United States v. Herberto Pulgar

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3503
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HERBERTO PULGAR,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:13-cr-30025 — Sue E. Myerscough, Judge.
____________________
ARGUED MAY 18, 2015 — DECIDED JUNE 19, 2015
____________________
Before KANNE and SYKES, Circuit Judges, and ELLIS,
District Judge. *
KANNE, Circuit Judge. Markets, at bottom, exist for two
sets of people: buyers and sellers. In the context of the illegal
drug market, we attach sundry titles to members from either
* Of the Northern District of Illinois, sitting by designation.
2 No. 14-3503
set—dealer, distributor, trafficker, etc. But to attach the title
of conspirator, there must be something else happening in
the marketplace besides merely buying and selling some il-
legal drug. There must be an agreement between two or
more parties to commit a crime distinct from the sale itself.
Here, the government alleged that Appellant Herberto
Pulgar entered into such an agreement with Klinton Schmidt
and Michael Myers—namely, to distribute 5 kilograms or
more of cocaine. 1 See 21 U.S.C. §§ 846, 841(a)(1) and
(b)(1)(A). But there was one problem for the government:
Pulgar never met Myers. Only Schmidt had. So at trial, the
government focused on Pulgar’s transactions with Schmidt
to prove the conspiracy charge. Largely through Schmidt’s
testimony, the government offered evidence that: (1) Pulgar
sold large quantities of cocaine to Schmidt at wholesale pric-
es for over ten years; (2) Pulgar fronted cocaine to Schmidt;
(3) Pulgar accepted returns from Schmidt when lousy co-
caine did not sell; and (4) Pulgar enjoyed a friendship with
Schmidt.
At the outset, we note that Pulgar vigorously disputed
the government’s evidence of fronting, as well as the gov-
ernment’s evidence of a so-called “return policy.” Pulgar is
steadfast on appeal.
After a four-day trial, the jury returned a split verdict. It
convicted Pulgar on the conspiracy count, although it found
1 The government also alleged Pulgar distributed 500 grams or more of
cocaine. See 21 U.S.C. §§ 841(a)(1)-(b)(1)(B). Pulgar contested both charg-
es. Schmidt and Myers, on the other hand, pled guilty to their respective
charges in related proceedings.
No. 14-3503 3
he conspired to distribute “500 grams or more of cocaine,”
not the “5 kilograms or more” originally charged in the in-
dictment. The jury then acquitted Pulgar of the only other
count—distribution of 500 grams or more of cocaine. Months
later, the district court upheld the conspiracy conviction
when it denied Pulgar’s combined motion for judgment of
acquittal and motion for a new trial.
Pulgar contends the evidence is insufficient to support
the conspiracy conviction. In his view, the government mere-
ly proved a buyer-seller arrangement between him and
Schmidt, which, under our well-established case law, is not
enough to support a drug-distribution conspiracy. The gov-
ernment, of course, disagrees. It argues the evidence estab-
lishes a conspiracy to distribute cocaine, albeit circumstan-
tially. As Pulgar raises no other issues on appeal, we examine
this dispute in great detail. Before we do, some additional
background is necessary.
I. BACKGROUND
A. The Dealings of Pulgar and Schmidt
Pulgar met Schmidt through a mutual friend in 2002. At
the time, Pulgar lived near Chicago, Illinois, and Schmidt
lived in Bloomington, Illinois. Not long after their initial
meeting, Pulgar sold cocaine to Schmidt. Pulgar continued
to sell cocaine to Schmidt at fairly regular intervals—once
every month or so, with the exception of a few, brief hiatus-
es—until March 2013.
The quantities varied, but they trended upward over
time. For example, the first transaction between Pulgar and
Schmidt resulted in a sale of 4.5 ounces for approximately
$2,600. By 2005, the amount increased to nearly half a kilo-
4 No. 14-3503
gram (over 16 ounces) for $12,000 to $16,000—depending on
market demand. By 2010, the amount increased again, this
time to three-quarters of a kilogram (over 26 ounces) for ap-
proximately $27,700.
