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14-P-1373                                               Appeals Court

                    COMMONWEALTH   vs.   PAMELA DOTY.


                             No. 14-P-1373.

         Middlesex.        June 9, 2015. - September 3, 2015.

            Present:    Sullivan, Maldonado, & Massing, JJ.


   Controlled Substances.      Conspiracy.    Evidence, Conspiracy.


     Indictment found and returned in the Superior Court
Department on March 30, 2010.

     The case was tried before John T. Lu, J.


     Edward Crane for the defendant.
     Kerry A. Collins, Assistant District Attorney, for the
Commonwealth.


     SULLIVAN, J.      After a jury trial, Pamela Doty was convicted

of conspiring to distribute cocaine in violation of the

Controlled Substances Act, see G. L. c. 94C, § 40, and failing

to identify herself while operating a motor vehicle.       See G. L.

c. 90, § 25, as amended through St. 1989, c. 341, § 114.1       She


     1
       The Commonwealth filed a nolle prosequi as to a charge of
operating a motor vehicle with a suspended license. See G. L.
                                                                     2


appeals from the conspiracy conviction, contending that the

evidence, while indicative of a buyer-seller transaction, was

insufficient to show that she agreed to distribute cocaine.     We

conclude that the evidence of conspiracy to distribute was

insufficient, and that the conspiracy conviction must be

reversed.

     Background.    This case arises out of an undercover

investigation conducted by the Marlborough police department.

We set forth the evidence in the light most favorable to the

Commonwealth.    See Commonwealth v. Latimore, 378 Mass. 671, 676-

677 (1979).

     At the request of Marlborough police Detective Manning,

Brian Hart, a civilian "undercover police operative," contacted

Jonathan Wright,2 the defendant's alleged coconspirator, to buy

cocaine.    Wright said he could arrange the purchase of cocaine

for Hart, but that Hart would have to wait one-half hour since

the seller was leaving a hospital and needed time to get to the

meeting place.    After speaking with Wright, Hart contacted




c. 90, § 23. The jury acquitted the defendant of distribution
of cocaine. See G. L. c. 94C, § 32A(c).
     2
         Wright was tried separately.
                                                                    3


Detective Manning, who gave Hart a police department undercover

car, $100 in cash, and a "wire"3 for use during the buy.

     Hart drove to Wright's residence in Northborough on

Wright's instructions.   Once there, Wright got into Hart's car

and they drove to the Olive Garden restaurant in Marlborough.

Hart parked the car outside of the restaurant and Wright made a

telephone call.   Hart heard Wright refer to "Pam," but could not

hear the conversation.

     A few minutes later, a red Ford F-150 pickup truck (truck)

pulled up behind Hart's car in the restaurant parking lot;

Wright told Hart that this was the person for whom they were

waiting.   Hart could not see who was in the truck since it was

behind him and higher than his car.   Detective Manning, who had

been conducting surveillance in the parking lot in an unmarked

car, saw the driver of the truck, later identified as the

defendant, as she drove by.   She was the only person in the

truck.

     Hart gave Wright $100 for "two fifties," that is, two fifty

dollar bags of cocaine, each weighing one-half gram, an amount

described by one of the detectives as a street-level sale.




     3
       A wire was described as "an electronic transmitting device
[that] allows the investigators involved in the investigation to
hear the conversation ongoing between the undercover and any
potential dealers." The wire did not record.
                                                                     4


There was evidence that Hart had purchased drugs from Wright in

the past, but no evidence that the defendant had been involved.

      Wright got out of Hart's car, approached the truck, and got

in.   The truck pulled forward into a parking spot approximately

fifteen feet behind Hart's vehicle.     Neither Hart nor Detective

Manning were able to see what took place inside the truck.

Wright returned to Hart's car shortly thereafter, stated,

"[W]e're all set," and handed two bags of a white substance to

Hart.   There was no evidence as to what happened to the cash

Hart gave to Wright.    "Two clear plastic knotted bags containing

a white chunk-like substance" were later turned over to

Detective Manning.     Testing confirmed the bags contained

cocaine.

