*1 fore in the outlined inquiry fact-spe necessarily a paragraph going bankruptcy require one; it will cific evaluat expertise upon draw specific play in forces economic made, we determination Once case. theOn deference. great accord must bankruptcy expect the hand, we shall has it alone recognizing court, while whether to determine responsibility standard federal meets transaction re value, accord equivalent reasonably proceed sale foreclosure to the
spect price determined sale ings. While con be cannot proceeding foreclosure issue respect conclusive sidered court, bankruptcy law before of federal analysis of element important it is question. Conclusion regularly at a price the sale holdWe sale foreclosure conducted, noncollusive provide automatically deemed cannot within value equivalent reasonably We there- 548(a)(2)(A). section meaning of judgment reverse fore bankruptcy court remand inconsistent proceedings further opinion. REMANDED. AND REVERSED America, STATES UNITED Plaintiff-Appellee, Peak, L. & Bennie PEAK L. Defendants-Appellants. 87-1251, 87-1252. Nos. Appeals, Court Circuit. Seventh 10, 1987. Dec. Argued 29, Aug. Decided 10, 1988. Nov. Denied Rehearing
I. posted Peak July On Hack- get Robert
$100,000 property is a did this Why Buford jail. out of ney *3 prosecution dispute. of matter Hackney to wanted Buford that claimed marijuana and of large quantities get him engage wanted said he Buford cocaine. with transactions legitimate business in release, his day before Hackney. mem- cooperate with agreed Hackney inves- in its Police State the Indiana of bers Louisville, for de- Ky., Partin, Fred C. a about For Peak. Buford of tigation fendants-appellants. in a engaged Hackney week, and Buford in which conversations telephone of Dan- series Atty., John Thar, Asst. J. John drugs. Bu- of purchase they discussed Ind., for Indianapolis, Atty., Tinder, U.S. iel Bennie, brother, his spoke with ford plaintiff-appellee. transaction drug time. during this July on place to take scheduled was and CUDAHY, COFFEY Before Alter, Drug a Gary Hackney and 1986. Judges. RIPPLE, Circuit pos- agent (“DEA”) Agency Enforcement and marijuana Hackney’s source ing as Judge. CUDAHY, Circuit at Bennie and cocaine, meet Buford towere Peak, store. Peaks’ Bennie and Buford Appellants, possess conspiring Buford July convicted morning early were co- and marijuana distribute conversation telephone intent Hackney in a told They U.S.C. delayed of 21 because caine, § violation the deal variety yet a arrived had money convictions their appeal people found. brief on had not consolidated a “tester” In their because grounds. and In- Bennie. that the call Hackney to Bennie contend told and Buford Buford appeal, said Bennie, Bennie by and error stead, reversible called Alter court committed they ready and money was instruction supplemental a giving as soon as store Peaks’ unduly go deliberating and was while drugs. to test find someone they could cross-examination restricting the separate In his yet key witness. afternoon, Bennie government’s early By that there argues Hackney, Alter briefs, Bennie store, where se pro arrived hearsay state- Al- excluding and waiting. Buford reversible were Buford and and Buford whereupon Bennie’s began arguing, ments ter door. instruc- proposed him pulled give Bennie’s refusing to Alter and grabbed defense, and Buford theory arrested “capture” then agents his Special tion ar- later violat- were Bennie rights process co-defendants. his due and that away driving knowingly used highway rested ed when his conviction. obtain testimony to store. perjured brief reply also submitted The Peaks his it was argued trial Buford by Buford raised issues adopting the he Hackney because “capture” intent adopted Here, Buford separately. cause Hackney would concerned his due contention se pro Bu- According to Bennie’s bond. his to forfeit him govern- by were violated rights drug deal. process initiated Hackney ford, perjured along knowing use played merely ment’s claims Buford his safeguard To idea. Hackney’s conviction, reverse Buford’s affirm reward, he earn possibly bond remand conviction suppliers his Hackney and lure planned trial. a new case for to the Peaks’ store and arrest them when time, at the same although you may do they drugs. you unloaded the so if prefer. He claims that bought gun you handcuffs for If are unable agreement to reach purpose guilt and that he called help Bennie for innocence of a defendant as to a counts, count or you may carrying plan. out the so state in open court. Bennie’s sole defense was that he intend- later, Nineteen minutes convicted help ed to carry out the Buford and Bennie of conspiring