Just as the quantity and price varied, so too did the place
of purchase. Sometimes Schmidt purchased cocaine from
Pulgar in Chicago, other times in Joliet. Sometimes the deals
occurred at Wendy’s, other times at Best Buy, and still other
times “just off the interstate.” It was not unusual, moreover,
for the meeting place to suddenly change on the way to the
deal. Schmidt never knew what type of vehicle Pulgar would
arrive in—that changed as well. 2
Wherever they met, one fact appeared to be consistent:
Schmidt paid Pulgar in full for the cocaine at the time he re-
ceived it. After Drug Enforcement Agency (“DEA”) agents
arrested Schmidt, he told them that Pulgar never fronted
him drugs and that he always paid for the drugs at the time
of the transaction. This statement is reflected in the reports
of DEA Agents Weiss and Bonnett, who wrote that Schmidt
“always pays for the cocaine when he gets it, and the cocaine
is never fronted to Schmidt by Pulgar.” In fact, no law-
enforcement reports mention anything to the contrary. And
Agent Bonnett testified to the cash-up-front arrangement be-
2 Despite this evidence, the government argued at trial—and suggests on
appeal—that the deals between Pulgar and Schmidt were standardized.
Even if these transactions were standardized, which they were not, our
analysis of the alleged conspiracy would not change. See United States v.
Brown, 726 F.3d 993, 999 (7th Cir. 2013) (observing many standardized
transactions are “equally consistent” with a mere buyer-seller arrange-
ment).
No. 14-3503 5
fore the grand jury, stating Schmidt “was one of those guys
that wanted to pay for everything up front, didn’t want to
owe anybody anything.”
B. Trial Evidence - The Government’s Case-in-Chief
1. Evidence of Fronting3
At Pulgar’s trial, Schmidt changed his story and testified
that Pulgar fronted him cocaine. The only example of front-
ing that Schmidt could remember, though, occurred during a
sham deal that he arranged for the DEA. Schmidt, having
been arrested one month before Pulgar, had been cooperat-
ing with the DEA during that deal.
Schmidt testified that Pulgar wanted to drop off cocaine
while on his way to traffic court in Lincoln, Illinois, and then
pick up the money for the cocaine after his hearing. Pulgar
wisely did not want to bring the payment required for the
cocaine—over $27,000 in cash—into court with him. So he
set up this alternative arrangement with Schmidt to delay
payment for a few hours. This is the only concrete example
of fronting that the government introduced at trial. As it
happens, Pulgar never received the money from that trans-
action; DEA agents arrested him after he dropped off the co-
caine. The jury acquitted Pulgar of this conduct, which
formed the basis of the distribution charge in Count 2.
Schmidt seemed to vaguely recall other evidence of front-
ing. He just could not remember when: “I mean there was
probably a couple times that he fronted them to me. But like
I said, I can’t remember every single time.” Notwithstanding
3 We use the term “fronting” interchangeably with “credit transaction.”
6 No. 14-3503
the vague nature of this testimony, the government assigns it
great weight. The government claims it means Pulgar sold
large amounts of cocaine to Schmidt, multiple times, on cred-
it—a persuasive combination that has established a drug-
distribution conspiracy in other cases. See United States v.
Brown, 726 F.3d 993, 1002 (7th Cir. 2013) (observing “multi-
ple, large-quantity purchases on credit” are considered “suf-
ficient proof” of conspiracy), cert. denied, 134 S. Ct. 1876
(2014).
Additionally, the government argues that this evidence is
supported by recorded phone calls between Pulgar and
Schmidt, where Pulgar at least initially discussed fronting
cocaine to Schmidt. The government emphasizes the fact
that one of these discussions actually “resulted in a whole-
sale distribution on credit.” Remarkably though, that discus-
sion, which indeed resulted in an instance of fronting, also
resulted in Pulgar’s arrest. For as we mentioned above, it
was precipitated by Schmidt’s cooperation with the DEA.