      Detective Manning followed the truck as it left the

restaurant parking lot and pulled into the parking lot at a

hospital.   The defendant entered the hospital, came out "less

than a minute" later, and drove away in the truck.     Shortly

thereafter, at the request of Detective Manning, Officer

Hassapes stopped the truck for a civil motor vehicle infraction.

The defendant gave Officer Hassapes the truck's registration,

but told him that she did not have her license; she gave him her

sister's name and date of birth.    Detective Manning also

approached the truck, and recognized the defendant, in the

driver's seat, as the driver of the truck from the Olive Garden
                                                                    5


parking lot.   Detective Manning ran a query in the registry of

motor vehicles system for Pamela Doty, which produced a picture

of the defendant.   At trial, both Officer Hassapes and Detective

Manning identified the defendant as the driver of the truck.

     The parties stipulated that there was no evidence that

Wright had purchased drugs from the defendant in the past, and

the jury were so instructed at trial.   When the prosecutor

referred to the defendant as a "drug dealer" during her closing

argument, the judge further instructed the jury that the parties

agreed that the defendant was not charged with any other offense

and that "[t]he use of the term 'drug dealer' was a slip of the

tongue . . . not to be considered by" the jury.

     The indictment alleged that the defendant and Wright

conspired to distribute cocaine under G. L. c. 94C, § 40.4    The

conspiracy charge and a distribution charge (of which the

defendant was acquitted) were tried together without objection.

But see Mass.R.Crim.P. 9(e), 378 Mass. 861 (1979).   The

Commonwealth's theory of the case was that the defendant, the

seller, had entered into an agreement with Wright, the


     4
       General Laws c. 94C, § 40, inserted by St. 1971, c. 1071,
§ 1, provides:

     "Whoever conspires with another person to violate any
     provision of this chapter shall be punished by imprisonment
     or fine, or both, which punishment shall not exceed the
     maximum punishment prescribed for the offense, the
     commission of which was the object of the conspiracy."
                                                                   6


middleman, to distribute cocaine to Hart.   However, the judge

instructed more broadly, stating that in order to prove a

conspiracy to distribute, "the Commonwealth must prove beyond a

reasonable doubt that the defendant joined in an agreement or

plan with one or more other persons . . . to do something

unlawful."

     Discussion.   The Controlled Substances Act, see G. L.

c. 94C, does not define the term "conspiracy" in the context of

a conspiracy to distribute.   In divining the Legislature's

intent, we look to the relevant precedent under the Federal

statute upon which c. 94C was based, our established and

developing common law of conspiracy,5 see Commonwealth v. Cass,

392 Mass. 799, 801 (1984); Commonwealth v. Colon, 431 Mass. 188,

191 (2000), and the statutory scheme as a whole.

     The defendant urges us to adopt the Federal courts'

interpretation of the analogous Federal statute's meaning of an

agreement to distribute in the context of a conspiracy to


     5
       In Massachusetts, conspiracy is a common-law crime defined
as "the unlawful agreement . . . to do an unlawful act, or . . .
a lawful act for unlawful purposes." Commonwealth v. Cantres,
405 Mass. 238, 240 (1989), quoting from Commonwealth v. Soule, 6
Mass. App. Ct. 973, 973-974 (1979). While no overt act is
required to prove conspiracy, "[t]he Commonwealth must prove
. . . 'that the defendants combined with the intention to
[commit the object crime].'" Id. at 244, quoting from
Commonwealth v. Zakas, 358 Mass. 265, 269 (1970). See
Commonwealth v. Pratt, 407 Mass. 647, 653-654 (1990). Here, the
object of the alleged conspiracy was the distribution of
cocaine.
                                                                   7


distribute a controlled substance under G. L. c. 94C, § 40.

