Lead Opinion
An indictment charged Humberto Lechuga with having in his possession more than 500 grams of cocaine, with the intention of distributing the cocaine; and also with having conspired with Evelio Pinto and unnamed others to distribute the cocaine. 21 U.S.C. §§ 841(a)(1), 846. The jury convicted Lechu-ga on both counts, and the judge sentenced him to 75 months in prison.
A government undercover agent named Carr had arranged to buy 500 grams of cocaine from Pinto. To obtain the cocaine for the sale, Pinto got in touch with Sam Pagan, who had previously sold Pinto cocaine that Pagan had obtained from Lechuga. Pagan relayed Pinto’s order to Lechuga, who designated an apartment building where Pagan was to receive the cocaine from Lechuga
Leehuga’s main argument — the argument that caused us to decide to hear this case en banc under Circuit Rule 40(f) (rehearing before issuance of the panel’s decision) — is that the mere fact that he sold Pinto a quantity of cocaine too large for Pinto’s personal use, and therefore must have known that Pinto was planning to resell it, is insufficient to prove a conspiracy between Pinto and him. Before today, it was widely assumed that a conviction for participation in a drug conspiracy could be affirmed with no more evidence than that the defendant had sold in a quantity too large to be intended for his buyer’s personal consumption, e.g., United States v. Mancari,
To understand the problems created by an allegation of a conspiracy between a seller on the one hand and a buyer for resale on the other, we must take a step back and ask why uncompleted conspiracies are punished, even though the conspiracy here was completed — • the cocaine was delivered to Pinto before he was arrested. It is not a good answer to say that they are punished on the same theory as attempts are punished; for given a law of attempts we must ask why uncompleted conspiracies are also punished. The full answer may include historical accident but there is also a functional reason. Because crimes are difficult to deter by mere threat of punishment, society tries to prevent them and one way to do this is by identifying and incapacitating people who are likely to commit crimes. The risk to civil liberties that would be created by a purely preventive theory of criminal punishment is so great, however, that society insists on definite proof of dangerousness. An attempt is one form of satisfactory proof. A person who goes so far in the preparation of a criminal act as to be guilty of an attempt has given definite proof that he is likely to commit such an act. And likewise a person who agrees to commit a crime, even if he takes no additional preparatory steps and as a result does not come close enough to committing the crime to be guilty of an attempt.
All this makes good sense when we are speaking of the punishment of uncompleted conspiracies, but what of the punishment of a completed one? Lechuga delivered cocaine in violation of federal criminal law; why should he also be punished for agreeing to deliver it? The stock answer is that a conspiracy has more potential for doing harm than a single individual does. Callanan v. United States,
This is the point at which sale for resale rather than for consumption becomes relevant. Contrast two modes of distribution. In one, a bulk dealer like Lechuga sells his inventory directly to the ultimate consumer.
This is an argument for treating any sale of drugs for resale as a conspiracy. It is only a short step to the conclusion that any sale of drugs in a quantity greater than appropriate for individual consumption is presumptively a sale for resale, though the presumption could be rebutted, for example by evidence that the bulk purchaser was planning to throw a huge party at which he would serve his guests cocaine. Many of the objections to this approach are superficial, for example that the federal statute forbidding the sale of, and possession with intent to sell, drugs already imposes heavier penalties the larger the quantity sold or possessed. 21 U.S.C. § 841(b). The quantity goes to the severity of the sentence, not the existence of the crime. United States v. McNeese,
Yet there is still a serious objection to concluding that a sale for resale leagues the seller and the buyer in a conspiracy (which can be inferred from the quantity involved in the sale — but that is not the problem). The objection is that while dangerousness may be the justification for punishing conspiracies separately from attempts and completed crimes, proof of dangerousness cannot be substituted for proof of conspiracy. The conspiracy itself must be proved.
