United States v. Thomas, Darrell W.

In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3459

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DARRELL W. THOMAS,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 95-CR-40066-JPG--J. Phil Gilbert, Chief Judge.

ARGUED JANUARY 12, 2001--DECIDED March 25, 2002

Before RIPPLE, ROVNER, and EVANS, Circuit
Judges.

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.

I.

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, the
three of them drove around town looking
for a supplier. Ultimately they found
someone, from whom Thomas obtained what
appeared to be a half ounce of crack
cocaine in exchange for $600. The
substance that Thomas gave them turned
out to be shaved wax, however--a fact
that Jones and Mallard did not discover
until the government tested the material.
Thomas had urged Mrs. Jones not to pay
for the cocaine without testing it first,
but by the time the deal was consummated,
Jones had been in a hurry to leave. When
Mrs. Jones subsequently had a monitored
telephone conversation with Thomas to
complain about the fraud that had been
perpetrated on her, Thomas chastised her
for having ignored his advice to test the
drugs before parting with her money.
Thomas promised to check into the matter
and assured her that he would try to get
her money back or the genuine article.

On August 2, the Joneses and Mallard
drove over to Charleston, picked up
Thomas, and cruised about town looking
for the people that had supplied Jones
with the shaved wax. The search was
unsuccessful, and the Joneses and Mallard
returned to Cairo. When Mable Jones
arrived back at home, she found a message
from Thomas on her answering machine
informing her that he had located "some
dope" for the Joneses. Tr. 172. Late that
evening, the Joneses and Mallard drove
back to Charleston and met with Thomas.
Thomas subsequently took them to a
housing project in Charleston, where the
Joneses were able to acquire a quantity
of crack for $300. This transaction was
both recorded and monitored by government
agents.

On August 7, Mable Jones placed a
monitored telephone call to Thomas.
Thomas asked her "[h]ow that other thing
worked out," evidently referring to the
August 2 cocaine purchase he had
brokered. Tr. 178. Mrs. Jones indicated
that she was satisfied with the product,
and in an apparent reference to the
people who had sold her the crack, Thomas
remarked "[T]hese, these my boys." Id.

On the following day, Mrs. Jones and
Mallard returned to Charleston to make a
final controlled buy from Thomas. After
they met up with Thomas, he directed them
to a house in the country. Before going
inside to obtain the cocaine, he assured
Mrs. Jones that he would try to make the
deal on favorable terms. When he emerged
from the house, Thomas indicated to Jones
that he had urged the supplier to give
her a more favorable quantity than the
supplier first proposed. "He was going to
sell you those fifties, but I told him
look, come on." Def. Ex. 16 at 19; see
also id. at 21. Ultimately, Mrs. Jones
purchased $250 worth of crack. Mallard
smoked some of the cocaine in order to
make sure that it was genuine. Before
Jones and Thomas parted ways, Thomas
indicated to her that he could obtain
additional quantities of crack cocaine
for her from "a[n] old boy down in
Arkansas" at a price of $800 or $900 per
ounce. Id. at 22.

Judith Riley, who lived with Thomas
during this time period, confirmed that
Thomas had a number of dealings with
Mable Jones. She testified that Mrs.
Jones came to the green house on two or
three occasions and to the white house on
three or four occasions.

Finally, pursuant to Federal Rule of
Evidence 404(b), several of Thomas’s
other customers testified that they
obtained crack from Thomas on one or more
occasions. So far as the record
discloses, none of these individuals had
any connection to the alleged conspiracy
between Thomas and the Jones contingent.

