FLAUM, Circuit Judge.
More than 40 years ago, Justice Jackson observed that the development of the law of conspiracy — "that elastic, sprawling and pervasive offense" — illustrates perfectly the truth of Justice Cardozo's maxim about
I. The Conspiracy Conviction
The government charged that the defendants conspired together and with others to possess and distribute heroin, cocaine, and marijuana between December 1986 and February 1988. The evidence against each of the defendants was gathered during the course of an undercover investigation that focused on the drug trafficking activities of Apolinar Marquez, a dealer who was indicted along with the defendants and subsequently pleaded guilty. The government set up drug buys from Marquez and tapped his home phone, along with the business phone of codefendant Luis Diaz; anyone who discussed drugs on these two phone lines was indicted as a member of the conspiracy. The indictment charged nineteen defendants as members of the conspiracy; seven are parties to this appeal. Defendants Luis Diaz, Carlos Mejia, Joseph Angel Claudio, and Orlando Nunez, the government asserted, supplied narcotics to Marquez; Dorothy Taylor and Mason Townsend purchased drugs from Marquez for distribution to their own customers. Isabel Marquez, Apolinar's wife, assisted him in his dealings with these and other codefendants who are not parties to this appeal. On appeal, the defendants argue jointly that the government's proof failed to establish the existence of a single, ongoing conspiracy, as charged in its indictment.
A. Single v. Multiple Conspiracies
As will be seen, the evidence clearly demonstrated that all but one of the defendants conspired with someone to distribute drugs. Why, then, do we care whether there was one conspiracy or many; what does it matter whether the defendants conspired as one large group or several smaller groups? There are at least three reasons. First, alleging a single conspiracy enables the government to join a group of defendants together for trial, and joint trials almost always prejudice the rights of individual defendants to some degree. Some trade-off between prejudice and efficiency is, of course, necessary for the judicial system to function; otherwise "the slow pace of our court system would go from a crawl to paralysis." United States v. Walters, 913 F.2d 388, 393 (7th Cir.1990). Nevertheless, defendants are tried together only in cases where the prejudice to the defendant does not deprive him of a fundamentally fair trial and where a joint trial contributes significantly to the efficiency of the judicial system. See Fed.R.Crim.P. 2 (Rules of criminal procedure "shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.").
Second, and particularly apposite to this case, by alleging a single conspiracy, the government may invoke the coconspirator exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E), to admit evidence against defendants that would otherwise be inadmissible. Statements of any of the defendants can be used to establish not only the existence of a conspiracy but also to establish that a particular defendant was a member of the conspiracy. United States v. Martinez de Ortiz, 907 F.2d 629 (7th Cir.1990) (en banc). In briefs filed before our decision in Martinez de Ortiz, the appellants jointly contested the government's use of coconspirator statements to prove each defendant's membership in a conspiracy. That argument is moot now, but the appellants' challenge underscores the potency of the coconspirator exception and the need to ensure that it is invoked only against those who have actually conspired with the declarant.
And third, coconspirators are liable for the substantive crimes committed by members of the conspiracy that are in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946). A finding that a defendant joined a conspiracy therefore exposes that defendant to much more than criminal liability for joining the conspiracy;
The creation of the Sentencing Guidelines did nothing to limit a conspirator's derivative exposure, because under the Guidelines conspirators must be sentenced on the basis of the total quantity of drugs the conspiracy can reasonably be estimated to have dealt in. See U.S.S.G. § 1B1.3 and comment. (n.1e); United States v. Franklin, 902 F.2d 501, 504 (7th Cir.1990); United States v. White, 888 F.2d 490, 496-97 (7th Cir.1989). Moreover, the Guidelines provide equivalency tables that effectively increase the sentence awarded for trafficking in more dangerous drugs. See § 2D1.1.
The defendants style their claim as one of a fatal "variance" between the government's indictment and its proof.
A "sufficiency of the evidence" approach to solving the multiple conspiracy puzzle can be misleading, however, because it suggests that if the evidence is insufficient to support the jury's finding that a defendant conspired with every defendant charged in the indictment his conviction must fall. That conclusion is incorrect. The crime of conspiracy focuses on agreements, not groups. True, it takes at least two to conspire, but the government doesn't have to prove with whom a defendant conspired; it need only prove that the defendant joined the agreement alleged, not the group. "[I]t 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." United States v. Piccolo, 723 F.2d 1234, 1239 (6th Cir.1983) (quoting United States v. Davis, 679 F.2d 845, 851 (11th Cir.1982)). 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
To join a conspiracy, then, is to join an agreement, rather than a group. It follows that to be a conspirator you must know of the agreement, United States v. Cerro, 775 F.2d 908, 911 (7th Cir.1985), and must intend to join it, United States v. Bruun, 809 F.2d 397, 410 (7th Cir.1987). See also United States v. Auerbach, 913 F.2d 407, 414-15 (7th Cir.1990) (citing cases). Defendants, while conceding that the evidence may have shown that several agreements to distribute drugs existed among various subgroups, contend that the government presented no evidence that any of those dealing with Apolinar Marquez knew of, or intended to join, a larger agreement between Marquez and others to distribute drugs.
In evaluating these claims, we need not limit our search to direct evidence. 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 reasonable doubt, an inference that the defendants agreed among themselves to distribute drugs, a jury would be 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.
Typically we say that if the evidence indicates that a defendant must have known that his actions were benefitting a larger conspiracy, he may be said to have agreed to join that conspiracy.
We think the government's argument stretches the boundaries of conspiracy law to the breaking point. We recognize that, by their very nature, drug conspiracies are loosely-knit ensembles. Where drug distribution conspiracies are charged, we can often infer that "the smugglers knew that the middlemen must sell to retailers, and the retailers knew that the middlemen must buy of importers of one sort or another." United States v. Bruno, 105 F.2d 921 (2d Cir.), rev'd on other grounds, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939). But the liability of members of the distribution chain is predicated upon the notion that participants at different levels in the chain know that the success of those at each level hinges upon the success of the others and therefore cooperate for their mutual benefit. Only if "the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers," id., will the inference of knowledge and benefit be valid.
One may question, however, whether "the links of a narcotics conspiracy are inextricably related to one another, from grower, through exporter and importer, to wholesaler, middleman, and retailer, each depending for his own success on the performance of all the others." United States v. Borelli, 336 F.2d 376, 383 (2d Cir.) (Friendly, J.), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1964). 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? As Judge Friendly noted in Borelli,
336 F.2d at 384. We reiterated this point in Cerro, where we observed that "the viability of wholesale drug trafficking does not depend on the adherence of any single dealer. Lop off one dealer, and the wholesaler can hire another in his place...." 775 F.2d at 914.