The government acknowledged as much during its closing
argument, but maintained the example could still count
against Pulgar: “You heard evidence of a credit transaction.
… [T]he plan was to leave the money behind and pick it up
on the way back. Didn’t work out that way, but that was the
plan.”
Aside from what we just detailed, the government of-
fered no other evidence of credit transactions between Pul-
gar and Schmidt. So the government turned its focus to other
facts that it believed helped prove the conspiracy: returns of
cocaine and a burgeoning friendship between Pulgar and
Schmidt.
No. 14-3503 7
2. Evidence of a Return Policy and a Friendship
During direct examination of Schmidt, the government
introduced evidence of an alleged return policy between him
and Pulgar:
A. Okay. The cocaine, if it was real bad, I could give it
back to him.
Q. Was this some sort of … return policy or some-
thing?
A. Yeah, I guess you could say that -- call it that.
Q. How many times would you say that happened
during your relationship?
A. Maybe just a couple. Two or three.
The government relies heavily on this testimony. It also
points out that Pulgar screened the cocaine for quality before
he sold it to Schmidt. A return policy, the government ar-
gues, demonstrates that “no transaction between Schmidt
and Pulgar was final until Schmidt resold the drugs.” That in
turn means that Pulgar held a “stake in the venture” of
Schmidt’s downstream sales, which in turn demands an in-
ference of conspiracy to distribute cocaine. Or so the argu-
ment goes.
Not so, contends Pulgar. For he reads Schmidt’s testimo-
ny differently. Pulgar first notes that evidence of a return
policy—like evidence of fronting—did not surface until
Schmidt testified at trial. And when it did surface, the gov-
ernment’s introduction of the phrase “return policy” seemed
to catch Schmidt by surprise: “Yeah, I guess you could say
that -- call it that.” Thus, Pulgar contends that the alleged
“return policy” is little more than a rebranding effort by the
8 No. 14-3503
government to help support its conspiracy case. As he puts
it, “2-3 returns of poor quality cocaine over 11 years surely
do not constitute a return policy.”
The stakes on this point are high. For when a “seller
permits the buyer to return unsold drugs,” he stands on the
precipice of a consignment sale. Brown, 726 F.3d at 999. And
consignment sales are “quintessential evidence” of a drug-
distribution conspiracy. Id. (citing Johnson, 592 F.3d at 755
n.5)). But other factors are typically involved in consignment
sales. A middleman is usually present, and profits are de-
layed “until the middleman distributes the drugs to others.”
Johnson, 592 F.3d at 755 n.5 (explaining that, in a consign-
ment sale, “the supplier will not get paid until the middle-
man resells the drugs.”) (citations omitted). We address this
point in greater detail below.
The last piece of government evidence worth mentioning
is that of a bourgeoning friendship between Pulgar and
Schmidt. This friendship, the government argues, shows a
trusting, close-knit relationship between Pulgar and Schmidt
from which a rational jury could infer conspiracy. But the
evidence is not overwhelming. It consists of two vacations,
one baby shower, and one house renovation. Specifically,
Schmidt testified that their families went on joint vacations
to Mexico and Jamaica. Schmidt also testified that he attend-
ed Pulgar’s baby shower, and that Pulgar helped renovate
his house. “All of this suggests,” the government argues,
“the men were not a buyer and seller dealing solely at arm’s-
length.”
No. 14-3503 9
3. A Brief Summary
Based on all of Schmidt’s testimony, which to recap de-
scribed multiple transactions of large-quantity cocaine, one
example of fronting, two or three returns of lousy cocaine
over an eleven-year period, and a burgeoning friendship be-
tween Pulgar and Schmidt, the government pieced together
its conspiracy case against Pulgar. To be sure, the govern-
ment introduced other evidence besides Schmidt’s testimony.