In September 1995, a grand jury returned
an eight-count indictment against Thomas,
Fred and Mable Jones, and Dennis Mallard,
along with Nathaniel Gause--apparently
one of the Joneses’ customers. R. 1.
Count One, the sole count of the
indictment naming Thomas, charged him and
the other defendants with conspiring to
distribute, and to possess with the
intent to distribute, crack cocaine. Id.
at 1; see 21 U.S.C. sec.sec. 841(a)(1),
846. In May 1996, a jury convicted Thomas
on the conspiracy charge. Thomas appealed
the conviction, arguing that the district
court had erroneously refused his request
for a buyer-seller jury instruction. See
Seventh Circuit Criminal Pattern
Instruction No. 6.12 (1999). Because the
evidence readily supported the notion
that Thomas sold crack to Mable Jones
without an agreement to commit a crime
other than the sale itself, see United
States v. Lechuga, 994 F.2d 346, 347 (7th
Cir.) (en banc) (plurality), cert.
denied, 510 U.S. 982, 114 S. Ct. 482
(1993), we agreed that the district court
was obliged to give the buyer-seller
instruction to the jury:
None of the evidence suggests that Thomas
had any stake in Jones’s profits from the
Cairo market; all deals were cash on the
barrelhead. None of the evidence
necessarily establishes that Thomas and
Jones agreed to "commit any crime other
than the crime that consists of the sale
itself." Their transactions were
episodic. A frequent customer at
McDonald’s does not agree to eat his next
burger there, rather than at Burger King,
and although an enduring commercial
relationship may support an inference
that agreement has been reached, see
Direct Sales Co. v. United States, 319
U.S. 703, 713, 63 S. Ct. 1265, 87 L.Ed.
1674 (1943); Lechuga, 994 F.2d at 350,
the jury should be told that agreement--
the crime of conspiracy--cannot be
equated with repeated transactions. This
is the office of the buyer-seller
instruction. It reminds juries that
distribution of drugs is not itself
conspiracy, although a history of
transactions may be evidence of
conspiracy. A jury readily could have
concluded that Thomas and Jones dealt
without any express or implied
undertaking to commit any future crime
cooperatively, making them substantive
offenders but not conspirators. The
district court therefore erred in
declining to give a buyer-seller
instruction. . . .

150 F.3d at 745. We pointed out that any
debate as to whether Mrs. Jones and
Thomas were simply buyer and seller,
rather than co-conspirators, could have
been avoided had the government chosen to
pursue substantive charges against Thomas
rather than the conspiracy charge. Id. at
744-45. "But it is not our task to decide
whether prosecutorial and judicial
resources have been squandered by poor
charging decisions; we must resolve the
questions presented in consequence of
those decisions." Id. at 745. Based on
the instructional error, we returned the
case to the district court for re-trial.

On remand, the government elected to
prosecute Thomas a second time on the
conspiracy charge. In advance of the
second trial, the government re-filed a
notice pursuant to 21 U.S.C. sec. 851
indicating that in the event of his
conviction, Thomas would be eligible for
enhanced punishment based on two prior
convictions for felony drug offenses. R.
276. Thomas represented himself at the
second trial with the aid of stand-by
counsel. After hearing the evidence, and
after being properly instructed as to the
distinction between a conspiracy and a
simple buyer-seller relationship, the
jury again convicted Thomas of
conspiracy. R. 327. Thomas contended by
way of a post-trial motion that the
evidence was insufficient to convict him
of conspiracy, but the district court
rejected this argument. "In presenting
its case, the government introduced tape
recorded conversations of controlled
purchase[s] made between defendant and
his co-conspirators. These tape
recordings clearly indicate [that] Mr.
Thomas actively participated in the
conspiracy with which he was charged." R.
341 at 5. Based on Thomas’ criminal
history, the district judge sentenced
Thomas to a mandatory term of life
imprisonment. R. 373.

II.

Thomas’ second appeal requires us to
revisit the distinction between a
narcotics conspiracy and a simple buyer-
seller relationship. This time around,
however, the question is not whether the
jury was properly instructed on the
distinction, but whether the evidence was
sufficient to support the jury’s verdict.
In making that assessment, we must
examine the evidence in the light most
favorable to the prosecution and ask
whether "any rational trier of fact could
have found the essential elements of the
crime beyond a reasonable doubt." Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979) (emphasis in original).

