In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2229

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ELISEO CONTRERAS,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Indiana, Hammond
Division.
No. 99 CR 26--Rudy Lozano, Judge.


ARGUED SEPTEMBER 21, 2000--DECIDED APRIL 25,
2001



  Before ROVNER, DIANE P. WOOD, and WILLIAMS,
Circuit Judges.

  ROVNER, Circuit Judge. A jury convicted
Eliseo Contreras on charges that he
conspired with others to possess cocaine
with the intent to distribute the
narcotic, see 21 U.S.C. sec. 846, and
that he possessed cocaine with the intent
to distribute on five separate occasions,
see 21 U.S.C. sec. 841(a)(1). Judge
Lozano ordered him to serve a prison term
of 200 months. Contreras contends on
appeal that the record does not support
the inference that he conspired with one
or more other individuals in pursuit of
his drug trafficking. With that
contention we agree, and consequently we
will vacate his conviction on the
conspiracy charge. Contreras also argues
that the drug quantity for which the
district court held him to account at
sentencing lacks the support of reliable
evidence. That argument we do not find
persuasive, and so we shall affirm his
sentence as modified to reflect the
vacation of his conspiracy conviction.

I.
  On four occasions in the Fall of 1997--
September 29, October 15, November 6, and
November 14--Contreras distributed
cocaine to a paid confidential informant,
Roberto Nunez. Nunez was working with
East Chicago, Indiana police officer
David Zamora, who was assigned to a high
intensity drug trafficking task force of
the U.S. Drug Enforcement Administration.
These four transactions would become the
basis for Counts Two through Five of the
indictment against Contreras, which
charged him with the possession of
cocaine with the intent to distribute.

  Contreras distributed cocaine to Nunez
on two additional dates during this same
time period--October 24 and October 28.
According to Nunez, each of these
transactions involved a third person. On
October 24, Zamora dropped Nunez near El
Sombrero bar, where Nunez had previously
purchased cocaine from Contreras. On this
occasion, he intended to purchase one
ounce of cocaine. When he discovered that
Contreras was not present at the bar,
Nunez asked another man he knew to be
involved in drug trafficking, Mike
Villanueva, to call Contreras. Villanueva
obliged him, left the bar, and later
returned with an ounce of cocaine he said
he had obtained from Contreras. On
October 28, Nunez returned to El
Sombrero, again with the intent to
purchase an ounce of cocaine from
Contreras; again Contreras was not
present. Nunez testified that he asked a
man by the name of Luis Manuel Eulloqui,
known to him as "Triste," to get in touch
with Contreras. Triste subsequently left
the bar, walked to Contreras’ residence,
and returned to the bar with the cocaine
that Nunez wanted.

  Zamora’s testimony regarding these two
transactions differed from Nunez’s in
certain important respects. Zamora
testified that after Nunez entered the
bar on October 24, Nunez contacted him to
report that someone in the bar had
contacted Contreras, and that Triste
would be leaving the bar to retrieve the
cocaine from Contreras. Zamora and fellow
surveillance agents subsequently observed
Triste leave El Sombrero, walk to
Contreras’ apartment (five to six blocks
away from the bar), enter, exit, walk
back to the bar, and meet with Nunez. As
for the October 28 transaction,
surveillance agents, consistent with
Nunez’s version, did see Triste leave the
bar, walk to Contreras’ residence, and go
inside. But according to Zamora, Triste
never came out. Instead Nunez contacted
Zamora and explained that Contreras
wanted Nunez to come to his apartment.
Nunez subsequently walked to the
apartment and picked up the cocaine.

  Based on the evidence obtained as a
result of these transactions, Zamora
procured a search warrant for Contreras’
apartment, which members of the task
force executed on November 25. Agents
discovered a total of 829.6 grams of
cocaine in Contreras’ freezer, along with
$5,000 in cash. According to Zamora, who
participated in the search, the packaging
of the cocaine (in three separate
quantities of roughly 275 grams each) was
indicative of distribution. Contreras’
possession of this cocaine formed the
basis for Count Six of the indictment.
Agents also recovered a digital scale
from a kitchen cabinet and a .38 caliber
handgun loaded with hollow-point
ammunition from a dresser. Contreras was
present when his apartment was searched
and was placed under arrest. According to
Zamora, after Contreras was advised of
his rights, he admitted that an
unidentified Hispanic individual had
dropped off a kilogram of cocaine at his
residence on ten separate occasions in
the previous six months.

  At the close of the government’s case-
in-chief and again at the close of all
evidence, Contreras moved for a judgment
of acquittal on all charges in the
indictment, including the conspiracy
charge set forth in Count One. The court
denied these motions, and the jury
convicted him on all counts.