It introduced recordings. It introduced the testimony of
Agent Bonnet, for example. But there is no doubt that
Schmidt played the leading role in the government’s case.
We turn now to Pulgar’s case-in-chief, which, unsurprisingly,
also relied on Schmidt’s testimony.
C Trial Evidence - The Defendant’s Case-in-Chief
Schmidt played an equal—if not greater—role for the de-
fense. Indeed, he played two: slimy criminal and independ-
ent businessman. The former is straightforward. During
cross-examination, Pulgar impeached Schmidt by introduc-
ing his multiple felony convictions. Schmidt’s record features
four drug convictions, one firearm conviction, and one DUI
conviction. Pulgar further impeached Schmidt with his prior
inconsistent statements regarding fronting (recall he flip-
flopped on that issue) and marijuana transactions. Regard-
ing the marijuana transactions, Schmidt initially told agents
that Pulgar was his only source for marijuana (when he was
not in the mood for cocaine), but he later admitted that he
had other sources for marijuana. Schmidt also admitted that
he enjoys marijuana so much that his email address is a
shortened version of “bud sack” spelled backward.
10 No. 14-3503
Schmidt’s other role—independent businessman—is also
straightforward. With considerable frequency, Schmidt of-
fered testimony that he was his own man—a fact at odds
with the alleged drug-distribution conspiracy. The following
excerpt is a good example:
Q. If you made $4 million or nothing, that had noth-
ing to do with [Pulgar], did it?
A. No.
Q. That’s all on you? Your customers, your business;
correct?
A. Yes.
Vexing the government, Schmidt did not stop there. He
testified that he did not consult with Pulgar on any of his
deals. He testified that once he purchased the cocaine, the
task of selling it was his and his alone. He also testified that
he never introduced any of his customers to Pulgar. Michael
Myers, the other member of the alleged conspiracy, was
Schmidt’s sole “guy.” And Myers was “totally separate and
apart from anything Schmidt had going on with Pulgar.”
Schmidt also testified that Pulgar did not force him to share
his profits after the sales. Pulgar contends this evidence, jux-
taposed against the government’s case, shows nothing more
than a buyer-seller arrangement between him and Schmidt.
But there is more. Sometimes evidence not introduced
can be just as powerful as evidence introduced. Accordingly,
Pulgar highlights the following missing pieces in the gov-
ernment’s case: (1) no evidence that Pulgar or Schmidt
warned each other about threats to their business; (2) no evi-
dence that Pulgar provisioned Schmidt with any cell phones,
cutting agents, scales, bags for packaging, or any other tools
No. 14-3503 11
or supplies to further Schmidt’s drug sales; (3) no evidence
that, when Schmidt did return cocaine, Pulgar refunded his
money or gave him a credit for other cocaine; and (4) no evi-
dence that Pulgar and Schmidt were ever on the same side of
a transaction. Needless to say, Pulgar contends the govern-
ment’s silence on these matters is significant.
With these facts in mind, we turn to the merits.
II. ANALYSIS
We review challenges based on the sufficiency of the evi-
dence in the light most favorable to the government. United
States v. Bey, 725 F.3d 643, 649 (7th Cir. 2013). Typically, we
will overturn a conviction only when “the record is devoid
of evidence” from which a reasonable jury could find the de-
fendant guilty beyond a reasonable doubt. United States v.
Campbell, 770 F.3d 556, 568 (7th Cir. 2014). But drug-
distribution conspiracies hold a unique position in our legal
sufficiency jurisprudence. In these special cases, we will also
overturn a conviction when the plausibility of a mere buyer-
seller arrangement is the same as the plausibility of a drug-
distribution conspiracy. See United States v. Johnson, 592 F.3d
749, 755 (7th Cir. 2010) (“In this situation, the evidence is in
equipoise … so the jury necessarily would have to entertain
a reasonable doubt on the conspiracy charge.”).