The chain paradigm is also flawed because it does little to establish any relationship between parties tied horizontally rather than vertically — i.e. those working at the same level of distribution — when they are charged with conspiring together. To evaluate these relationships we often invoke another conspiratorial paradigm — the wheel — comprised of a group of conspirators playing similar roles — the "spokes" — each related to the activities of a single "hub" conspirator or group. Again, however, mere knowledge of the hub's activities, or those of the other spokes, is not enough to tie the conspiracy together. In Blumenthal v. United States, 332 U.S. 539, 558-59, 68 S.Ct. 248, 257, 92 L.Ed. 154 (1947), for example, the Court distinguished the multiple conspiracies of Kotteakos from the single "wheel" conspiracy it was addressing:
Neither of these paradigms suffices, then, to show mutual support or interest among the component parts of the organizational construct. They don't eliminate the need to inquire directly into whether the defendants had a mutual interest in achieving the goal of the conspiracy and their relevance is therefore questionable. The fact that we can squeeze a group into a hypothetical organizational chart says little about whether a single agreement exists between the members of the group. As we observed in United States v. Pallais, 921 F.2d 684, 686 (7th Cir.1990), an enterprise "can have many divisions, programs, activities, contracts; they are not all a single agreement just because a handful of top officers is in charge of the entire firm and some of the lower-level employees may work on more than one program or contract."
It is easy to say, as we have in the past, that to be liable as coconspirators, defendants must be mutually dependent on one another, United States v. Percival, 756 F.2d 600, 607 (7th Cir.1985), or must render mutual support, Cerro, 775 F.2d at 914. But "it is a great deal harder to tell just what agreement can reasonably be inferred from the purchase, even the repeated purchase, of contraband...." Borelli, 336 F.2d at 384. By definition, market transactions — whether in legal or illegal markets — benefit both parties, but we do not assume, ab initio, that they carry with them the excess baggage of conspiracy. The agreement between the parties may not transcend the scope of the transaction itself. For example, in the absence of other evidence we would not presume that one who purchases drugs from a dealer who also runs an automobile "chop shop" intends to join the car theft ring, even if he knows about it. Neither activity necessarily, or even logically, advances the other. The analysis doesn't change when the other party confines his criminal activities to one market. For example, if a thief plans to rob two banks, with a different accomplice on each occasion, we do not presume, from this fact alone, that the three bank robbers have conspired together, even if each accomplice knows that his partner is also planning a robbery with someone else. See Note, Developments in the Law-Conspiracy, 72 HARV.L.REV. 920, 933 (1959).
By the same token, when dealer A sells drugs to dealer B, we don't presume that A has agreed to work for the benefit of everyone else with whom B deals, or that A benefits from B's other deals. If A knows of, and benefits from, B's subsequent distribution, we may infer a limited agreement to distribute between A and B. See, e.g., United States v. Roth, 777 F.2d 1200, 1205 (7th Cir.1985) ("while the ultimate consumer is not himself a conspirator ... the middleman is"). But agreement to join other endeavors and distributors "cannot be drawn merely from knowledge the buyer will use the goods illegally." Direct Sales Co. v. United States, 319 U.S. 703, 709, 63 S.Ct. 1265, 1268, 87 L.Ed. 1674 (1943) (interpreting United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940)). The scope of a conspiracy is determined by the scope of the agreement, United States v. Sababu, 891 F.2d 1308, 1322 (7th Cir.1989), and if the jury is to infer an agreement to join a conspiracy that transcends the scope of a more limited conspiracy, there must be some additional evidence to justify taking the inference further:
Borelli, 336 F.2d at 384 (emphasis added).
To sustain a conspiracy conviction, then, there must be "more than suspicion, more
Granted, one crime might aid the commission of another, but the point is that we cannot infer that both parties agreed to work together to achieve that result from the fact that they engaged together in some other crime. Id. at 859. One may know of, and assist (even intentionally), a substantive crime without joining a conspiracy to commit the crime — witness the landlord who rents to an illegal gambling den, see United States v. Giovannetti, 919 F.2d 1223 (7th Cir.1990), and the retailer who sells sugar to one he knows will use it to make bootleg whiskey, see United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). We cannot, then, reasonably assume that everyone with whom a drug dealer does business benefits, directly or indirectly, from his other drug deals. In fact, any inference should probably run in the other direction. There is — hard though it may be to believe — a finite supply of drugs. Those in the market to sell or buy large quantities (for distribution) are just as likely, if not more, to be competitors as collaborators. Consider, for example, Fiorito, 499 F.2d at 109, where evidence suggesting that two drug dealers were competitors influenced our conclusion that "there was nothing to show that [the defendant dealer] was part of the larger conspiracy [of the other dealer] charged in the indictment."
To be sure, the landlord in our example might be liable under civil forfeiture provisions, and, along with the retailer, might be liable for aiding and abetting the substantive offenses, but we do not subject them to additional liability as conspirators simply because they aided the conspiracy and derived a benefit from doing so. "Aiding, abetting, and counseling are not terms which presuppose the existence of an agreement. Those terms have a broader application, making the defendant a principal when he consciously shares in a criminal act, regardless of the existence of a conspiracy." Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435 (1954); see also Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949) ("Aiding and abetting rests on a broader base [than does conspiracy]; it states a rule of criminal
The reason for the distinction is simple. We punish conspiracy because joint action is, generally, more dangerous than individual action. "[W]hat makes the joint action of a group of n persons more fearsome than the individual actions of those n persons is the division of labor and the mutual psychological support that collaboration affords." L. KATZ, BAD ACTS AND GUILTY MINDS: CONUNDRUMS OF THE CRIMINAL LAW (1987); see also United States v. Manzella, 791 F.2d 1263, 1265 (7th Cir.1986); Developments in the Law — Conspiracy, supra, at 924. Both the conspiracy and the market transaction are agreements, but only conspiracy poses the added danger of group action. True, aiding and abetting presupposes the existence of more than one actor, but aiders and abettors are already punished as principals. To justify imposing additional criminal liability,
For this reason, evidence of a buyer-seller relationship, standing alone, is insufficient to support a conspiracy conviction. 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. Manzella, 791 F.2d at 1265. (By contrast, when an agreement requires something more than the simple exchange of drugs for money, such as obtaining drugs for distribution — see, e.g., Manzella — adding liability to that carried by the substantive offense may be appropriate.) The buy-sell transaction is simply not probative of an agreement to join together to accomplish a criminal objective beyond that already being accomplished by the transaction. As we explained long ago in United States v. Ford, 324 F.2d 950, 952 (7th Cir.1963), and recently reiterated in United States v. Kimmons, 917 F.2d 1011, 1016 (7th Cir.1990), "[t]he relationship of buyer and seller absent any prior or contemporaneous understanding beyond the mere sales agreement does not prove a conspiracy.... In such circumstances, the buyer's purpose is to buy; the seller's purpose is to sell. There is no joint objective." The mere purchase or sale of drugs (even in large quantities) does not demonstrate an agreement to join a drug distribution conspiracy "any more than a purchase of 100 tons of steel to build a skyscraper shows that the buyer has `joined' the corporate enterprise of the manufacturer." United States v. Baker, 905 F.2d 1100, 1106 (7th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 206, 112 L.Ed.2d 167 (1990).
