennie’s pro se contention that his due process rights were violated by the government’s knowing use of perjured testimony.

We affirm Buford’s conviction, reverse Bennie’s conviction and remand Bennie’s case for a new trial.

I.

On July 22, 1986, Buford Peak posted $100,000 in property to get Robert Hackney out of jail. Why Buford did this is a matter of dispute. The prosecution claimed that Buford wanted Hackney to get him large quantities of marijuana and cocaine. Buford said he wanted to engage in legitimate business transactions with Hackney. The day before his release, Hackney agreed to cooperate with members of the Indiana State Police in its investigation of Buford Peak. For about a week, Buford and Hackney engaged in a series of telephone conversations in which they discussed the purchase of drugs. Buford also spoke with his brother, Bennie, during this time. The drug transaction was scheduled to take place on July 30, 1986. Hackney and Gary Alter, a Drug Enforcement Agency (“DEA”) agent posing as Hackney’s source of marijuana and cocaine, were to meet Buford and Bennie at the Peaks’ store.

In the early morning of July 30, Buford told Hackney in a telephone conversation that the deal would be delayed because the people with the money had not arrived yet and because a “tester” had not been found. Buford told Hackney to call Bennie. Instead, Alter called Bennie, and Bennie said that the money was ready and that they would go to the Peaks’ store as soon as they could find someone to test the drugs.

By early afternoon, Bennie had not yet arrived at the store, where Hackney, Alter and Buford were waiting. Buford and Alter began arguing, whereupon Buford grabbed Alter and pulled him to the door. Special agents then arrested Buford and other co-defendants. Bennie was later arrested on a highway driving away from the store.

Buford argued at trial that it was his intent to “capture” Hackney because he was concerned that Hackney would cause him to forfeit his bond. According to Buford, Hackney had initiated the drug deal. Buford claims that he merely played along with Hackney’s idea. To safeguard his bond and possibly to earn a reward, he planned to lure Hackney and his suppliers [828]*828to the Peaks’ store and arrest them when they unloaded the drugs. He claims that he bought a gun and handcuffs for this purpose and that he called Bennie for help in carrying out the plan.

Bennie’s sole defense was that he intended to help Buford carry out the capture plan. His conversations with Hackney and Alter allegedly were designed to stall them, enabling Buford to succeed in his attempt to arrest Hackney. Bennie did not testify, but he offered into evidence Buford’s testimony of his phone conversation with Bennie. The district court, however, refused to admit Bennie’s half of the conversation in which he agreed to help Buford make his capture. The district court also refused to instruct the jury as to Bennie’s capture theory. This ruling was apparently attributable to a lack of evidence to support Bennie’s capture defense. The court did instruct the jury with respect to Buford’s capture theory of defense.

After a week-long trial, at 3:08 a.m. on a Saturday, the district judge, without having received any question from the jury, gave the jury Instruction No. 32, which read:

Members of the jury, as previously stated to you in these instructions, you are to return separate verdicts as to each defendant in each count. However, if you reach unanimous agreement as to any defendant on a count or counts, you may return your verdict or verdicts as to such defendant, defendants, count, or counts when you see fit, and continue your deliberations as to the remainder. You are not required to report all of your verdicts at the same time, although you may do so if you prefer.
If you are unable to reach agreement as to guilt or innocence of a defendant as to a count or counts, you may so state in open court.

Nineteen minutes later, the jury convicted Buford and Bennie of conspiring to possess with intent to distribute illegal drugs.

II.

On appeal, Buford and Bennie argue that Instruction No. 32 had a coercive effect on the jury. They claim that the jury must have been having trouble reaching a verdict because it had been deliberating for several hours. Only nineteen minutes after receiving the instruction the jury announced its guilty verdict. The Peaks contend that this demonstrates that Instruction No. 32 was a “dynamite instruction” that improperly induced the verdicts.

In our view, giving Instruction No. 32 was probably inadvisable. Even the parties agreed that a portion of it could have been interpreted as “nudging” the jury. Counsel for defendants and the government all objected to the instruction. In fact they offered an alternative, which the court rejected. In addition, there was apparently no real need to give Instruction No. 32. The jury, despite deliberating for over four hours, had not sent back word that it was deadlocked or that it needed further guidance.

Nevertheless, we are not convinced that this instruction can fairly be characterized as an “Allen charge” or as a “dynamite instruction,” intended to explode the deadlocked jury into rendering a hurried verdict.1 In fact, the instruction might have [829]*829had the opposite effect. It requested the jury to return verdicts individually as to each defendant and each count. This might have encouraged the jury to organize its deliberations and take its time with each verdict. Instead of pressuring the jurors, the instruction permitted them to acknowledge their inability to reach verdicts as to any defendant or any count. The instruction did not encourage them to make compromises as does an Allen charge. In addition, the instruction was not mandatory; it merely offered the jury an option.

This situation is unlike both United States v. Silvern, 484 F.2d 879 (7th Cir.1973), and United States v. Allen, 797 F.2d 1395 (7th Cir.), cert. denied, 479 U.S. 856, 107 S.Ct. 196, 93 L.Ed.2d 128 (1986), cases in which juries appeared unable to reach verdicts.2 Silvern involved a supplemental instruction designed to break a deadlocked jury. The instruction in our case did not address a deadlock.

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Bluebook (online)
856 F.2d 825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-buford-l-peak-bennie-l-peak-ca7-1988.