The essence of conspiracy is, of course,
an agreement to commit a crime. United
States v. Shabani, 513 U.S. 10, 16, 115
S. Ct. 382, 386 (1994); Iannelli v.
United States, 420 U.S. 770, 777, 95 S.
Ct. 1284, 1289 (1975); United States v.
Lechuga, supra, 994 F.2d at 349
(plurality). In this case, the alleged
agreement was one to distribute crack
cocaine and to possess crack cocaine with
the intent to distribute. As we noted at
the outset, the government’s evidence, if
believed, leaves little doubt that Thomas
was a purveyor of crack. Proof that
Thomas sold a distribution quantity of
crack cocaine to Jones on one or more
occasions does not by itself establish
that Thomas conspired with Jones and her
associates, however. As we explained in
Lechuga:

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 in such
a case is an agreement to commit some
other crime beyond the crime constituted
by the [sale] agreementitself.

994 F.2d at 349 (plurality); see also
United States v. Torres-Ramirez, 213 F.3d
978, 981 (7th Cir. 2000).

The crime that Thomas allegedly agreed
to commit separate and apart from the
sales to Jones was the distribution of
crack cocaine to Jones’ customers. E.g.,
Gov’t Br. 16; Tr. 75-76, 661, 669. The
government’s theory, in other words, was
that Thomas did not simply make a series
of spot sales to Mrs. Jones, but that he
"join[ed] both mind and hand" with Jones
and her retinue to facilitate the
distribution of crack cocaine to Jones’
customers. See Lechuga, 994 F.2d at 350
(plurality), quoting Direct Sales Co. v.
United States, 319 U.S. 703, 713, 63 S.
Ct. 1265, 1270 (1943). Our cases have
cited a number of factors that shed light
on whether the parties to a sale of
narcotics are merely buyer and seller or
instead are co-conspirators who share an
interest in the redistribution of those
narcotics. These include the period of
time over which the buyer and seller
transact business, the method by which
the buyer pays for the narcotics, the
quantities of drugs involved, whether the
transactions were standardized in some
way, and whether or not there was a
mutual trust between the buyer and
seller. E.g., United States v. Sanchez,
251 F.3d 598, 602 (7th Cir.), cert.
denied, 122 S. Ct. 300 (2001); United
States v. Contreras, 249 F.3d 595, 599
(7th Cir.), cert. denied, 122 S. Ct. 258
(2001). None of these factors is
dispositive, nor is the listing
exhaustive. In the end, what we are
looking for is "evidence of ’a prolonged
and actively pursued course of sales
coupled with the seller’s knowledge of
and a shared stake in the buyer’s illegal
venture.’" United States v. Pearson, 113
F.3d 758, 761 (7th Cir.), cert. denied,
522 U.S. 1035, 118 S. Ct. 641 (1997),
quoting United States v. Clay, 37 F.3d
338, 341 (7th Cir. 1994).

The jury reasonably could have found
that Thomas was aware of the reason why
Jones was purchasing crack cocaine from
him. Thomas was repeatedly selling her
distribution-sized quantities of crack
cocaine--larger quantities, in fact, than
Mr. and Mrs. Jones had historically
purchased before they met Thomas. Indeed,
Thomas’ acknowledgment to Mable Jones in
late July that he knew the first of the
month was approaching arguably reflects
an appreciation of the time at which she
faced peak demand from her own customers.
So it is a fair inference that Thomas
knew Jones was purchasing the crack for
re-sale. It is also a fair inference that
Thomas knew Jones was not distributing
the cocaine by herself: whenever she
traveled to Charleston to transact
business with Thomas, she was always
accompanied by her husband, Smith and/or
Mallard. In short, it would have been
reasonable for the jury to conclude that
Thomas knew that she was conspiring with
others to distribute the crack cocaine
with which he was supplying her.

That Thomas was aware of the conspiracy
to distribute narcotics does not
establish his membership in the
conspiracy, however. As we observed in
Torres-Ramirez, "Knowing of a conspiracy
differs from joining a conspiracy." 213
F.3d at 982 (emphasis in original). One
who deals in larger quantities of
narcotics will invariably realize that
his buyer intends to resell, and that in
all likelihood he will have help from
others in doing so. Id. That knowledge
alone does not render the seller liable
as a co-conspirator. Id., citing Lechuga,
994 F.2d at 347-50; see also United
States v. Rivera, 273 F.3d 751, 755 (7th
Cir. 2001). The evidence must in some way
show that the seller agreed to become a
member of the conspiracy. See, e.g.,
United States v. Larkins, 83 F.3d 162,
166 (7th Cir. 1996).