possess plan. His conversations with Hackney and with intent to illegal distribute drugs. Alter allegedly designed were them, to stall enabling Buford to succeed in attempt II. *4 to arrest Hackney. Bennie did testify, not appeal, On Buford and Bennie ar but he offered into evidence Buford’s testi- gue that Instruction No. 32 had a coercive mony phone of his conversation with Ben- jury. on the They claim that the nie. court, The district however, refused to jury must have been having trouble reach admit Bennie’s half of the conversation in ing a verdict because it had been deliberat agreed which he help to Buford make his ing for Only several hours. nineteen min capture. The district court also refused to utes after receiving the instruction jury the jury instruct the as to announced capture guilty its verdict. The Peaks theory. contend This was this apparently demonstrates attrib- that In struction No. 32 “dynamite was a utable to a lack of evidence to instruc tion” that improperly induced the verdicts. defense. The court did jury instruct the respect to Buford’s view, In our giving Instruction No. 32 capture theory of defense. was probably inadvisable. Even par- the agreed ties portion that a of it could have After trial, a week-long at 3:08 a.m. on a interpreted “nudging” as jury. the Saturday, the judge, without hav- Counsel for defendants and the govern- any question received from jury, the objected ment all to the In instruction. gave jury the Instruction No. which fact they alternative, offered an which the read: rejected. court addition, In ap- there was jury, Members of the as previously stat- parently no real give need to Instruction ed to in you instructions, these you are to No. 32. jury, despite deliberating for separate return verdicts as each to de- hours, over four had not sent back word fendant in However, each count. if you that it was deadlocked or that it needed reach agreement unanimous any as to guidance. further defendant on a or counts, you count Nevertheless, we are not convinced that your return verdict or verdicts as to such this instruction can fairly be characterized defendant, defendants, count, or counts as an charge” “Allen “dynamite or you fit, when and your continue de- instruction,” explode intended to the dead- liberations as to the remainder. You are jury locked rendering into a hurried ver- required not report your all of verdicts fact, dict.1 In the might instruction Supreme States, so; Court in Allen ly listen, v. they United do dispo- should with a 492, 501-02, 154-57, convinced, 41 L.Ed. sition to argu- to each other’s (1896), approved supplemental instructions ments; that, larger if much the were number given jury, deadlocked which stated in conviction, dissenting juror should con- substance that sider whether his doubt was a reasonable one large proportion in a tainty of cases cer- absolute impression upon made the minds that, expected; could not be although men, honest, many equally so equally intelli- the verdict must be the verdict of each indi- If, gent hand, upon with himself. the other juror, acquiescence vidual the a not mere majority the acquittal, minority the fellows, yet they conclusion of his ought they might to ask themselves whether question candor, examine the and submitted with reasonably not doubt of a correctness proper regard awith and deference to the judgment which was not concurred in other; opinions of duty each that it was their majority. they to decide the case if could conscientious- supplemental verdicts.2 Silvern involved requested effect. opposite a deadlocked designed to break instruction individually as verdicts to return jury did case not our The instruction jury. This count. each defendant each primarily It related a deadlock. address orga- jury encouraged the might hour of the case complexities its time with take deliberations nize deliberating. jury was day when pressuring Instead verdict. each required to Therefore, them permitted instruction jurors, outlined mandatory procedure follow ver- to reach inability acknowledge their Silvern. any count. any defendant as to dicts in that encourage them inapposite because Allen is also did not instruction Allen jury an instructions as does sent compromises case the make communication addition, instruction to a response charge. communicated Here, the merely offered mandatory; supple- prompt anything option. instruction. mental both is unlike situation aspect questionable Silvern, Perhaps Cir. most States is that Allen, proceedings stage of 1973), and *5 Satur a.m. on deliberating 3:00 856, denied, jury was Cir.), cert. (7th 1395 Buford But trial. of long a week day after (1986), cases 128 