United States v. Rock, Timothy ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4070
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIMOTHY ROCK,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 01 CR 1—Sarah Evans Barker, Judge.
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ARGUED APRIL 5, 2004—DECIDED JUNE 8, 2004
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Before BAUER, POSNER, and DIANE P. WOOD, Circuit
Judges.
BAUER, Circuit Judge. This direct appeal arises from
Timothy Rock’s 2001 conviction for conspiracy to possess
with intent to distribute more than fifty grams of metham-
phetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Rock raises the sole issue of whether sufficient evidence
was presented at trial to support his conspiracy conviction.
For the reasons stated below, we affirm.
The relevant events occurred in December of 2000. At
that time, Detective Carl Lamb was posing as a drug buyer
in the area around Seymour, Indiana. Lamb had been
purchasing small quantities of methamphetamine from two
2 No. 01-4070
men, Nicholas Beverstock and Matthew Thompson. On
December 18, Lamb asked to purchase a larger quantity—
one pound—of methamphetamine; Beverstock agreed to sell
it to him for $23,000. The exchange was to take place the
next day, but Beverstock did not have such a large quantity
of the drug. After enlisting the help of his brother-in-law
(Delbert Allman), Beverstock eventually found a supplier
who could deliver the requested pound of methamphet-
amine; an acquaintance named Timothy Rock. Allman
contacted Rock to set up the deal.
Over the telephone Rock inquired for whom Beverstock
was procuring the methamphetamine; after being satisfied
that Lamb could be trusted, Rock agreed to provide
Beverstock with one pound of methamphetamine for sale to
Lamb. When Rock arrived at Allman’s home, however, he
produced only a half-pound of the drug. The second half,
Rock said, would be delivered after he was paid in full for
the transaction. Beverstock and Thompson took the half-
pound of methamphetamine to their designated meeting
spot with Lamb—the Jackson/Washington State Forest.
Rock also drove to the State Forest with Allman to secretly
monitor the sale, carrying with him the second half-pound
of methamphetamine. The meeting went as planned and,
after discussion, Lamb paid Beverstock and Thompson
$11,500 for the half-pound of methamphetamine. Immedi-
ately following the transaction, officers arrested Beverstock
and Thompson. Rock and Allman fled the scene, Rock
disposed of a cooler containing the remainder of the drugs,
and helped Allman remove equipment used in selling
methamphetamine from his home.
Rock was arrested in January 2001. He was tried and
convicted later that year. Rock now appeals, claiming there
was insufficient evidence to convict him of the conspiracy
charge.
No. 01-4070 3
Discussion
In appeals regarding sufficiency of the evidence we gen-
erally consider whether “after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Pearson, 113
F.3d 758, 761 (7th Cir. 1997) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). Because Rock did not file a
motion for judgment of acquittal under Federal Rule of
Criminal Procedure 29, however, we review the jury’s find-
ings only for plain error. United States v. Williams, 298
F.3d 688, 691-92 (7th Cir. 2002). This standard significantly
limits our review of the case; we will only reverse if, “the
conviction amounted to a manifest miscarriage of justice.”
Id.
Rock argues the government failed to present sufficient
evidence to support the conspiracy charge. Under 21 U.S.C.
§ 846, a conspiracy exists where “(1) two or more people
agreed to commit an unlawful act and (2) the defendant
knowingly and intentionally joined in the agreement.”
United States v. Gardner, 238 F.3d 878, 879 (7th Cir. 2001).
This Court has held that in the case of drug conspiracies it
is not enough for the government to demonstrate that a
defendant is a participant in a mere buyer-seller relation-
ship because, “such an agreement is itself the substantive
crime.” United States v. Hach, 162 F.3d 937, 942-43 (7th
Cir. 1998) (quoting United States v. Clay, 37 F.3d 338, 341
(7th Cir. 1994)). Rather, the government must prove that
the defendant conspired to commit some crime beyond that
agreement to sell drugs.
Rock and the government present two slightly different
descriptions of the activities of December 18 and 19, 2000.
For his part, Rock argues that he sold the methamphet-
amine to Beverstock and Thompson, who subsequently sold
the methamphetamine to Lamb. On the other hand, the
4 No. 01-4070
government argues that Rock worked in concert with
Beverstock and Thompson to sell the methamphetamine to
Lamb. The significance of the differing descriptions is that
in the first, Rock does not participate in a crime beyond the
admitted sale to Beverstock and Thompson (hence, there is
no conspiracy), whereas in the second scenario, Rock is
conspiring with Beverstock and Thompson to sell the
methamphetamine to a third party. Clearly these two
differing accounts call for a sensitive factual determina-
tion.1
The government has no trouble backing up its theory that
Rock was an active participant in the sale of methamphet-
amine to Lamb. It points out that, from the outset, Rock
was concerned with the identity of the third-party pur-
chaser, and that he intended to be paid from the proceeds
of the sale to the third party and not by Beverstock or
Thompson independently. It points to the fact that Rock
trusted Beverstock and Thompson with $11,500 worth of
methamphetamine to show they were on the same side of
the transaction. Additionally, Rock personally went to the
meeting place to monitor the transaction with Lamb. These
facts demonstrate that Rock’s involvement in the sale went
beyond his dealings with Beverstock and Thompson; he had
a personal investment in the sale of the methamphetamine
1
To carry the analysis one step further than is required by these
facts, if we were to believe Rock’s scenario—that he was on the
opposite side of a transaction with Beverstock and Thompson—
we would then consider the following four factors to determine the
presence of conspiracy: (1) the length of the affiliation between the
buyer and seller; (2) whether there was an established method of
payment; (3) whether transactions were standardized; and (4)
whether there was a demonstrated level of mutual trust. United
States v. Hach, 162 F.3d 937, 943 (7th Cir. 1998). Because we
affirm the government’s version of the facts, we need not apply
this test as urged by Rock.
No. 01-4070 5
to Lamb. Case law is clear that when defendants are on the
same side of a sale of drugs to a third party, there is
sufficient evidence of a conspiracy. United States v. Herrera,
54 F.3d 348, 353-54 (7th Cir. 1995).
Because we give deference to the jury’s findings, and
because we review now only for plain error, we have no
trouble in holding the jury had sufficient evidence on which
to base its verdict. Accordingly, Rock’s conviction is AF-
FIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-8-04