  In his pre-sentence report, the
probation officer recommended that
Contreras be sentenced based on a drug
quantity of 11.2148 kilograms of cocaine.
See United States Sentencing Guidelines
sec. 1B1.3. That quantity included the
135.2 grams of cocaine that Contreras
sold to Nunez on the four occasions
referenced in Counts Two through Five of
the indictment, the 829.6 grams of
cocaine that was discovered in the search
of Contreras’ apartment on November 25,
another 0.25 kilograms of cocaine
corresponding to the $5,000 in cash
(presumed to be drug proceeds) found in
Nunez’s freezer on the same date, and an
additional ten kilograms which, according
to Contreras’ statement to Zamora, the
unknown Hispanic male had distributed to
Contreras in the months preceding his
arrest.

  Contreras objected to the inclusion of
the ten kilograms, denying that he had
ever made a statement to Zamora admitting
receipt of this amount. In view of the
objection, the district court took
evidence as to the appropriate drug
quantity. Zamora took the witness stand,
and he again testified that Contreras had
admitted receiving ten one-kilogram
quantities of cocaine from the
unidentified Hispanic male. But, Zamora
now testified, Contreras said he had
received these kilogram quantities at the
rate of one per month over the ten months
immediately preceding his arrest, not six
months. Contreras himself testified at
sentencing as well. According to
Contreras, Zamora never asked him
anything about the quantities of cocaine
he had trafficked.

  The district court credited Zamora’s
testimony, and thus concluded that the
Hispanic male had supplied Contreras with
ten kilograms of cocaine for distribution
in the months preceding his arrest. The
court found that Contreras had received
three of these kilograms within the time
frame of the conspiracy charged in the
indictment--September through November
1997. Coupled with the other cocaine
amounts involved in Counts Two through
Six, this brought the drug quantity to
roughly 3.9 kilograms. The court treated
the remaining seven kilograms that
Contreras received from the Hispanic male
as relevant conduct. See U.S.S.G. sec.
1B1.3(2) & application note 9(B).
Consequently, the court held Contreras to
account for a total of 10.9 kilograms of
cocaine./1 The inclusion of the 10
additional kilograms had the effect of
raising the base offense level from 26 to
32. Adjustments for possession of a gun
in the course of a drug offense and
obstruction of justice, see U.S.S.G.
sec.sec. 2D1.1(b)(1), 3C1.1, produced a
final offense level of 36, and a
sentencing range of 188 to 235 months.
The court ordered Contreras to serve a
prison term of 200 months.

II.
A.

  The conspiracy charge against Contreras
required, inter alia, proof that he and
at least one other person agreed to
possess cocaine with the intent to
distribute. E.g., United States v.
Billops, 43 F.3d 281, 284 (7th Cir.
1994), cert. denied, 514 U.S. 1030, 115
S. Ct. 1389 (1995). Although the
government need not always establish
specifically with whom the defendant
conspired, see United States v.
Stephenson, 53 F.3d 836, 846 (7th Cir.
1995), citing United States v. Smith, 995
F.2d 662, 666 (7th Cir. 1993), cert.
denied, 510 U.S. 1056, 114 S. Ct. 718
(1994), it must nonetheless establish
that a conspiratorial agreement existed
between the defendant and another
individual, see United States v.
Carraway, 108 F.3d 745, 750 (7th Cir.)
(per curiam), cert. denied, 522 U.S. 891,
118 S. Ct. 228 (1997). The existence of
that agreement may be proved
circumstantially. See, e.g., id. As we
discuss in greater detail below, the
evidence in this case reveals that
Contreras transacted illicit business
with a number of different individuals,
purchasing cocaine from one and selling
cocaine to or through several others. At
one time or another, the government has
suggested that all of these individuals
were participants in a conspiracy with
Contreras. Contreras, on the other hand,
contends that the evidence at most
discloses a buyer-seller relationship
with these persons. Of course, in order
to establish a conspiracy, "[w]hat is
necessary and sufficient is proof of an
agreement to commit a crime other than
the crime that consists of the sale
itself." United States v. Lechuga, 994
F.2d 346, 347 (7th Cir.) (en banc)
(plurality), cert. denied, 510 U.S. 982,
114 S. Ct. 482 (1993); see also, e.g.,
United States v. Clay, 37 F.3d 338, 341
(7th Cir. 1994).

