In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-1791, 99-2316 & 99-2373

United States of America,

Plaintiff-Appellee,

v.

Daniel Torres-Ramirez, John Douglas Byers,
and Rickey W. Franklin,

Defendants-Appellants.

Appeals from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 3:98CR00017--Richard L. Young, Judge.

Argued April 10, 2000--Decided May 23, 2000



  Before Easterbrook, Kanne, and Rovner, Circuit Judges.

  Easterbrook, Circuit Judge. Derrick Hardin
managed a long-running cocaine distribution
operation in Evansville, Indiana. Dissatisfied
with the price his principal suppliers wanted for
wholesale quantities, Hardin turned to his friend
George Tyson, then living in California. Tyson
came up with some cocaine and introduced Hardin
to Enrique Rivera, who became Hardin’s new
principal source. When Rivera raised his price in
June 1996, Hardin cut back his purchase from five
kilograms to three and sought an alternate source
for the remainder. Tyson suggested Rivera’s
brother-in-law, Daniel Torres-Ramirez, who Tyson
had known for 10 years and from whom Tyson’s
brother Monte had acquired small quantities
between 1993 and 1995. Torres-Ramirez beat
Rivera’s price, selling Hardin two kilograms of
cocaine for a total of $31,000. But Hardin never
dealt with Torres-Ramirez again, for Rivera cut
his price (and expressed annoyance at having to
compete for the business). Later in 1996 the
distribution network collapsed when a courier was
arrested carrying cocaine from California to
Indiana. Eight persons were indicted in
Evansville for conspiring to distribute cocaine.
Five pleaded guilty; the three who went to trial
were convicted and appeal.

  Plenty of evidence demonstrates that   John Byers
and Rickey Franklin conspired not only   to
distribute cocaine but also to launder   the money
produced by their criminal activities.   Several
confederates, including Tyson, testified for the
prosecution at trial. But after trial Tyson had
a change of heart. Tyson furnished Franklin’s
lawyer with a statement that "[t]he Government
made me say things to hurt Ricky [sic] Wayne
Franklin that was [sic] not true." Tyson also
asserted that a prosecutor "would read to me what
I was to say and would make me read what I was to
say until I had it the way they wanted it." A
motion under Fed. R. Crim. P. 33 based on this
recantation was summarily denied by the district
court, and Franklin now argues that he is
entitled to at least a hearing on the subject.
But the judge already had heard Tyson’s testimony
and knew that the prosecutor did not lead Tyson
by the nose in court. If his testimony had been
rehearsed--well, that happens all the time.
Franklin had ample opportunity to cross-examine
Tyson about the events that preceded his
testimony and the inducements he received for
cooperation, and he did so at length. Under
cross-examination Tyson denied that the
prosecutor had put words in his mouth and stated:
"basically they told me just to tell the truth."
Tyson’s effort to assist his former partner in
crime by claiming that he committed perjury
during the trial does not require the district
judge to extend the proceedings.

  Details adding verisimilitude could have
justified a hearing, but Tyson’s recantation was
essentially fact free. What portions of his
testimony, exactly, were untrue? What is the
truth? Why should we think that the coaching was
designed to replace truth with fabrication,
rather than the other way ’round? Witnesses who
have had criminal careers often must be
forcefully reminded that trial is a time for
scrupulous accuracy. Because Tyson’s recantation
was so sketchy, the district judge did not abuse
his discretion--though it would have been prudent
to give a short explanation rather than to deny
the motion without comment, as the judge did.