If one looks at the entire course of
dealing between Thomas and Jones, as the
jury was invited to do, one can see some
signs that Thomas was attempting to
accommodate Jones (or at least give her
the impression that he was), and so to
retain her as a customer. Ultimately,
however, we can find no evidence that
Thomas ever shared with Jones a stake in
the success of the retail sales to Jones’
customers of the cocaine with which he
supplied her.

First, Jones and Thomas conducted a
modest number of transactions (seven)
over a relatively brief period of time
(about ten weeks). It would be an
exaggeration to describe their dealings
as prolonged either in a numeric or a
temporal sense. On the contrary, "[t]heir
transactions were episodic." Thomas I,
150 F.3d at 745. Our point here is not
that it is either impossible or unlikely
for a buyer and seller to become co-
conspirators over the course of a few
transactions or a few weeks. It is simply
that the limited extent of the
affiliation between Thomas and Jones on
its face gives us no clue as to the
existence of any criminal agreement
between them. See Lechuga, 994 F.2d at
349-50; see also Rivera, 273 F.3d at 755.

Second, as we pointed out in Thomas I,
Mrs. Jones paid for all of her purchases
from Thomas in cash. Thus, in contrast to
the scenario in which the seller "fronts"
the drug to his buyer, Thomas had no
direct stake in the resales to Jones’s
customers. See Rivera, 273 F.3d at 755-
56. True, Thomas profited from his sales
to Mrs. Jones. But Thomas made his money
at the point of sale; his profit did not
depend on the Joneses’ subsequent success
in distributing the cocaine to their
customers. Cf. United States v. Adkins,
274 F.3d 444, 450-51 (7th Cir. 2001).

Third, although one could say that the
transactions between Jones and Thomas
followed a pattern, there was nothing
standardized about them. When Jones
needed to replenish her supply, she would
locate Thomas and he, in turn, would
attempt to find a source of crack for
her. The source was not always the same
(as revealed by the wax incident), nor
was the amount of cocaine that
Thomasmanaged to locate (as evidenced by
the last two transactions, which involved
smaller quantities). In short, there was
nothing in the way that the transactions
were arranged that revealed any degree of
commitment between Jones and Thomas. So
far as the record reveals, this was a
series of spot transactions that Thomas
brokered on an as-needed, as-able basis.
When Jones came calling, Thomas
wentlooking; that was it. See Rivera, 273
F.3d at 756.

Fourth, nothing in the evidence bespeaks
a mutual trust between Jones and Thomas.
Practically speaking, the final sale that
Thomas negotiated on Mrs. Jones’ behalf
was little different from the first, when
Thomas flagged the Joneses down in the
streets of Charleston. Thomas negotiated
a purchase price with Jones, then left
her waiting outside in the car while he
negotiated separately with a supplier,
from whom he presumably earned his
commission. So far as the record reveals,
Jones and Thomas had no commitments to
one another: Jones was free to patronize
other suppliers (or brokers), and Thomas
was under no obligation to meet Jones’
needs (which he did with varying degrees
of success). From the first transaction
to the last, Jones always paid for the
cocaine in cash. And, as the incident
with the phony cocaine reveals, Thomas
bore no responsibility for the quality of
the crack that he located for Jones.
Although Thomas promised Jones that the
wax shavings would be replaced either
with genuine crack or her money back,
that promise was never fulfilled. Thomas
went looking for the supplier who
defrauded her, but when the search proved
in vain, it was Jones who bore the loss
(or rather the government, since by this
time she was a cooperating witness), not
Thomas.

As we have acknowledged, the evidence
does suggest that Thomas made some effort
to please and keep Jones as a customer.
At the conclusion of the second
transaction, Thomas gave Jones his
telephone and beeper numbers. When, in
late July, he was unsuccessful in finding
a supplier to consummate a transaction
with Jones, he assured her that he would
keep trying to find her one by the
beginning of the month, when he knew she
would need the supply. When the supplier
he subsequently found turned out to have
supplied Jones with shaved wax, he
promised Jones that the matter would be
corrected and went looking with her for
the wayward supplier. After an
unsuccessful search, Thomas eventually
located another supplier and telephoned
Jones to let her know. During the August
8 transaction, Thomas twice assured Jones
that he was pushing the seller to make
the deal on terms more beneficial to her
(although this may simply have been
puffing on his part). And, at the
conclusion of that last transaction,
Thomas told Jones that he had a source in
Arkansas who could offer her crack in
larger quantities and at a more favorable
price.