196, 93 L.Ed.2d 107 S.Ct. sepa aas have not claimed and to reach unable appeared juries in which a Allen, a note received the court beyond In gone long courts other and to leave be able asking whether juror developed their holding and in Allen the if the planned trip he had juries. February 19 for instructing deadlocked of means own 879, by decision Silvern, F.2d aat unanimous 484 arrive jury did not See, e.g., States Brown, lawyers, parties’ 411 consulting the 1973); with After then. Cir. 883 Cir.1969), denied, jury which rt. the to note back judge 933-34 sent ce F.2d the trial (1970). jury 24 L.Ed.2d the confident hopeful and U.S. "I am read: prior its deliberations to conclude be able will procedure for forth set in Silvern court 2. This be jurors should the You and 2-19-85. to a dead- supplemental instructions giving jury necessary, will deliberate the if advised jury: locked at 1399. tomorrow, F.2d 2-16-85.” deemed instruction supplemental If a note later, jury another sent the following in- hour An the necessary provided stated, been able “We have the judge time prior to the given the has been struction appears and it counts four retired, repeated: a verdict it reach jury has The trial Id. considered represent the to do so.” be unable must we will The verdict to return following juror. order In instruction each repeated of the judgment then agree they juror necessary each verdict, before it is previously read be unanimous. must verdict Your thereto. retired: with jurors, to consult duty, repre- your It is must verdict gentlemen, Ladies a view with to deliberate juror. another and one of each judgment considered sent do so with- you can reaching agreement, an guilty or not verdict, it be whether Your of Each judgment. individual violence out make should You be unanimous. guilty, must do yourself, but case for decide you must In a verdict. to reach effort every reasonable of impartial consideration only after an so anoth- one so, with you consult doing jurors. In your fellow evidence listen er, views your own express deliberations, hesitate do not your of course your jurors. Discuss your fellow of opinions change your own views to reexamine your not hes- Do open mind. differences is erroneous. opinion if convinced you come opinion if your reexamine itate conviction your honest not surrender But do you should wrong, but it is believe solely of evidence weight effect or as to about beliefs your honest surrender weight jurors, your fellow opinion of of because solely because of evidence or returning a ver- purpose mere for the or jurors or for your fellow opinions of dict. verdict. returning a unanimous judges— purpose are You partisans. are not You is to sole interest Your Id. the facts. judges “was in instruction the above decided truth from ascertain ap- instruction conformity” case. variants at 1400. Id. now shown Silvern. Experience has banc proved en serve additions supplements language or appeals. merely proliferate appeal apart rate ques basis from the ney’s prior convictions elsewhere in the instruction, record,3 tioned and we therefore need the court was within its discretion not decide whether the scheduling in prohibiting defense pursu counsel from grounds deliberations alone is for reversal. Hackney’s criminal proba record. The Murvine, United States v. 743 F.2d tive value of the convictions did not sub Cf. (7th Cir.1984), denied, stantially cert. outweigh prejudicial their effect. 105 S.Ct. 609(b). L.Ed.2d 967 addition, defense (1985). provided counsel had
with “sufficient advance written notice of intent to use such evidence.” Id. III. These two instances cited Buford and Buford and Bennie further contend that Bennie thus fail to their claim that violated their sixth unduly district court restricted their right amendment by un- confrontation Hackney. cross-examination of Other duly restricting their cross-examination of claims of undue Hackney’s restrictions on
the government’s key witness, Robert cross-examination involve appropriate Hackney. Specifically, they argue that the rulings or mere comments of the district deprived district court them of a fair trial Thus, in conference. refusing to allow them to ask Hackney unduly did not restrict the cross-ex- pilot’s whether he had a valid license and in government’s amination key witness. refusing permit question them to Hack- ney about convictions that were more IV. years than ten old. and Bennie also contend *6 matters, however, As to both appel that their process rights due were denied lants’ contentions do not find government because the knowingly used record. The prevented district court never perjured testimony by agent DEA Alter to them