United States v. Maria Moe , 781 F.3d 1120 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30224
Plaintiff-Appellee,
D.C. No.
v. 6:13-cr-00003-
SEH-1
MARIA LOURDES MOE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
November 17, 2014—Portland, Oregon
Filed March 27, 2015
Before: Richard R. Clifton, Milan D. Smith, Jr.,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Clifton;
Concurrence by Judge Hurwitz
2 UNITED STATES V. MOE
SUMMARY*
Criminal Law
The panel affirmed a conviction for conspiracy to possess
with intent to distribute methamphetamine.
Rejecting the defendant’s contention that the evidence
presented to the jury established only a buyer-seller
transaction, the panel held that the evidence was sufficient to
support her conviction for conspiracy, where the evidence
indicated an ongoing relationship of mutual trust, there was
testimony that the defendant was involved in the business of
methamphetamine trafficking, there was evidence that the
defendant’s supplier knew that the defendant was engaged in
redistributing the methamphetamine that she was buying from
him, and the supplier had an interest in fostering those
downstream sales.
The panel held that the district court did not err by failing
to instruct the jury on how to determine a single conspiracy
versus multiple conspiracies, where the defendant stood trial
alone and the facts to do not support a multiple conspiracies
defense.
The panel held that the district court did not err in
rejecting the defendant’s proposal to instruct the jury on the
difference between a buyer-seller relationship and a
conspiracy relationship, where the instructions as a whole
accurately informed the jury that a conspiracy could not be
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. MOE 3
found based only on the sales by the supplier to the
defendant.
The panel held that the district court did not err when it
curtailed as irrelevant cross-examination of the supplier
aimed at showing that he associated with other individuals
and was involved in other conspiracies, where the multiple
conspiracy theory of defense did not apply.
Concurring, Judge Hurwitz urged this court to follow the
Seventh Circuit, which requires district courts to give a
buyer-seller instruction whenever a jury could conceivably
have determined that the buyer-seller relationship which
existed did not involve an overarching conspiratorial
agreement.
COUNSEL
Michael Donahoe, Federal Defenders of Montana, Helena,
Montana, for Defendant-Appellant.
Paulette L. Stewart, Assistant United States Attorney, Helena,
Montana, for Plaintiff-Appellee.
4 UNITED STATES V. MOE
OPINION
CLIFTON, Circuit Judge:
Maria Moe appeals her conviction for conspiracy to
possess with intent to distribute methamphetamine in
violation of 21 U.S.C. § 846. Her primary arguments rest on
the so-called “buyer-seller rule,” under which a conviction for
conspiracy cannot be based solely on the purchase of an
unlawful substance, even though such a transaction
necessarily involves an agreement between at least two
parties, the buyer and the seller. “Rather, conspiracy requires
proof of ‘an agreement to commit a crime other than the
crime that consists of the sale itself.’ Were the rule otherwise,
every narcotics sale would constitute a conspiracy.” United
States v. Lennick, 18 F.3d 814, 819 (9th Cir. 1994) (quoting
United States v. Lechuga, 994 F.2d 346, 347 (7th Cir. 1993)
(en banc)).
Moe contends that the evidence presented to the jury
established only that she purchased methamphetamine from
a supplier—that is, established only a buyer-seller
transaction—not that she was engaged in a conspiracy with
the seller in connection with subsequent distribution. She also
contends that the district court should have given an
instruction to the jury regarding the buyer-seller rule. We
conclude that the evidence was sufficient to support the
conviction. We further conclude that although a specific
buyer-seller instruction may be useful and might be required
in some circumstances, it was not necessary here. We are not
persuaded by any of Moe’s other arguments, and therefore
affirm.
UNITED STATES V. MOE 5
I. Background
Maria Moe was indicted in January 2013 on two counts:
conspiracy to possess with intent to distribute 50 grams or
more of methamphetamine, 21 U.S.C. § 846, and distribution
of 50 grams or more of methamphetamine, 21 U.S.C.
§ 841(a)(1). She pleaded not guilty and went to trial.
During the two-day trial that followed, the government
called five witnesses. These included four government agents
and one cooperating witness, Shawn Ellifritt. Ellifritt testified
that he supplied methamphetamine to Moe. Moe lived in
Helena, Montana, but traveled to Spokane, Washington, to
buy methamphetamine from Ellifritt. She typically purchased
a half ounce of methamphetamine one time per month. From
December 2009 until December 2010, Moe made at least
seven purchases. Ellifritt estimated that these transactions
involved approximately 140 grams of methamphetamine.
