US v. Buckalew, Crim. No. 87-00037-P.
| Decision Date | 18 December 1987 |
| Docket Number | Crim. No. 87-00037-P. |
| Citation | 674 F. Supp. 940 |
| Parties | UNITED STATES of America v. Guy Earl BUCKALEW, Defendant. |
| Court | U.S. District Court — District of Maine |
F. Mark Terison, Asst. U.S. Atty., Portland, for plaintiff.
Richard S. Emerson, Portland, for defendant.
The Defendant is charged with the crime of solicitation to commit armed bank robbery, in violation of 18 U.S.C. § 373. A bench trial was held on November 23, 1987. The Government introduced in evidence several tapes of recorded conversations, with accompanying transcripts, and oral testimony was presented by both sides. Having had the opportunity to listen to the recorded conversations, and having given careful consideration to all the evidence presented at trial, the Court enters judgment. For the reasons to be set forth more fully below, the Court finds the Defendant guilty as charged.
All the relevant events took place in a one week period from April 22 through April 29, 1987. The Government relies primarily on the testimony of, and taped conversations elicited through, its key witness James Stewart. Buckalew first became acquainted with Stewart at a half-way house for recovering alcoholics in Lewiston, Maine. At the time these events took place, however, Buckalew was staying in a motel and Stewart lived at home with his wife and two children in Lewiston.
On April 22, 1987, Stewart met Buckalew on the street and a discussion ensued that eventually led to the topic of making some "fast cash." They met several more times that day, at which times Buckalew further elaborated on his scheme to rob a bank. The final meeting took place in Stewart's home that night. Both sides acknowledge that Buckalew had been drinking heavily.1 Stewart claims that Buckalew threatened him, his wife, and his children after Stewart said he didn't want to get involved. Buckalew denies ever making such threats, and the only corroborative testimony for such threats was presented by Stewart's wife who testified that while standing in another room, she thought she overheard Buckalew say "I'll take the baby."
The next meeting took place on the following day, April 23, in Buckalew's car while parked in a lot adjoining Stewart's house. Another man, one Ralph Mosher, was seated in the back seat during Stewart's and Buckalew's conversation in the front seat. Stewart testified that Buckalew threatened him during this conversation as well, saying that Mosher would kill him if he didn't go through with it. Again, there is little corroborative testimony for the making of such threats, but Mosher's conversation with Stewart on April 29, as well as his testimony at trial, confirm at least that he was present on the occasion. Mosher testified that he was there to give Buckalew a second opinion on whether Stewart could be trusted.
On the night of April 23, Stewart called the attorney who was representing him in a state criminal case for armed robbery. Stewart was awaiting sentencing at the time.2 He told his attorney about the several conversations with Buckalew and asked what he should do. His attorney called the FBI, the FBI contacted him that night, and he met with an agent the following day.
Stewart met again with Buckalew on the following morning, April 24, and they were observed by an FBI surveillance team as they went together to "case" the Key Bank at the Promenade Mall. They sat in the car for a period of time and then entered the Bank. They were later observed driving to a costume shop. That afternoon, Stewart met with FBI agents and agreed to stay away from Buckalew over the weekend (April 25 and 26) so that further conversations could be taped on the following Monday.
Stewart did not stay away from Buckalew and apparently shadowed him for a period of time that Saturday, April 25. He left a note on Buckalew's car on Saturday while Buckalew slept at a nearby rest area, reminding him of their meeting the following Monday. There was also testimony suggesting that Stewart may have led Buckalew home from the rest area that night after Buckalew had passed out from drinking, but the witness, Robert Vale, was uncertain as to the exact date of the event to which he testified.
On Monday, April 27, Stewart met with Buckalew again and drove to the Key Bank. The FBI observed this meeting and recorded parts of their conversation. Details of the robbery were discussed, including the method of disguise (stockings), use of a weapon (pistol), detaining the bank clerks while leaving (wedging them in a room), and the need to obtain a car for the getaway.
Several other meetings occurred between Stewart and Buckalew, but the only other taped conversation was between Stewart and Mosher at the latter's house on Wednesday, April 29. Although Mosher effectively disassociates himself from the robbery scheme at that time, his conversation reaffirms several details of the prior meeting between the three on April 23. In addition, Mosher tells Stewart why Buckalew probably sought him out ("Jim, you must know yourself, its almost impossible to find a guy thats solid, that's got the expletive cool for something like we're talking about ... you're up for expletive robbery now ... and you talk pretty level headed."), and that Buckalew could be trusted ("I would trust him as being a straight shooter ... to do his part of the job.").
Under the solicitation statute, 18 U.S.C. § 373 (Supp. III 1985),3 the Government must prove two essential elements. First, it must be shown that the defendant had the intent that another person engage in conduct constituting a crime described in Title 18. That intent must be shown to be serious by strongly corroborative circumstances. United States v. Gabriel, 810 F.2d 627, 635 (7th Cir.1987). Second, the Government must prove that the defendant commanded, induced, or otherwise endeavored to persuade the other person to commit the felony. See S.Rep. No. 225, 98th Cong., 2d Sess. 308, reprinted in 1984 U.S. Code Cong. & Admin.News 3182, 3488. Each of these elements will be addressed in turn.
As to the first element, the Government presented numerous circumstances strongly corroborative of Buckalew's serious intention that Stewart carry out the crime of armed bank robbery, a felony having as an element the use of physical force. See 18 U.S.C. § 2113(a) and (d). In the Senate Report accompanying the legislation of which the solicitation statute was a part, S.Rep. No. 307, 97th Cong., 1st Sess. 183 (1982),4 several examples of "strongly corroborative circumstances" were offered as highly probative of serious intent: (1) the fact that the defendant offered or promised payment to the person solicited; (2) the fact that the defendant threatened harm to the person solicited if he wouldn't commit the felony; (3) the fact of repeated solicitations or an extended attempt to solicit; (4) the fact that defendant believed or knew that the person solicited had been involved with similar offenses; and (5) the fact that defendant made preparations for the commission of the offense, including the acquisition of weapons. Many of these circumstances were evident in the present case.
First, testimony indicated...
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U.S. v. Buckalew, 88-1382
...government had to show that Buckalew induced or otherwise tried to persuade Stewart to commit armed bank robbery. The district court, 674 F.Supp. 940, found the evidence more than sufficient to make these showings; and so do The record included evidence showing the following: (1) In October......