Because the defendant did not raise this argument below in her

motion for a required finding, we review for error and, if there

was error, for a substantial risk of miscarriage of justice.

Commonwealth v. Bell, 455 Mass. 408, 411 (2009).   We address a

far narrower question, that is, on the facts presented, whether

the evidence of this single buyer-seller transaction, without

more, was sufficient to prove a conspiracy to distribute.   We

conclude that it was not.

    1.   Parameters of a conspiracy to distribute.   The

indictment here alleged, in relevant part, that the defendant

and Wright conspired to distribute cocaine in violation of G. L.

c. 94C, § 40.   The indictment and the judge's instructions were

susceptible to two different interpretations as to the nature of

the conspiracy.   The first interpretation is that there was a

conspiracy between A (the defendant) and B (Wright) because they

agreed that A would sell cocaine to B, and that B would buy it.

The evidence in this case of a single buyer-seller transaction

in which the defendant was the seller and Wright was the buyer

was sufficient to prove a sale from A to B; Wright set up the

deal, took the money to the defendant, and returned with drugs.

If a single buyer-seller transaction between A and B is

sufficient to prove the agreement underlying a conspiracy, the
                                                                   8


evidence here is sufficient.6   However, as discussed more fully

below, this proposition has been consistently rejected by

Federal and State appellate courts interpreting analogous

statutes.

     The second interpretation is that the Commonwealth must

prove that A (the defendant) and B (Wright) entered into an

agreement to distribute to C, a third party or parties (here

Hart).   This is the theory that was argued to the jury.    The

defendant maintains that, as a matter of law, the statute

requires that there be some evidence of a knowing and purposeful

agreement to enter into a chain of distribution.   The defendant

further contends that the evidence here, which consisted of a

single sale, is insufficient because there was nothing about the

sale that indicated that the defendant knew, much less agreed or

intended, that Wright would further distribute the cocaine to

another person or persons.   Thus, the defendant contends, the

Commonwealth failed to prove that the defendant and Wright

entered into an agreement to distribute a controlled substance.



     6
       The judge's instructions would have permitted the jury to
convict on this basis. With respect to distribution, the judge
instructed as follows: "The term 'distribute' means to actually
deliver a controlled substance to another person other than by
legally administering or dispensing it. . . . Distribution
includes all forms of physical transfer. . . . To distribute
means . . . to hand over to another or to give away or transfer
ownership from one person to another."
                                                                   9


     Our cases have not squarely addressed whether a single

buyer-seller transaction, without more, constitutes a conspiracy

to distribute.7   In interpreting the Controlled Substances Act,

the Supreme Judicial Court has, however, looked to the evolving

case law under the closely analogous Comprehensive Drug Abuse

Prevention and Control Act of 1970 (Federal statute), on which

G. L. c. 94C is modeled.   See 21 U.S.C. §§ 801, 846;8

Commonwealth v. Cantres, 405 Mass. 238, 240 (1989); Commonwealth

v. Brown, 456 Mass. 708, 716 (2010).   We therefore look to the




     7
       In Cantres, 405 Mass. at 242-243, the Supreme Judicial
Court held that Wharton's Rule did not bar the defendant's
conviction of conspiracy to distribute controlled substances,
even though the facts of the case were such that only two people
were involved in the conspiracy and the sale. The court held
that since conspiracy requires the showing of an agreement, the
elements of conspiracy are different from the elements of the
substantive offense. Id. at 243-244. In Cantres the parties
did not argue, and the court did not reach, the precise issues
presented here, namely whether there was an agreement, and
whether the Legislature intended to subject the buyer and the
seller to the penalties for conspiracy to distribute in the
absence of proof of an agreement to sell to others.
     8
       The Uniform Controlled Substances Act, adopted by
Massachusetts and most other States, is based on the Federal
statute. See Commonwealth v. Brown, 456 Mass. 708, 716 (2010);
Commonwealth v. Kobrin, 72 Mass. App. Ct. 589, 595 n.6 (2008).
Section 846 of the Federal statute provides:

     "Any person who attempts or conspires to commit any offense
     defined in this subchapter shall be subject to the same
     penalties as those prescribed for the offense, the
     commission of which was the object of the attempt or
     conspiracy."
                                                                   10


Federal cases, which, though not controlling, are instructive.

