UNITED STATES of America, Plaintiff-Appellee, v. Darrell W. THOMAS, Defendant-Appellant.
No. 97-1738.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 2, 1997. Decided July 23, 1998.
150 F.3d 743
4.
Throughout this opinion, we have referred to the partiеs as the key actors in this sorry situation. Of course, the matters we have been discussing, the completion of discovery and the filing of witness reports, are, in the normal course of civil litigation, the responsibility of counsel. Here, a young person, injured in infancy, is denied a merits decision apрarently because the attorney retained by her parent did not comply with the usual constraints placed by the district court on the parties to ensure the efficient management of litigation. As we pointed out in Patterson v. Coca-Cola Bottling Co., 852 F.2d 280 (7th Cir. 1988), the fact that the client is affected by the delicts of counsel is not a justification for excusing counsel‘s conduct or for mitigating the operation of the rule. See id. at 284; see also Link v. Wabash R.R., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Sweat v. Peabody Coal Co., 94 F.3d 301, 306 (7th Cir. 1996). However, we point out that a client whose interests are harmed by an attorney is, of course, not without a remedy. See Patterson, 852 F.2d at 284 n. 5.
Conclusion
The district court acted well within its discretion in determining that Salgado had not complied with
Deirdre A. Durborow (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.
Before ESCHBACH, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.
PER CURIAM.
Darrell Thomas sold crack cocaine to an informant in controlled transactions that were recorded on audio tape. Puzzlingly, the prosecutor charged Thomas with conspiracy to distribute drugs but not with their actual distribution. Conspiracy was much harder to establish, for the evidence was as consistent with intermittent sales as it was with criminal conspiracy, which is “an agreement to commit a crime other than the crime that consists of the sale itself.” United States v. Lechuga, 994 F.2d 346, 347 (7th Cir. 1993) (en banc) (lead opinion); United States v. Duff, 76 F.3d 122, 126 (7th Cir. 1996). Thomas‘s lawyer asked the judge to instruct the jury that repeat sales of drugs do not invariably establish conspiracy. The judge declined to give this buyer-seller instruction, and Thomas‘s lawyer then failed to object, as
Evidence at trial depicts Thomas as a broker, finding drugs from dealers in Charleston, Missouri, for resаle to people who were having problems with their usual sources. Mable Jones, the informant, was one such person. Jones specialized in selling drugs at public housing projects in Cairo, Illinois, and toward the end of July 1995 her cupboard was bare. The lack of inventory troubled her, becаuse her peak demand came at the start of each month when welfare and Social Security checks are distributed. A shortfall of drugs coincided with her arrest, and Jones decided to earn a reduction in her sentence by helping agents work back up the chain of distribution. Thomas charged Jones $600 for 12+ grams of wax shaved to look like cocaine (a mistake for which he blamed his own suppliers) before selling her small quantities of crack. Palming off bogus merchandise is not a prevalent way to treat business partners, which conspirators are. Jones told police that she had bought small quantities of drugs from Thomas once or twice before the supervised transactions. These sales, the sale of wax on August 1, 1995, plus two supervised transactions in which cocaine changed hands (one lot for $300 on August 2, another for $250 on August 8), coupled with tape recordings in which Jones and Thomas spoke a common drug lingo, are the support for the jury‘s conclusion that Thomas, Jones, and three other persons (Jones‘s husband Fred, her daughter Shirley Smith, and Smith‘s boyfriend Dennis Mallard) conspired to distribute cocaine.
None of the evidence suggests that Thomas had any stake in Jones‘s profits from the Cairo market; all deals were cash on the barrelhead. None of the evidence necessarily establishes that Thomas and Jones agreed to “commit a crime other than the crime that consists of the sale itself.” Their transactions were eрisodic. A frequent customer at McDonald‘s does not agree to eat his next burger there, rather than at Burger King, and although an enduring commercial relation may support an inference that agreement has been reached, see Direct Sales Co. v. United States, 319 U.S. 703, 713, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943); Lechuga, 994 F.2d at 350, the jury should be told that agreement—the crime оf conspiracy—cannot be equated with repeated transactions. This is the office of the buyer-seller instruction. It reminds juries that distribution of drugs is not itself conspiracy, although a history of transactions may be evidence of conspiracy. A jury readily could have concluded that Thomas and Jones dealt without any express or implied undertaking to commit any future crime cooperatively, making them substantive offenders but not conspirators. The district court therefore erred in declining to give a buyer-seller instruction. See United States v. Meyer, 149 F.3d 535 (7th Cir. 1998). And the error was plain, in the sense that it is obvious when you think about it. (This is the meaning Johnson and United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), give to the word “plain.“) The district judge said during the instruction conference that he would not give a buyer-seller instruction because:
[H]ypothetically in a vacuum, yes, a seller can be a seller without being a member of a conspiracy. As an abstract principle, I think that‘s true, but you have to look at the factual situation, and in this factual situation that we have here, there is evidence from which the jury could find that this was not an isolated sale.... [C]learly there is evidence that this was an ongoing relationship, number one; that the defendant knew or should have known thаt the Joneses were buying these drugs for resale. There is evidence from which the jury could find that the Joneses were sell-
ing the drugs to other people. So, you know, it‘s not just a mere ongoing relationship of buying.... There‘s no doubt that there is evidence, undisputed evidence, that goes beyond a mere buyer-seller relationship.
