Appeal from the United States District Court for the Southern District of Illinois. No. 95-CR-40066-JPG--J. Phil Gilbert, Chief Judge.
Before Ripple, Rovner, and Evans, Circuit Judges.
The opinion of the court was delivered by: Rovner, Circuit Judge
The evidence in this case leaves little doubt that Darrell Thomas is a drug dealer--the government has him on tape brokering several crack cocaine sales to its cooperating witness, Mable Jones. Thomas has never been charged with distributing narcotics, however. Twice the government has tried him (and twice a jury has convicted him) for conspiring to distribute crack with Jones and her associates. Another panel of this court reversed Thomas's first conviction and remanded for a new trial based on the district court's failure to instruct the jury that if the relationship between Jones and Thomas was no more than that of buyer and seller, Thomas was not guilty of conspiracy. United States v. Thomas, 150 F.3d 743 (7th Cir. 1998) (per curiam). At that time, the court expressed doubts about the evidentiary basis for the conspiracy charge and hinted broadly that the government would be on much firmer ground pursuing substantive charges against Thomas. Id. at 744-45; see also id. at 747 (Easterbrook, J., concurring). The government did not take the hint. On remand, Thomas again was tried, and convicted, of conspiring with Jones and her cohorts. We must now decide whether the evidence was sufficient to permit the jury to convict Thomas on the conspiracy charge. We conclude that it was not.
Mable Jones ("Mrs. Jones" or "Jones") and her husband Fred began to purvey crack cocaine to the residents of public housing projects in Mounds, Illinois, in 1993. At first, Mr. Jones handled the sales end of the operation and Mrs. Jones cut the drugs and handled the finances. After a stroke in March of 1995 left Mr. Jones confined to a wheelchair, Mrs. Jones assumed a more active role in their trafficking operation.
Typically, the Joneses acquired crack cocaine in quantities of one-sixteenth of an ounce. They would then break those quantities into "rocks" that were sold to users for $20 each. Dennis Mallard worked as a retail distributer for the Joneses; he was also the boyfriend of Shirley Smith, Mr. Jones' daughter. For every $100 worth of crack that Mallard sold to their customers, the Joneses gave him $20 in cash or the equivalent in crack cocaine. After Mr. Jones' stroke, Mallard and Smith moved into the Joneses' residence.
As May of 1995 drew to a close, the Joneses needed to replenish their supply of crack. Because most of the Joneses' customers received public assistance, the peak demand for their product occurred at the beginning of each month, when public aid recipients receive their checks. The Joneses had a number of different sources from which they purchased crack cocaine, including individuals in Cairo, Illinois, Detroit, Michigan, and Charleston, Missouri. With the first of June approaching, the Joneses, along with Mallard and Smith, decided to drive across the Mississippi River to Charleston and attempt to locate a source of Mallard's known to them as "Snake."
As the group drove around Charleston looking for Snake, they chanced upon Darrell Thomas, who flagged them down. Thomas asked them whether they were "looking." Tr. 92. After Thomas ascertained that they were interested in buying some crack, he led them to a green house in Charleston and instructed Mrs. Jones to park in the rear. Thomas entered the house alone, leaving the others waiting in the car. A short while later, another individual arrived at the house on a motorcycle, met with Thomas, and then left. Thomas re-joined the others in the car and ascertained that the Joneses were willing to pay $600 for a half ounce of crack cocaine.
Eventually, the motorcycle rider returned to the house (this time in an automobile) and handed something to Thomas. While his source waited, Thomas delivered a half ounce of crack cocaine to the Joneses in exchange for $600 in cash. Thomas then met briefly with his supplier, the supplier departed, and Thomas re-joined the others. When Mable Jones asked about the possibility of future transactions, Thomas told her to "just come over and look him up." Tr. 96.
Mrs. Jones and her entourage subsequently returned to the green house and conducted a second transaction with Thomas. After ascertaining that the Joneses were again interested in a half ounce of crack cocaine, Thomas left the house, returned after an interval of ten to fifteen minutes, and then sold them the quantity they had requested.
At a later date, the Joneses, Mallard, and Smith returned to Charleston looking for Thomas. Upon arrival at the green house where they made their first and second deals with Thomas, they discovered he had moved to a white house elsewhere in town. They managed to catch up with Thomas at his new residence and were again able to arrange the purchase of a half ounce of crack cocaine. At that time, Thomas provided the Joneses with his telephone and beeper numbers.
Thomas turned out to be the Joneses' sole source of crack cocaine from late May through July of 1995. According to Mable Jones, they made at least four purchases of crack from Thomas during that two-month period, including the three transactions we have just described.
On July 26, 1995, members of a federal public housing narcotics task force executed a search warrant upon the Joneses' residence in Cairo, Illinois. Among other signs of drug trafficking, the agents discovered approximately seven grams of crack. Fred and Mable Jones, Shirley Smith, and Dennis Mallard all were present when the search was conducted (in addition to Freda Smith, another of Mr. Jones' daughters), and they quickly agreed to cooperate with the authorities in exchange for leniency. Mable Jones told the agents that she had obtained the cocaine discovered in the search from Thomas, and she agreed to make further purchases from Thomas under government supervision.
On the following day, July 27, Jones returned to Charleston in the hope of making her first controlled purchase from Mr. Thomas. She was unable to locate him on that occasion, however.
On July 30, Mable Jones, accompanied by her husband, Smith, and Mallard again traveled to Charleston intending to make a controlled buy from Thomas. Mrs. Jones was wearing a wire transmitter so that her conversation with Thomas could be recorded. This time, they were able to locate Thomas, but he had nothing to sell them. "Ain't nothing happening here," he told Mrs. Jones. Gov. Ex. 5-A at 2. Mrs. Jones reminded Thomas that the first of the month was approaching and that she needed to replenish her stock of cocaine. "We can go to Kentucky to see if we can find some," Thomas told her. Id. "[But there] [a]in't nothing happening over there. Unless you buy a piece so small." Id. Mrs. Jones continued to fret. "[T]here's a little bit over in Sikeston," Thomas allowed, "but you ain't going to get no weight." Id. at 4. "And see, a little bit ain't gonna help," Mrs. Jones replied. "I need the weight." Id. (Mrs. Jones considered "weight" to be a quantity of one-half ounce or more.) Thomas assured Mrs. Jones that he would continue to look for a source. "I'll do some more calling this evening then and I'll let you know something tonight," he told her. "I'll give you a call just for the hell of it, you know." Id.
Two days later, on August 1, Mable Jones (again wearing a wire) and Mallard made another attempt to purchase cocaine from Thomas, and this time they met with success--or so they thought. After meeting Thomas at the white house, ...