This standard is a function of the government’s burden of
proof. For it must prove “an agreement to distribute drugs
that is distinct from evidence of the agreement to complete
the underlying drug deals.” Johnson, 592 F.3d at 755 (empha-
sis added). Evidence of an agreement to advance further dis-
tribution—beyond the initial transaction—is therefore re-
quired. United States v. Lechuga, 994 F.2d 346, 349 (7th Cir.
12 No. 14-3503
1993) (en banc). Notably, this requirement has upset many
convictions in this circuit. See, e.g., Johnson, 592 F.3d at 759
(vacating conspiracy conviction because the government
proved only a buyer-seller arrangement); United States v. Co-
lon, 549 F.3d 565, 569–72 (7th Cir. 2008) (same); United States
v. Contreras, 249 F.3d 595, 601–02 (7th Cir. 2001) (same); Unit-
ed States v. Rivera, 273 F.3d 751, 757 (7th Cir. 2001) (same);
United States v. Baker, 905 F.2d 1100, 1106–07 (7th Cir. 1990)
(same).
A conspiracy requires a showing that (1) two or more
people entered into an agreement to distribute drugs, and (2)
the defendant knowingly and intentionally joined in the
agreement. Johnson, 592 F.3d at 754. Sometimes agreements
to distribute drugs are express; most times they are not.
When they are not, the government may offer circumstantial
evidence of these agreements. Brown, 726 F.3d at 998. Cir-
cumstantial evidence may include “multiple, large-quantity
purchases, on credit.” Id. at 1002. It may also include sales on
consignment, payment of commission on sales, agreements
to warn of threats to the flow of drugs, and provision of tools
to advance the distribution. Id. at 999–1005.
Importantly, there is no rigid list or formula to prove a
conspiracy in the absence of an express agreement. Brown,
726 F.3d at 1002 (“[O]ur list of example considerations may
make it sound as if we are checking off boxes and only look-
ing for specified indicia. That is not the case.”) (emphasis add-
ed). We employ a totality-of-the-circumstances approach in
these cases. In doing so, “[w]e take into account all the evi-
dence surrounding the alleged conspiracy and make a holis-
tic assessment of whether the jury reached a reasonable ver-
dict.” Id.
No. 14-3503 13
Here, Pulgar contends that the government adduced in-
sufficient evidence to support the conspiracy conviction. In
his view, the government established nothing more than a
lengthy series of spot transactions between 2002 and 2013.
These transactions support a buyer-seller arrangement, but
not a conspiracy to distribute cocaine. At most, Pulgar con-
tends, the evidence stands in equipoise and demands rever-
sal. Viewing the record in the light most favorable to the
government, we agree with Pulgar.
The government introduced insufficient evidence to
prove a conspiracy. Specifically, the government did not
prove Pulgar entered into an agreement with Schmidt to dis-
tribute cocaine. Pulgar, no doubt, sold large quantities of co-
caine to Schmidt at wholesale prices for a period of eleven
years. Pulgar admits as much on appeal. But “[r]epeat sales,
without more, simply do not place the participants’ actions
into the realm of conspiracy.” Rivera, 273 F.3d at 755; see also
United States v. Pereira, 783 F.3d 700, 704–05 (7th Cir. 2015)
(“Quantity and frequency are circumstantial evidence of
conspiracy to distribute drugs and when they are coupled with
evidence of credit sales and other evidence of cooperation … there
is a basis for the jury to distinguish the alleged conspiracy
from the underlying buyer-seller relationship.”) (emphasis
added) (citation and internal quotation marks omitted).
In Pereira, we affirmed a drug-distribution conspiracy
conviction. Id. at 705. There, like here, the government estab-
lished that the appellant purchased large quantities of drugs
on multiple occasions. Id. at 701. Significantly, however, the
government also established that the appellant “never pro-
vided payment” for the drugs “at the time of delivery[.]” Id.