  In assessing whether the evidence
supports the notion that the defendant
conspired with another narcotics
trafficker, "we 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.’" United States
v. Pearson, 113 F.3d 758, 761 (7th Cir.)
(quoting Clay, 37 F.3d at 341), cert.
denied, 522 U.S. 1035, 118 S. Ct. 641
(1997); see also United States v. Gee,
226 F.3d 885, 894 (7th Cir. 2000); United
States v. Menting, 166 F.3d 923, 928 (7th
Cir. 1999). Factors that bear on that
assessment include the length of time
that the seller affiliated with the
buyer, the established method of payment
(for example, whether the seller
"fronted" the narcotics to the buyer),
the extent to which the transactions were
standardized, and the level of mutual
trust between the buyer and seller. Gee,
226 F.3d at 894; United States v. Hach,
162 F.3d 937, 943 (7th Cir. 1998), cert.
denied, 526 U.S. 1103, 119 S. Ct. 1586
(1999); Clay, 37 F.3d at 342; Lechuga,
994 F.2d at 363-64 (Cudahy, J.,
concurring in part and dissenting in
part). "Although none of these factors is
dispositive, if enough 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."
Hach, 162 F.3d at 943. With these factors
in mind, we turn to the record to assess
whether the evidence permits the
inference that Contreras conspired with
any of the various individuals that the
government has identified as putative co-
conspirators.

  One prospect, Roberto Nunez, may be
ruled out quickly. Nunez, of course,
purchased cocaine from Contreras on at
least six occasions during the three-
month period of the alleged conspiracy.
But on each of these occasions, he was
acting as a paid, confidential informant
on the government’s behalf. Because
Nunez’s goal was to expose, rather than
to commit, a crime, there could not be
the meeting of the minds required to
establish a conspiratorial agreement. See
United States v. Mahkimetas, 991 F.2d
379, 383 (7th Cir. 1993).

  There are three principal alternative
possibilities, each of which the
government cited in its closing argument
to the jury: Mike Villanueva, the man
who, according to Nunez, obtained the
cocaine for him from Contreras on the
occasion of the October 24 transaction;
Luis Manuel Eulloqui, a.k.a. Triste, who,
again according to Nunez, assisted him
with the acquisition of cocaine from
Contreras on October 28, and, according
to Zamora, on October 24 as well; and the
unknown Hispanic male, whom Nunez,
according to Zamora, identified as his
supplier of kilogram quantities of
cocaine. Although it is possible that one
or more of these individuals conspired
with Contreras, the evidence of record
does not support the inference that any
of them in fact entered into a
conspiratorial agreement with Contreras.

  With respect to Villanueva, the evidence
establishes at most that he obtained
cocaine from Contreras for Nunez on one
occasion. The jury reasonably could have
concluded that by doing so, Villanueva
aided and abetted Contreras’ sale to
Nunez. But the record does not reveal any
prolonged cooperation with Contreras, nor
any stake in the success of Contreras’
trafficking--the type of evidence that
usually signals a conspiratorial
relationship. See Pearson, 113 F.3d at
761. Without additional evidence along
these lines, Villanueva’s assistance on
this one occasion does not permit the
inference that he conspired with
Contreras. See United States v. Torres-
Ramirez, 213 F.3d 978, 982 (7th Cir.
2000).

  The evidence with respect to Triste is
not much stronger. The jury might have
credited Zamora’s testimony concerning
the October 24 transaction, which
indicated that it was Triste, not
Villanueva, who obtained the cocaine from
Contreras on that date. With respect to
the October 28 transaction, on the other
hand, the jury might have chosen to
credit Nunez’s testimony, which indicated
that it was Triste who obtained the
cocaine on that date. This is the most
favorable take on the evidence in so far
as Triste’s prospects as a co-conspirator
are concerned, because it has him not
once but twice obtaining cocaine from
Contreras for Nunez. What is lacking once
again, however, is any evidence that
Triste had a stake in Contreras’ sales,
for example, or evidence that Triste’s
assistance in these two instances was
anything more than casual or
happenstance.

