U.S. v. Buishas, s. 85-2139

• Citation: 791 F.2d 1310
• Decision Date: 30 May 1986
• Docket Number: Nos. 85-2139,s. 85-2139
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John M. BUISHAS, Charles R. Gies and William J. Michael, Defendants-Appellants. to 85-2141.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1310

791 F.2d 1310

UNITED STATES of America, Plaintiff-Appellee, v. John M. BUISHAS, Charles R. Gies and William J. Michael,

Defendants-Appellants.

Nos. 85-2139 to 85-2141.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 23, 1986.

Decided May 30, 1986.

Christopher Bohlen, Kankakee, Ill., Thomas J. Fahey, Warren E. White, Danville, Ill., for defendants-appellants.

Frances C. Hulin, Asst. U.S. Atty. Danville, Ill., for plaintiff-appellee.

Before BAUER, COFFEY and RIPPLE, Circuit Judges.

BAUER, Circuit Judge.

This case consolidates the appeals of three criminal defendants: John M. Buishas, Charles R. Gies, and William J. Michael. Buishas and Gies were both convicted by a jury of conspiracy to possess marijuana in excess of fifty kilograms with the intent to distribute, in violation of 21 U.S.C. Sec. 846, and distribution of marijuana in excess of fifty kilograms, in violation of 21 U.S.C. Sec. 841(a)(1). Michael was convicted of only the latter charge. Buishas and Gies were each sentenced to three years imprisonment to be followed by five years probation. Michael was sentenced to two years imprisonment to be followed by five years probation. The defendants make numerous arguments on appeal, none of which we find persuasive, and accordingly we affirm.

I.

Some time in 1983, Buishas engaged in a marijuana transaction in which, in his words, he brokered the sale of a large quantity of marijuana from a source in California to an individual in Illinois, Dale Lott. Lott then "fronted" the marijuana to another individual, Donald McAlvey, who was arrested in February 1984 by agents of the Illinois Department of Criminal Investigations (DCI). In the summer of 1984, Buishas periodically contacted McAlvey about his failure to pay for the marijuana; the source in California was apparently unhappy about not being paid the $15,000 it was to receive for the transaction.

In September 1984, McAlvey contacted DCI Agent William Willis and informed him of the phone calls from Buishas. Willis devised a sting operation based on the ruse of selling marijuana to the source in California through Buishas. On October 16 and 20, 1984, McAlvey met with Buishas in Buishas's home to persuade him to meet with Willis, whom McAlvey represented as a supplier of marijuana. Willis then telephoned Buishas several times to arrange a meeting. On October 25, Buishas and Willis met at Waukegan Airport in Waukegan, Illinois. Willis represented to Buishas that he transported marijuana with his private aircraft and pilot and provided information about the prices for and amounts of marijuana he could supply.

Buishas told Willis that he was interested in brokering marijuana to clear up a $15,000 debt he owed from a previous marijuana transaction. He stated that in the past he had moved 5,000 pounds of marijuana in a two week period and had been "dealing with these guys" for a long time. Buishas told Willis that he would like to "start out small" to see how the operation went and requested some samples of the marijuana to show his friends. Buishas said he would discuss the matter further with Willis in the future, and the two departed. This meeting was recorded on videotape and audiotape by DCI agents.

On November 14, 1984, Willis and Buishas met at Buishas's home after arranging a meeting over the telephone. At this meeting, which Charles R. Gies attended, Willis gave Buishas two one-ounce packets of marijuana as samples for his associates. Buishas opened one of the packets and smoked a small amount of marijuana. Buishas then gave Willis a sample of the type of marijuana he was expecting. Laboratory tests later identified this substance as cannabis. Buishas informed Willis that he would send one of the packets Willis gave him to an associate in Minnesota and the other to an individual in the Chicago area. This meeting was recorded on audiotape.

After the November 14 meeting, Willis and Buishas discussed the marijuana transaction over the telephone. The possibility emerged that Buishas and his associates could deliver marijuana to Willis, rather than vice versa as originally discussed. On January 18, 1985, Buishas and Willis met at a hotel room in Bradley, Illinois. After a discussion lasting approximately thirty minutes, Buishas and Willis left the room to meet Gies in the hotel bar. Gies and Willis then returned to the hotel room, where Buishas met them several minutes later with approximately a pound and a half of marijuana in several packages. The three men discussed the samples and prices for varying amounts and qualities of marijuana. After nearly an hour, the three agreed to a specific amount and price for a sale of marijuana to Willis. The meetings in the hotel room were recorded on audio and videotape.

