In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2892
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EUGENE HAYWOOD,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01-CR-10049—Michael M. Mihm, Judge.
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ARGUED FEBRUARY 18, 2003—DECIDED MARCH 31, 2003
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Before RIPPLE, DIANE P. WOOD, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. After spending most of the day
driving a car, this was not the welcoming party Eugene
Haywood hoped to see. One February day in 2001, Hay-
wood returned home to Peoria, Illinois, after driving to and
from Chicago in a rented Oldsmobile Alero. He parked the
car, got out, and locked the doors to find two police officers
waiting for him. As he began walking toward the front of
the car, the officers identified themselves and had Hay-
wood place his hands on the car’s roof. When asked, Hay-
wood admitted that he did not have a valid driver’s license,
at which point he was arrested for driving with a revoked
license.
2 No. 02-2892
The officers then searched the car. Under the hood they
found a white sock with over 250 grams of crack cocaine.
In the car they found an open, half-empty bottle of cham-
pagne cognac. They also found the rental agreement for the
car, which was registered to Yatisha Sturdivant, Hay-
wood’s girlfriend, who had given him permission to drive
the car. Under the rental agreement, only Sturdivant was
permitted to drive the car.
As it turned out, this was not Haywood’s first encounter
with crack cocaine. On at least three prior occasions, Hay-
wood and his friend, Walter Jackson, drove from Peoria to
Chicago in search of cheap drugs. Each time, they followed
the same plan, buying over a pound of crack and stashing
it in a towel under the hood for the drive back to Peoria,
after which they would split up the drugs and sell them.
The night before Haywood’s arrest, he and Jackson dis-
cussed driving to Oklahoma in search of even cheaper crack.
Haywood was first brought up on charges by the State of
Illinois. Haywood filed a motion to suppress the fruits from
the search of the car (most notably the drugs). But the
state trial judge denied that motion, finding that Hay-
wood lacked standing to challenge the search because the
owner of the rental car (Enterprise) never gave him per-
mission to drive or possess it. The federal government
then got into the case by obtaining an indictment charg-
ing Haywood with conspiracy to distribute more than 50
grams of cocaine base and possession of more than 50
grams of cocaine base with the intent to distribute in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). In the
federal district court, Haywood again filed a motion to
suppress the evidence found in the car. The district court
agreed that Haywood lacked standing to challenge the
search and denied the motion.
After a jury found Haywood guilty on both counts,
Haywood filed a motion for a new trial and a judgment of
No. 02-2892 3
acquittal on the conspiracy charge, claiming that the evi-
dence was not sufficient to support the jury’s verdict. The
district court denied the motions and Haywood appeals.
To determine whether a defendant has standing to
challenge a police officer’s search, we have applied a two-
pronged test, essentially asking whether there is both a
subjective and an objective right to privacy. See United
States v. Walker, 237 F.3d 845, 849 (7th Cir. 2001).
The parties agree that Haywood sufficiently demon-
strated a subjective expectation of privacy. The question,
then, is whether that expectation is one that society rec-
ognizes as legitimate and reasonable. See Walker, 237 F.3d
at 849; United States v. Torres, 32 F.3d 225, 230 (7th Cir.
1994) (“A legitimate expectation of privacy is an expecta-
tion . . . which society is prepared to recognize as reason-
able.” (quoting United States v. Tobin, 890 F.2d 319, 324
(11th Cir. 1989))).
In Walker, we held that an authorized driver of a rental
car has standing to challenge a search of the car, but
we have not addressed the question with respect to an
unauthorized driver. Several circuits have examined that
issue, though they have failed to reach a consensus. The
Fifth and Eighth Circuits have held that an unauthor-
ized driver of a rental car has standing as long as the
authorized driver has given him permission to drive the
car. See United States v. Best, 135 F.3d 1223 (8th Cir.
1998); United States v. Kye Soo Lee, 898 F.2d 1034 (5th
Cir. 1990). The Fourth, Tenth, and Eleventh Circuits, on
the other hand, have looked solely to the rental agreement,
holding that a driver who is not authorized by the rental
company to operate the car does not have standing. See
United States v. Wellons, 32 F.3d 117 (4th Cir. 1994);
United States v. Roper, 918 F.2d 885 (10th Cir. 1990);
United States v. McCulley, 673 F.2d 346 (11th Cir. 1982).
