In August 1982, Reubin Peaden was convicted in the district court, after a jury trial, of five offenses that he committed while participating in a cocaine distribution operation in Florida and Texas from October 15, 1979, to August 23, 1980.1 He appeals, questioning the sufficiency of the evidence to sustain his conviction of two of the offenses2 and several of the trial judge's evidentiary rulings. We affirm.

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

Hencye, Cohron, and Norrie pled guilty3 and thereafter cooperated with the authorities. Jimmy Davis and Clarence Davis were convicted following jury trials. Then, Peaden was indicted. He pled not guilty, went to trial, and was convicted. The government's case against Peaden was strengthened because everyone involved in the drug ring, including the Davises, testified against him. Collectively, they established the following facts.

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

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

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

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

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

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

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

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

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

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

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

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

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

When examining West before the jury, the prosecutor asked first about the telephone call of March 18. West replied that he had a vivid recollection of the call and that it was significant to him for several reasons; the call was at night, at his home, from someone he did not know, whom two men he had arrested three days before 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 speaking with Peaden about anything but some unnamed man who might be flying drugs into the area.7 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 convicted Peaden on all five counts.

In this appeal Peaden presents 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 by the two unnamed 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 facilitate an unlawful activity; (4) that there was insufficient evidence to support the conviction under Count V, aiding and abetting interstate travel to facilitate 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.8

Peaden contends that the trial judge's admission of the statement from the arrestees to agent West was reversible 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 him.

Determinations of the admissibility 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 (11th Cir.1983). Admission of any evidence 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 it.

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 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 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.9 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. 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 enforcement officers, as a concerned citizen, to ferret out drug activity. The timing was important because in March the cocaine 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 remembering 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 a way that the call being to his home and at night might 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 in the 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.

The district court did not admit the statement at trial for its truth but rather for a nonhearsay purpose. See Fed.R.Evid. 801(c).10 As such we are concerned not with whether the statement was hearsay or violated the confrontation clause11 but rather with 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 outweighed 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 statement, even if accompanied by a limiting instruction, would constitute error. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 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 evidence for its truth. The second group consists of those cases in which the admission of the evidence, if it had been accompanied by a limiting instruction, would have been appropriate, but because no limiting instruction was given the admission was error. If Peaden'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 admitted accompanied by a limiting instruction, would have been erroneous. In Bruton, the High Court found that limiting instructions were insufficient as a matter of law to allow the admission of a codefendant's confession implicating Bruton into their joint trial, when the codefendant did not take the stand. While Bruton is a confrontation clause case, the Court cited cases decided on due process grounds to support its conclusion. The Court stated the governing principle to be whether the procedure used posed a "substantial threat" to the constitutional right, recognizing that "there are some contexts in which the risk that the jury will not, or cannot, follow instructions, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." Id. at 135-7, 88 S.Ct. 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, 87 S. Ct. 1015, 18 L. Ed. 2d 125 (1967) (discussing efficacy of limiting instructions).

In Peaden's case, an appropriate limiting instruction would 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 follow the instruction have been a "substantial 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 prosecution in its case in chief. The statement looms far larger in this analysis than it did at Peaden's trial in the midst of all the testimony against him. If the judge had given a limiting instruction that the statement could not be considered for its truth but only to show why agent West had reason to remember clearly the contents of his conversation with Peaden, we would find the admission of the statement to be within the judge's discretion.

In determining whether the statement requires reversal because no limiting 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 failing to recognize the need for the limiting 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 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 instruction. 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 inadmissible, once the evidence was admitted, he made no request for a limiting instruction. The question, therefore, is whether the trial court committed plain error in failing sua sponte to give the instruction. See Fed.R.Crim.Pro. 52(b); e.g., United States v. Roger, 465 F.2d 996 (5th Cir.1972).

* * *

* * *

"Plain error appears only when the [admitted 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 accused." United States v. Garcia, 530 F.2d 650, 656 (5th Cir.1976), citing Upham v. United States, 328 F.2d 661 (5th Cir.1964).

586 F.2d at 1058.

We cannot say, applying this test, that the court in Peaden's case committed plain error in failing sua sponte to instruct the jury that the statements by the arrestees to West were not admissible 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 (5th Cir.1976); United States v. Sisto, 534 F.2d 616, 622-26 (5th Cir.1976).

Thus, the trial court acted within its discretion in admitting the statement 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.