The analogy to the corporate arena is apt. What distinguishes a conspiratorial agreement from an isolated transaction also distinguishes a decision to incorporate from one to let a contract. In the jargon of economists, business combinations — whether corporations, partnerships, joint ventures, or other variations — exist because they lower the transaction costs of legitimate profit-seeking endeavors. Conspiracies exist for the same reason — 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 — whether legitimate or illegitimate — corporations and conspiracies "will emerge to organize what would otherwise be market transactions...." See Coase, THE FIRM, THE MARKET, AND THE LAW
A conspiracy "is a partnership in criminal purposes," United States v. Kissel, 218 U.S. 601, 608, 31 S.Ct. 124, 126, 54 L.Ed. 1168 (1910), and "[c]onspirators, like partners, are mutual agents." Martinez de Ortiz, 907 F.2d at 632. Conspiracies, like all business ventures, are typically distinguished by cooperative relationships between the parties that facilitate achievement of the goal. See, e.g., Direct Sales, 319 U.S. at 713, 63 S.Ct. at 1270 (evidence of "informed and interested cooperation" permitted the jury to take "the [inferential] step from knowledge to intent and agreement"); Auerbach, 407 F.2d at 415 (evidence suggested "a close working relationship that belie[d defendant's] claim that he was unaware of conspiracy"); United States v. Mealy, 851 F.2d 890, 896-97 (7th Cir.1988) (evidence suggested "an ongoing business" that "contemplated other sales of marijuana ... whenever a shipment came in"); United States v. Gabriel, 810 F.2d 627, 634 (7th Cir.1987) (quoting Direct Sales). True, any business combination "conceivably could be viewed as a nexus of separate transactions." Paiz, 905 F.2d at 1020 n. 4; see also L. KATZ, supra at 264-68 (cautioning that cooperation may exist in the absence of agreement). The reverse, however, is unlikely to be true; higher transaction costs will distinguish most market transactions from cooperative ventures. Evidence that the parties must negotiate the terms of every transaction, seek to maximize their gains at the expense of others, or engage in other forms of opportunistic behavior at the expense of the group, suggests that transaction costs among the group are high and counsel against a finding of conspiracy between its members.
With the foregoing in mind, we turn now to the evidence to determine whether it was sufficient to establish that the defendants agreed among themselves to distribute drugs.
1. Luis Diaz
The government presented abundant evidence demonstrating that Apolinar Marquez frequently purchased drugs from defendant Luis Diaz.
Marquez did call Diaz the next time Wofford ordered drugs, on June 17, asking for half a kilogram of cocaine. When, on the morning of June 18 Diaz failed to provide the cocaine on time, Marquez threatened to get it from someone else. Diaz responded, "Damn, no.... I've already ordered it." Marquez did call another supplier, Hugo Santos, who agreed to supply Marquez within 20 minutes. Santos also failed to show, however; Diaz may have ultimately supplied the cocaine for this deal because he was spotted later that day leaving Marquez's house carrying the bag in which Agent Wofford had placed the money he paid to Marquez. Still later that day, the government's wiretap picked up a cryptic conversation
Despite these concerns, Diaz continued to do business with Marquez. After Agent Wofford called Marquez on June 23 to order 2 kilograms of heroin, Diaz again agreed to supply Marquez with the drugs. Once again, however, Diaz had trouble obtaining the drugs. Diaz spent most of the day on June 26, the day Wofford and Marquez set for the buy, trying to locate the drugs; Marquez spent most of the day trying to locate Diaz. One conversation between the two is sufficient to convey the state of their relationship on that day:
Despite Marquez's best efforts, however, he failed to get the heroin to Wofford, who left the Shamrock motel, where he had been waiting, at 7:30 p.m. Diaz ultimately produced the drugs, but not until almost 8:00 p.m. This failure may have damaged the relationship between Marquez and Diaz beyond repair, because the government presented no further evidence of transactions between the two.
This evidence clearly establishes that Diaz conspired with Marquez to distribute drugs. Diaz had no interest in Marquez's activities, however, beyond occasionally obtaining drugs for Marquez. He knew that Marquez had extensive drug dealings beyond those in which he was involved (and he had separate dealings as well), but that knowledge alone did not make him a coconspirator with those involved in Marquez's other deals. The evidence does not suggest that Diaz was in league with Marquez's other suppliers, for example; rather, it shows that he was competing with them.
2. "Changa" — Joseph Angel Claudio
Part of the difficulty Diaz encountered when supplying Marquez with drugs stemmed from the problems he experienced with his own supply source. Joseph Angel Claudio was Diaz's primary, if not exclusive, source of drugs. Claudio was part of a chain of supply that ultimately extended to Marquez and his customers, but that chain hardly fits the picture of the ongoing distribution chain that gave rise to the paradigm of chain liability. Claudio's involvement was sporadic, and the government presented no evidence suggesting that he knew anything of, or had any interest in, the success of Marquez's operations. Indeed, there is nothing from which a jury
At the same time, the evidence suggests that Claudio had little interest in forging the distribution chain into a more cohesive operation; he showed a curious lack of concern about the predicaments his delays imposed on Marquez — an indifference that belies any inference that Claudio was in a partnership with Marquez. Claudio's responses to Diaz's efforts to obtain drugs to sell to Marquez on June 26 demonstrate the latter's seeming indifference to Marquez's problems:
After this conversation, Diaz called Marquez and told him that he could not get the drugs before 4:00 p.m. and that the 2 kilos would cost "twenty-two" each, or "forty-four" together. Marquez had quoted Wofford a price of "twenty-nine" for each kilo, leaving a substantial profit on each sale, but he nonetheless protested about the price to Diaz, who was unwilling to lower it much more:
Later, at 6:00 p.m., Diaz was still trying to get the drugs from Claudio:
Claudio, however, never called back; an associate finally called Diaz almost two hours later to tell him that the drugs were ready for him to pick up.
Claudio obviously knew that Diaz was reselling the drugs in bulk, but the government presented no evidence indicating that he had any stake in the subsequent distribution of those drugs. As with Diaz, the government's evidence proved only that Claudio knew that the drugs he sold to Diaz were going to continue on in the stream of commerce; it does not establish that he had any interest in whether those with whom Diaz dealt — principally Marquez — were successful or not. In fact, his advice to Diaz that he try and "make two or three bucks" on the sale of each kilo suggests that he, like Diaz, was unconcerned with the interests of those further down the chain of distribution.