See Commonwealth v. Brown, supra.

     2.   Federal cases.   "As a result of the long running 'war

on drugs' waged by the federal government," State v. Allan, 311

Conn. 1, 13 (2014) (Allan), all twelve circuits of the United

States Courts of Appeal have addressed the sufficiency of the

evidence in drug distribution conspiracies.   All have held that

evidence of a buyer-seller relationship, without more, does not

constitute a conspiracy to distribute a controlled substance.9

As State appellate courts have grappled with the application of

conspiracy law to drug distribution prosecutions, they have also

held, relying on the Federal cases, that evidence of a buyer-

seller relationship, without more, is insufficient to support a

     9
       See United States v. Boidi, 568 F.3d 24, 30 (1st Cir.
2009); United States v. Parker, 554 F.3d 230, 234-236 (2d Cir.),
cert. denied sub nom. Baker v. United States, 558 U.S. 965
(2009); United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.
1999), cert. denied, 528 U.S. 1131 (2000); United States v.
Mills, 995 F.2d 480, 485 (4th Cir.), cert. denied, 510 U.S. 904
(1993); United States v. Delgado, 672 F.3d 320, 333 (5th Cir.),
cert. denied, 133 S. Ct. 525 (2012); United States v. Deitz, 577
F.3d 672, 680 (6th Cir. 2009), cert. denied, 559 U.S. 984
(2010); United States v. Johnson, 592 F.3d 749, 754 (7th Cir.
2010); Unites States v. Brown, 726 F.3d 993, 998-999 (7th Cir.
2013); United States v. Donnell, 596 F.3d 913, 924–925 (8th Cir.
2010), cert. denied, 562 U.S. 1181 (2011); United States v.
Lennick, 18 F.3d 814, 819 (9th Cir.), cert. denied, 513 U.S. 856
(1994); United States v. Ivy, 83 F.3d 1266, 1285–1286 (10th
Cir.), cert. denied sub nom. Hickman v. United States, 519 U.S.
901 (1996); United States v. Bacon, 598 F.3d 772, 776 (11th Cir.
2010); United States v. Baugham, 449 F.3d 167, 171-172 (D.C.
Cir.), cert. denied sub nom. Wells v. United States, 549 U.S.
966 (2006).
                                                                   11


conviction of conspiracy to distribute controlled substances.10

As the Connecticut Supreme Court has pointed out, see id. at 15,

the Federal cases rely on two distinct lines of reasoning.      The

first centers on the nature of the agreement, the second on

legislative intent.

     a.   Nature of the agreement.    One group of appellate courts

holds that "in a buyer-seller relationship, there is no

singularity of purpose and thus no meeting of the minds. . . .