Moe and Ellifritt communicated by phone. There were at least
94 cell phone contacts between Ellifritt and Moe, including
51 text messages. The two used a code to communicate
regarding the availability of methamphetamine: for example,
when Ellifritt texted Moe that the weather was bad, that
meant methamphetamine was not available or there was
potential trouble with law enforcement.
Moe filed motions for acquittal and for a new trial on
sufficiency of the evidence grounds. Moe also proposed
several supplemental jury instructions, including a multiple
conspiracies instruction and an instruction on the difference
between a buyer-seller relationship and a conspiracy
relationship. The district court rejected both of these
instructions.
6 UNITED STATES V. MOE
The jury convicted Moe on the conspiracy count but
could not reach a unanimous verdict on the distribution count,
which was subsequently dismissed. Moe was sentenced to 66
months imprisonment and four years supervised release.
II. Discussion
Moe presents three arguments on appeal. First, she asserts
there was insufficient evidence before the jury to support her
conviction for conspiracy. Second, she argues the district
court erred by declining to give two proposed jury
instructions. Third, she asserts that the district court erred by
curtailing her cross-examination of a government witness. We
consider these challenges in turn.
A. Sufficiency of the Evidence
We employ “a two-step inquiry for considering a
challenge to a conviction based on sufficiency of the
evidence.” United States v. Nevils, 598 F.3d 1158, 1164 (9th
Cir. 2010) (en banc). “First, a reviewing court must consider
the evidence presented at trial in the light most favorable to
the prosecution.” Id. “Second, after viewing the evidence in
the light most favorable to the prosecution, the reviewing
court must determine whether this evidence, so viewed, is
adequate to allow ‘any rational trier of fact [to find] the
essential elements of the crime beyond a reasonable doubt.’”
Id. (alteration in original) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). Although we review a claim of
insufficient evidence de novo, United States v. Sullivan,
522 F.3d 967, 974 (9th Cir. 2008) (per curiam), our
evaluation remains deferential and accords respect to the
jury’s role “as weigher of the evidence,” Jackson, 443 U.S. at
319.
UNITED STATES V. MOE 7
The elements of conspiracy are “(1) an agreement to
accomplish an illegal objective, and (2) the intent to commit
the underlying offense.” United States v. Herrera-Gonzales,
263 F.3d 1092, 1095 (9th Cir. 2001). But although “the
essence of conspiracy is agreement,” United States v. Feola,
420 U.S. 671, 692 (1975), not every agreement to commit an
illegal objective may serve as the basis for a conspiracy
conviction.
Under the buyer-seller rule, “mere sales to other
individuals do not establish a conspiracy to distribute or
possess with intent to distribute . . . .” Lennick, 18 F.3d at 819
n.4. This “narrow exception” to conspiracy liability, United
States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009), applies
even though “[a] drug sale is itself an agreement: a buyer and
seller come together, agree on terms, and exchange money or
commodities at the settled rate.” United States v. Brown,
726 F.3d 993, 998 (7th Cir. 2013). Instead, a conviction for
“conspiracy requires proof of an agreement to commit a
crime other than the crime that consists of the sale itself.”
Lennick, 18 F.3d at 819 (quotation marks omitted).
Thus, for a charge of conspiracy to possess a drug with
intent to distribute, “the government must show that the buyer
and seller had an agreement to further distribute the drug in
question.” Id. at 819 n.4. “Express agreement is not required;
rather, agreement may be inferred from conduct.” United
States v. Hegwood, 977 F.2d 492, 497 (9th Cir. 1992); see
also Direct Sales Co. v. United States, 319 U.S. 703, 714
(1943) (“[I]t can make no difference the agreement was a
tacit understanding, created by a long course of conduct and
executed in the same way.”).
8 UNITED STATES V. MOE
Here, Moe asserts that the evidence before the jury proved
only that Ellifritt sold methamphetamine to her. The
government argues that Moe and Ellifritt’s relationship was
more than a purely transactional one and instead crossed the
line into conspiracy.