3. Orlando Nunez
Someone named Orlando Nunez supplied drugs to Marquez. The government says that it was the defendant by that name; the defendant says that it was his cousin, Jose Orlando Nunez, who went by the same name, "Orlando," and who was employed as a manager of the defendant's business, the Old Style Body Shop. Nunez contends that the evidence linking him to the conspiracy was insufficient, in part because of the possibility that the voice identified as his on the tape actually belonged to his cousin, Jose Orlando. We are ill-equipped to review this aspect of the dispute, since it rests largely on the credibility of the witnesses who identified the voice at trial.
Accepting that it was the defendant's voice on the tape, it seems clear that he conspired with Marquez to distribute drugs. During a five day period in June, from the 11th until the 16th, the government recorded a number of conversations between Nunez and Marquez. Some of these clearly involved drug transactions:
Nunez characterizes his conversations with Marquez as preliminaries to a drug deal, and cites United States v. Melchor-Lopez, 627 F.2d 886 (9th Cir.1980), for the proposition that such conversations are insufficient to establish a conspiracy. But Melchor-Lopez, like our own opinion in United States v. Podolsky, 798 F.2d 177 (7th Cir.1986), dealt with conditional agreements, and there was nothing conditional about Nunez's agreement to work with Marquez. True, in his own words, he "failed" Marquez, but he did so "without wanting to." Nunez is confusing failure to perform with reluctance to perform; only the latter is relevant to the question of whether a conspiracy existed, because the offense of conspiracy is complete at the time of agreement, whether or not its object is ever achieved. United States v. Rosengarten, 857 F.2d 76, 79 (2d Cir.1988), cert. denied, 488 U.S. 1011, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989).
Although the evidence established that, at some point, Nunez conspired with Marquez, it fell short of establishing that their conspiracy was ongoing or that it involved everyone else with whom Marquez did business. Like defendant Claudio, Nunez had apparently had little concern about Marquez's business troubles. On June 12, for example, Marquez placed an order with Nunez:
Marquez hounded Nunez for several days; by the 15th, Nunez was getting hostile:
Perhaps recognizing the need to demonstrate some form of continuing interdependence between Marquez and Nunez, the government claims that this and other conversations show that Marquez owed Nunez money. There is nothing in these conversations, however, to support that characterization.
The government did present evidence that defendant Luis Diaz owed Nunez money, but failed to introduce any evidence at all that the debt was drug-related. Since there was no evidence tying this debt to a drug transaction, it does little to establish Nunez's membership in a drug conspiracy. The mere fact that Nunez knew both Diaz and Marquez adds little to the force of the government's argument, because it does nothing to establish that Nunez knew that Diaz also supplied Marquez with drugs. We might suspect this, but mere suspicion cannot sustain a criminal conviction. And even had the government shown that Nunez did in fact know of deals between Marquez and Diaz, it did nothing to show that Nunez had any interest in furthering the success of those ventures.
4. "Roxie" — Dorothy Taylor
Her protests notwithstanding, the government provided ample evidence to prove that defendant Taylor bought marijuana from Marquez to resell to her own customers. A snippet from one of their conversations suffices to make the point:
This evidence was sufficient to establish an agreement between Taylor and Marquez to distribute marijuana. Taylor placed orders for drugs, which Marquez then had to obtain through his own sources; the scope of the transaction therefore transcended the exchange of drugs for money that characterizes a simple buy-sell transaction that, standing alone, is insufficient to support a conspiracy conviction. Moreover, although Marquez was little more to Taylor than — in
Taylor's relationship with Marquez, however, did not last long. After their first deal, for example, Marquez tried to increase the price; Taylor would have none of it, and Marquez had to back down:
Later, when she wasn't satisfied with the quality of marijuana Marquez obtained for her, Taylor decided to carry through with her threats to take her business elsewhere:
These conversations with Marquez graphically demonstrated that Taylor's commitment to Marquez and his marijuana suppliers did not carry over from one deal to the next. Her conspiracy with Marquez was more limited in scope. Compare Auerbach, 913 F.2d at 415, where we held that the defendant conspired with a large distribution organization, in part, because
The government's evidence against Taylor fell short in another respect. Taylor clearly had nothing to do with the distribution of cocaine or heroin. Nevertheless, citing United States v. Beverly, 913 F.2d 337 (7th Cir.1990), the government contends that Taylor's conviction is valid even though her activities were limited to marijuana. We will discuss Beverly in conjunction with defendant Townsend's challenge to his telephone facilitation conviction, but find it unnecessary to do so here. Taylor was not charged with separate acts in a single count; she was charged with the single act of conspiring to distribute a controlled substance. The type of drug charged in the count is immaterial; the critical fact is that the substance is controlled, not that it is one variety or another. Taylor could have been convicted of conspiring to violate § 841(a) had the government failed to prove that she was involved with cocaine, heroin, or marijuana, had it proved she was involved with some other illegal substance.
That assumes, of course, that the evidence showed that others were involved with the same substance. The breadth of § 841(a) does not obviate the government's obligation to show that Taylor conspired to violate § 841(a) with the group named in the indictment. In that regard, the government failed, and failed dramatically. The government presented no evidence to tie Taylor to those with whom Marquez conspired to distribute cocaine and heroin. In this respect the government's case against Taylor is even weaker than was its case in United States v. Glenn, supra. There the First Circuit reversed the conviction of a defendant found not to have joined an agreement with a group of conspirators to distribute marijuana, even though she had conspired with the same group to distribute hashish, because the record did not reveal that the defendant shared the dual objective of the core conspirators. 828 F.2d at 859. We applied the same reasoning in United States v. Pallais, supra, to uphold the convictions of two defendants who were each charged for participating in separate conspiracies to import marijuana and cocaine rather than in a single conspiracy to import both. Taylor's appeal in this case proves the point we made there, namely, that had all the defendants "been joined in one giant conspiracy, they would have howled." Id. 921 F.2d at 686. At argument, the government asserted that Taylor should have known that Marquez also dealt in drugs other than marijuana, but we see no basis for imputing that knowledge to her. See id. ("Marijuana and cocaine are different drugs in terms of sources, channels of distribution, methods of shipment and processing, and customers.") And even if we did, that knowledge alone is not probative of her agreement to join those other ventures; the record is simply barren as to Taylor's interest in Marquez's cocaine and heroin ventures. We conclude, therefore, that although Taylor conspired with Marquez to distribute marijuana, she did not join the multifaceted, ongoing conspiracy detailed in the indictment.