Following the January 18 meeting, Buishas and Willis renegotiated the deal over the phone and made specific arrangements for delivery of the marijuana. On January 28, 1985, Willis was met in the Bradley hotel room by William Michael. Michael brought with him an amount of marijuana in several numerically marked bags, which Michael told Willis he had been asked to transport. Michael then telephoned Gies and let Willis speak to him. Willis and Gies discussed the samples and made final arrangements for the delivery of a much larger amount of marijuana to the hotel. Michael then left the hotel room. This meeting was also recorded on audio and videotape.

After several hours passed without delivery of the marijuana, Willis phoned Buishas, who agreed to meet with Willis to assure that the transaction was completed. Buishas arrived at the hotel room that evening, and he and Willis were joined by Michael a short time later, who told them "the load is here." Michael then took Willis to a vehicle where Willis observed a large amount of marijuana (later determined to be 89 kilograms). Willis then signaled to fellow agents covertly observing the transaction, who arrested Buishas and Michael and seized the marijuana.

II.

Buishas first contends that he was precluded from presenting his defense of entrapment by the trial judge's limitation of the number of recorded conversations that were played to the jury. The trial judge excluded many of the recordings made after November 14, 1984 as irrelevant to Buishas's predisposition to commit the crimes with which he was charged because these discussions occurred subsequent to the agreement to commit the criminal acts; that is, after Buishas's predisposition to commit the crimes had already been shown. TR. 413. Buishas argues that these later recordings were relevant to his state of mind prior to the initial opportunity for criminal conduct.

We first note that a district court has "broad discretion when assessing the admissibility of proffered evidence" and may be reversed only upon a showing of abuse of discretion. United States v. Latham, 754 F.2d 747, 751 (7th Cir.1985). Buishas has failed to show that any of the excluded recordings were relevant to the issue of predisposition. The earlier recordings, which were played in full to the jury, amply exhibit Buishas's willingness to engage in an illegal drug transaction from the outset of his contact with Agent Willis, and Buishas is unable to show that any of the later recordings indicate a contrary intention. His assertion that he was just "playing along," presumably even through the delivery of the 89 kilos of marijuana, is not borne out by any evidence. For example, his claim that "voice inflections" and "hesitancies" revealed only by the later tapes evince his unwillingness to participate in the crime was rejected by the trial judge, who stated: "I have been listening assiduously ... for what you claim are voice inflections and inuendos. I cannot hear them." TR. 415. The trial judge therefore did not abuse his discretion by refusing to play these tapes to the jury.

It is also of no import, contrary to Buishas's assertion, that the sting operation changed from a drug selling to a drug buying scam. Buishas was clearly interested in engaging in a criminal drug transaction from the beginning in his self-described role as a "broker;" in this middleman's role, it made no difference to Buishas who was buying or selling. We find that the trial judge made every effort to allow Buishas to present evidence of entrapment, and conscientiously gave Buishas the benefit of the doubt in playing some of the later tapes to the jury, but our review of the record indicates that these later tapes did not support his theory of entrapment.

Buishas also claims that the trial judge erred by refusing to instruct the jury on the defense of entrapment. As in United States v. Rodgers, 755 F.2d 533, 550-51 (7th Cir.1985), however, we find that the refusal to offer this instruction to the jury was proper because of the absence of any evidence showing that Buishas was not predisposed to commit the crimes with which he was charged. As noted above, the tapes did not indicate any unwillingness on the part of Buishas to engage in the criminal venture, and his actions certainly belie any claim of reluctance. The mere assertion that he was only "playing along" is not sufficient to show a lack of predisposition. We therefore find that the trial judge properly refused to instruct the jury on the defense of entrapment.

Similarly, we reject defendant Gies's contention that he was entitled to a jury instruction on the defense of entrapment. Gies argues that if Buishas was entitled to an entrapment instruction, so was he, relying on a theory of "vicarious entrapment." Because we reject Buishas's assertion that he was entitled to such an instruction, Gies's contention necessarily fails even if we were to accept the theory of vicarious entrapment, which has no precedent in this circuit.

III.

Buishas urges us to reverse his conviction and enter a judgment of acquittal on due process grounds or pursuant to our "supervisory powers" because the government's conduct in operating...