Finding a middle ground, the Sixth Circuit has applied a
4 No. 02-2892
more fact-based approach. See United States v. Smith, 263
F.3d 571, 586 (6th Cir. 2001). In Smith, the court created
a presumption that an unauthorized driver does not
have standing but found that the defendant’s unique
circumstances—he was married to the authorized driver,
was a licensed driver, and had paid for the rental car—were
enough to overcome that presumption.
For now, we do not have to decide which, if any, of the
other circuits’ rules or presumptions makes the most
sense. That’s because Haywood was not simply an unautho-
rized driver, he was also an unlicenced one. Haywood
should not have been driving any car, much less a rental
car that Enterprise never would have given him permis-
sion to drive. As a result, Haywood’s expectation of privacy
was not reasonable. Unlike the defendant in Smith, there
was nothing unique about Haywood’s situation that sug-
gests an exception should be made. Therefore, Haywood
lacked standing to challenge the search.
Haywood next argues that the evidence was not suffi-
cient to support the jury’s verdict on the conspiracy charge.
In order to uphold the verdict, we need only to find that
“any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United
States v. Thomas, 284 F.3d 746, 751 (7th Cir. 2002) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Simply put, a conspiracy is an agreement to commit
a crime. United States v. Zarnes, 33 F.3d 1454, 1465 (7th
Cir. 1994). We have further defined a conspiracy to be
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 con-
spiracy, for it has no separate criminal object. What is
required for conspiracy in such a case is an agreement
to commit some other crime beyond the crime consti-
tuted by the [sale] agreement itself.
No. 02-2892 5
United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993)
(en banc).
Haywood does not challenge the jury instruction on
conspiracy, which the district court based on the Seventh
Circuit buyer-seller pattern instruction. Haywood’s jury
was told:
The existence of a simple agreement of two persons
to pool their money and to buy drugs together, with-
out more, is not sufficient to establish a conspiracy,
even where each buyer intends to resell cocaine.
In considering whether a conspiracy or a simple joint
buyer relationship existed, you should consider all of
the evidence, including the following factors:
(1) Whether the transactions involved large quanti-
ties of cocaine;
(2) Whether the parties had a standardized way of
doing business over time;
(3) Whether the parties had a continuing relation-
ship;
(4) Whether the parties had an understanding that
the cocaine would be resold;
(5) Whether there was to be any joint sharing of the
proceeds.
No single factor necessarily indicates by itself that
a defendant was or was not engaged in a simple
joint buyer relationship.
Haywood claims his case is similar to Thomas, where
we found that the evidence did not support the jury’s
finding that a buyer-seller relationship had grown into
a conspiracy, 284 F.3d at 755. That case involved a typi-
cal buyer-seller jury instruction similar to the instruc-
tion given here.
6 No. 02-2892
Here, the transactions involved much larger quantities
of cocaine (Haywood and Jackson came away from each
trip with 18 ounces, while Thomas sold his buyer ½ ounce
or less in each meeting); in driving to Chicago together,
then bringing the drugs back hidden in a towel under the
hood and splitting them up upon their return, Haywood
and Jackson had a standardized way of doing business;
they had a continuing relationship, making three trips
together to Chicago and talking about making one to
Oklahoma; and they both knew that the cocaine would
be resold.
In addition, Haywood and Jackson each had an interest
in the success of the other, making them more like
coconspirators than the buyer and seller in Thomas. See
Thomas, 284 F.3d at 753 (finding no conspiracy in part
because “[u]ltimately . . . we can find no evidence that
Thomas ever shared with [his buyer] a stake in the suc-
cess of the retail sales to [the buyer’s] customers of the
cocaine with which he supplied her.”); United States v.
Kozinski, 16 F.3d 795, 807 (7th Cir. 1994) (“Conspiracies
are typically distinguished by cooperative relationships
between the parties that facilitate achievement of a mutu-
ally beneficial goal.”). See also Seventh Circuit Criminal
Pattern Instruction No. 6.12 (1999) (factors in determin-
ing whether a buyer-seller relationship establishes a
conspiracy include “[w]hether the seller had a financial
stake in a resale by the buyer”). Haywood and Jackson
pooled their money and shared rides to Chicago in or-
der to buy inexpensive crack, meaning that each could
run a cheaper operation—and earn higher profits—if the
other succeeded.
Taking all of these facts together, the jury reasonably
found Haywood guilty of a conspiracy to distribute more
than 50 grams of cocaine base. Accordingly, the judgment
is AFFIRMED.
No. 02-2892 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-31-03