5. Mason Townsend
As Townsend candidly concedes, the eight phone calls between Marquez and him "support the proposition that Mr. Townsend knew Marquez was selling drugs." No other conclusion is possible since, on June 11, 1987, Townsend himself
The parties disagree, however, about whether this conversation establishes that Townsend intended to purchase heroin to resell to his friends or whether he was merely acting as an intermediary between a willing buyer and seller, a status some circuits have found inadequate to support a conspiracy conviction. See, e.g., United States v. Tyler, 758 F.2d 66, 69 (2d Cir.1985). Even giving the government the benefit of the doubt, as we now must in light of the jury's verdict, we cannot say that it would be reasonable to infer from this conversation that Townsend was seeking to purchase heroin to resell to his own customers. As the last few lines of the conversation reveal, the mystery customers, not Townsend, were going to buy the heroin. Marquez wanted to make sure that they were ready to deal, not Townsend. Townsend's role was confined to bringing the parties together.
We have affirmed conspiracy convictions in the past where the defendant played a significant role in facilitating a drug transaction between others. See, e.g., United States v. Cea, 914 F.2d 881, 886-87 (7th Cir.1990); United States v. Manzella, 791 F.2d 1263, 1265-66 (7th Cir.1986). Even under this less exacting standard, however, the evidence was insufficient to convict Townsend of conspiring to distribute drugs. In both Cea and Manzella we emphasized the lengths to which the defendant went to assure that the transaction took place. "No one," we said of defendant Cea, "could have tried any harder ... to culminate the deal." 914 F.2d at 887. By contrast, Townsend was positively indifferent. After initially broaching the subject with Marquez, Townsend seemed unwilling to do anything to bring the parties together. Marquez was eager to accommodate, and repeatedly suggested a meeting, but Townsend demurred:
Townsend never called Marquez, however, and the government presented no evidence that the sale ever took place. Given this evidence we cannot say that Townsend played a significant role in facilitating the transaction; indeed, he seems to have been largely responsible for preventing it.
Townsend's lack of interest in bringing the deal off may have been due, in part, to the fact that he initially brought the subject up in order to deflect Marquez's anger over Townsend's nonappearance at a rendezvous
We conclude, therefore, that Townsend did not conspire to distribute heroin. We also note that, even were we to conclude that the government's interpretation of Townsend's conversations with Marquez was reasonable, we would still be compelled to conclude that Townsend did not conspire with each of Marquez's suppliers and customers. The government failed to establish any connection between Townsend and the conspirators charged in the indictment. Townsend knew that Marquez was a member of a narcotics distribution chain, but there was no evidence that he was working to further their interests as well as his own:
We agree with Townsend's characterization of this conversation,
Moreover, it is not clear whether Townsend generally bought for resale or personal use; the only evidence that Townsend resold drugs he purchased from Marquez was the ambiguous conversation of June 11, quoted above. Evidence of personal purchases from Marquez adds little weight to the government's case. Cf. United States v. Quintana, 508 F.2d 867, 880 (7th Cir.1974). And even if it could be said that Townsend's purchases somehow inured to the benefit of all of Marquez's drug sources, the government would still have to prove that Townsend was in league with Marquez's other customers, like defendant Dorothy Taylor. The government hasn't explained any link between Townsend and Taylor, other than the fact that both used Marquez as a source of drugs. Neither was a Marquez employee; neither distributed drugs at Marquez's behest.
6. Carlos Mejia
Marquez also obtained drugs from defendant Carlos Mejia. The government recorded numerous conversations concerning drug transactions between the two, they met together frequently, and Mejia made a drug pick-up at Marquez's home. When Mejia was arrested at his home on February 18, 1988, someone threw a bag containing over $90,000 in cash out of a second story window. A search of the house revealed another $22,000 in cash.
Unlike the evidence relating to other Marquez suppliers like Diaz and Nunez, the conversations between Marquez and Mejia suggest that the two coordinated their respective activities to a large extent, and their deals seemed to run smoothly. On April 3, 1987, Mejia called Marquez, who told him that he was "going to see the people I told you about.... Because they told me last night that it was a little high, and this — and — that, but then they agreed to see me at two." A few days later, Marquez informed Mejia:
On April 14, Mejia called Marquez:
On May 1, Mejia called Marquez:
Particularly when contrasted with the often heated exchanges Marquez had with Diaz and Nunez when pressured, the exchanges between Marquez and Mejia suggest that more cooperation and mutual involvement characterized their relationship than those of Marquez and some of his other suppliers, like Diaz and Nunez. When Marquez was rushing to find marijuana to replace the "weed" Dorothy Taylor rejected, for example, Marquez called Mejia:
The evidence supports an inference that Mejia had a stake in the success of Marquez's activities. Their transactions reveal that Mejia often fronted drugs to Marquez without receiving immediate payment; often they had more than one deal brewing. The nature of their relationship suggests a substantial degree of cooperation and partnership rather than a series of isolated and sporadic transactions. The nature of their relationship suggests not only that each knew that the other had a network of drug associates, but also that each was committed to maintaining their successful business relationship. These facts distinguish Mejia from Diaz and Nunez, and were sufficient to enable the jury to infer that Mejia had agreed to work with Marquez to distribute a variety of drugs on an ongoing basis.
7. Isabel Marquez
The government portrayed Isabel Marquez as her husband's partner in crime; she insists that she was nothing more than
Isabel was intimately involved in at least three of Apolinar's transactions with Agent Wofford. On April 21, 1987, Wofford placed an order with Marquez for five ounces of heroin. Twice during the day Wofford spoke with Isabel on the phone. At 11:22, he told her:
Later that afternoon, Wofford called again:
During Marquez's second transaction with Agent Wofford, for example, he had to try and locate an alternative source of cocaine when Luis Diaz was late. Marquez called another supplier, Hugo Santos, who agreed to meet Marquez on the street with the drugs shortly thereafter. Marquez then called Wofford, waiting at the Shamrock motel, telling him that he would be there with the drugs in an hour. Santos failed to show up at the arranged place and time, however, and Marquez called Isabel at 9:59, giving her Santos' beeper number and a number where Santos could reach him. A few minutes later, he called Isabel again, telling her:
Just afterwards, Diaz called Marquez's house and Isabel gave him the number Marquez had just given to her. At 10:20, Marquez called Wofford to tell him that he would be at the Shamrock at 11:15. But at 11:09, Wofford called Marquez's home and spoke to Isabel:
Isabel had to help Marquez locate a supplier the next time Wofford set up a buy as well. On June 26, they set up a buy for 9:00 a.m., but Marquez spent most of the day scurrying after Diaz. Shortly after noon, Marquez called Isabel from a pay phone near Diaz's garage:
Later in the afternoon, at Isabel's direction, Marquez went over to the Shamrock to appease Wofford personally.