continuing their cross-examina obtain their convictions. We decline to de Hackney tion of pilot’s about a li valid cide this since it is issue raised for the first prosecution, fact, cense. The had not appeal time on and no necessary has record objected to this line of questioning. The been made. Buford and Bennie failed simply stated, court quite properly, after point possible out perjury during the cross-examination, extensive pre “I would despite opportunity trial their to detect the fer spend that we not on purely forever in the inconsistency witness’ collateral Transcript matters.” at 126. In They neglected also to include the issue connection, this subject was of doubtful their for a new trial. motions Unfortunate In response relevance. to the com ly Bennie, for is well-es “[i]t ment, defense voluntarily counsel switched tablished in litigant court that a cannot subject another explaining without even present as grounds for reversal an issue why he had been questioning Hackney presented not to the district court.” Unit pilot’s about a license. Nero, (7th ed States v. 1207 The Cir.1984). district court did will, however, make an evi- This court consid dentiary ruling prohibiting cross-examina er a claim raised for the first time
tion Hackney’s ten-year-old appeal “plain convictions. when there is error or de a This ruling was within the affecting court’s discre fect rights,” United 609(b). tion. Carreon, Considering (7th See States v. 536 that ample Cir.1980); there was evidence of Hack Castenada, United States v. 555 examination, During 3. Hackney his direct defrauding testi- demeanor conviction for an inn- him, charge pending against fied to an arson a keeper. defense also was allowed to The read 1976 conviction for transportation interstate certain documents These doc- property stolen and a conviction for sexual bat- Hackney charged uments that had been showed tery. as a criminal and was habitual convicted permitted during the defense cross- assault with intent to murder in 1962. question Hackney examination to about a mis-
831 did but counter look under did denied, 434 he Cir.), cert. (7th 605, 610 F.2d testimo Alter’s or handcuffs.4 gun a find 113 L.Ed.2d 847, 98 S.Ct. did the counter under he looked ny that devel sufficiently record “if the (1977), controverted or handcuffs gun Nero, a claim,” find such respect to oped gun, he loaded testimony that Buford’s 1207. F.2d under put them handcuffs bought us, case before In attempt. up his set counter determine requested never items find these didn’t he said Alter That knowingly used prosecution whether defense. Buford’s damaging to convic obtain testimony to perjured probable highly or even not clear certainly defend neither for Counsel tions. Alter’s testimony that face of in testimonial exposed effectively ants perjury. constitute remarks inconsistent opportuni despite question consistency oath under assertion is the willful “Perjury Evans See cross-examination. ties Duck Carey v. false, fact.” material aof (7th Cir. F.2d States, Cir.1984); 875, 878 worth, defendant, during 1969) (“When criminal inconsisten 1621. “Mere U.S.C. § perjured to believe trial, reason has testimony of or conflicts [in] cies prose by the employed been testimony has enough.” Anderson ... are witness testimony at impeach cution, must Cir.1968), 451, 454 States, 403 F.2d inconsistency relevant trial_”). denied, 394 U.S. rt. even ce attention their escaped apparently inquiries (1969). No L.Ed.2d very impor testimony was though Alter’s for Alter’s reason as made were only the briefs us have before tant. may have He statements. inconsistent us These show record. limited confused, mistaken. forgetful or testified Alter specific is devoid record under not look did point one statement, he looked second Alter’s and later store Peaks’ at the counter Partin, coun- Buford’s cross-examination during the you, course Did ... sel, Thar: as follows: testified Alter search, of handcuffs sets two see those ever in, you see a you walked soon As *7 Alter: any handcuffs? a restau- counter a kitchen like counter bar not. I No, sir, did Alter: type counter. rant during course of you, Did Thar: anything any see you at time did And Partin: search, gun? the counter? No, did not. I Alter-. holders, just miscellaneous Napkin Alter: approx- pistol you see a Specifically, did Thar: items. years imately old on the what remember Do you Partin: loaded? counter? No, I did not. time, no. Alter: particular at Not Alter: during counter on the you look Did Partin: bags any underneath you find Did Thar-. warrant? the search counter? time. at one probably did I Alter: Yes. Alter: the counter? you under look Did Partin: Did in them? look Thar: you didn’t, no. I Alter: coun- everything under I looked Alter: were handcuffs if know any Do you Partin: ter. or seen? present at 763-64. Id. No, not. I do Alter: counsel, Partin, cross-ex- then the defense Mr. Transcript at 300. Alter: amined days two Alter questioned Thar Prosecutor testify on Alter, you not Agent did Partin: in rebuttal. case government's in the later thought you had examination your direct follows: testimony went as searches? some you done Alter, July Agent Special Thar: testimony. any exact recall I don’t Sale area Alter: the restaurant you search did you did search you now sure Are Partin.