Instead, he would receive the drugs, distribute them to his
14 No. 14-3503
associates, and then not take payment until his associates
sold out of their re-distributed supply. Id. at 702. In short,
credit transactions were the norm in Pereira. Additionally,
the government established that the appellant paid his asso-
ciates to: (1) store the drugs, and (2) ship large quantities of
money. Id. at 702–03. On at least one occasion, moreover, the
appellant chided his chief associate “for not charging
enough” to his downstream customers. Id. at 702.
The facts of Pereira are far removed from this case. First,
Pulgar never expressed approval or disapproval for what
Schmidt eventually charged for the cocaine. Once Pulgar
sold the cocaine to Schmidt, Schmidt charged whatever he
alone wanted to charge.
Second, the government did not establish that Pulgar and
Schmidt engaged in credit transactions during their business
relationship. Its only example of a credit transaction oc-
curred during a deal that Schmidt helped arrange for the
DEA, and, of course, Pulgar cannot be on the hook for that.
See United States v. Corson, 579 F.3d 804, 811 (7th Cir. 2009)
(“[A]n agreement must exist among coconspirators, that is,
those who actually intend to carry out the agreed-upon
criminal plan. A defendant is not liable for conspiring solely
with an undercover government agent or a government in-
formant.”) (emphasis in original) (citations omitted).
Putting to one side the fact that by that point Schmidt
was working for the government, the deal itself does not
showcase a credit transaction indicative of conspiratorial be-
havior; it showcases an adapted arrangement designed for
self-preservation. Pulgar did not want to bring $27,000 in
cash with him to traffic court. So to avoid suspicion, he
dropped off the cocaine with the intention of picking up the
No. 14-3503 15
money a few hours later on his way home from court. “This
is not conspiratorial behavior; it is self-preservation.” John-
son, 592 F.3d at 757.
And it was the exception—not the rule. For example,
over the course of their eleven-year relationship, Schmidt
testified that Pulgar “probably” fronted cocaine to him “a
couple” other times, he just could not remember when. This
evidence is vague and incomplete. Contrast it with Pereira,
supra, and United States v. Cabello, 16 F.3d 179, 180–82 (7th
Cir. 1994). In Cabello, a key government witness testified that
the appellant was fronted cocaine “from 1988 through 1990
… on a daily basis[.]” Id. at 180 (emphasis added) (internal
quotation marks omitted). We affirmed the conspiracy con-
viction there, finding specific evidence of repeated, fronted
cocaine deals demonstrated that the appellant “had know-
ingly joined the conspiracy.” Id. at 182 (collecting cases
where fronting indicated conspiracy). In this case, the gov-
ernment’s evidence of fronting does not supply a similar in-
ference.
The government’s evidence of an alleged return policy
fares no better. Like the evidence of fronting, it is vague and
incomplete. Schmidt testified that, over the course of his
eleven-year relationship with Pulgar, he “[m]aybe” returned
cocaine “[t]wo or three” times. He did not say when. He did
not say how. And he did not say whether he received a
refund or a credit from Pulgar for his troubles. In its brief,
the government suggests this testimony demonstrates the
16 No. 14-3503
two engaged in consignment sales. 4 It does not. See Johnson,
592 F.3d at 756 n.5 (“A consignment sale that permits the
middleman to return the unused drugs is quintessential
evidence of a conspiracy because it shows that the supplier
will not get paid until the middleman resells the drugs.”).
There is no middleman in this case. There is Pulgar, and
there is Schmidt. Myers is the only other named member of
the charged conspiracy, but Pulgar never met him or dealt
with him; he was Schmidt’s “guy.” More important, the gov-
ernment introduced no evidence that Pulgar gave Schmidt
the option to pay him once he resold the returned drugs (on
the two or three occasions that he actually returned them).