In addition to her involvement in Marquez' transactions with Wofford, Isabel helped purchase marijuana that Marquez sold to Tony Miller. In discussing Miller's debt, Marquez repeatedly referred to his wife as his business partner. Marquez told Willie Lay, an associate of Miller:
To recover money from Miller, Marquez began to make threatening calls to Miller's girlfriend, Anita Blackburn. Although the calls by Marquez to Blackburn on April 8 and May 3, which are specifically cited by the government as evidence of this fact, contain at most, heavily veiled suggestions of threats, Marquez must have made some more pointed ones as well because Blackburn called Marquez' home on May 15 and told Isabel to tell Marquez to quit threatening her, that she had nothing to do with Miller's debt.
Isabel knew about other debts owed to Marquez as well. In a motel meeting room in January, 1987, Marquez told DEA Agent George Murray that his wife knew of a $2000 debt Murray owed them. Another Marquez associate, L.V. Johnson spoke to Isabel about a debt Marquez owed to him. While it is not clear whether this debt was related to a drug transaction, it does help to establish that Isabel knew about her husband's transactions in some detail.
Isabel also knew the risks her husband's activities entailed. During one conversation with another Marquez associate, Gustavo, she told him that Apolinar had been arrested the day before in Michigan City:
Even Isabel concedes that "the jury could have inferred that [drugs] was what their conversation referred to." Br. at 8.
Perhaps most damning is the conversation between Isabel and Marquez on April 21, 1987. Marquez called from a meeting he was having with Carlos Mejia to discuss some drug transactions:
Although Marquez did most of the talking, Isabel's few substantive responses were telling: she agreed that the price he was charging for drugs was too high; she acknowledged instructions to "separate everything" in preparation for the buyers Carlos Mejia was rounding up; and she warned Marquez not to talk so freely over the phone lest someone overhear them. This conversation not only attests to Isabel's prophetic powers; it also confirms the central role she played in Apolinar's affairs.
All of these facts distinguish Isabel from Debbie Williams, whose conspiracy conviction we reversed in United States v. Williams, 798 F.2d 1024, 1029 (7th Cir.1986). Williams was married to another defendant who was heavily involved in a drug distribution conspiracy. We reversed her conviction because the government failed to prove that she had any "involvement in the conspiracy other than her presence on certain occasions while her husband engaged in drug transactions." Id. at 1029.
The government did not make the same mistake here. The recordings of phone calls in which Isabel participated reveal not only that Isabel knew about Apolinar's drug activities, but assisted him in the business. She knew the code. She knew the prices. She knew the players. She put up money. She helped track down suppliers. She appeased customers. She fretted when the deals didn't go down as planned. She worried about getting caught. These facts completely undermine Isabel's assertion that "the evidence against [her] was much less damning than that presented against Debbie Williams." More than any other defendant, Isabel knew of, and participated
Having concluded that the evidence was insufficient to establish that defendants Diaz, Nunez, Claudio, and Taylor agreed to join the single, ongoing conspiracy to distribute drugs charged in the indictment, we must determine whether the variance denied any of them a fair trial.
Initially, the defendants maintain that they were prejudiced by the trial court's failure to give a multiple conspiracy instruction. We have said in the past that "[i]f the possibility of multiple conspiracies exists, the trial judge must so instruct the jury." United States v. Kendall, 665 F.2d 126, 136 (7th Cir.1981); see also Varelli, 407 F.2d at 746 (trial court "should" instruct the jury on multiple conspiracies when possibility of variance appears). The defendants maintain that the jury should have been told to acquit the defendants if it concluded that more than one conspiracy existed, suggesting the following instruction:
This instruction is misleading because it incorrectly suggests that a multiple conspiracy variance is always fatal. As we pointed out in United States v. Wozniak, 781 F.2d 95, 97 (7th Cir.1985), "a jury may be told to convict a defendant who committed some variant of the events charged in the indictment, so long as the variant is also illegal." In Wozniak, we rejected a proposed instruction that was substantively identical to the one offered by the defendants here. The appellants try to distinguish Wozniak on its facts, but its facts have nothing to do with the legal principle just quoted. If there was sufficient evidence to convict the defendants of conspiring to distribute illegal drugs, then their convictions were valid, notwithstanding that the indictment characterized as a single conspiracy what in fact were several. As we noted at the outset, a variance of this sort is only fatal if the defendants were prejudiced by the government's failure to prove a single conspiracy. Supra at 1389-1390. The failure to give a proposed multiple conspiracy instruction cannot, then, be error unless the defendants demonstrate that they have been prejudiced by the variance itself.
A number of factors bear upon the prejudice created by a variance between indictment and proof. As we explained in United States v. Lindsey, 602 F.2d 785, 787-88 (7th Cir.1979):
The defendants do not argue surprise, and do not face the danger of subsequent prosecution, which is an argument to raise when the government has alleged multiple conspiracies where it should have charged one, as in United States v. Powell, 894 F.2d 895 (7th Cir.1990). Defendants therefore focus on the possibility of jury confusion, and so will we.
Defendants argue that the number of conspiracies that actually existed, the number of persons they involved, and the length of the trial, made it too difficult for the jury to assess their cases individually. There is, undoubtedly, a danger of "spillover" prejudice in a trial of the magnitude that these defendants faced. We find that danger to be minimal, however, when the government presents tape recordings of each and every defendant discussing the distribution of illegal drugs. As our review of the evidence makes clear, the evidence was more than sufficient to establish that each of these defendants conspired to distribute illegal drugs; the jury had no need to look beyond each defendant's own words in order to convict. Thus we fail to see how any of the defendants were prejudiced by the variance.
For the same reason, we do not think the defendants were prejudiced by application of the coconspirator exception to the hearsay rule. Unlike Martinez de Ortiz, supra, in this case it was error to have admitted the statements of all defendants for purposes of determining whether each was a member of a single conspiracy since we have concluded that, as a matter of law, they were not. But there was little need, if any, for the jurors to look to the words of others when each defendant supplied enough to ensure his own undoing. See Pallais, supra, 921 F.2d at 688 (improper introduction of hearsay held harmless because defendant had himself made incriminating statements to the witness which were properly admitted as admissions).