We must therefore ask what a conspiracy is. A criminal conspiracy, the cases say, is an agreement to commit a crime. E.g., Iannelli v. United States,
This shows that to know what a “contract” is you must be a lawyer; but “agreement” is a lay term, and while it may be difficult to define, it usually is easy to identify. There was an agreement between Le-
The rationale for the own-consumption exception is that when a crime requires the joint action of two people to commit (prostitution, adultery, incest, bigamy, and duelling are other examples), a charge of conspiracy involves no additional element unless someone else is involved besides the two persons whose agreement is the sine qua non of the substantive crime. The rationale could be questioned, on the ground that it is at most a reason for requiring that the sentences for the conspiracy and the completed crime run concurrently (though even this is unnecessary if the legislature intends cumulative punishment, Missouri v. Hunter,
There is another way to understand the own-consumption exception, however — a way that shows that, at least in some of its manifestations, as in this case, it is not an exception at all, but an instantiation of the rule that makes conspiracies criminal. A conspiracy is not merely an agreement. It is an agreement with a particular kind of object — an agreement to commit a crime. .When the sale of some commodity, such as illegal drugs, is the substantive crime, the sale agreement itself cannot be the conspiracy, for it has no separate criminal object. What is required for conspiracy in such a case is an agreement to commit some other crime beyond the crime constituted by the agreement itself. We shall see that there was such an agreement here (as there had been in Iannelli) — the agreement between Lechuga and Pagan to cooperate in the sale of drugs to Pinto. The object of the agreement was to commit the crime of selling drugs to Pinto. But insofar as there was an agreement between Lechuga and Pinto merely on the one side to sell and on the other to buy, there was no conspiracy between them no matter what Pinto intended to do with the drugs after he bought them. Lechuga would not, merely by selling to Pinto, have been agreeing with Pinto to some further sale. A person who sells a gun knowing that the buyer intends to murder someone may or may not be an aider or abettor of the murder, but he is not a conspirator, because he and his buyer do not have an agreement to murder anyone.
There might have been a separate agreement between Lechuga and Pinto. Suppose Lechuga had told Pinto that he needed a good distributor on the south side of Chicago and wanted to enter into a long-term relationship with Pinto to that end. Then it would be as if Lechuga had hired Pinto to assist him in reaching his market. It should not make a difference whether an illegal agreement takes the form of an illegal simulacrum of an employment contract or of a “relational” contract, implying something more than a series of spot dealings at arm’s length between dealers who have no interest in the success of each other’s enterprise. Vertical integration is not a condition of conspiracy. And of course the initiative might in our hypothetical ease have come from Pinto rather than from Lechuga without affecting the analysis. Even the number of sales, a factor stressed in some cases, would be significant only insofar as it cast light on
A more difficult case, as noted in United States v. Moran, supra,
It does not follow that the conviction must be reversed. The indictment charged a conspiracy with others besides just Pinto, and the evidence showed that Lechuga had in fact conspired with Pagan; therefore the conviction of conspiracy must be upheld after all. A finding that Lechuga had conspired with Pagan was within the scope of an indictment worded as this one was, and the fact that the indictment did not name Pagan is irrelevant. United States v. Rey,
The critical issue is whether, on the one hand, the relationship between Lechuga and Pagan is properly characterized as that of a spot seller and a spot buyer; or, on the other hand, whether the sale was from Lechuga to Pinto with Pagan functioning as a go-between, facilitator, sales agent, and general helper. If, knowing that Lechuga was a drug dealer, Pagan assisted him in distributing drugs to at least one dealer farther down the chain of distribution, namely Pinto, then Lechuga and Pagan were coconspirators. United States v. Aguilar,
We must take a closer look at the facts concerning their relationship. Pagan was asked on direct examination what his purpose had been in seeking to meet Lechuga. He answered that it had been to “get in some kind of [drug] deals.” He was then asked, “What did you want to do with drugs with [Lechuga]?” Answer: “Just sell it.” It is apparent that he wanted to sell drugs on Lechuga’s behalf, for when the two had first met he had told Lechuga, “I know these [sic ] this guy, he’s looking for some amount [of drugs], and he [Lechuga] had it.” In other words, Pagan had a customer (although his testimony is not entirely clear on this point, apparently it was Pinto) for a particular
This was in February 1988. In May, Pinto told Pagan that he had a friend who wanted cocaine, so Pagan “called [Lechuga],” and told him the amount he needed. The inference is inescapable that Pagan told Lechuga that Pinto would require an extra three ounces to make up for a previous short delivery by Lechuga and Pagan. For Pagan testified that the reason Pinto was to get an extra three ounces was that “We had another deal with him [Pinto] and he claimed that we were short, so I request from [Lechuga] again the three ounces.” The “we” is obviously Lechu-ga and Pagan. A rational jury could infer from the testimony we have summarized that Lechuga and Pagan were dealing jointly with Pinto, with Pagan’s role that of a sales agent. Therefore the jury’s finding of conspiracy is adequately supported by the evidence.
Lechuga challenges his conviction on a number of other grounds, but they have no merit and require little discussion. Most were waived in the district court, and therefore can be raised in this court only if they demonstrate plain error, Fed.R.Crim.P. 52(b), which is to say an error that must be corrected in order to avert a miscarriage of justice. United States v. Caputo,
Lechuga’s principal defense at trial was that Pagan had confused him with Lechuga’s brother Raul. But Lechuga had told the police when he was arrested that his brother had been in Mexico for the past six months. This admission was used at trial to knock down his defense of mistaken identification. He argues that the admission was extracted from him without his having first received the Miranda warnings. He did not make the argument at trial, and it is barred on appeal because, although this is a close case on the question whether Lechuga was involved in a conspiracy, it is not a close case on whether Pagan was dealing with him rather than his brother. On that issue the evidence against Lechuga was overwhelming, so that exclusion of the admission could not have made a difference.
