Appeal from the United States District Court for the Northern District of Illinois Eastern division. No. 06 CR 819-Virginia M. Kendall, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, WOOD, and TINDER, Circuit Judges.
The defendant was convicted by a jury of possessing cocaine with intent to sell it, conspiring to possess cocaine with intent to sell it, and aiding and abetting the conspiracy, and he was sentenced to 135 months in prison. The principal ground of his appeal is that he was not a conspirator or an aider and abettor of a conspiracy, but was merely a purchaser from a conspirator, and that the jury's contrary finding lacked sufficient basis in the evidence to stand. He also challenges on Fourth Amendment grounds his conviction of possession, and we start there.
The government was listening to the phone conversations of the defendant's supplier, Saucedo, and heard him tell Rodriguez (Saucedo's admitted co-conspirator) that "Dude" would be coming to a particular house in 15 minutes to pick up drugs that "Dude" had ordered. Sure enough, 15 minutes later, officers staking out the house saw a man enter it and emerge shortly afterwards, and they tried to stop him and after a chase caught him and found the cocaine he had just bought. The man was Colon. The cocaine was introduced into evidence against him at the trial. He argues that merely knowing that a house is one in which drugs are sold doesn't create probable cause to stop everyone who enters it. That is true in general, Ybarra v. Illinois, 444 U.S. 85, 94-96 (1979); United States v. Johnson, 170 F.3d 708 (7th Cir. 1999); cf. United States v. Mitchell, 783 F.2d 971 (10th Cir. 1986), but the police had reason to believe that the man who entered the house was indeed the expected buyer. He arrived when Saucedo told Rodriguez the buyer would arrive, and during the preceding 15 minutes no one else had entered the house from the street (some persons had entered from the porch of the house). So it was more than suspicion or a guess that the man the police seized was a buyer, and so the defendant's challenge to his conviction of possession fails.
His challenge to his conviction of conspiracy and of aiding and abetting a conspiracy has far more substance. The evidence of his guilt of these offenses, as summarized in the government's brief, is that the "defendant regularly obtained distribution quantities of cocaine from Saucedo and Rodriguez. . . . The dealings between . . . [the defendant and Saucedo, with whom alone the defendant dealt] were standardized and exhibited mutual trust. Saucedo and Rodriguez had a stake in defendant's distribution activities as well as their ongoing arrangement, given that their profits depended on the success of defendant's distribution efforts. . . . [The defendant and Saucedo] conducted regular, standardized transactions through which defendant obtained cocaine in quantities of either 4.5 or 9 ounces at consistent prices, and distributed it to customers. Defendant and Saucedo regularly arranged deliveries by telephone," with defendant being the caller, using Saucedo's cellphone number.
The government's summary describes a routine buyer-seller relationship, as in United States v. Mercer, 165 F.3d 1331, 1336 (11th Cir. 1999), where the court remarked that "the evidence shows simply that his co-defendant Miller knew that Mercer sold drugs and that he had sources from which he could get drugs, that Mercer had a source for drugs and if that source failed he would 'go somewhere else,' that he bought quantities of cocaine from some unknown source and sold it to police agents presumably at a profit." The relationship in the present case was "standardized" only in the sense that because seller and buyer dealt regularly with each other, the sales formed a regular pattern, as one would expect in any repeat purchase, legal or illegal. The length of the sales relationship is unclear; it may have been as long as six weeks, but the total number of sales was no more than six or seven, involving a total of 30 to 35 ounces of cocaine.
In any event, how "regular" purchases on "standard" terms can transform a customer into a co-conspirator mystifies us. "[A]greement-the crime of conspiracy-cannot be equated with repeated transactions." United States v. Thomas, 150 F.3d 743, 745 (7th Cir. 1998). The government either is confusing buying with conspiring or believes that a seller and buyer who fail to wrangle over each sale aren't dealing at arms' length and therefore lack mutual trust. But "mutual trust" is already a factor in the conventional analysis of conspiracy; an act that is merely evidence of mutual trust cannot be a separate factor. And anyway repeat transactions need not imply greater mutual trust than is required in any buyer-seller relationship. If you buy from Wal-Mart your transactions will be highly regular and utterly standardized, but there will be no mutual trust suggestive of a relationship other than that of buyer and seller.
It is different if, as in United States. v. Sax, 39 F.3d 1380, 1385-86 (7th Cir. 1994), a seller assists his customers in establishing the methods by which they will take delivery from him, for then he is more than just a seller; he is helping to create a distribution system for his illegal product. But the defendant in our case (a buyer, not a seller) did nothing to help Saucedo and Rodriguez establish a delivery system that would enable them to serve him, or serve him better.