To the contrary, overwhelming evidence shows that Pulgar
received all his money at the initial point of sale. This is not
the “quintessential evidence of a conspiracy” that we de-
scribed in Johnson, 592 F.3d at 756 n.5, and in Brown, 726 F.3d
at 999.
Deferential review does not require accepting a tortured
interpretation of the evidence. Reviewing this record in the
light most favorable to the government, we fail to see how
this evidence even qualifies as proof of a standing return
policy. To reiterate, these returns only “[m]aybe” happened
“[t]wo or three” times over a span of eleven years. And
Schmidt, the government’s key witness, had his doubts: “I
guess you could … call it [a return policy]” (emphasis add-
ed). We therefore reject the government’s argument regard-
4 The government concedes, however, that the majority of transactions
between Pulgar and Schmidt were not consignment sales as the term is
commonly understood.
No. 14-3503 17
ing this evidence. Two or three returns over an eleven-year
period—without any additional details—does not a return
policy make. 5
Furthermore, the fact that Pulgar may have screened the
cocaine for quality before he sold it to Schmidt does not
change this result. Sellers often perform a quality assurance
review before they sell their goods. Such a review is de-
signed to prevent returns and to ensure repeat business.
These goals apply with equal force to the illegal drug mar-
ket, where sellers are similarly focused on maximizing prof-
its. Here, quality screening does not make it any more or less
likely that Pulgar engaged in a conspiracy to distribute co-
caine.
That leaves the government with evidence of vacations, a
baby shower, and a home renovation project—events shared
jointly by Pulgar and Schmidt and family. While this evi-
dence shows a level of intimacy indicative of something
more than a buyer and seller dealing at arm’s length, it must
“be placed in context before an inference of participation in a
conspiracy can be drawn.” Colon, 549 F.3d at 568. Here, con-
5 Because we reject the government’s argument on this point, finding the
alleged “return policy” to be a forced interpretation of the evidence, we
save for another day the question of whether our precedent on returns
conflicts with that of the Fifth Circuit. Compare United States v. Delgado,
672 F.3d 320, 333–34 (5th Cir. 2012) (en banc) (finding the existence of a
return policy to be persuasive evidence of a drug-distribution conspira-
cy), with United States v. Nunez, 673 F.3d 661, 665 (7th Cir. 2012) (describ-
ing “returns for refunds” as “normal incidents of buyer-seller relation-
ships, spot or otherwise”).
18 No. 14-3503
text tells us that Pulgar and Schmidt enjoyed an eleven-year
relationship, during which time they met, on average, once
every other month (aside from a few, brief hiatuses). It is not
surprising that a friendship blossomed over the course of the
same period. Ruth Klein, The Everything Guide To Being A
Sales Rep: Winning Secrets To A Successful—and Profitable—
Career! 176 (2006) (“Successful sales professionals often find
that they and their customers become good friends.”). With-
out evidence of repeated fronting, sales on consignment,
provisioning of tools or supplies, 6 warnings of threats to the
business, or some other signal that the two enjoyed a height-
ened level of trust indicative of a drug-distribution conspira-
cy, we cannot infer anything nefarious from this friendship.
In sum, the record of trial does not support the conspira-
cy conviction. Employing the most charitable view of the ev-
idence, it is just as plausible that a mere buyer-seller ar-
rangement existed as it is that a conspiracy to distribute
drugs existed. Consequently, any rational jury examining
this case would harbor a reasonable doubt as to Count 1–the
sole count on which Pulgar was convicted.
III. CONCLUSION
Pulgar may have been a dealer, but he was no conspira-
tor. Because the government failed to satisfy its burden of
proof in this drug-distribution conspiracy case, we VACATE
Pulgar’s conviction and sentence.
6 In Brown, for example, we affirmed a conviction where the appellant
was provisioned with prepaid cell phones and a car featuring a secret
compartment to hide drugs. 726 F.3d at 1006. Supplies of this sort are not
present here.