AFFIRMED.
Concurrence Opinion
with whom MANION, Circuit Judge joins, concurring in the judgment.
I agree with the majority that we must affirm Humberto Lechuga’s conviction. I write separately to make two points.
First, as the majority agrees, whether the sale of a distribution-size quantity of cocaine is sufficient to establish a conspiracy between a buyer (here, Pinto) and seller (here, Lechu-ga) to distribute cocaine is not a question presented by the facts of this case. Granted, because the defense attorney cleverly focused on that question in the appeal, and cast aside the central conspiracy charge made in the indictment, we decided to rehear the case en banc to consider that issue. However, it became clear to several of the judges during the en banc oral argument that the Government presented far more evidence in support of Lechuga’s conspiracy conviction than a single sale to Pinto of a distribution-amount
My second reason for writing separately is to spread upon the appellate decision record some facts in addition to the plurality’s brief analysis of the evidence we rely upon to affirm Lechuga’s conviction. The indictment did not specifically name Samuel Pagan as a coconspirator but instead charged that “Eve-lio Pinto and Humberto Lechuga ... conspire[d] between themselves and with persons known and unknown to the grand jury to distribute and possess with the intent to distribute” cocaine. However, “persons known and unknown to the grand jury” could certainly include Pagan. We have made clear that it
“is the grand jury’s statement of the existence of the conspiracy agreement rather than the identity of those who agree which places the defendant on notice of the charge he must be prepared to meet.... Thus, the government is permitted to allege in an indictment, as it did in this case, that, in addition to the defendants named in a conspiracy count, the defendants conspired with others known and unknown to the grand jury.”
United States v. Townsend,
In reviewing jury convictions we are required to consider “whether, after viewing the evidence in the light most favorable to the government, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ’ ” United States v. Lamon,
A conspiracy is a combination or confederation between two or more persons formed for the purpose of committing a criminal act through their joint efforts. Lamon,
“Conspiracies, like other crimes, may be proved entirely by circumstantial evidence. United States v. Durrive,902 F.2d 1221 , 1225 (7th Cir.1990). If the prosecution presents enough circumstantial evidence to support, beyond a reasonable doubt, an inference that the defendants agreed among themselves to distribute drugs, a jury ivould justified in convicting those defendants of conspiring together. The critical question, then, is whether the jury may reasonably infer a single agreement among the defendants from the evidence of the drug transactions presented by the government.”
Townsend,
The record demonstrates conclusively that the jury was presented sufficient evidence to conclude, beyond a reasonable doubt, that Lechuga conspired with Pagan to distribute cocaine. On May 6, 1988, Milwaukee County Sheriffs Department Detective Kevin Carr, working undercover, negotiated with Pinto to purchase one-half kilogram of cocaine for $13,000. Pinto then informed Pagan that a buyer (Carr) wanted a large stash of cocaine. Pagan proceeded to arrange the transaction. According to Pagan, his drug distribution relationship with Lechuga stretched back to February, 1988. In response to Pinto’s message to Pagan that “he had a friend who wanted cocaine,” Pagan called his supplier Lechuga and told him “I need this amount” (presumably the half-kilo requested by Carr and Pinto). Pagan did not choose Lechuga’s name out of a phone book, nor did he rely on the advice of others in contacting Pagan. Pagan obviously called Lechuga because they had done previous drug deals and had an ongoing supplier-dealer relationship. Their relationship was sufficiently established that all Pagan had to do when he learned of Pinto’s desire to buy was pick up the phone, call the defendant Lechuga, tell him he needed cocaine and give him the order. This undercuts any contention that Lechuga and Pagan had an arms-length, adversarial buyer-seller relationship. According to Pagan’s testimony, it was not necessary for Lechuga to inquire into Pagan’s identity, nor did he ask for references attesting to Pagan’s reliability and experience as a drug retailer. He obviously recognized Pagan’s voice on the telephone, and a simple call from Pagan was more than sufficient to convince Lechuga without any further checking to initiate the delivery of the half-kilo in what Pagan described as a “kind of dry” drug environment.