Distinguishing between a conspiracy and a buyer-seller
relationship requires a fact-intensive and context-dependent
inquiry that is not amenable to bright-line rules. See United
States v. Hawkins, 547 F.3d 66, 74 (2d Cir. 2008) (noting the
“highly fact-specific” nature of the “inquiry into whether the
circumstances surrounding a buyer-seller relationship
establish an agreement to participate in a distribution
conspiracy”). Certain principles are established, however.
A casual sale of drugs, of a quantity consistent with
personal use on the part of the buyer, with no evidence of any
subsequent (or planned) redistribution of purchased drugs,
will likely fall within the ambit of the buyer-seller rule. See
Lennick, 18 F.3d at 819; see also United States v. Medina,
944 F.2d 60, 65–66 (2d Cir. 1991) (characterizing “the typical
buy-sell scenario” as “involv[ing] a casual sale of small
quantities of drugs” and contrasting that scenario to a case in
which “there is advanced planning among the alleged
co-conspirators to deal in wholesale quantities of drugs
obviously not intended for personal use”), abrogated on other
grounds by Bailey v. United States, 516 U.S. 137 (1995).
In contrast, we will uphold a conviction for conspiracy
between buyer and seller where there 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. Ramirez, 714 F.3d 1134,
UNITED STATES V. MOE 9
1140 (9th Cir. 2013) (quoting United States v. Thomas,
284 F.3d 746, 752 (7th Cir. 2002)).
A number of factors may be relevant in deciding whether
there is sufficient evidence to support a conviction for
conspiracy. We look not just to the characteristics of
individual transactions but to “the ‘entire course of dealing’”
between alleged co-conspirators. United States v. Mincoff,
574 F.3d 1186, 1194 (9th Cir. 2009) (quoting Thomas,
284 F.3d at 753). “No single factor is dispositive.” Hawkins,
547 F.3d at 74. Instead, a reviewing court should “take into
account all . . . the evidence surrounding the alleged
conspiracy and make a holistic assessment of whether the
jury reached a reasonable verdict.” United States v. Long,
748 F.3d 322, 326 (7th Cir. 2014) (quotation marks omitted).
Among the factors that courts have considered relevant in
making this determination are the following: whether the
drugs were sold on credit1 or on consignment;2 the frequency
of sales;3 the quantity of drugs involved;4 the level of trust
1
E.g., Mincoff, 574 F.3d at 1193 (“[S]elling drugs on credit is especially
indicative of a conspiracy because it gives the seller a stake in the buyer’s
successful resale of the drugs.”) (alteration in original) (quoting United
States v. Bender, 539 F.3d 449, 454 (7th Cir. 2008)).
2
E.g., United States v. Vallar, 635 F.3d 271, 287 (7th Cir. 2011).
3
E.g., United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008)
(“[E]vidence of continuing relationships and repeated transactions can
support the finding that there was a conspiracy, especially when coupled
with substantial quantities of drugs.”).
4
In Mincoff, the court concluded that “a rational trier of fact could have
found the buyer-seller rule inapplicable to the facts of this case” because,
among other things, the “large quantities” of drugs involved “could
10 UNITED STATES V. MOE
demonstrated between buyer and seller, including the use of
codes;5 the length of time during which sales were ongoing;6
whether the transactions were standardized;7 whether the
parties advised each other on the conduct of the other’s
business;8 whether the buyer assisted the seller by looking for
other customers;9 and whether the parties agreed to warn each
support an inference of further distribution.” 574 F.3d at 1193–94. It is
true that “‘[t]he sale of large quantities of controlled substances, without
more, cannot sustain a conspiracy conviction.’” Ramirez, 714 F.3d at 1140
(alteration in original) (quoting Lennick, 18 F.3d at 819 n.5). But while the
quantity of sales alone cannot support a conspiracy conviction, it
nevertheless is a relevant factor to be considered. Cf. United States v.
Howard, 966 F.2d 1362, 1364 (10th Cir. 1992) (noting that a “huge
quantity” of narcotics “permits an inference of conspiracy” although it is
not “by itself . . . enough to convict defendant”) (emphasis added).
5
E.g., United States v. Pressler, 256 F.3d 144, 155 (3d Cir. 2001)
(concluding that where buyer and seller “conducted their business in
code,” this “demonstrated a considerable degree of coordination and
suggested the presence of a cooperative relationship”); see also United
States v. Contreras, 249 F.3d 595, 599 (7th Cir. 2001) (looking to “the
level of mutual trust between the buyer and seller” as a relevant factor).