'In such circumstances, the buyer's purpose is to buy; the

seller's purpose is to sell.'   United States v. Donnell, [596

F.3d 913, 924–925 (8th Cir. 2010)]; see United States v. Brown,

[726 F.3d 993, 1001 (7th Cir. 2013)] ('People in a buyer-seller

relationship have not agreed to advance further distribution of

drugs; people in conspiracies have.     That agreement is the

key.').   Accordingly, a mere buyer-seller relationship lacks an

essential element necessary to form a conspiracy."     Allan,

supra.    See, e.g., United States v. Moran, 984 F.2d 1299, 1303


     10
       See State v. Allan, supra; Heckstall v. State, 120 Md.
App. 621, 625-627 (Ct. Spec. App. 1998); People v. Justice, 454
Mich. 334, 335-336 (1997); State v. Pinkerton, 628 N.W.2d 159,
162-163 (Minn. Ct. App. 2001); State v. Serr, 575 N.W.2d 896,
899 (N.D. 1998); State v. Gonzalez, 606 N.W.2d 873, 876 (N.D.
2000); State v. Gunn, 313 S.C. 124, 133-134 (1993); State v.
Horne, 324 S.C. 372, 381 (Ct. App. 1996); Reed v. Commonwealth,
213 Va. 593, 594 (1973); Zuniga v. Commonwealth, 7 Va. App. 523,
528-529 (1988); State v. Smith, 189 Wis. 2d 496, 502-504 (1995);
State v. Cavallari, 214 Wis. 2d 42, 48-50 (Ct. App. 1997). Cf.
People v. Stroud, 392 Ill. App. 3d 776, 799-802 (2009).
                                                                    12


(1st Cir. 1993).11    These courts define a conspiracy to

distribute to mean that there must be an agreement between A and

B to sell to C.

     These cases also rely in part12 on the principle that mere

knowledge of or acquiescence in the conspiracy to distribute is

not sufficient to satisfy the intent element of the crime.        See,

e.g., United States v. Parker, 554 F.3d 230, 235-236 (2d Cir.),

cert. denied sub nom. Baker v. United States, 558 U.S. 965

(2009); United States v. Ivy, 83 F.3d 1266, 1285–1286 (10th

Cir.), cert. denied sub nom. Hickman v. United States, 519 U.S.

901 (1996).    Our general common law of conspiracy likewise

requires a showing of more than mere knowledge or acquiescence;

intent to enter the agreement to commit the crime is also

required.    See Commonwealth v. Beal, 314 Mass. 210, 222 (1943);

Commonwealth v. Camerano, 42 Mass. App. Ct. 363, 366 (1997);

Commonwealth v. Melanson, 53 Mass. App. Ct. 576, 580-581 (2002).

     b.     Legislative intent.   Some cases also reason "that,

under the common-law definition of conspiracy, 'when a buyer

purchases illegal drugs from a seller, two persons have agreed

to a concerted effort to achieve the unlawful transfer of the

     11
       To the extent that the Federal cases appear to adopt the
reasoning embodied in Wharton's Rule, however, that line of
reasoning was expressly rejected in Cantres, 405 Mass. at 242-
243, and we do not rely on them in that respect. See note 7,
supra.
     12
          See note 11, supra.
                                                                      13


drugs from the seller to the buyer. . . .     [This] would

constitute a conspiracy with the alleged objective of a transfer

of drugs.' . . .    United States v. Parker, supra, 554 F.3d at

234; see United States v. Delgado, [672 F.3d 320, 333 (5th

Cir.), cert. denied, 133 S. Ct. 525 (2012)]."    Allan, supra at

15.   These cases appear to recognize a possible conspiracy

between A and B to sell to B.     Contrast Cantres, 405 Mass. at

242-243.   However, they go on to carve out a far narrower

definition of a conspiracy to distribute.

      "[T]hese courts further reason that Congress did not intend

to subject buyers, particularly addicts, who purchase drugs for

personal use, to the severe liabilities intended for

distributors. . . .    United States v. Delgado, supra, at 333

('[t]he rule shields mere acquirers and street-level users, who

would otherwise be guilty of conspiracy to distribute, from the

more severe penalties reserved for distribut[o]rs')."        Allan,

supra at 15-16.    Therefore, these Federal appellate courts

conclude, as a matter of legislative intent, that a conspiracy

must involve something more than a simple buyer-seller

transaction.   See, e.g., United States v. Ivy, supra; United

States v. Parker, supra at 235.    Accord State v. Pinkerton, 628

N.W.2d 159, 162-163 (Minn. Ct. App. 2001); State v. Smith, 189

Wis. 2d 496, 502-504 (1995).
                                                                  14


    As previously noted, our State statute is modelled on the

Federal statute.   See Commonwealth v. Brown, 456 Mass. at 716;

Commonwealth v. Kobrin, 72 Mass. App. Ct. 589, 595 n.6 (2008).