According to Pagan, after Lechuga secured the cocaine, Lechuga dictated the see-
“[conspiracies exist ... to lower the transaction costs of committing crimes. Rather than having ‘to discover who it is that one wishes to deal with, to inform people that one wishes to deal and on what terms, to conduct negotiations - leading up to a bargain, to draw up the contract, to undertake the inspection needed to make sure that the terms of the contract are being observed, and so on,’ in order to accomplish a goal ... conspiracies ‘will emerge to organize what would otherwise be market transactions.... ’ See Coase, THE FIRM, THE MARKET, AND THE LAW at 6-7 (1988).”
The evidence also demonstrated that at least one other Lechuga-Pagan-Pinto cocaine sale had occurred besides the half-kilo sale that went to Carr. In the bag handed to Pagan from the apartment was a large plastic bag with a half-kilo of cocaine, and three sandwich bags containing one ounce of cocaine each. The half-kilo bag was intended for Carr. At trial, Pagan explained the significance of the three one-ounce packages. Pagan testified that he had relayed to Lechu-ga Pinto’s complaint that he was shorted by Pagan and Lechuga in a prior drug deal. Lechuga made good on the shortage by having Pagan deliver the three ounces due to Pinto to square the books. Pagan stated that he delivered the three ounces to Pinto “[b]ecause we had another deal and we were short on it.” The prosecutor then asked, “[w]hat do you mean you were short on this other deal?” Pagan answered, “[w]e had another deal with him and he claimed that we were short, so I request from [Lechuga] again the three ounces, and that’s why in the bag you guys found a half-key and three ounces.” (emphasis added). “We” in this
All of these facts, set forth clearly in the record, demonstrate beyond a reasonable doubt that Lechuga was an active participant in conspiring with Pagan to sell drugs to Pinto.
Notes
. In his closing argument to the jury, the prosecutor stated that the evidence clearly established an agreement between Pinto, Pagan, and the defendant Humberto Lechuga to distribute cocaine. He also told the jury that numerous witnesses testified that on May 11 Humberto Lechu-ga was "involved in the distribution of cocaine with Sam Pagan". At oral argument before this court, the Government attorney stated that the "hub of the conspiracy" was the agreement between Humberto Lechuga and Pagan. Thus, at trial the government did not rely exclusively on the theory that Lechuga joined an existing conspiracy between Pagan and Pinto.
. Defense counsel argued at the trial level that Lechuga could not be convicted of conspiring with Pagan because Pagan was not named in the indictment. In its memorandum supporting its motion for judgment of acquittal or a new trial, defense counsel argued that "it is not enough that Lechuga and Pagan may themselves have had a conspiratorial agreement between [the] two [of them], for the grand jury alleged that Pinto — Pagan is nowhere named — and Lechuga, with others, formed a criminal association.” As I have already made clear, and as defense counsel is well aware, this is an incorrect statement of the law; the jury was free to convict Humberto Lechuga of conspiracy if it determined that he had conspired with Samuel Pagan to distribute the cocaine.
. Detective Carr, a veteran of hundreds of drug investigations during his nearly five years on the Milwaukee County sheriffs department's narcotics squad, testified that he participated in a subsequent police search of the apartment from which Lechuga and his associate delivered the cocaine to Pagan. Inside the sparsely furnished apartment, which was rented in the name of Lechuga's brother, the police found a triple beam scale used to weigh cocaine; a cocaine press used to compact the drug; large plastic bags and ■ generic sandwich bags similar to the ones which contained the cocaine Pagan delivered to Pinto and Carr; and a roll of duct tape bearing, according to the testimony of an FBI fingerprint specialist, Lechuga’s fingerprints. These items are the accepted indicia of a drug conspiracy.
. Pagan and Pinto wore arrested on the day of the drug sale shortly after Pagan had emerged from the apartment building with the cocaine. Lechuga and his companion were able to evade police capture but they departed in such a hurry that they left behind the Pontiac they drove to the drug sale site. The police seized and impounded the vehicle. Later that evening, according to the testimony of David Lopez, the owner of the Pontiac, Lechuga called Lopez and told him that something must have happened to the car. Le-chuga, along with Lopez, returned to the apartment building and discovered the car missing, whereupon Lechuga told Lopez that it must have been stolen. Later that same month, Lechuga was arrested and arraigned, jumped bail, and remained a fugitive until his apprehension in April, 1991 in Chicago, Illinois, carrying a bogus driver’s license.
. In the same memorandum submitted by defense counsel to the trial court which we quoted in footnote 2, defense counsel stated that "[e]ven if Lechuga knew of, and benefitted from, Pagan’s subsequent distribution to Pinto, then, the- Court could infer only a limited agreement to distribute between Lechuga and Pagan.” Lechuga's command to Pagan to "bring the money back" reveals clearly that he knew of the distribution to Pinto (even if he did not know Pinto's name), and expected to benefit from it (in the form of the cash Pagan would ferry back to him). Defense counsel made this admission in trial court papers because they believed that the Lechuga-Pagan conspiracy was "not the conspiracy the indictment charged; Pinto was alleged to be a member" (emphasis added). We have previously pointed out that this is an erroneous assumption. Thus, even on the terms laid out by defense counsel in the trial court, Lechuga is guilty of being an active member with Pagan in a conspiracy to distribute cocaine.