These efforts certainly reflect an
ongoing effort to cultivate Jones as a
customer; what they do not reflect is a
shared stake in the success of Jones’
distribution enterprise. Thomas did what
any good haberdasher might do--he got to
know his customer’s needs and aimed to
meet them. See Rivera, 273 F.3d at 756.
("The government showed only that [the
defendant] wanted [his customer’s]
business--that is indicative of a buyer-
seller relationship, not a conspiracy.")
What he did not do was offer cocaine to
Jones on terms--sale on credit, for
example, or volume discounts-- that gave
him an interest in the re-sale of the
cocaine to Jones’ customers. Thomas may
have been Jones’ sole supplier in the
eight weeks prior to her arrest, but
nothing in the manner or terms of the
sales supports the inference that this
was the result of an agreement between
them. Indeed, the record does not even
tell us whether Jones was Thomas’s sole
customer at that time or one of a
hundred. Chance brought the two of them
together, and so far as the evidence
reveals, their subsequent course of
dealing amounted to no more than a series
of mutually-satisfactory, spot
transactions.

Even if the ongoing efforts that Thomas
made to serve Jones as a customer can be
construed as a sign that the relationship
between them was developing into
something more than a simple buyer-seller
arrangement, it bears emphasis that most
of these efforts occurred after Jones and
her collaborators began to cooperate with
the government. On July 26, when the
search warrant was executed on the Jones
household, the conspiracy was at an end.
After that point, every putative member
of the conspiracy but Thomas was
cooperating with the government. As their
goal was not to commit a crime but to
expose one, there could be no genuine
agreement between any of them and Thomas.
See Contreras, 249 F.3d at 599, citing
United States v. Mahkimetas, 991 F.2d
379, 383 (7th Cir. 1993). The evidence
must therefore support a finding that
Thomas entered into an agreement with
Jones and/or one of her associates prior
to the point at which they began to
cooperate with the government on July
26./1

The transactions between Jones and
Thomas that occurred prior to July 26 do
not themselves demonstrate the existence
of a collaborative relationship between
them. We know that (1) in late May,
Thomas flagged Jones down as she and the
others were driving about Charleston,
brokered the sale of a half ounce of
crack, and told Jones to look him up when
she inquired about the possibility of
future sales; (2) Thomas brokered at
least three more sales to Mrs. Jones
prior to the July 26 search of the Jones
residence, for a total of at least four
sales; (3) at the conclusion of the third
sale, Thomas gave Jones his telephone and
beeper numbers; (4) Thomas was Jones’
exclusive source of crack cocaine between
late May and late July. These facts do
not alone evidence an agreement between
Thomas and Jones. At most, they establish
a series of four, spot-market, cash
transactions. The terms of these
transactions were apparently satisfactory
enough to Jones that she continued to
seek Thomas when she needed more crack
cocaine, and sufficiently advantageous
for Thomas that he supplied his contact
information to Jones and continued to do
business with her. But there is nothing
in the facts that suggests even a
commitment to future sales, let alone
some interest in the success of Jones’s
re-distribution of the cocaine to her
customers. See Rivera, 273 F.3d at 755-56
(multiple sales alone do not establish
conspiracy); Contreras, 249 F.3d at 600
(same); Torres-Ramirez, 213 F.3d at 982
(supplying narcotics purchaser with pager
number does not prove a conspiratorial
agreement). Indeed, when Jones was asked
whether there was a reason why Thomas was
her one and only source between May and
July of 1995, she responded, "Not
really." Tr. 108.