6
E.g., Direct Sales, 319 U.S. at 713 (emphasizing “prolonged
cooperation”); see also United States v. Gibbs, 190 F.3d 188, 199 (3d Cir.
1999) (noting “length of affiliation”); Lechuga, 994 F.2d at 350
(“Prolonged cooperation is neither the meaning of conspiracy nor an
essential element, but it is one type of evidence of an agreement that goes
beyond what is implicit in any consensual undertaking, such as a spot
sale.”).
7
E.g., Gibbs, 190 F.3d at 199.
8
E.g., Brown, 726 F.3d at 999.
9
Id.
UNITED STATES V. MOE 11
other of potential threats from competitors or law
enforcement.10
We now turn to the facts of this case. Between December
2009 and December 2010, Ellifritt sold methamphetamine to
Moe on at least seven occasions. These transactions had a
standard format. Moe was not just a casual or occasional
buyer. She described Ellifritt as a reliable source of
methamphetamine, a “gold mine.” Moe and Ellifritt
communicated closely together and coordinated their actions,
thereby demonstrating prolonged cooperation. They had their
own code for communicating regarding the availability of
drugs. Significantly, Ellifritt took affirmative steps to warn
Moe when a threat from law enforcement was present: on the
same day that law enforcement searched Ellifritt’s residence,
Ellifritt texted Moe, “Bad weather, lay low.”
These are indications of an ongoing relationship of
“mutual trust,” beyond a simple buyer-seller transaction. See
Mincoff, 574 F.3d at 1194; Pressler, 256 F.3d at 155 (noting
that the use of codes is one indication of a conspiracy rather
than a buyer-seller relationship). The jury heard testimony
that Moe was involved in the business of methamphetamine
trafficking and had a supplier in Washington. There was
evidence that Ellifritt knew that Moe was engaged in
redistributing the methamphetamine that she was buying from
him: Ellifritt was told that Moe was “the money” in an
ongoing downstream redistribution effort. Ellifritt had an
interest in fostering those downstream sales, which created
the demand for his repeated sales to Moe.
10
E.g., Vallar, 635 F.3d at 287.
12 UNITED STATES V. MOE
We conclude that the evidence before the jury, viewed in
the light most favorable to the government, was sufficient to
support Moe’s conviction for conspiracy.
B. Jury Instructions
Next, Moe asserts that the district court erred in failing to
give two supplemental jury instructions that she proposed. “A
criminal defendant has a constitutional right to have the jury
instructed according to h[er] theory of the case, provided that
the requested instruction is supported by law and has some
foundation in the evidence.” United States v.
Anguiano-Morfin, 713 F.3d 1208, 1209 (9th Cir. 2013)
(quotation marks omitted). That said, “[w]e review the jury
instructions as a whole and accord the trial judge substantial
latitude so long as the instructions fairly and adequately
covered the issues presented.” United States v. Bauer, 84 F.3d
1549, 1560 (9th Cir. 1996) (citation omitted). The abuse of
discretion standard governs our review of “the language and
formulation of a jury instruction,” United States v. Cortes,
757 F.3d 850, 857 (9th Cir. 2013), and our review of
“whether [an instruction] has some foundation in the
evidence,” Anguiano-Morfin, 713 F.3d at 1209. “Whether an
instruction is supported by law is reviewed de novo.” United
States v. Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir.
2011) (quotation marks omitted).
1. Multiple Conspiracies
Moe asserts that the district court erred by failing to
instruct the jury on how to determine a single versus multiple
conspiracies. We are not persuaded.
UNITED STATES V. MOE 13
“A multiple conspiracies instruction is generally required
where the indictment charges several defendants with one
overall conspiracy, but the proof at trial indicates that a jury
could reasonably conclude that some of the defendants were
only involved in separate conspiracies unrelated to the overall
conspiracy charged in the indictment.” United States v.
Anguiano, 873 F.2d 1314, 1317 (9th Cir. 1989). The
instruction is needed in order to mitigate the problem of
“transference or ‘spillover’ of guilt” from one co-defendant
to another. Id. at 1318. In contrast, “[a] multiple conspiracy
instruction is not required when a defendant stands trial alone
because there is no problem of spillover.” United States v.
Liu, 631 F.3d 993, 1000 (9th Cir. 2011) (quotation marks
omitted). Here, Moe stood trial alone and the facts do not
support a multiple conspiracies defense.