Concurrence Opinion
concurring.
I join in the result reached in Judge Pos-ner’s opinion — affirmance of Lechuga’s conspiracy conviction. I do not believe, however, that the inclusion of dicta that proposes
In my view, such a rule cannot reasonably be extended to apply to those multi-million dollar drug transactions found in real life, such as a single sale of a sea-going shipload of marijuana, United States v. Kramer,
Even when single sales of drugs are not carried out on such an extraordinary scale, our cases illustrate that major dealers frequently traffick in “large quantities” of drugs. E.g., United States v. Liefer,
Today the court suggests a prophylactic rule that the sale of “large quantities” of narcotics, without more, cannot sustain a conspiracy conviction. Presumably this rule would apply to a single sale that requires massive coordination of air, sea, and ground transportation, regardless if the buyer is a known large-scale distributor and regardless if the quantity is so large that it is certainly intended for resale. If the rule is adopted, a jury will be precluded from reasonably inferring that a seller of large quantities of drugs agreed to their distribution by others down the line, notwithstanding his interest (and stake) in the retailer’s successful distribution.
Ironically, a majority, if not every member, of the court appears to recognize a drug dealer’s interest in successful distribution. Judge Posner concedes that “[sjomeone who provides an input into another’s business usually cares only about selling the input, not about furthering the other’s business. It is different when the buyer is the seller’s distributor, without whom the seller cannot reach the market for his product.” Ante at 348. Judge Cudahy acknowledges as much: “Of course, any wholesaler hopes that his customers will be successful. The more the retailers sell, the more they will buy from the wholesaler.” Post at 360. Still, a majority insists on a rule that knowledge and a stake in the venture sufficient to prove participation in a conspiracy can never be inferred from evidence of a single large quantity sale.
When one sells an amount of drugs too large for personal consumption to a distributor-, I am not willing to foreclose a jury’s finding that the seller “joinfed] both mind and hand” with the buyer to make further distribution possible. Direct Sales Co. v. United States,
It is true that many drug sales — the hand-to-hand variety — are relatively small and simple transactions, thus preventing a rational factfinder from inferring that the seller joined a drug distribution conspiracy. It is just as true, on the other hand, that there are individual sales of such size and scale that a rational factfinder could properly draw the inference that the seller had joined a conspiracy to distribute the drugs involved.
As I see it, a rule that treats every sale of narcotics in a conspiracy case as if it were a simple spot sale belies the nature and reality of today’s wholesale drug trade. Rather than needlessly adopt an absolute standard that cannot be applied intelligibly as the size and complexity of the drug sale increases, we should, I believe, allow the factfinder to assess the nature of the transaction in the first instance and to draw such reasonable inferences of conspiratorial membership as the evidence may warrant.
Concurrence Opinion
with whom CUMMINGS and RIPPLE, Circuit Judges, join, concurring in part and dissenting in part.
We took this case en banc to untangle the knotted strands of this circuit’s law on the issue of when the relationship of drug seller to drug buyer constitutes a conspiracy. We intended to answer the question, “Is evidence of a sale of drugs in quantities greater than required for personal use enough to support a conviction for conspiracy of the seller with the buyer?” Although the majority indicates in dicta that the answer to this question is “no,” it makes little effort to deal with or explain the considerable body of law in this circuit apparently to the contrary. See, e.g., United States v. Sergio,
Lechuga’s primary argument on appeal assumes that there was sufficient evidence to identify him as the man who sold cocaine to Pagan. Nonetheless, he argues that there was insufficient evidence to prove that he conspired with anyone to distribute cocaine. Instead, even when taken in the light most favorable to the government, Lechuga contends that the evidence shows nothing more than a few isolated sales transactions, not a conspiracy.
The principal focus of the trial and of this appeal has been the existence of an alleged conspiracy between Lechuga and Pinto. The majority offers plausible reasons why there is no Lechuga-Pinto conspiracy. But it does so in the face of authority in this circuit that the charge of a sale for resale is a sufficient allegation of conspiracy. See, e.g., Sergio,
The majority agrees with this analysis and in fact concludes that a conspiratorial “meeting of the minds” is generally narrower than a “contract.” Ante at 348-49 (“[S]ome legally enforceable contracts do not involve a ‘real’ agreement in the sense of a meeting of the minds but are enforced because the parties uttered words or engaged in acts that the law deems sufficient to create a ... contract. In this respect the term ‘agreement’ is narrower than ‘contract.’ ”). Again, so far so good, but, if there is no conspiracy involving Pinto, how can there be one involving Pagan? For Pagan acted here on behalf of Pinto — in effect as Pinto’s agent for the purchase of cocaine. If there is no conspiracy with the principal, Pinto (as the majority finds), how can there be one with the agent? Of course, the facts must be viewed in the light most favorable to the government, but this does not mean that the facts may be viewed as a springboard for pure speculation. And that is all the majority has provided.