Although any conspiracy terminated as of
July 26, one might still look to later
events for clues about what the nature of
the relationship between Thomas and Mable
Jones, et al., was prior to that date.
See generally United States v. Betts, 16
F.3d 748, 757-58 (7th Cir. 1994),
abrogated on other grounds by United
States v. Mills, 122 F.3d 346 (7th Cir.),
cert. denied, 522 U.S. 1033, 118 S. Ct.
637 (1997). But if Thomas did not come to
an agreement with Jones and the others
until after July 26 (when everyone except
he became an agent of the government),
then the jury could not lawfully convict
him of conspiracy. That presents a
problem. The jury in this case was never
asked to decide whether Thomas had become
a conspirator as of July 26, nor was it
instructed that it could consider later
events only insofar as they shed light on
what Thomas’s intent (for example) was
prior to that date. See, e.g., Tr. 649-50
(final jury instructions) ("The
indictment charges that the offense was
committed on or about January 1994 to
August 1995. The government must prove
that the offense happened reasonably
close to that date, but is not required
to prove that the alleged offense
happened on that exact date.") Neither
party alerted the court to the
evidentiary significance of July 26 as
the end date of the conspiracy. Instead,
the jury was invited to consider the
entire course of dealing between Thomas
and Jones--from late May through early
August--as substantive evidence that
Thomas conspired with Jones and the
others. See, e.g., Tr. 78-81
(government’s opening statement); Tr.
660-69 (government’s closing argument).
The strongest (which is not to say
strong) evidence of Thomas’s
participation in the conspiracy--his
efforts to deal with the shaved wax, his
August 2 telephone call advising her that
he had located another source of cocaine,
his August 7 remark vouching for the bona
fides of that source, his avowed efforts
on August 8 to sweeten the terms of the
deal for her, and his reference to a
source in Arkansas from which she might
purchase crack at a better price--all
post-dates the July 26 termination of the
conspiracy. Consequently, the jury may
have convicted Thomas of conspiracy based
on what he did on July 30, or August 2,
7, or 8, without considering whether he
actually entered into an agreement with
anyone before the conspiracy ended on
July 26. Given the obvious and
inescapable importance of July 26, the
failure to appropriately instruct the
jury amounts to plain error, see Thomas
I, 150 F.3d at 745; and that error would,
at the very least, require a new trial.

Based on the evidence before us,
however, we do not believe that a third
trial on the conspiracy charge is
warranted. A jury properly instructed as
to the end date of the conspiracy and the
limited relevance of the acts that took
place after that date could not
reasonably find that Thomas joined the
conspiracy before the search of the Jones
residence brought it to an abrupt
conclusion. Before July 26, Thomas had
brokered four spot sales of crack to
Jones for cash. The most he had done by
way of an arrangement with Jones vis a
vis future transactions was to give her
his telephone and beeper numbers. What
Thomas did with and for Jones after July
26 may have signaled an increasing level
of cooperation between the two, but even
assuming for the sake of argument that
his later efforts were the acts of a co-
conspirator rather than a mere seller,
those efforts do not show that Thomas
entered into an unlawful agreement before
the key date of July 26. In other words,
whatever later events may reveal about
Thomas’ status at the time they occurred,
they shed no light on his status prior to
July 26: they do not, for example, reveal
a prior understanding with Jones or a
pre-existing stake in the success of her
sales. See generally Betts, 16 F.3d at
758 (noting the difficulty of inferring
prior intent from subsequent acts).

III.

No doubt the evidence would support a
charge against Thomas for distributing
narcotics. He was not indicted for that
offense in this Circuit, however, because
venue for that charge would properly lie
only in the Eastern District of Missouri,
where the sales to the Jones group took
place. Fed. R. Crim. P. 18; United States
v. Rodriguez-Moreno, 526 U.S. 275, 278-
79, 119 S. Ct. 1239, 1242-43 (1999);
Rivera, 273 F.3d at 756; Torres-Ramirez,
213 F.3d at 981. Because the trial
evidence was insufficient to support
Thomas’ conviction on the conspiracy
charge, we REVERSE his conviction.

FOOTNOTE
/1 The government raises the possibility that al-
though Fred and Mable Jones, Smith, and Mallard
were no longer participants in the conspiracy
after July 26, the conspiracy may nonetheless
have continued among its other members. Gov’t Br.
at 20. Yet the government cites no other individ-
uals who might have carried on the conspiracy
with Thomas, and we can find no evidence of such
individuals in the record. Consequently, there
can be no doubt that the conspiracy ended on July
26.