2. Buyer-Seller Rule
Next, Moe suggests that the district court erred in
rejecting her proposal to instruct the jury on the difference
between a buyer-seller relationship and a conspiracy
relationship.
“A defendant is not entitled to have the jury instructed in
the particular language of h[er] choice.” United States v.
Montgomery, 150 F.3d 983, 1002 (9th Cir. 1998) (quotation
marks omitted). Nevertheless, a “district court’s failure to
give a defendant’s requested instruction that is supported by
law and has some foundation in the evidence warrants per se
reversal, unless other instructions, in their entirety,
adequately cover that defense theory.” Marguet-Pillado,
648 F.3d at 1006 (citation and quotation marks omitted).
Thus, our review of a trial court’s decision to deny a
requested jury instruction requires that we answer three
14 UNITED STATES V. MOE
questions. First, was the proposed instruction supported by
law? Second, did the proposed instruction have some
foundation in the evidence? Third, did other instructions
given to the jury, considered in their entirety, fail to cover the
defense theory? Where the answer to all three questions is
“yes,” we must reverse and remand for a new trial.
First, was a buyer-seller defense supported by law? We
conclude that it was. Our court has made it clear a buyer-
seller relationship alone cannot, as a matter of law, support a
conviction for conspiracy. See Lennick, 18 F.3d at 819 n.4.
Second, was there some evidentiary support for a buyer-
seller instruction in this case? There was. As we conclude
above, the evidence before the jury was capable of supporting
the conclusion that Moe and Ellifritt were co-conspirators.
But there was at least some evidence that cut the other way,
including evidence that Ellifritt did not sell to Moe on credit
or consignment, and that Ellifritt had no direct involvement
in any reselling of the methamphetamine by Moe. A jury
could have concluded that Ellifritt was not party to a
conspiracy that encompassed downstream resales and that the
relationship between Moe and Ellifritt was limited to that of
a buyer and a seller.
Third, did the other instructions given to the jury fail to
fully convey the distinction between a buyer-seller
relationship and a co-conspiracy relationship? Here, we
conclude the answer is no. The district court instructed the
jury on the general elements of conspiracy. This instruction
informed the jury that “[a] conspiracy is a kind of criminal
partnership” (emphasis added), and that, in order to convict,
the jury had to “find that there was a plan to commit at least
one of the crimes charged in the indictment as an object of the
UNITED STATES V. MOE 15
conspiracy.” (emphasis added). The only other crime charged
in the indictment concerned Moe’s alleged distribution in
Montana to other purchasers downstream, not Moe’s
purchases from Ellifritt. We presume the jury followed these
instructions. See Zafiro v. United States, 506 U.S. 534, 540
(1993). The instructions as a whole accurately informed the
jury that a conspiracy could not be found based only on the
sales by Ellifritt to Moe. See Bauer, 84 F.3d at 1560–61.
District courts may decide to provide a jury instruction in
drug conspiracy cases that focuses specifically on the
difference between a buyer-seller relationship and a co-
conspirator relationship. Such an instruction might assist a
jury in working through the subtle and fact-intensive
determinations that must be made, and in some cases they
might be essential.11 But in light of the “substantial latitude”
11
We emphasize that we do not hold as a matter of law that a specific
buyer-seller instruction is never required when a jury is properly instructed
on the elements of conspiracy. Several circuits have adopted such a rule.
See, e.g., Riggs v. United States, 209 F.3d 828, 832–33 (6th Cir. 2000),
abrogated on other grounds by Moss v. United States, 323 F.3d 445 (6th
Cir. 2003); United States v. Asibor, 109 F.3d 1023, 1035 (5th Cir. 1997);
but see United States v. Mims, 92 F.3d 461, 464 (concluding that a
buyer-seller instruction is always required if the jury “could conceivably
have determined that the buyer-seller relationship which existed did not
involve an overarching conspiratorial agreement”), on reh’g, 101 F.3d 494
(7th Cir. 1996). We hold only that, under the circumstances of this case,
it was not error to fail to give the instruction Moe requested.
In other circumstances, an instruction on the buyer-seller rule might
well be required. For instance, suppose that another count in Moe’s
indictment had been simple possession based on her purchases from
Ellifritt. Or, suppose that Ellifritt had been named as a defendant and
charged both with the sale (distribution) to Moe and with conspiracy to
distribute downstream. Such cases might present more substantial risk of
a jury mistaking a sale as a basis on which to find a conspiracy between
16 UNITED STATES V. MOE
we accord trial courts in formulating jury instructions, Bauer,
84 F.3d at 1560, we are not prepared to hold that the district
court erred in this case when it denied Moe’s requested
buyer-seller instruction.