The fact that in his conversations with Rodriguez, Saucedo referred to Colon as "Dude" or "Old Boy," rather than calling him by his name, is not, as the government believes, indicative of intimacy or a pre-existing relationship; it is for obvious reasons a convention in the drug trade not to refer to a customer by his real name. There were no sales on credit to the defendant, or other evidence of mutual trust or dependence, and he had no dealings with-indeed, he never met or spoke to-Rodriguez, Saucedo's unquestioned co-conspirator, although the defendant knew that they worked together. There is no suggestion that the defendant could expect to receive any part of the income that Saucedo obtained from selling cocaine to other customers. There was no "stimulation, instigation," or "encouragement" by the defendant of Saucedo and Rodriguez's business, Direct Sales Co. v. United States, 319 U.S. 703, 713 (1943), no "informed and interested cooperation" between that business and the defendant's retail drug business. Id. In his conversations with Rodriguez, Saucedo referred to the defendant only as a "customer," not as an associate, colleague, pal, or "one of us." The prosecutor in closing argument described the defendant as the conspirators' customer, and its own witnesses denied that Saucedo had ever asked the defendant to sell cocaine for him or Rodriguez.
Of course Saucedo and Rodriguez had, as the government says, "a stake in defendant's distribution activities." Every seller to a distributor has a stake in the distributor's activi-ties; a person who buys for resale will not enrich his seller if his resale business dries up. Saucedo and Rodriguez had other customers; we do not know how many, or what the defendant's volume of purchases was relative to that of other customers.
Cases in this and other circuits list factors such as we have discussed, along with others, as indicative of participation in a conspiracy. But in every case such factors have to be placed in context before an inference of participation in a conspiracy can be drawn. See United States v. Moran, 984 F.2d 1299, 1302-03 (1st Cir. 1993). In United States v. Hicks, 368 F.3d 801, 805 (7th Cir. 2004), for example, we listed a number of these factors but added "prolonged cooperation" between the parties (a quotation from Direct Sales Co. v. United States, supra, 319 U.S. at 713, the Supreme Court's leading case on the difference between a conspiracy and a mere buyer-seller relationship) and "sales on credit," factors that strengthen an inference of participation drawn from observing circumstances also found in a routine buyer-seller relationship. See also United States v. Hawkins, 2008 WL 4589396, at *7 (2d Cir. Oct. 16, 2008).
So the government's theory of conspiracy, when stripped of its redundancies and irrelevancies, reduces to an assertion that a wholesale customer of a conspiracy is a co-conspirator per se. The implication is that during Prohibition a speakeasy was a co-conspirator of the smuggler who provided it with its supply of booze. And the logic of the government's position does not stop with the customer who is a wholesale purchaser rather than a retail one. Had the defendant been purchasing for his personal consumption, he would still have had "regular, standardized" transactions with Saucedo, as in our Wal-Mart example, and Saucedo would have had a stake in whatever activity the defendant engaged in to obtain the money to buy cocaine. There would have been the same level of "mutual trust" as required in any illegal sale because either buyer or seller might be a government informant or turn violent. The mutual trust in this case was less than it would have been had Saucedo "fronted" cocaine to the defendant (a factor mentioned in almost all the cases) rather than being paid in cash at the time of sale. With fronting, the seller becomes the buyer's creditor, adding a dimension to the relationship that goes beyond a spot sale for cash.
There are practical reasons for not conflating sale with conspiracy. "A sale, by definition, requires two parties; their combination for that limited purpose does not increase the likelihood that the sale will take place, so conspiracy liability would be inappropriate." United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir. 1991) (citation omitted). As we put it in United States v. Manzella, 791 F.2d 1263, 1265 (7th Cir. 1986), "A conspiracy involves more people and can therefore commit more crimes; and it can do so more efficiently, by exploiting the division of labor and by arranging concealment more effectively-sometimes through suborning law enforcers." There is nothing like that here, so far as the defendant's involvement was concerned. And the situation is not altered just because he was a buyer for resale rather than for his personal consumption. As the plurality opinion in United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993) (en banc), explains, "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, though some of our cases . . . tugged the other way. Today we resolve the conflict in our cases by holding that 'large quantities of controlled substances, without more, cannot sustain a conspiracy conviction.' What is necessary and sufficient is proof of an agreement to commit a crime other than the crime that consists of the sale ...