The majority has attempted to elevate Pagan from Pinto’s purchasing agent to an inti
Pagan admittedly had met Lechuga before this transaction. Pagan’s acquaintanceship with Lechuga, however, was not sufficiently close to enable Pagan to distinguish Humberto Lechuga from his brother, Raul. In any event, we may assume that the mine-run of narcotics purchasers are acquainted with their sellers. There is nothing to suggest that drug dealers do business only with strangers. From acquaintanceship alone it is certainly not permissible to infer a meeting of the minds — an agreement. This is even more emphatically the case where one party mistakes the other for his brother. The majority also quotes Pagan as testifying, “We had another deal with him [Pinto] and he claimed that we were short, so I request from [Raul] [Lechuga] again the three ounces.” Ante at 350-51. Particularly considering that to Pagan English was a second, and still somewhat foreign, language, there is no basis for inferring an agreement from this offhand comment. For an intermediate seller to include his supplier in the sweep of the plural pronoun “we” in a statement that both he and his supplier would have to make up for a short delivery is hardly grounds for inferring a conspiracy.
The very circumstances of the transaction suggest that, while there may have been an agreement between Pagan and Pinto to arrange for the purchase of cocaine, there certainly was none between Lechuga and Pagan to distribute it. First, undercover detective Carr sought to buy 500 grams of cocaine from Pinto. Pinto then called Pagan to obtain the drugs. Pagan, in turn, called Lechu-ga to set up the purchase. Then, Carr, Pinto and Pagan drove to an apartment building where Lechuga had indicated he would make delivery. Lechuga was not there, so Pagan sought further instruction from a woman later identified as Lechuga’s sister-in-law. The woman told Pagan that Lechuga was then on his way to the pick-up point. Pagan and his associates returned to the apartment building and, a few minutes later, Lechuga and a companion arrived. Pagan met Lechu-ga in the building and took delivery of 481 grams plus 3 ounces of cocaine. More specifically, Pagan took the cocaine from someone, later identified as Lechuga, who stuck his hand out from behind a partially open door. Pagan returned to his associates and gave the 481 grams to Carr and the 3 ounces to Pinto. Pinto and Pagan were subsequently arrested but Lechuga and his companion had already departed. These circumstances may support an inference that Pagan was an agent and a coconspirator of Pinto, but nothing about them suggests a conspiracy with Lechuga. Literally, as well as figuratively, the dealings with Lechuga were at arm’s length.
The majority’s reference to Pagan as a possible “go-between, facilitator, sales agent, and general helper,” ante at 350, merely makes colorful, but misleading, verbiage substitute for analysis. There is no evidence that Pagan agreed with Lechuga to do anything except to buy drugs on behalf of Pinto and, under the majority’s very analysis, this is not enough.
The case law in this circuit remains tangled, and I doubt that the majority opinion provides serviceable guidelines to dispel the confusion. Thus, the government has pointed to the language of some of our cases and argued that a sale for resale is evidence enough for the jury “to infer a limited agreement to distribute between the two dealers.” United States v. Sergio,
But the proposition that a sale for resale is sufficient evidence of participation in a conspiracy runs headlong into United States v. Baker,
One possibility on the facts of this case is that Lechuga joined an ongoing conspiracy between Pagan and Pinto. But although Le-chuga presumably knew that Pagan would resell or reconvey the cocaine, he did not know to whom or in what manner. If the language of Baker governs, Lechuga did not know the “scope” of the putative Pagan-Pinto conspiracy.
The suppliers in a “chain” are not necessarily interested in the success of a particular retailer, or group of retailers, down the line. If the chain is characterized by sporadic dealings between independent dealers, what do suppliers care if the middlemen are able to unload the stuff further?
An appropriate standard of proof of conspiracy helps ensure that vicarious responsibility will not be improperly assessed. Co-conspirators are liable for crimes committed by other members of the conspiracy in furtherance of the conspiracy. Pinkerton v. United States,
United States v. Roth seems to contain a less demanding test for conspiracy than, for example, Sergio, and includes the following passage: “LWJhile the ultimate consumer is not himself a conspirator ... the middleman is.”