- Barn? area? the counter Yes, I did. Alter: area. Yes, counter in the I was behind the you search Alter: Specifically did Thar: the restaurant? area of counter under you find did what And sir, Yes, Partin: I did. Alter: you searched? length of counter thoroughly? Did you search Thar: at 764-65. Id. Yes, I did. Alter: counter, product con- under the questions context within which were scious falsification. In the of such asked. absence evidence, plain invoke we cannot 103(a)(2). prosecution doctrine conclude that the Although 103(a)(2)merely requires Rule knowing perjured testimony. use of made proponent to make the “substance Thus, record is insufficient to us allow court, the evidence” known to the an offer process stage find due violation at this proof generally ground proceedings.5 of the admissibility, op inform the court and posing proponent counsel expect what the found, arguments We have the three prove by ed to the excluded evidence and Bennie, of Buford and no basis for revers- significance demonstrate the of the exclud Thus, ing the convictions. we affirm Bu- ed Wayne Corp., Collins
ford Peak’s conviction. (5th Cir.1980). This court require
does not that a formal offer of V. proof grounds be made or that the of error precisely specified. enough “[I]t pro argu- We turn to Bennie’s now se ‘the record shows ... what the substance ments behalf. Bennie own contends ” proposed evidence is.’ United disallowing that the district court erred in Sweiss, States v. hearsay testimony Buford’s about what Cir.1987) Alden, (quoting United States v. during telephone said conversa- (7th Cir.1973)). tion with Buford. district court al- that, We think under the circumstances lowed Buford to relate his side of the case, of this Bennie’s counsel made an ade- rejecting argument conversation. quate proof. record, offer of From we that Bennie’s statements should be admit- can—though difficulty—discern 803(3), ted under Fed.R.Evid. the state-of- evidence, proposed substance sig- exception rule, mind proponent’s nificance defense and simply maintained ground admissibility. going permit “not defendants through get Mr. Buford Peak to their sto- During by direct examination his coun- indirectly.” ries in Transcript the record sel, Buford testified that he intended to 680. Because we think that Bennie’s state- capture government Hackney informant squarely ments fall within the state-of- luring him to place the Peaks’ of business. exception, we believe it was error to He was then asked if he had ever had a telephone exclude Bennie’s side con- conversation plan. with Bennie about his versation. Buford was about to relate the conversa- *8 government objected
tion when the anything during Bennie said the conversa- A. hearsay. tion would be Bennie’s counsel urged that Bennie’s Initially, statements should be we evaluate Bennie’s offer 803(3). admitted under Rule proof, court sus- adequacy is es which government’s objection. tained the prerequisite finding sential to a of error: then testified as to his side of the conversa- may predicated upon Error not be a rul- tion in he told Bennie that he needed ing which admits or excludes evidence favor, time, stalling he needed some right unless a party of the is attempt going that he was to affected, and ... case is [i]n man. evidence, one excluding substance Following evidence was testimony, during made known to Buford’s apparent recess, or offer was from requested Bennie’s counsel waiver, possible, Nero, assuming 5. It is that 28 victions. See United States adequate proce- (7th Cir.1984); § U.S.C. 2255 afford an 1207 n. 7 Norris v. United government showing knowing- dure that the States, Cir.1982). ly perjured testimony procure used the con- 803(3), excep the state-of-mind exclusion Fed.R.Evid. the court's a record about make tion. responses Buford over of Bennie’s
telephone. 803(3) excepts Rule of the declarant’s request a voir exclusion statement did “[a]
Bennie’s counsel
However,
state-of-mind, emotion,
existing
then
sensa-
response
dire of Buford.