Indeed, the coconspirator statements to which the defendants point claiming prejudice pale in significance to those made by the defendants themselves. We will cite just a few examples. Luis Diaz maintains that he was prejudiced by Marquez's statements to Agent Wofford that his supplier worked in an auto repair shop and was named Luis. Aside from the fact that Diaz clearly did conspire with Marquez, making Marquez's statements against him admissible under the coconspirator exception anyway, Diaz seems to ignore the fact that other evidence overwhelmingly established these facts, much of it derived from a tap on the phone at his garage. Similarly, defendant Claudio alleges that he was prejudiced when the prosecutor, in closing argument, highlighted a conversation between Diaz and Marquez in which Diaz told Marquez that he was working with "the guy from the insurance," a reference to Claudio. He clearly conspired with Diaz, however, so the prosecution was entitled to use this evidence against him.
Diaz also complains about the testimony of government witnesses and alleged coconspirators Marshall Sprawls and John Abadia relating to the use of code. This testimony was hardly critical to the government's case against Diaz, however, and did not consist of hearsay anyway. Defendant Nunez argues only that the evidence linking him to Marquez in a conspiracy was highly ambiguous, suggesting that the evidence of Marquez's other dealings, as well as those of the other defendants, tipped the scales against him. As we have noted, however, the evidence concerning Nunez's agreement to work with Marquez was not at all ambiguous, although whether he ever carried through with their agreements was. The former fact suffices to support Nunez's conspiracy conviction, and his own words established his willingness to work with Marquez.
II. Telephone Counts
In addition to conspiracy, each of the appellants was convicted of violating 21 U.S.C. § 843(b) by using a telephone to facilitate narcotics offenses. Defendants Townsend, Claudio, and Isabel Marquez contest the sufficiency of the evidence to sustain their convictions for these offenses.
A. Townsend and Claudio
The judge instructed the jury that it could convict a defendant for telephone facilitation if, among other elements, the evidence proved beyond reasonable doubt that the defendant had committed any one of three offenses: (1) possession; (2) distribution; or (3) conspiracy to possess or distribute, controlled substances. Townsend and Claudio challenge their facilitation convictions on the ground that the convictions may have rested on invalid grounds since the government did not prove that they committed all three of these offenses. In United States v. Berardi, 675 F.2d 894 (7th Cir.1982), we held that, to sustain a conviction on a count charging multiple acts, it must be shown that "there is sufficient evidence to support the charge as to each of the acts alleged." Id. at 902. In United States v. Beverly, 913 F.2d 337 (7th Cir.1990), however, we upheld the conviction of a defendant charged in the same count with conspiring to impede investigations of the IRS and the DEA, citing "the general rule" that "when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, ... the verdict stands if the evidence is sufficient with respect to any one of the acts charged." Id. at 357 (quoting Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610 (1970)); accord United States v. Sababu, 891 F.2d 1308, 1326 n. 6 (7th Cir.1989); United States v. Bucey, 876 F.2d 1297, 1312 (7th Cir.1989); United States v. Soteras, 770 F.2d 641, 646 (7th Cir.1985); United States v. Mackey, 571 F.2d 376, 387 (7th Cir.1978); United States v. Reicin, 497 F.2d 563, 568-70 (7th Cir.1974).
At first blush, these rules seem to conflict, with Beverly standing for the proposition that it doesn't matter whether the defendant could have been convicted of every ground alleged in the count, if she could have been convicted of one of them, and Berardi saying that if the defendant couldn't have been convicted of one of the grounds, the conviction must fall. Berardi, however, derives from the rule announced in Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), and reaffirmed by the Supreme Court in Zant v. Stephens, 462 U.S. 862, 881, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235 (1983), "that a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground." See also Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356 ("where the verdict is supportable on one ground, but not on another, and it is impossible
In Beverly the jury was not given a "one-is-enough" instruction, see 913 F.2d at 348, and the Stromberg rule did not apply. The Beverly court may have misperceived the breadth of the rule, however, because its citations to it did not recognize the caveat that limits its application to cases where the jury receives such an instruction. See 913 F.2d at 362. That omission may have prompted the court's discussion of the distinction, apparently originated in a line of cases in the Ninth Circuit, and subsequently adopted in some of our own, between grounds invalidated for legal or constitutional deficiencies and those invalidated because there was insufficient evidence to support them. See id. at 362-65. Those cases suggest that the Stromberg rule does not trump the Turner rule when the reason one of the possible grounds for conviction is invalid is merely the lack of evidence supporting that ground.
The logic behind the distinction is open to question. On the one hand, as we noted in Sababu, 891 F.2d at 1325-26, special verdicts in the criminal law are disfavored. We generally do not demand that juries justify their verdicts. When we review a verdict on a challenge to the sufficiency of the evidence, we cite the evidence that was available to the jury in reaching its verdict, but we do not know whether, in fact, that evidence had anything at all to do with their verdict. Their verdict may have been based on evidence in the record, but it may well have been based on any number of considerations that, while we deem them improper, are generally beyond the pale of appellate review (we try, instead, to eliminate, or reduce, the impact of such considerations ahead of time). On the other hand, a ground supported by insufficient evidence is legally deficient. Indeed, it is probably more so than, for example, one that is deficient only because barred by the statute of limitations. See, e.g., Yates.
Perhaps because its rationale is debatable, our cases have not applied the distinction consistently. Even in Beverly, for example, we treated the claim of one defendant regarding the general verdict as a challenge to the sufficiency of the evidence supporting the challenged object of the conspiracy. We held Yates inapposite only because there was in that case sufficient evidence for the jury to convict the defendant under the challenged ground; "[a]s such, the general verdict was permissible." 913 F.2d at 358 n. 29. We also distinguished cases holding that insufficient evidence was enough to invalidate a general verdict on the basis that a "one-is-enough" instruction had been given. See 913 F.2d at 364 n. 39. Similarly, in United States v. Holguin, we held that when a "one is enough" instruction is given concerning facts charged in the conjunctive we must review "each of the allegations to see if there was sufficient evidence for each allegation." 868 F.2d 201, 203 n. 5 (7th Cir.1989); see also Berardi, 675 F.2d at 902 ("So instructed, a general verdict of guilty on such a charge charging multiple acts may be upheld only if there is sufficient evidence to support the charge as to each of the acts alleged.") (emphasis supplied). See also United States v. Anderson, 809 F.2d 1281,
Reference to the Supreme Court's precedents is also unhelpful. None of the Court's cases discuss the relationship between these two rules. While the Court has never drawn the distinction explicitly, and the Stromberg rule is couched in broad language (general verdict must be set aside if it could have been based on an "insufficient ground," Zant, 462 U.S. at 881, 103 S.Ct. at 2744), the Court has not, to our knowledge, applied the rule to a case in which the reason the ground was invalidated was a lack of evidence.
We believe that the best course is to recognize the distinction between legal and factual sufficiency. It is consistent with our conception of the jury's role, and to reject it would force us, by dint of logic, at any rate, to consider radically revising that role. That is not, we believe, what the Supreme Court had in mind when it created the rule. It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance — remote, it seems to us — that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient.