The significant passage in Sergio, suggesting a broad inference to be drawn from the sale of substantial quantities of drugs, may be best read as a loose reference to Townsend, where we cited Baker approvingly,
Perhaps anticipating that we might not strictly apply the language of Sergio, the government has also argued that the extra three ounces that Lechuga delivered to Pagan, who in turn delivered them to Pinto, indicate a sort of ongoing relationship of trust from which the jury could infer a conspiracy. But these additional ounces do nothing to change the role of Lechuga as an arms-length supplier to the Pagan-Pinto chain. They indicate merely that Pagan had bought cocaine from Lechuga once before and that Lechuga was a sufficiently honest broker to make up for a short delivery.
The possibility remains that Lechuga and Pagan, without reference to Pinto, together agreed separately to distribute cocaine. The majority finds such a conspiracy between Lechuga and Pagan on the grounds that Pagan knew Lechuga was a drug dealer and knowing this “assisted him in distributing drugs to at least one dealer farther down the , chain of distribution.... ” Ante at 350. I suppose that every cocaine supplier who sells to a reseller “assists” the reseller in the sense that, without the original provision of a supply, the reseller would have nothing to pass on down the line. This merely describes the economics of distribution; however, it does not address the occurrence of a meeting of the minds. There is abundant authority that Pagan’s activities vis-a-vis Le-chuga are insufficient to prove a conspiracy. United States v. Kimmons,
The majority purports to distinguish the dealings between Lechuga and Pagan from those between Lechuga and Pinto. Even the second leg (Lechuga-Pinto) of this comparison has its difficulties since Lechuga did not even know who Pinto was and had no direct dealings with him. A seller-buyer relation between Lechuga and Pinto can be postulated only on the theory that Pagan acted as Pinto’s agent in making the purchase from Lechuga. In any event, the majority correctly states that to establish a conspiracy, either between Lechuga and Pinto or Lechu-ga and Pagan, there must be “proof of an agreement to commit a crime other than the crime that consists of the sale itself.” Ante at 347. But what is lacking here is evidence from which such a further agreement between Lechuga and Pagan rationally can be inferred.
Lechuga and Pagan did sell and buy cocaine, and apparently they agreed to do so some time before the sale was consummated. But this sales agreement alone may not form the basis for affirming Lechuga’s conviction for conspiring to distribute cocaine. Like the majority, I too look for “proof of an agreement to commit a crime other than the crime that consists of the sale itself.” Specifically, I search for an agreement to distribute cocaine. The issue in this case, as I see it, is what evidence will permit an inference that such an agreement to distribute exists. The majority does not provide a satisfactory answer to this question.
As has been repeatedly noted, a conspiracy requires agreement, and there is a difference between knowing that something will occur— even as an absolute certainty — and agreeing to bring that same “something” about. After all, the relationship between a buyer and seller is presumptively adversarial: “the buyer’s purpose is to buy [presumably at the lowest possible price]; the seller’s purpose is to sell [presumably at the highest possible price].” United States v. Ford,
Here the record shows clearly only that Lechuga and Pagan had been acquainted since February 1988, and that prior to their arrest in May 1988 Lechuga twice sold Pagan cocaine. Pagan, acting independently, then redistributed it to Pinto. Obviously, this evidence permits an inference of an existing supplier-dealer relationship, but this is not a relationship from which a conspiracy to distribute can be inferred. Thus, in Direct Sales v. United States,
The majority concludes that the record is replete with evidence of the “something-more” that permits an inference that Lechu-ga and Pagan were conspirators. For example, some of its members point to evidence that Lechuga was willing to sell cocaine after “a simple call from Pagan.” Ante at 353 (Coffey, J., concurring). I fail to see how this suggests anything beyond an ordinary buyer-seller relationship. Lechuga had admittedly sold to Pagan once before and, when Pagan exhibited a desire to buy again, Le-chuga was apparently pleased to oblige. Willingness to please and good service do not add up to conspiracy. To call these few typical transactions a conspiracy is inconsistent with Direct Sales and Falcone.
It has also been suggested that Lechuga’s instruction to Pagan to “bring the money back” shows that Lechuga “had a ‘stake in the success of ithe Lechuga-Pagan-Pintoj enterprise.’ ” Ante at 353-54 (Coffey, J., concurring) (quoting Townsend,
All this discussion raises the crucial question: If a sale for resale is not enough evidence of a conspiracy, what is? Although no exhaustive catalog is possible, examples are not difficult to find. Clearly, “prolonged cooperation” between buyer and seller is sufficient evidence of a conspiracy to distribute drugs. Direct Sales,
In sum, the evidence shows nothing more than a typical buyer seller relationship between Lechuga and Pagan. Further, Lechu-ga did not have the requisite knowledge of Pagan’s arrangements with Pinto to be said to have joined that purported conspiracy. Accordingly, Lechuga’s conviction for conspiracy must be reversed. I, therefore, respectfully dissent in the matters indicated.