(such
intent,
comment,
tion,
physical
or
condition
“You can
court’s
the district
motive, design,
pain
plan,
feeling,
mental
prove,” Bennie’s counsel
offer to
make an
health).”
admissible,
bodily
To
summary of what Buford
a brief
offered
relate to the declarant’s
statement must
have said on the stand:
of mind as it existed at the time it
state
understanding—and I would
our
It
is
satisfy
it must
other re-
was uttered and
Buford Peak
represent
to the court—Mr.
quirements
admissibility.
Bennie Peak
testify that he asked
participate
in that conversation
indicating
of mind are
Statements
state
in order to stall
telephone calls
these
generally
state of
admissible
when
individuals;
explained gen-
that he
these
prove
or
it tends
mind is in issue
when
needed;
what
erally
was
intended. Mutual Life
act
doing
to do that and was
Peak was hesitant
Hillmon, Co. v.
Ins.
S.Ct.
and that Bennie
to do that
persuaded
(1892). Thus,
nying
statement
mind
inadmissible,
see United States v.
An
evidentiary ruling
erroneous
in a
Cohen,
Cir.1980),
631 F.2d
criminal ease is
if
only
reversible error
it
per
se
“details”
are not excluded from
party’s
rights.
affects a
Fed.R.
hearsay exception.
52(a);
103(a).
Crim.P.
Fed.R.Evid.
Su-
preme
interpreted
Court has
this rule to
Moreover,
merely
wanted to ad-
require
only if
reversal
“the error results
willingness
join
mit
show his
evidence to
in
prejudice
actual
it ‘had
because
substan-
“capture” plan
in
and his lack
injurious
tial and
effect or influence in de-
possess
illegal
of intent
and distribute
”
termining the jury’s verdict.’
drugs.
purpose
gain
It
not
his
Lane,
States v.
438, 449,
474 U.S.
106 S.Ct.
of
admission into evidence
other details of
725, 732,
(1986)
(quoting
L.Ed.2d
Any significant
the conversation.
details
Kotteakos,
United States v.
through
could have come
Buford’s ad-
1239, 1253,
66 S.Ct.
witness.6 See 272; cases. introductory art. VIII note on hearsay (quoting Chadbourn, Cerro, Bentham United States v. 915- Hearsay Rule—A Benthamic Cir.1985) (citations omitted). 63(4)(c) View Rule Uniform When erroneously excluded evi Evidence, Rules 75 Harv.L.Rev. primary dence would have been the (1962)) (“For to exclude evidence in support opposition evidence of or in to a because he does not believe it has been defense, claim or its exclusion is deemed to ‘altogether atypical, described as extraordi substantial effect on the ”). nary.’ Cerro, example, suggested we Thus, we find that Bennie’s utterly precluded excluded the defendant were “[i]f squarely himself, statements fell defending within the state- be clear exception of-mind rule and his conviction to be reversed even grounds guilt overwhelming to exclude the statements. evi could offset *10 We therefore hold it that was error to dence the that defendant would have intro course, court, therefore, evidentiary ruling. 6. Of the district in his can- discretion This may prejudicial confusing ruling grounds. exclude or statements not review the on Rule 403 However, Green, (7th under Fed.R.Evid. 403. United States v. 252 Cir.1986). justify did not invoke Rule 403 to his
835 little it, had chance he Without Bennie. Id. to 916.7 at do so.” to if allowed duced placed have it, could Norwood, acquittal; with v. of States United Moreover, in in- to his as denied, minds jurors’ in doubt some cert. Cir.), (7th 1094, 1098 F.2d 798 be- difference ais substantial There tent. 711 L.Ed.2d 93 1011, 107 S.Ct. having having some and evidence tween errone the held although this (1986), especially defense support a to evidence harm non-hearsay to be of ous exclusion overwhelming evi- than less light of the not the defendant had less, implied we therefore, We, can- against Bennie.8 dence sup to evidence present to able been the eviden- certainty that any say with not case, error would the of the theory his port on the slight effect only a had tiary error Similarly, other harmless. been not have jury- harm to be not error held an have courts “ the impairs or ‘precludes it statements when Bennie’s less of exclusion of means sole accused’s an rights of in another presentation impaired his substantially ” Harris, 733 v. States United instruction jury denied defense.’ Bennie was way. Unit Cir.1984) (quoting (2d be- defense, presumably F.2d “capture” the on 625, 630 Carter, F.2d v. to ed States evidence insufficient presented cause not even Cir.1974)). Thus, could jury the it.9 support spec- not will We defense. his consider com- Bennie’s of exclusion find that We relat- and the evidence to whether as ulate telephone substan- the on to Buford ments changed the would instruction ed sole Bennie’s the tially influenced the sufficient It is jury’s verdict.10 his broth- helping he was was defense ruling evidentiary the of effect combined informant. the “capture” er had clearly instruction jury refused and was defense of only evidence the And its determination. on influence Bu- conversation of the side Bennie’s about comments of Bennie’s exclusion disprove tending to evidence, This ford. his impaired severely his state conviction, vital for required the intent dissent, concluding the erroneous overwhelming 10. The the has considered circuit 7. harm of mind deciding of Bennie’s exclusion guilt when the evidence quality of problem error, the related address does evidentiary is less erroneous whether 252-53; jury instruction give the Green, to refusal See, court’s the e.g., harmless. theory defense. "capture” Weger,709 Bennie’s States careful, however, not to Cir.1983). be We must addition, dissent that the believe we sole as the evidence weight of the rely on the trying to assess speculating in essentially doing, In so error. finding harmless basis evi- excluded jury of the potential effect jury. See usurp function we has cautioned Supreme Court dence. The 763-64, Kotteakos, speculation: against such (1946). 1247-48, 90 L.Ed. S.Ct. function appellate court’s is not [I]t is it to Nor guilt or innocence. con- determine simply recorded offered prosecution 8. de- probable reconviction upon speculate conversa- testimony Bennie’s versations comes speculation Alter, according how Ben- Gary in which agent cide with DEA tions escape im- such money judges cannot getting Appellate be out. said he nie sole may where them they store make driving Peaks’ But pressions. before tester clear Those place. It is not affirmance. or taken reversal to have deal was criteria given jury, convicted exclusively have been for the are us that judgments admitted. le- necessary statements minimum always the excluded had unaf- the conviction sustain gally sufficient appeal argument on final by the error. fected pro- give refusing his erred district court appellate not mean does But this “capture” defense. instruction posed taking account altogether escape court can only be- conviction reverse outcome_ out- causes In criminal application erroneous cause fact- guilt in [not] ... conviction come is any evi- presenting precluded Bennie rule jurors] is, [the not were question And the defense, "capture” dence what is rather judgment.... right their instruct refusal led to because reasonably It is theory defense. to his jury’s decision. upon the taken therefore, whether decide unnecessary, 763-64, 1247- Kotteakos, atU.S. itself jury instruction give offered refusal omitted). (citations footnote error. reversible *11 primary defense and led to the refusal of ty or variance which does not affect sub- jury instruction on defense, this thus af- rights stantial disregarded.” shall fecting his rights. substantial The trial rule is commonly referred to as the harm- evidentiary ruling court’s therefore was re- less 52(a), error rule. Rule combined with versible error. Federal Rule of 103(a), Evidence which states “[ejrror predicated not be
VI.
upon a ruling which admits or excludes
For the reasons
parts II,
stated in
III
evidence unless a
right
IV of
opinion,
party
affected,”
we
affirm
comprise
Buford
the standards
Peak’s conviction.
by
reverse Bennie
determine whether the errone-
Peak’s conviction for
given
ous
reasons
of the trial court
re-
mandates
part V and remand his case to
versal.
important
It is
recognize
court for a new
remand,
trial. On
Peak has not alleged any
district court should admit into evidence
constitutional dimensions in this case.
responses
state-of-mind
Therefore,
need not show
during their telephone
conversation.
the error was
beyond
harmless
reason-
light
this,
the court
doubt,
able
reevaluate
only
its
that the error had no
give
refusal to
the jury an instruction on
“substantial
influence” on the verdict.
theory
of defense. Accordingly, United
Kotteakos,
States v.
750,
the decision
765,
district court
1239,
1248,
S.Ct.