U.S. v. Buschman, 75--1297

• Decision Date: 07 January 1976
• Docket Number: No. 75--1297,75--1297
• Citation: 527 F.2d 1082
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Wayne BUSCHMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1082

527 F.2d 1082

UNITED STATES of America, Plaintiff-Appellee, v. John Wayne BUSCHMAN, Defendant-Appellant.

No. 75--1297.

United States Court of Appeals Seventh Circuit.

Argued Nov. 3, 1975.

Decided Jan. 7, 1976.

William M. Coffey, John D. Murray, Milwaukee, Wis., for defendant-appellant.

William J. Mulligan, U.S. Atty., Randall J. Sandfort, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, and PELL and BAUER, Circuit Judges.

PELL, Circuit Judge.

The defendant, John Wayne Buschman, after a jury trial, was convicted of knowingly engaging in the business of dealing in firearms without being licensed in violation of 18 U.S.C. §§ 922(a)(1), 924(a), and 2 (Count One), and of knowingly receiving and possessing firearms, after having been convicted of a felony, in violation of 18 U.S.C. (Appendix) § 1202(a)(1) and § 2. (Count Two). The defendant was sentenced to the custody of the Attorney General for a period of two-and-a-half years on Count One and for a period fo one year on Count Two, said sentences to run concurrently. The defendant appeals from the judgments of conviction.

I. History of the Case

On April 2, 1974, Agents Heavey and Jorgensen of the Bureau of Alcohol, Tobacco and Firearms, in an undercover capacity, accompanied by Raymond Ferro, a Government informer, went to a tavern in Milwaukee, Wisconsin. The purpose was to attempt to purchase firearms. Joseph Stoll first appeared on the scene and indicated he was involved in the planned sale but had to wait for associates. Joseph Koller next appeared and, although there was conversation about firearms, he also indicated the necessity to wait for an associate. The defendant Buschman subsequently came to the tavern but went to the rear thereof.

Koller and Stoll left their table and joined him. They returned to the table of the agents with a paper given them by the defendant upon which paper appeared a description of various firearms. Heavey selected ten of the items which he listed on a sheet of paper which Koller and Stoll then took back to Buschman. The three men conferred for a few minutes. Stoll and Buschman then left the tavern and drove away in Stoll's station wagon.

An hour or so later, Stoll and the defendant returned. Buschman entered the tavern. The agents, Stoll and Koller went to the station wagon and inspected boxes that contained firearms. The firearms were then placed in the agents' car. Heavey gave the purchase price of $1,000.00 to Koller who then walked to the rear of the tavern and gave 'some money' to Buschman and Stoll. The defendant left the tavern.

The foregoing summary of the activity occurring at the tavern was based upon the testimony of the agents. The defendant testified to a substantially different version of the evening's events.

The sole issue in this appeal is whether the trial court erred in denying the defendant's request for a cautionary instruction at the time hearsay testimony concerning statements made by Stoll and Koller was offered, which testimony was admitted on a 'joint venture' theory.

The statements incriminated and implicated the defendant in the offenses charged. The defense took the position that the Government, at that point in the trial, had not introduced any independent evidence to establish a joint venture and that a joint venture must be established by such non-hearsay evidence. After the Government acknowledged that it had not yet established the joint venture by independent evidence, the trial court ruled that it would admit the hearsay testimony, subject to the condition that the Government later establish independent evidence of joint activity.

The defense thereupon requested the court to instruct the jury that it could not consider the hearsay as evidence unless and until the Government had established that there was a joint venture, and that the joint venture must be established by independent evidence. ¹ In its denial of the defendant's request the court viewed the question of admissibility as a matter of law for its determination, not a question of fact to be decided by the jury. At the end of the Government's case, the defendant made a motion for judgment of acquittal based on the insufficiency of the evidence adduced by the Government and, alternatively, moved for a mistrial based on the failure of the Government to establish by independent evidence that the defendant was a party in the joint venture. The court denied both motions and stated its conclusion that the Government had indeed offered sufficient independent evidence connecting the defendant with the joint venture of the other two coindictees. The appellant concedes that the court, in its final charge, appropriately instructed the jury concerning the hearsay testimony and the use to which it could be put. ²

