U.S. v. Butz, 85-2504

• Decision Date: 09 January 1986
• Docket Number: No. 85-2504,85-2504
• Citation: 784 F.2d 239
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold BUTZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 239

784 F.2d 239

UNITED STATES of America, Plaintiff-Appellee, v. Harold BUTZ, Defendant-Appellant.

No. 85-2504.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 17, 1985.

Decided Jan. 9, 1986 ^*.

As Amended Jan. 17, 1986.

As Amended on Denial of Rehearing March 6, 1986.

Julius L. Echeles, Chicago, Ill., for defendant-appellant.

Spencer Weber Waller, Dept. of Justice, Chicago, Ill., for plaintiff-appellee.

Before BAUER, WOOD and POSNER, Circuit Judges.

PER CURIAM.

Appellant, Harold Butz, was convicted by a jury in June 1985 of two counts of falsifying records in connection with the sale of two semi-automatic firearms (in violation of 18 U.S.C. Sec. 923) and one count of conspiring to falsify those records (in violation of 18 U.S.C. Sec. 371). He was sentenced to six months in jail on the conspiracy count and began serving that sentence in September 1985. Consecutive to that sentence, he must serve five years probation on the other two counts. On appeal, he challenges his conspiracy conviction on the ground that there is insufficient evidence to support it. Butz does not challenge his conviction for falsifying records. The jury verdict must be upheld "if after viewing the evidence in the light most favorable to the prosecution, any rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Liefer, 778 F.2d 1236, 1248-1249 (7th Cir.1985) (quoting United States v. Murray, 753 F.2d 612, 615 (7th Cir.1985)). One of the essential elements of a conspiracy is that there is, in fact, an agreement. United States v. Cerro, 775 F.2d 908, 911 (7th Cir.1985). Because the evidence, even viewed in the light most favorable to the government, fails to establish an agreement, we reverse Butz's conspiracy conviction.

Robert Mariacher, who was Butz's codefendant at trial, was charged in the same three counts as Butz. Mariacher, however, was acquitted on all of those counts. The government does not challenge the traditional rule that because a defendant must agree with at least one other person before he can be convicted of conspiracy, a conviction of one conspirator and acquittal of the other conspirator cannot be allowed to stand. See P. MARCUS, PROSECUTION AND DEFENSE OF CRIMINAL CONSPIRACY CASES Sec. 2.03 (Supp. & Revision 1985) (citing numerous cases). The government asserts, however, and the appellant agrees, that there is an exception to the rule that permits a defendant to be convicted of conspiring with persons not named as defendants, even persons whose names are unknown, if the indictment asserts (as in this case) that such persons exist, and the evidence supports the existence of such a conspiracy. Id. The issue, therefore, becomes whether, with Mariacher out of the picture, there is evidence to support a conspiracy conviction.

The government's key witness at trial was Richard Madeja, an unindicted coconspirator. In his testimony, Madeja indicated that he spoke with Mariacher in 1980 about obtaining semi-automatic weapons for conversion into machine guns. Mariacher indicated to Madeja that he could get weapons with paperwork that would be untraceable, which meant that the Bureau of Alcohol, Tobacco, and Firearms (ATF) forms requiring a purchaser's name, would be filled out with the names of nonexistent or deceased people. Madeja agreed to this arrangement, and eventually a weapon that was purchased by Mariacher from the gun store that Butz owned was delivered to Madeja. The evidence also indicated that Mariacher had purchased another semi-automatic weapon from Butz's gun shop and sold it to a friend, Rocco Filliponio, who was arrested a short time later with the gun in his possession. In short, the evidence, viewed most favorably to the government, supported the government's contention at trial that the conspiracy was at the design of Mariacher, with the okay of Madeja, and was accomplished through the activity of Butz. Tr. at 453. There is, however, absolutely no evidence to indicate that there was a conspiracy that was independent of Mariacher.

There is no evidence that Butz knew or ever had any contact with Rocco Filliponio. The government, in their brief, contends that there was sufficient evidence from which one could infer an independent agreement between Butz and Madeja. If this were true, then Butz's conviction would have to be upheld. At oral argument however, the government conceded that there was no linkage or meeting of the minds other than to the extent it occurred through Mariacher. The concession, of course, is fatal to the government's case because the traditional rule, which the government does not challenge, requires that there be evidence that supports the existence of a conspiracy independent of the acquitted coconspirator. As the government conceded, there is no such evidence in the present case. In addition, there is testimony from the government's own witness that strongly contradicts the inference that there was an independent agreement between Butz and Madeja. Madeja never met with Butz to discuss anything about the purchase...