In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4160

United States of America,

Plaintiff-Appellee,

v.

Enrique Rivera,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 3:98-000017-001--Richard L. Young, Judge.

Argued October 22, 2001--Decided December 10, 2001


  Before Flaum, Chief Judge, and Ripple and
Williams, Circuit Judges.

  Flaum, Chief Judge. A jury found Enrique
Rivera guilty of conspiring to possess
with the intent to distribute cocaine in
violation of 21 U.S.C. sec.sec. 841(a)(1)
and 846, and conspiring to conduct
financial transactions from proceeds of
an unlawful activity in violation of 18
U.S.C. sec.1956(a)(1) (A)(i). The
district court imposed a 293-month
sentence for the narcotics conspiracy
count, and a 240-month sentence for the
money laundering count, to run
concurrently with each other and with a
prison sentence imposed in California in
1999. Rivera now contends that the
evidence at trial was insufficient to
support the jury’s verdict that he was a
member of a narcotics trafficking
conspiracy. We agree, and reverse his
conviction on that charge.

I.   Background

  Rivera supplied cocaine to Derrick
Hardin four times between April and July,
1996. The transactions began when Hardin,
who had been purchasing cocaine in
Georgia and Florida, called his friend
George Tyson in April of 1996 and asked
the going rate of cocaine in California.
Tyson, who acted as a middleman in the
transactions between Rivera and Hardin,
informed Hardin that he could buy the
drug at a lower price in California than
he had been paying in the southeast.
Hardin then flew to California to buy a
kilogram of cocaine.

#a.   Transaction One AApril, 1996

  After speaking to Tyson, Hardin flew to
Los Angeles, California, carrying over
$16,000 in cash to purchase cocaine.
Tyson and Rickey Franklin, another
middleman, met him at the airport and
drove with him to Franklin’s home where
Rivera met them to discuss the sale. The
next day, Tyson, Franklin, and Hardin
went to Rivera’s house and Hardin gave
Rivera $15,500--the price Rivera quoted
for one kilogram of cocaine. After giving
Rivera the money, Hardin asked Rivera
whether he could buy more cocaine at an
even lower price in the future. Rivera
responded that, although he might be able
to procure the narcotic at a lower price,
he could not give a specific quote at
that time. Hardin, Franklin, and Tyson
immediately went to another location to
pick up the drugs, as instructed by
Rivera. Hardin paid Tyson $800 and
Franklin $400 for setting up the deal,
flew back to Indiana with the one
kilogram of cocaine, and later sold it to
a buyer for $23,500.

############b.   Transaction Two MMay, 1996

  Hardin again asked Tyson to arrange a
sale of one kilogram of cocaine. Hardin’s
brother, Charles, flew to California with
$16,000 to complete the purchase. Tyson
and Franklin told Charles that Rivera
would be supplying the cocaine, and took
Charles to Franklin’s house where Rivera
met them. After Rivera left the house,
Charles gave Franklin $14,800 and
Franklin gave Charles a kilogram of
cocaine. Charles paid Tyson and Franklin,
and flew back to Indiana where he told
Hardin that he had purchased the cocaine
from Rivera.

#c.   Transaction Three   June, 1996

  Hardin telephoned Tyson a third time and
asked whether it was possible to buy five
kilograms of cocaine at a better price
than the previous one-kilogram purchases.
Tyson called back the next day and
reported that it was. Hardin took $50,000
and flew to Los Angeles. Two couriers
flew separately with an additional
$30,000. Hardin went with Franklin and
Tyson to Franklin’s house. The next day,
Hardin went to Rivera’s house and
discussed the potential five-kilogram
purchase. Rivera informed Hardin that co
caine prices had risen, and that the
price per kilogram was $16,300. Hardin,
unhappy that the price was higher than
anticipated, purchased only three
kilograms. It is unclear from the record
whether he took possession of the three
kilograms of cocaine while at Rivera’s
house or picked it up from another
location. Rivera told Hardin that he
would look around for a day or two and
attempt to locate an additional two
kilograms for a lower price. Hardin
agreed, and asked Rivera to front him the
two kilograms: that is, he asked Rivera
to give him the cocaine without
requesting immediate payment so he could
then sell the drugs on consignment.
Rivera refused to do so. Before Rivera
contacted him about the additional
cocaine but after Rivera had secured it,
however, Hardin purchased two kilograms
from another supplier. Rivera told Hardin
that he was upset that Hardin had used
another seller when he had told him that
he likely would be able to obtain the
cocaine. Hardin replied that he would buy
from Rivera the next time if he could
give him a favorable price. The two
exchanged pager numbers, but made no
specific future plans. Hardin paid Tyson
and Franklin, and flew back to Indiana.
The couriers flew back with the cocaine.