  The unidentified Hispanic male is
perhaps the best candidate for the role
of co-conspirator, in that, according to
Zamora’s testimony regarding Contreras’
post-arrest statement, he supplied ten
one-kilogram quantities of cocaine to
Contreras over a period of six to ten
months. These repeat sales suggest that
as buyer and seller, Contreras and his
supplier had more than a transient
relationship. Contreras’ multiple
purchases of one-kilogram quantities
reveal a certain comfort and regularity
in his dealings with the unidentified
supplier. Yet, the evidence reveals
nothing more about the circumstances and
terms of Contreras’ transactions with his
supplier. There is no evidence, for
example, that the supplier "fronted" the
cocaine to Contreras such that his
payment would derive from Contreras’ re-
sale of the drug. See, e.g., Torres-
Ramirez, 213 F.3d at 982. There is no
evidence that the supplier gave Contreras
a favorable price on the cocaine on the
expectation of future purchases. See
United States v. Dortch, 5 F.3d 1056,
1065-66 (7th Cir. 1993), cert. denied,
510 U.S. 1121, 114 S. Ct. 1077 (1994),
and cert. denied, 513 U.S. 1126, 115 S.
Ct. 933 (1995), discussing United States
v. Fort, 998 F.2d 542, 543, 546 (7th Cir.
1993); cf. Direct Sales Co. v. United
States, 319 U.S. 703, 63 S. Ct. 1265
(1943). Nor is there any evidence, aside
from the bare number of sales, of
prolonged cooperation between Contreras
and his supplier. See Lechuga, 994 F.2d
at 349-50 (plurality). In short, there is
no evidence whatsoever that permits one
to infer that the interaction between
Contreras and his unidentified supplier
amounted to something more than a buyer-
seller relationship, that is, "something
more than a series of spot dealings at
arm’s length between dealers who have no
interest in the success of each other’s
enterprise." Id. at 349. The multiple
purchases by themselves, without any
additional evidence of the kind we have
mentioned, do not permit the inference
that the unidentified supplier conspired
with Contreras. United States v. Thomas,
150 F.3d 743, 745-46 (7th Cir. 1998) (per
curiam); see also Lechuga, 994 F.2d at
349-50 (plurality).

  One final prospect remains. Francisco
Godinez was Contreras’ landlord, and a
utility bill addressed to Godinez, for
the apartment that Contreras lived in,
was among the items found in Contreras’
apartment at the time of his arrest. The
cocaine sales to Nunez underlying Counts
Four and Five of the indictment took
place at this apartment. Further, the
intermediaries who helped Nunez with the
purchases he made on October 24 and 28
both walked to Contreras’ apartment in
order to obtain the cocaine. The
substantial amount of cocaine found at
the apartment at the time of Contreras’
arrest obviously suggests that Contreras
stored cocaine at that location as well.
The apartment was, in sum, a locus for
Contreras’ drug trafficking. In the
government’s view, it is significant that
Godinez was Contreras’ landlord, and that
the utility bill address to Godinez was
found in Contreras’ apartment. Those
facts suggest to the government that
there was a conspiratorial relationship
between Godinez and Contreras.

  These facts alone, however, do not
permit the inference that there was an
illicit agreement between Godinez and
Contreras. So far as the testimony at
trial revealed, Godinez was nothing more
than Contreras’ landlord. There was no
evidence suggesting that Godinez was even
aware of Contreras’ drug trafficking, let
alone that he was in some way a party to
it.

  At sentencing, it is true, the
government elicited evidence from Agent
Zamora implicating Godinez in Contreras’
cocaine operation or vice-versa. Around
the time of Contreras’ arrest, according
to Zamora, Godinez himself was arrested
when he delivered 30 kilograms of cocaine
to a DEA informant. Godinez later
disclosed that shortly before the search
warrant was executed on Contreras’
apartment, he had removed some 23
kilograms of cocaine from that apartment,
placed it (with Contreras’ knowledge)
into a vehicle parked in front of the
apartment, and later moved the vehicle to
another location. Zamora also indicated
Godinez had engaged in discussions at the
El Sombrero bar in front of a
confidential informant and Contreras
regarding the 30-kilogram sale that
eventually culminated in Godinez’s
arrest. During a follow-up meeting
between Godinez, Villanueva, and the
informant regarding that sale, Godinez
acknowledged that he and Contreras were
co-owners of El Sombrero.

  Whether or not this additional testimony
would suffice to establish a conspiracy
between Contreras and Godinez is beside
the point, however, given that the jury
never heard this evidence. Consequently,
we may not consider it. See Menting, 166
F.3d at 928 (additional information set
forth in pre-sentence report cannot be
considered in weighing sufficiency of
evidence underlying defendant’s
conviction). The jury knew only that
Contreras used his apartment to conduct
narcotics-related business, that Godinez
was Contreras’ landlord, and that a
utility bill addressed to Godinez was
found in the apartment. Standing alone,
these facts simply do not permit the
inference that Godinez and Contreras had
agreed to possess cocaine with the intent
to distribute.