"We [likewise] interpret a statute 'according to the intent of

the Legislature ascertained from all its words . . . to the end

that the purpose of its framers may be effectuated.'"

Commonwealth v. Wynton W., 459 Mass. 745, 747 (2011), quoting

from Commonwealth v. Deberry, 441 Mass. 211, 215 (2004).   See

Hanlon v. Rollins, 286 Mass. 444, 447 (1934).   The Controlled

Substances Act, G. L. c. 94C, from its inception in 1971, has

provided different penalties for the crime of possession and the

crime of distribution.   See St. 1971, c. 1071, §§ 32, 34.13   The

seller is exposed to a greater penalty than the buyer.

    However, a person charged with conspiracy to distribute is

punishable in accordance with the penalties imposed on a


    13
       Currently, simple possession of cocaine is punishable by
incarceration for up to one year, or a fine of not more than
$1,000, or both. G. L. c. 94C, § 34. By contrast, the crime of
distribution of cocaine carries with it a sentence of up to ten
years in State prison or two and one-half years in a jail or
house of correction, or a fine of $1,000 to $10,000, or both if
charged under G. L. c. 94C, § 32A(a). If charged with
distribution under G. L. c. 94C, § 32A(c), the defendant may be
sentenced to not less than two and one-half years nor more than
ten years in State prison, or to imprisonment in a jail or house
of correction for not less than one nor more than two and one-
half years, and a fine of not less than $1,000 or more than
$10,000. A repeat offender convicted of distribution of cocaine
may be sentenced to no less than three and one-half years and no
more than fifteen years; a fine of not less than $2,500 and not
more than $25,000 may be imposed. G. L. c. 94C, § 32A(d).
                                                                    15


distributor, see G. L. c. 94C, § 40, and "the seller and buyer

would, as coconspirators, be subject to the same penalty."

State v. Pinkerton, supra at 163.    If a one-time, street-level,

buyer-seller transaction by A to B constituted a conspiracy

between A and B to sell to B, the street-level addict would be

subject to the same penalties as a distributor.    This is clearly

contrary to the intent of the statute, which contains graduated

penalties based on the fundamental distinction between

possession and distribution.

     3.   Sufficiency of the evidence.   The foregoing analysis of

the nature of the agreement and the structure of the statutory

scheme as a whole illuminates the legislative intent to define a

conspiracy to distribute in a manner tailored, with specificity,

to the crime of drug distribution.   We conclude that proof of

this single buyer-seller transaction (here A to B, the defendant

to Wright) is insufficient to prove a conspiracy to distribute,

because of the absence of evidence that the defendant agreed

with Wright to distribute to others.     See, e.g., United States

v. Izzi, 613 F.2d 1205, 1210 (1st Cir. 1980).14



     14
       In Izzi, the amount sold was significantly higher. Under
the United States Court of Appeals for the First Circuit's
interpretation of the buyer-seller rule, a single sale, even of
a significant quantity, is not sufficient to prove conspiracy.
That issue is not presented here and we do not decide it. See
Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 (1984)
(reserving question). Likewise, we do not address those
                                                                    16


    "[I]t must be shown that the defendant was aware of the

objective of the conspiracy which was alleged."     Commonwealth v.

Nelson, 370 Mass. 192, 196 (1976).   Nothing in the record

suggests the defendant knew of, much less agreed to, the

distribution of the drugs to Hart or others.     See Commonwealth

v. Beal, 314 Mass. at 222 ("mere knowledge of an unlawful

conspiracy is not sufficient to make one a member of it").

Compare Commonwealth v. Rose, 84 Mass. App. Ct. 910, 911 (2013).

There also is no evidence that the amount in question was so

significant as to permit the inference of further distribution.

See Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 (1984)

(Kaplan, J.) (quantity of drugs sold may permit an inference of

distribution; reserving question whether quantity alone may be

sufficient).   Cf. Commonwealth v. Sepheus, 468 Mass. 160, 165

(2014) (0.4 grams of cocaine insufficient to support conviction

of possession with intent to distribute); Commonwealth v.

Acosta, 81 Mass. App. Ct. 836, 840-841 (2012) (same, 3.16 grams

of cocaine).   There is no evidence of business dealings between

the defendant and Wright other than a single sale, and the jury

were so instructed on two different occasions.    Compare

Commonwealth v. Stoico, 45 Mass. App. Ct. 559, 562 (1998).     In

sum, there is no suggestion here of an ongoing business



circumstances in which the sale of small quantities of drugs
would support a conspiracy to distribute.
                                                                  17


arrangement, the amounts were small, and there is no evidence

that the defendant knew of Wright's plans to sell the drugs and

agreed to sell to Wright based on a shared understanding of

further distribution.15    "A single sale of drugs without more

does not establish a conspiracy."    United States v. Izzi,

supra.16

     The defendant has urged us to define the circumstances in

which a sale would constitute a conspiracy by explicitly

adopting the Federal buyer-seller rule.    In particular, the

defendant asks us to adopt the rationale of the United States

Court of Appeals for the Seventh Circuit regarding the proof

required to show the element of agreement in a conspiracy to

distribute controlled substances.    Because there are no facts in

the record that would permit a jury to find beyond a reasonable

doubt that the defendant knew of and agreed to the distribution

of cocaine to Hart, there is no basis to find an agreement to

distribute, regardless of the legal standard employed.17


     15
       The Commonwealth points to the fact that the defendant
gave a false name as consciousness of guilt. This evidence does
permit the inference of guilt regarding the possession or sale
of the cocaine, but giving a false name does not tend to show
that the defendant formed an agreement to enter into a
conspiracy to distribute controlled substances.
     16
          See note 14, supra.
     17
       We therefore do not address the quantum of proof to show
an agreement to distribute beyond that articulated by our
existing cases. Some State and Federal appellate courts state
                                                                  18


    Conclusion.    For these reasons, we conclude that the

evidence was insufficient to prove a conspiracy to distribute

cocaine.   "[F]indings based on legally insufficient evidence are

inherently serious enough to create a substantial risk of

miscarriage of justice."   Commonwealth v. Bell, 455 Mass. at

411-412 (quotation omitted).   The conviction on the charge of

conspiracy to distribute cocaine is reversed and the verdict is

set aside.

                                    So ordered.




explicitly that knowledge of resale alone does not necessarily
establish an agreement to enter into a narcotics distribution
conspiracy. See, e.g., United States v. Hawkins, 547 F.3d 66,
77 (2d Cir. 2008); State v. Gonzalez, 606 N.W.2d at 876; Zuniga
v. Commonwealth, 7 Va. App. at 528-529. Several jurisdictions
look to multiple factors, including but not limited to: "sales
on credit or consignment; United States v. Hawkins, supra, 547
F.3d at 75; large quantities of drugs; United States v.
Yearwood, 518 F.3d 220, 226 (4th Cir.), cert. denied, 555 U.S.
861 . . . (2008); multiple transactions; United States v.
Becker, 534 F.3d 952, 957–958 (8th Cir. 2008); standardized
dealings; United States v. Hawkins, supra, at 74; a level of
mutual trust; id.; and the continuity of the relationship
between the parties. United States v. Deitz, supra, 577 F.3d at
681." Allan, 311 Conn. at 20. The United States Court of
Appeals for the Seventh Circuit requires evidence such as proof
of sales on commission or consignment, an agreement to warn of
future threats, or payment of commission on sales in addition to
a standardized, regularized wholesale buyer-seller relationship.
See United States v. Johnson, 592 F.3d at 755-756. None of
these factors is present here. As noted above, these cases are
informative but not controlling.