#d.   Transaction Four   July, 1996

  Two weeks after the third transaction,
Rivera paged Hardin and told him that
California cocaine prices were good.
Hardin arranged for his brother, already
in California, to purchase one kilogram
from Rivera, and for a courier to fly
from Indiana to bring Charles the money
and to return with the drugs. The courier
delivered the money to Charles who
contacted Rivera. Rivera sent a third
person to count the money. Charles and
Franklin took the money to Rivera’s
house, and a man who was there at the
time drove to Franklin’s house
immediately afterward with the cocaine.
The courier returned to Indiana with the
narcotics, and was arrested at the
Evansville Regional Airport. Based on
information she gave the police, Hardin
was arrested later that day and Charles
was arrested the next day at the
Evansville airport. Before he left
California, Franklin (not Rivera) fronted
Charles nine additional ounces of
cocaine.

II.    Discussion

  Rivera argues that his conspiracy
conviction should be reversed based on
two grounds. First, he contends, the
evidence showing an agreement to possess
with the intent to distribute cocaine was
insufficient. Second, the district court
gave the jury a misleading and false
instruction regarding a drug dealer’s
participation in a conspiracy, violating
his substantial rights.

A.    Insufficiency of Evidence

  Being part of a buyer-seller agreement
cannot alone sustain a conspiracy
conviction because the sale has no
separate criminal object. United States
v. Torres-Ramirez, 213 F.3d 978, 981 (7th
Cir. 2000). In order to establish that a
narcotics dealer was part of a criminal
conspiracy, the government must show an
agreement to commit a further crime,
usually involving the subsequent
distribution of drugs by the buyer.
United States v. Contreras, 249 F.3d 595
(7th Cir. 2001); Torres-Ramirez, 213 F.3d
at 981; United States v. Lechuga, 994
F.2d 346, 349 (7th Cir. 1993) (en banc).
"[W]e are looking for 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." Contreras, 249 F.3d at
599 (quoting United States v. Pearson,
113 F.3d 758, 761 (7th Cir. 1997))
(internal quotations omitted). Of course,
the government may show such an agreement
with circumstantial evidence. United
States v. Pagan, 196 F.3d 884, 889 (7th
Cir.), cert. denied, 530 U.S. 1283
(2000). Showing that the buyer purchased
a quantity larger than could be used for
personal consumption, however, is not
enough to show conspiracy on behalf of
the seller. Lechuga, 994 F.2d at 349. Nor
is the seller’s knowledge of the buyer’s
illegal activities or resale objectives
enough. Torres-Ramirez, 213 F.3d at 982;
Lechuga, 994 F.2d at 347-50.

  To determine whether a conspiracy exists
between a buyer and seller of illegal
narcotics, this Court has looked to the
following factors: 1) length of
relationship; 2) established method of
payment (for example, fronting); 3) the
extent to which the transactions were
standardized; and 4) the level of mutual
trust between buyer and seller.
Contreras, 249 F.3d at 599. None of these
factors is dispositive. Id. "’[I]f enough
[of the factors] are present and point to
a concrete, interlocking interest beyond
individual buy-sell transactions we will
not disturb the fact-finder’s inference
that at some point, the buyer-seller
relationship developed into a cooperative
venture.’" Id. (quoting United States v.
Hach, 162 F.3d 937, 943 (7th Cir. 1998)).

  Rivera sold cocaine to Hardin four times
over a three-month period. This fact is
uncontested and incontrovertible. Repeat
sales, without more, simply do not place
the participants’ actions into the realm
of conspiracy, however. Id. at 600. While
we review the evidence in the light most
favorable to the government and defer to
the credibility determinations of the
trier of fact, Jackson v. Virginia, 443
U.S. 307, 319 (1979), the government
cannot show that Rivera conspired with
Hardin or with anyone else. What it does
show is a "series of spot dealings at
arm’s length between dealers who have no
interest in the success of each other’s
enterprise." Lechuga, 994 F.2d at 349.
The evidence that the government
presented is just too modest to support
the conspiracy charge found by the
district court. There is no evidence that
Rivera fronted cocaine to Hardin. He
expressly refused to do so. No other
established method of payment existed
that suggests Rivera’s participation in a
conspiracy. The argument that the
government advances-- that Hardin sold
the cocaine that he bought from Rivera
and reinvested the profits into larger
purchases from Rivera, therefore an
established method of payment existed--
is unviable. If that were the case, every
repeat seller would also have an
established method of payment and two of
the factors of conspiracy would be shown
from the mere fact of repeated dealings.
Factors one and two are distinct,
however, and again, this Court has held
that mere repeated dealing, on its own,
does not establish a conspiracy.
Contreras, 249 F.3d at 600. Furthermore,
there is nothing to support the
contention that the transactions were
standardized; they involved different
people, different prices, different
locations, and different methods of
payment and delivery. The government did
not show a high level of trust between
Rivera and Hardin. While the evidence
does show that Hardin placed a limited
amount of trust in Rivera--he or his
brother twice paid first and received
delivery of the cocaine later in the day-
-"many a buyer in an ordinary commercial
sale pays first and receives delivery
later." Torrez-Ramirez, 213 F.3d at 982.
Evidence of such a system does not
suggest a level of trust that would allow
the fact finder to infer a conspiracy.
Furthermore, if it shows any trust at
all, it is of the non-mutual variety. If
anything, Rivera’s requiring payment
before delivery of the cocaine shows a
lack of trust in Hardin, Tyson, Franklin,
and the other charged co-conspirators.