This passage implies that the accused is not entitled to an instruction if the jury could find that he joined a conspiracy (indeed, if the jury could find that the sale was “not isolated“). Not at all. If a jury rationally could find in the defendant‘s favor on some material issue, then the jury must be instructed on that subject. Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); United States v. Douglas, 818 F.2d 1317, 1320-21 (7th Cir. 1987). And to the extent the judge believed that repeated transactions automatically establish a conspiracy, that belief is mistaken for the reasons Lechuga gives. Spot-market transactions do not necessarily prove agreements to commit future crimes.
Although
One other subject calls for brief comment. Circuit Rule 30(b)(1) requires an appellant to include, in the appendix to the brief, “[c]opies of any opinions or orders in the case that address the issues sought to be raised.” Although this rule does not explicitly require the inclusion of transcribed oral statements in which the judge resolves the disputed issue, we concluded a decade ago that it does. See United States v. White, 888 F.2d 490, 495 (7th Cir. 1989). See also In re Galvan, 92 F.3d 582, 584-85 (7th Cir. 1996). Thomas‘s lawyer omitted from the appendix to his brief the portions of the jury instruction conference in which the district judge made the disputed rulings. It may well be thаt counsel was unacquainted with his obligations under Rule 30, for his brief concludes with this representation:
I, John F. Garvey, Jr. hereby affirm and state that all materials required by Circuit Rule 30 have been included either on [sic] the Record of [sic] Appeal, or in Appellant‘s Separate index [sic] which has been filed along with Appellant‘s Brief.
This may have been meant as the statement required by Circuit Rule 30(c), but it does not comply with that rule. We require counsel to state that they have included all materials that Circuit Rule 30(a) and (b) require. Opinions and rulings bound with the briefs are ready to hand when the judges prepare for oral argument. That all materials are in the record is unhelpful, and we haven‘t a clue what a “Separate index” might be (no document bearing that name was filed). If having the materials in the record were enough, Circuit Rule 30 would be pointless. The Clerk‘s Office should not have acсepted a brief with this non-complying certificate, which all but proclaimed a departure from Rule 30(a) and (b).
Galvan warns counsel that in criminal cases monetary sanctions are the consequence of failure to furnish the opinions, orders, and rulings being contested. See United States v. Evans, 131 F.3d 1192 (7th Cir. 1997). Because аmbiguity in the rule may have contributed to the shortcoming here, we do not think a financial exaction appropriate. As in Galvan, an admonition to pay close attention to the circuit rules should suffice. Meanwhile the rule was amended effective December 1, 1997, to eliminate the ambiguity. Cirсuit Rule 30(b)(1) as amended requires counsel to include in the appendix to the brief “[c]opies of any other opinions, orders, or oral rulings in the case that address the issues sought to be raised. If the appellant‘s brief challenges any oral ruling, the portion of the transcript containing the judge‘s rationale for that ruling must be included in the appendix.” Good appellate advocates do this without the need for compulsion.
REVERSED AND REMANDED.
EASTERBROOK, Circuit Judge, concurring.
If in order to convict Thomas of conspiracy the jury necessarily found all of the elements of the substantive offense, we could relabel the offense of cоnviction ourselves. Rutledge v. United States, 517 U.S. 292, 306, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996). Distribution of cocaine is not technically a lesser included offense of conspiracy to distribute cocaine, because it is possible to conspire in violation of
This is not to say that a court of appeals could convict Thomas of distributing cocaine. He has not been charged with or tried on that offense, and he is entitled to the benefit of both indictment and trial no matter how obvious his guilt. Summary judgment does not exist in criminal cases. See United States v. Ladish Malting Co., 135 F.3d 484, 490-91 (7th Cir. 1998). But when deciding whether the proceedings during trial were so flawed that a court should relieve a defendant of his forfeiture, judges ought to consider what is apt to happen next. If impeccable process will lеad to another guilty verdict and the same sentence, why not say that no injustice has been done and let the first verdict stand?
Perhaps there is an answer to this line of reasoning, but Thomas has not given it. And the reason for this omission is that the United States Attorney did not advance an argument along the lines I have sketched—or indeed any argument bearing on the exercise of our discretion under