II. Sufficiency of the Evidence

As an initial matter, we note that this criminal prosecution was not one involving a conspiracy count, even though the disputed hearsay testimony was received on the basis of a 'joint venture' exception to the hearsay rule. This court has on numerous occasions recognized that where a 'joint venture' is established by independent evidence, declarations made in furtherance of the venture are admissible against a party who is not present. This is true, even though, as here, no conspiracy is alleged. United States v. Bernard, 287 F.2d 715 (7th Cir. 1961), cert. denied, 366 U.S. 961, 81 S.Ct. 1921, 6 L.Ed.2d 1253; United States v. Lawler, 413 F.2d 622 (7th Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 698, 24 L.Ed.2d 691 (1970); United States v. Spencer, 415 F.2d 1301 (7th Cir. 1969); and United States v. Jones, 438 F.2d 461 (7th Cir. 1971).

We do not understand the appellant to challenge the district court ruling that there was sufficient independent evidence to establish the joint criminal venture. In a conspiracy prosecution, which technically this case was not, the sufficiency of the evidence requires close scrutiny. United States v. Cortwright, et l., --- F.2d ---, at --- (7th Cir. 1975). In a conspiracy prosecution, a reviewing court must make an independent evaluation of the record to determine, first, whether sufficient evidence was presented for a jury to conclude beyond a reasonable doubt that the conspiracy existed and, second, whether there was sufficient non-hearsay evidence by which the jury could tie each defendant to the conspiracy. Id. Although the language of Cortwright does not expressly rule whether a similar obligation rests upon this court in a prosecution embodying a 'joint venture' theory, we have nonetheless reviewed the evidence regarding the conflicting versions of the events of April 2, 1974. Viewing as we must the evidence in the light most favorable to the Government, United States v. Rajewski, 526 F.2d 149 (7th Cir. 1975), we conclude that there was sufficient evidence for the jury to find that Buschman was a participant in a joint criminal venture.

III. Halpin and Apollo?

The narrow issue in the present appeal is whether the trial court must give a cautionary instruction prior to the time that hearsay statements of one engaged in a joint criminal venture are received into evidence. ³ Although it is possible to draw narrow technical distinctions between cases involving conspiracy or joint-venture theories, the legal analysis applicable to evidentiary rules must, by its very nature, be the same. See United States v. Lucido, 486 F.2d 868, 869 n.3 (6th Cir. 1973). Viewed in that light, the broader problem lurking in this appeal is whether this court should follow its own precedent regarding the co-conspirator exception or should adopt a new approach charted by the First and Fifth Circuits.

The defendant-appellant argues that the use of a proper instruction at the conclusion of the trial cannot cure the erroneous refusal to give a proper instruction, upon a timely request, when the hearsay testimony is first elicited. Buschman cites United States v. Apollo, 476 F.2d 156 (5th Cir. 1973), and United States v. Honneus, 508 F.2d 566 (1st Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975), as authority for his position. In recognition of the relevance of these cases, the Government asserts that United States v. Halpin, 374 F.2d 493 (7th Cir. 1967), cert. denied, 386 U.S. 1032, 87 S.Ct. 1482, 18 L.Ed.2d 594, has effectively established the law of this circuit on the narrow issue presented in this appeal.

We find persuasive the Government's analysis of the Halpin decision. In that case, supra at 495, the appellant claimed that the trial court erred in refusing, over objecting, to limit hearsay declarations properly at the time they were admitted (emphasis supplied) and that the instruction given at the end of the testimony was not sufficient protection. Id. In Halpin, as here, only one defendant was on trial. This court ruled expressly that there was no requirement that the conspiracy (joint venture) be independently proved at the trial before the hearsay declarations were admitted. It also ruled that the order in which evidence is received is within the trial court's discretion. As previously noted, the Halpin decision also passed on an issue not urged in this appeal by determining that the district court was not required to place a limitation on the hearsay testimony each time a declaration was admitted. Id. at 496.

In sum, Halpin effectively disposed of all the issues raised in this appeal. In that case, as here, the appellant was relying on Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 1352 (1953). We then ruled, and now reaffirm that such reliance was misplaced. We remain persuaded that Halpin correctly interpreted the thrust of the language in Lutwak. ⁴ Since Halpin was the only defendant, the evidentiary questions could not be resolved except on the entire record. The rule claimed then by Halpin, and now by Buschman, would unduly hamper the prosecution of...