EVANS, Circuit Judge, dissenting. Darrell Thomas
dodged a bullet in 1998 when we reversed his
conviction for conspiracy to distribute cocaine.
United States v. Thomas, 150 F.3d 743 (7th Cir.
1998). We reversed because the district court
declined to give a "buyer-seller" jury instruc-
tion as Thomas had requested. Noting that the
evidence presented against Thomas "was as consis-
tent with intermittent sales as it was with
criminal conspiracy," we concluded that Thomas
was prejudiced by the failure to give the "buyer-
seller" instruction./1 We ordered a new trial.

Upon remand, the case was retried, a buyer-
seller instruction was given (it was Seventh
Circuit Pattern Instruction 6.12), and Thomas was
again convicted. Today’s majority opinion revers-
es the new conviction, so Thomas has dodged
another bullet. Because I think the majority has
usurped the province of the jury, I respectfully
dissent.

The line separating conspiracy from a mere
buyer-seller relationship is not very bright. In
a case like this, under our system of criminal
procedure, it is a properly instructed jury that
decides on which side of the fuzzy line a defen-
dant’s conduct falls. That seems to me to be the
message we sent the first time we saw this case
when we found the evidence, as I have previously
quoted, to be "as consistent with intermittent
sales as it was with criminal conspiracy."

The fatal flaw in the majority’s approach to
this case is that it strains to infer what the
evidence does not tell us, rather than follow our
usual course and review the evidence in the light
most favorable to the verdict. Thomas’ challenge
today is nothing more than a challenge to the
sufficiency of the evidence, and we have often
held that we will set aside a verdict on this
ground "only when the record contains no evi-
dence, regardless of how it is weighed, from
which the jury could find guilt beyond a reason-
able doubt." United States v. Brack, 188 F.3d
748, 760 (7th Cir. 1999).
 The evidence in this case does not show that a
sophisticated Tony Soprano-Paulie Walnuts-Uncle
Junior type criminal conspiracy was at work here.
But we have observed that the "loosely-knit
ensemble" of a drug conspiracy "can consist of an
implicit understanding between the parties re-
garding the subsequent resale of drugs." United
States v. Smallwood, 188 F.3d 905, 912. A con-
spiracy agreement, we have also observed, can be
established by circumstantial evidence. United
States v. Brisk, 171 F.3d 514, 516 (7th Cir.
1999). And that, I think, is what we have here.

The jury could have believed (and apparently
did believe) that Thomas and the Joneses (primar-
ily Mable) conspired to distribute crack for a 3-
month period ending when the Joneses were busted
by officers from the federal public housing
narcotics task force on July 26, 1995.

If the only thing the evidence showed was that
the Joneses bought personal-use-size quantities
of crack from Thomas, nothing more than a simple
buyer-seller arrangement would have been shown.
But that’s not what we have here. The evidence,
viewed favorably to the jury’s verdict, is suffi-
cient to shove this case over the fuzzy line into
conspiracy territory. It showed that Thomas sold
resale-size quantities of crack to the Joneses on
four occasions and that the Joneses resold the
crack with Thomas’s knowledge. Apparently hopeful
of providing even more crack for resale, Thomas
gave the Joneses his phone and pager numbers so
they could get in touch with him more easily.
Plus, Thomas had an obvious stake in the Joneses’
success--every time he sold them crack for their
resale purposes he made money. The more they
would sell in the future, the better it would be
for Thomas.

To set aside a verdict of a jury--especially
after a hard-fought trial--is a drastic step. To
do it twice, when the second trial proceeded
exactly as we instructed with a proper buyer-
seller instruction, is, in my opinion, a grave
error. Had we thought the evidence insufficient
to support a conspiracy conviction the first time
around, the relief we would have ordered would
have been a reversal with instructions to enter
a judgment of acquittal. It would not have been
to order a new trial. The majority’s opinion
today means the time of 12 jurors, and that of
Judge Gilbert, has been squandered while retrying
this case.

FOOTNOTE

/1 Although Thomas requested a buyer-seller instruc-
tion, he did not object to the failure of the
judge to give one.