Claudio's facilitation convictions may therefore stand because the evidence was sufficient to sustain his conspiracy conviction. It is immaterial whether the calls actually facilitated possession or distribution, the alternative grounds, because they did facilitate his conspiracy with Marquez. The evidence was not sufficient, however, to support Townsend's conspiracy conviction. The government was therefore obligated to present evidence that the June 11 phone call actually facilitated someone's possession with intent to distribute or distribution of the heroin. The government did not present any evidence that any deal resulted from the phone call, however, and Townsend's conviction on Count 74 must therefore be reversed. The government simply failed to prove that he facilitated anything.
B. Isabel Marquez
Isabel Marquez was convicted of facilitating a narcotics offense by means of her telephone conversation with her husband Apolinar during the evening of April 21, 1987. Much of that conversation has been quoted at pages 47-49 of this opinion. Isabel contends that the conversation "in no way facilitated the conspiracy," but her brief also admits that "[m]ost likely [Apolinar] was talking about drugs; possibly Mrs. Marquez knew that." Br. at 15. We think that is an accurate characterization, and one that suffices to sustain her conviction for facilitation. This conversation clearly furthered the conspiracy between Isabel and her husband. Apolinar was recounting his activities to her and directing her to "separate everything" before he returned in order to prepare for drug sales; she in turn warned him to use the code when talking on the phone in order to avoid detection. This is more than enough "facilitation" of the conspiracy to support the conviction.
III. Buyer-Seller Instruction
Dorothy Taylor asserts that the district court erroneously declined to give the jury an instruction concerning the status of a mere buyer-seller relationship on a defendant's membership in a conspiracy.
A defendant is only entitled to an instruction, however, when, inter alia, there is some basis in the evidence to support the defense theory underlying the instruction. See United States v. Douglas, 818 F.2d 1317,
Taylor makes much of the fact that, during its deliberations, the jury sent several notes to the judge requesting further instruction on the status of a purchaser of drugs Its "revised question" asked:
Transcript at 3591. We held in Douglas, supra, that the fact that the jury requested additional instruction on the subject supported the conclusion that the defendant's proposed instruction should have been given. But in Douglas the defendant's theory had some support in the record; here it has none. Moreover, it is far from clear that the jury's request related to its evaluation of Taylor's case; it could have related to defendant Townsend's as well.
IV. Other Crimes Evidence
The government presented evidence that Carlos Mejia sold an ounce of cocaine to an undercover government agent before the charged conspiracy began. Mejia objected to the introduction of this evidence, asserting that it was barred by Rule 404(b). The district court admitted the evidence with an instruction limiting the jury's consideration of the evidence to the issues of Mejia's identity, intent, and knowledge. We conclude that the district court properly admitted this evidence for the purpose of determining identity; we disagree, however, that this evidence could have been properly used to establish Mejia's intent to join the conspiracy or his knowledge of the conspiracy.
The government argued first that the evidence was probative of identity because it demonstrated that Mejia responded to beeper number 306-0845, a number Marquez paged during the course of the conspiracy. That information, we agree, was relevant, and was properly admitted. Mejia's counsel requested that the district judge limit the government's evidence to that point, but the district court allowed it to introduce the details of the drug sale. The judge could have limited the government's presentation in that manner, and we might have done so ourselves, but we do not think the judge erred by refusing to do so. Segregating this information from the context of a prior drug sale would have significantly diminished its force, which would then have rested solely on the credibility of the government witness testifying that Mejia had, on a past occasion, responded to that beeper number. The details of the transaction enabled the jury to evaluate this kernel of information in context. We do not require the government to present its evidence in a vacuum; it was entitled to explain the context to the jury.
The judge also permitted the jury to consider this evidence to establish "intent" and "knowledge." The court was not explicit, however, about what intent or knowledge the evidence was admissible to prove. At trial, the government said only that the evidence showed Mejia's "knowledge and intent with respect to drug deliveries and his intention to deliver drugs." Undoubtedly the evidence established these things with respect to the sale to the government agent, but we cannot agree
Nevertheless, we find the admission of this evidence, in light of the overwhelming evidence linking him to the conspiracy — mostly in the form of Mejia's own words — to be harmless. Obviously, this evidence was prejudicial, and certainly had the potential to make up for a weak government case, but the government's case against Mejia was anything but weak. As we noted earlier, the evidence established that Mejia was a close partner of Marquez, familiar with many, if not all, of his activities. We are therefore convinced that, absent the overly broad limiting instruction, the jury would have reached the same result.
Learned Hand described the conspiracy charge as the "darling of the modern prosecutor's nursery." Harrison v. United States, 7 F.2d 259, 263 (2d Cir.1925). Its attraction has not diminished with the passage of years; nor, consequently, has the need for courts to harken back to the basic principles underlying conspiracy liability when reviewing closely the evidence supporting such charges. Our review in this case convinces us that the evidence was insufficient to prove that defendants Diaz, Claudio, Nunez, Taylor, and Townsend joined the conspiracy charged in count 1 of the indictment. Nevertheless, their own conversations with Marquez clearly established that Diaz, Claudio, Nunez, and Taylor did conspire to violate § 841(a) with Marquez, so they suffered no prejudice from the variance. The convictions of all defendants but Mason Townsend on count 1 are therefore AFFIRMED; Townsend's conviction on count 1 is REVERSED. Because his conspiracy conviction cannot stand, and the government failed to prove that Townsend ever received any drugs as the result of the June 11 phone call, Townsend's conviction on count 74 for violating § 841(b) is also REVERSED; the convictions of defendant Claudio on counts 83, 86, and 89, and of defendant Isabel Marquez on count 46 are AFFIRMED.
The use of a common code by all of the defendants may support an inference that they conspired together. See, e.g., United States v. Grier, 866 F.2d 908, 922 (7th Cir.1989); United States v. Ramirez, 796 F.2d 212, 215 (7th Cir.1986). In this case, however, the generic quality of the terms comprising the code diminish its probative weight in establishing a conspiracy among these defendants. As government agents testified when explaining the code, these terms are used commonly by drug dealers.
Marquez: And couldn't there be even a — even a twenty-five reduction for me?
Sanchez: Oh, God, man, that's the lowest. That's the minimum.
Diaz, too, haggled over price with Marquez. See infra at 1398. In light of evidence like this suggesting that Marquez had to try and negotiate with suppliers for price, it seems unlikely that all of the suppliers were in league with one another to market drugs through Marquez. See, e.g., United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987) (price standardization of drugs among defendants cited as evidence of a single conspiracy).
In light of our finding that the evidence was insufficient to establish that defendant Townsend conspired with any of the defendants, there is no need to inquire further as to prejudice to him, and we reverse his conspiracy conviction.