C. Cross-Examination
Finally, Moe asserts that the trial court erred when it
curtailed cross-examination of Ellifritt aimed at showing that
he associated with other individuals and was involved in
other conspiracies. Specifically, Moe suggests that had
defense counsel been allowed to conduct the cross
examination he prepared, there is no doubt that the jury
would have realized that there was no single conspiracy
involving many but at most a random collection of named
drug users and sellers. She asserts that this resulted in a denial
of her Fifth and Sixth Amendment rights to defend the case
brought against her. The district court, for its part, concluded
that the testimony was not relevant.
Criminal defendants have a constitutional right to “a
meaningful opportunity to present a complete defense.”
Holmes v. South Carolina, 547 U.S. 319, 324 (2006)
(quotation marks omitted). With respect to cross-
examination, “trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the
issues.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
And “[a] limitation on cross examination does not violate the
a buyer and seller in the absence of a more explicit instruction detailing
the distinction. In these and other circumstances, a buyer-seller instruction
might be necessary. In this case, however, it was not.
UNITED STATES V. MOE 17
Confrontation Clause unless it limits relevant testimony.”
United States v. Holler, 411 F.3d 1061, 1066 (9th Cir. 2005)
(quotation marks omitted). Here, the testimony was not
relevant because the multiple conspiracy theory of defense
did not apply. That Ellifritt might have had dealings with
others did not tend to disprove the possibility of the alleged
conspiracy between Moe and Ellifritt. Thus, the district court
did not err by limiting the cross-examination of Ellifritt to the
conspiracy that was charged.
III. Conclusion
We affirm Moe’s conviction for conspiracy under 21
U.S.C. § 846.
AFFIRMED.
HURWITZ, Circuit Judge, concurring:
I agree that the instructions in this case, as a whole,
“accurately informed the jury that a conspiracy could not be
found based only on the sales . . . to Moe,” and that Moe
demonstrated no prejudice from the court’s failure to give a
separate buyer-seller instruction. I therefore join the panel
opinion.
Even when the instructions accurately inform the jury of
what is required to find a conspiracy, however, “the line
between a conspiracy and a mere buyer-seller relationship is
difficult to discern.” United States v. Gee, 226 F.3d 885, 895
(7th Cir. 2000). Recognizing this, the Seventh Circuit
sensibly requires district courts to give a buyer-seller
18 UNITED STATES V. MOE
instruction whenever a jury “could conceivably have
determined that the buyer-seller relationship which existed
did not involve an overarching conspiratorial agreement.”
United States v. Mims, 92 F.3d 461, 464 (7th Cir. 1996); Gee,
226 F.3d at 895. To determine if a case “presents one of
those situations,” that court evaluates criteria such as whether
(1) “[t]he proffered evidence of a conspiracy was
circumstantial and not overwhelming,” (2) “[t]he evidence
was as consistent with a buyer-seller relationship as it was
with a conspiracy,” and (3) “[t]he instructions allowed the
jury to make a guilty finding without determining whether the
government had proved the existence of a conspiracy.” Gee,
226 F.3d at 895.
I urge our court to follow the Seventh Circuit. Although
a federal judge or experienced criminal practitioner can
discern that a buyer-seller relationship cannot alone establish
a conspiracy, this concept is far from intuitive for jurors,
particularly when, as here, “the existence of a conspiratorial
agreement was closely contested and conflicting evidence
was presented.” Id. at 896 (internal quotation marks omitted).
The buyer-seller instruction serves “to ensure a jury finding
on this essential element” of conspiracy. Id. (internal
quotation marks omitted).
District courts, of course, have “substantial latitude” in
formulating instructions. United States v. Bauer, 84 F.3d
1549, 1560 (9th Cir. 1996). But properly distinguishing
between a buyer-seller relationship and a conspiracy regularly
goes to the heart of “the essential fairness and integrity of the
trial.” Gee, 226 F.3d at 896 (internal quotation marks
omitted). A buyer-seller instruction facilitates the jury’s
resolution of this recurrent issue, and thus well serves the
interests of justice.