. The majority engages in imaginative but wholly insupportable speculation that "Lechuga might have been frightened to deal face to face with Pinto, whom he had short-changed....” Ante at 347. The fact is that Lechuga never had an opportunity to deal face to face with Pinto.
. In the words of the majority, “If Lechuga and Pagan had the same simple seller-buyer relationship as Lechuga and Pinto, then, for the reasons explained earlier, there was no conspiracy between them." Ante at 350. The fact is that Lechuga dealt with Pagan as Pinto's buying agent. Lechuga’s relationship to Pagan was identical to his relationship to Pinto.
. Three defendants in Baker petitioned for certio-rari. The Supreme Court denied all three. Baker v. United States,
. Knowledge is thus a necessary but not a sufficient precursor to participation in a conspiracy.
. Perhaps there is honor among "thieves.” And I cannot imagine that a drug dealer who habitually shorted his customers would stay in business long. There is nothing extraordinary here from which conspiracy might be inferred.
. Drug dealers, like most participants in an underground economy, likely have effective collection methods.
. Pagan was an independent businessman who purchased cocaine from Lechuga to supply his own customers, and Lechuga had no direct pecuniary interest in his success.
. On this point, I agree with the majority: "Prolonged cooperation is neither the meaning of conspiracy nor an essential element, but it is one type of evidence of an agreement that goes beyond what is implicit in any consensual undertaking, such as a spot sale.” Ante at 350 (emphasis added).
. The majority has implied that citation of these factors pointing to conspiracy is too generalized to be of much help in the future. But the majority’s efforts at a bright-line rule arc even more unavailing. The majority's carefully crafted rule docs little more than state the obvious: to prove a conspiracy to distribute cocaine one must show something more than an agreement to sell, in fact, one must show an agreement to distribute. This statement, however, offers no insight into the facts from which such an agreement may be inferred. My answer to the difficult question, "What more than a sale for resale is necessary to prove a conspiracy?" is multi-faceted. This is inescapable since this is the only way to take into consideration the many variables that distinguish knowledge that something will occur, e.g., subsequent distribution, from an agreement to bring that something about.
Concurrence Opinion
concurring.
I agree with the opinions of Judge Posner and Judge Coffey to the extent that they establish that Lechuga’s conspiracy conviction is supported by substantial evidence. However, I view this case as one which does not compel consideration of the single-large-sale-for-resale question due to its particular facts. Therefore, I would postpone resolution of this challenging question until the court is confronted with a conspiracy conviction that depends solely on a single distribution-size sale. At this point, only informed dicta can result from any analysis of that issue.
Turning to the merits of the case before us, it is my opinion that the evidence of conspiracy is not quite as overwhelming as suggested by Judge Coffey. I believe Judge Cudahy’s thoughtful dissent, on the other hand, gives too little weight to the jury’s role in deciding difficult cases. After a verdict of guilty, we are obliged to view the evidence and reasonable inferences from it in the light most favorable to the government. This important principle reflects neither pro-government bias nor lazy acceptance of the results in close cases. Rather, it describes the proper deference we give the jury system. Here, the record presents sufficient evidence to support a rational jury’s verdict to convict, and we should not interfere with that judgment.
Concurrence Opinion
concurring.
I join that portion of Judge Posner’s opinion that finds the evidence of a Lechuga-Pagan conspiracy sufficient to support Le-chuga’s conviction. Like Judge Flaum, I believe such a result properly defers to the jury’s determination of guilt. Although I agree that Lechuga’s conviction should be affirmed on this alternative ground, I am not entirely comfortable with the majority’s discussion of the primary issue presented in this appeal — the existence of a conspiracy between Lechuga and Pinto. I agree with the majority that the evidence is insufficient to establish a Lechuga-Pinto conspiracy because a conspiracy conviction cannot be sustained solely on the basis of a single large quantity sale. Yet, I find that the majority offers little practical guidance as to the additional evidence that would be required to support the inference of an agreement to distribute. The majority’s proposed standard — “proof of an agreement to commit a crime other than the crime that consists of the sale itself’ (Majority Op. at 347) — seems to me self evident, but it ultimately is of limited utility in considering the facts necessary to infer an agreement to distribute. (See Cudahy, J., concurring in part and dissenting in part, at 364 n. 9.) I find Judge Cudahy’s opinion more helpful in defining the types of evidence that would permit such an inference (see id. at 363-64), and I therefore join that portion of Judge Cudahy’s discussion.