  In short, the evidence in this case
shows none of the plus factors necessary
to infer the evolution from a mere-buyer-
seller arrangement to a conspiracy. To
hold otherwise would directly contradict
Contreras, a case decided this year which
we are unwilling to revisit. The
government argues that in that case, the
seller did not offer the buyer a
favorable price on future sales and that
the prolonged cooperation shown here did
not exist. Rivera merely invited Hardin
to deal in the future. The government
showed only that Rivera wanted Hardin’s
business--that is indicative of a buyer-
seller relationship, not a conspiracy.
Moreover, Rivera did not cooperate with
Hardin in any way not present in the
buyer-seller relationship in Contreras.
There were multiple sales over a number
of months in both cases (although even
that evidence is not as strong in the
present case: Rivera sold cocaine to
Hardin four times over three months.
Contreras sold cocaine to a buyer ten
times over six to ten months). The cases
are not distinguishable in any meaningful
way.

  The government convincingly showed that
Rivera is guilty of distributing
narcotics. Unfortunately, Rivera was not
charged with drug distribution because
that crime could not be prosecuted in
Indiana; proper venue would have been in
California only. Torres-Ramirez, 213 F.3d
at 981 (citing United States v.
Rodriguez-Moreno, 526 U.S. 275 (1999)). A
conspiracy conviction is not a simple
substitute for a drug distribution
conviction. No matter how overwhelmingly
the government showed Rivera’s
participation in drug sales, it did not
show his agreement to join in a further
crime. Rivera’s conspiracy conviction is
therefore reversed. His money laundering
conviction, of course, still stands.

B.   Improper Jury Instruction

  Although our holding rests on the
insufficiency of the evidence, we also
agree with Rivera that the district
court’s jury instruction number 12 was
misleading. The instruction read:

In order to find Enrique Rivera as part
of a conspiracy, you need to find he made
an agreement to join the conspiracy to
distribute 5 or more kilograms of a
substance of mixture containing a
detectable amount of cocaine. An
agreement can be inferred in several
instances. For example, an agreement can
be inferred when:

(1) a dealer "fronts" drugs to his
customer because his payment depends on
the success of the resale venture; or

(2) when a dealer participates in more
than one sale; that is, the dealer
participates in multiple sales.

As discussed above, this Court has held
that none of the factors used to
determine whether a conspiracy
existedbetween a seller and buyer is
sufficient, standing alone, to support a
conspiracy conviction. The instruction
told the jury that a conspiracy could be
inferred either when a dealer fronts
money or when he participates in multiple
sales. Our case law says otherwise, as
cited above. Also, this Court has held
that "[d]istrict judges should inform
juries that repeated transactions do not
constitute a conspiracy." United States
v. Gee, 226 F.3d 885, 895 (2000) (citing
United States v. Thomas, 150 F.3d 743,
745 (7th Cir. 1998)). The court in the
instant case informed the jury of the
opposite. The instruction could likely
have misled the jury into finding a
conspiracy when the government did not
supply facts to support the elements of
that crime.

  We review the instruction for plain
error. United States v. Mims, 92 F.3d
461, 465 (7th Cir. 1996). To find plain
error, the instruction must have affected
Rivera’s substantial rights. Id. That is,
we must determine that the error
"substantially affects the fairness,
integrity, or public reputation of
judicial proceedings." Id. (citing United
States v. Olano, 507 U.S. 725, 732-36
(1993)). Here, the district court’s error
had serious potential to affect the
outcome of the case. Therefore, even if
the evidence was adequate to support the
conspiracy conviction, this instruction
may have undermined the essential
fairness and integrity of the trial, man
dating reversal of the conspiracy
conviction. Gee, 226 F.3d at 896
("[W]here, as here, ’the existence of a
conspiratorial agreement was closely
contested and conflicting evidence was
presented on the issue, the failure to
ensure a jury finding on this essential
element undermined the essential fairness
and integrity of the trial.’ "); Mims, 92
F.3d at 465-66.

  However, because the evidence was not
adequate, as shown above, we need not
make such a finding.

III.   Conclusion

  Because the government failed to produce
evidence showing that Rivera agreed "to
commit some other crime beyond the crime
constituted by the [sale] itself,"
Lechuga, 994 F.2d at 349, we REVERSE
Rivera’s conspiracy conviction and REMAND
this case to the district court for
resentencing.