  Contreras’ conspiracy conviction must
therefore be vacated. The vacation of
this conviction will have little
practical effect on Contreras’ sentence.
The drug quantity attributed to him for
sentencing purposes was based on
transactions in which Contreras himself
engaged, as opposed to the transactions
of co-conspirators. Consequently, neither
the relevant drug quantity, nor the
applicable sentencing range, turned on
the conspiracy conviction, and there is
absolutely no indication in the record
that the sentence Judge Lozano imposed
was affected by that conviction.
Pragmatically speaking, the sole
detriment that Contreras suffered by
virtue of the conspiracy conviction was
an additional special assessment of
$100./2 Consequently, we see no need to
remand the case for re-sentencing. We
shall simply modify the judgment to
reflect removal of the special assessment
imposed pursuant to Contreras’ conviction
on Count One of the indictment.

B.

  The quantity of narcotics that the
district court attributes to the
defendant for sentencing purposes is a
finding of fact that we review for clear
error. E.g., United States v. Huerta, 239
F.3d 865, 875 (7th Cir. 2001). The bulk
of the 10.9 kilograms of cocaine that
Judge Lozano attributed to Contreras
rested on a single piece of evidence--
Zamora’s testimony that Contreras told
him he had received ten, one-kilogram
quantities of cocaine from his
unidentified supplier in the months
preceding his arrest. Sentencing
determinations must be based on reliable
evidence. United States v. Beler, 20 F.3d
1428, 1432-33 (7th Cir. 1994). Contreras
argues that Zamora’s testimony is
unreliable for two reasons. First, there
are inconsistencies in Zamora’s testimony
about Contreras’ trafficking. According
to Zamora’s testimony at trial, Contreras
said that his supplier distributed the
ten kilograms of cocaine to him in the
six months preceding his arrest. Tr. 231.
At the sentencing hearing, however,
Zamora said Contreras had received the
ten kilograms over ten months, not six.
Sentencing Tr. 45. In addition, at trial,
Zamora indicated that Contreras was
prepared to sell Nunez a quarter kilogram
of cocaine for $8,000. Tr. 232. At
sentencing, however, Zamora insisted that
the price was $6,200. Sentencing Tr. 43-
44. Second, there is no independent
evidence corroborating Contreras’ post-
arrest statement, which of course
Contreras denies having made.

  Notwithstanding the inconsistencies in
Zamora’s testimony, we find no clear
error in the district court’s drug
quantity finding. The fact that there is
no evidence corroborating Zamora’s
testimony as to the amounts of cocaine
Contreras received from his supplier did
not preclude Judge Lozano from relying on
it. No one was more qualified than
Contreras himself to put a number on the
amounts of cocaine he was purchasing and
re-selling, and Zamora was simply
recounting what Contreras told him in
this regard. Whether or not to believe
Zamora called for a credibility
assessment that Judge Lozano, having
heard both Zamora and Contreras testify,
was uniquely situated to make. See, e.g.,
United States v. White, 240 F.3d 656, 661
(7th Cir. 2001). The inconsistencies in
Zamora’s testimony as to the time period
in which Contreras had received the
cocaine and the price he paid for it are
not unimportant. But they were exposed at
the sentencing hearing and no doubt
considered by Judge Lozano. The judge was
satisfied that Zamora had accurately
recounted Contreras’ admission as to the
cocaine he had received from his
unidentified supplier. Sentencing Tr. 90-
91. We find nothing in the record that
cast such doubt on Zamora’s credibility
as to have precluded Judge Lozano from
relying on his testimony. See, e.g.,
United States v. Woods, 148 F.3d 843, 847
(7th Cir. 1998).

III.

  Because we find the evidence
insufficient to support Contreras’
conviction on the conspiracy charge set
forth in Count One of the indictment, we
vacate that conviction. Finding no clear
error in the drug quantity that the
district court attributed to Contreras
for sentencing purposes, we affirm his
sentence. The judgment shall be modified,
however, to relieve Contreras of the
obligation to pay a special assessment
pursuant to his conviction on Count One
of the indictment, which we have vacated.

AFFIRMED AS MODIFIED.




/1 As best we can determine from the record, the
district court ultimately excluded from the total
the one-quarter kilogram of cocaine corresponding
to the $5,000 found in Contreras’ freezer at the
time of his arrest. At the sentencing hearing,
the court seemed to indicate that it would in-
clude this amount in the total, in line with the
probation officer’s recommendation. Sentencing
Tr. 91, 122, 123-24. However, if the one-quarter
kilogram had been included, the drug total would
have been approximately 11.2 kilograms. Either
total would have resulted in the same offense
level, however, so the disparity is unimportant.
See U.S.S.G. sec. 2D1.1, Drug Quantity Table.

/2 Of course, the assessment alone requires us to
review the sufficiency of the evidence underlying
the conspiracy conviction. Ray v. United States,
481 U.S. 736, 107 S. Ct. 2093 (1987) (per curi-
am).