  Byers’ principal appellate contentions concern
his sentence. He believes that the district court
credited "unreliable" evidence when calculating
the quantity of cocaine for which he is
accountable under the Sentencing Guidelines, and
that the judge’s explanations of his decision are
insufficient. When a judge accepts the
calculation of the presentence report, however,
it is rarely necessary to add details. United
States v. Berkey, 161 F.3d 1099, 1101-02 (7th
Cir. 1998). Here the judge accepted the proposed
calculation, which depended on a credibility
assessment. Derrick Hardin testified at trial to
precise quantities of drugs he had furnished to
Byers. Like the jury (which would not have
convicted had it disbelieved Hardin), the judge
credited Hardin’s testimony. Byers calls Hardin
"unreliable," but a defendant’s entitlement to
"reliable evidence" does not mean that appellate
courts second-guess decisions to credit live
testimony. The point of opinions insisting that
evidence at sentencing be "reliable" is that,
although courts may rely on hearsay or evidence
with uncertain provenance, they should not go
overboard: hearsay must have some indicia of
reliability (e.g., corroboration). See U.S.S.G.
sec. 6A1.3(a); Berkey, 161 F.3d at 1101-02. When
the sentence rests on testimony under oath,
however, it is enough that the judge believe the
witness--unless the testimony is illogical or
contradicted by documents or other physical
evidence, making it clearly erroneous to accept
the witness’s version of events. Byers does not
contend that the district judge committed a clear
error by accepting Hardin’s account of drug
quantities. Byers does observe that Rahmon
Graves, who saw part of a transaction in June
1996, testified that Hardin gave Byers one
kilogram of cocaine; Hardin testified that he
handed over 4 kilograms that month. These
accounts do not conflict, because Graves did not
testify that he witnessed all of the transactions
between Hardin and Byers. Once again, however, by
saying a few words along these lines the district
judge would have avoided misunderstandings and
averted an appellate issue. No more need be said
about Byers’ conviction and sentence; his other
arguments have been considered but do not require
discussion.

  Torres-Ramirez has a much stronger argument, one
that goes to the core of the prosecution.
Evidence presented at trial demonstrates that
Torres-Ramirez is a big-time drug dealer, able to
sell multi-kilogram quantities on short notice.
But he was not charged with distributing drugs,
and for a very good reason: venue for that
offense would be in California. See United States
v. Rodriguez-Moreno, 526 U.S. 275 (1999). The
only crime that could be prosecuted in Indiana is
conspiracy in Indiana, but Torres-Ramirez
contends that, whatever his misdeeds, that
offense is not included. Taken in the light most
favorable to the jury’s verdict, the evidence
supports these propositions about Torres-Ramirez:

He sold two kilograms of cocaine to
Derrick Hardin in Los Angeles,
California, in June 1996.

He met Hardin through George Tyson.

Between 1993 and 1995 he fronted modest
quantities of cocaine to George’s
brother Monte.
Hardin and George Tyson demonstrated
their trust in him by allowing him to
leave with the money and return later
with the cocaine.

He agreed to entertain proposals for
future sales to Hardin but would not
commit to terms. He invited Hardin to
page him when he was in California and
wanted to buy cocaine. A jury could
believe that he furnished Hardin with
his pager’s number.

Do these facts support an inference that Torres-
Ramirez conspired with Hardin (and others) to
distribute cocaine in Indiana? Certainly Torres-
Ramirez did not agree to do so expressly. He must
have known that Hardin had his own customers, but
nothing implies that he knew or cared who
Hardin’s confederates were, or where they resold
the cocaine. Torres-Ramirez was asked to commit
to future sales; he declined but invited
proposals. Torres-Ramirez and Hardin did not make
a second transaction. Unsurprisingly, Torres-
Ramirez contends that his only relation to Hardin
was that of seller to buyer, a relation that
differs from conspiracy. "[T]he sale agreement
itself cannot be the conspiracy, for it has no
separate criminal object. What is required for
conspiracy . . . is an agreement to commit some
other crime beyond the crime constituted by the
[sale] agreement itself." United States v.
Lechuga, 994 F.2d 346, 349 (7th Cir. 1993) (en
banc) (plurality opinion). See also United States
v. Duff, 76 F.3d 122 (7th Cir. 1996).

  The district court told the jury (over
objection) that a "mere one time sale of a large
quantity of drugs is not sufficient, by itself,
to prove the seller has joined a drug
distribution conspiracy." That is true. The
instruction added: "To establish the seller has
joined a conspiracy to distribute cocaine the
government must also prove beyond a reasonable
doubt the existence of evidence of an enduring
relationship that directly or indirectly shows
the seller had knowledge of the conspiracy to
distribute drugs." This sentence is both
misleading and false.

  It is misleading because it tells the jury that
only "the existence of evidence" must be shown
beyond a reasonable doubt; instead the jury
should have been told that the evidence must show
a criminal agreement beyond a reasonable doubt.
United States v. Shabani, 513 U.S. 10 (1994).

  It is false to the extent it tells the jury
that conspiracy has been established if "the
seller had knowledge of the conspiracy to
distribute drugs." Knowing of a conspiracy
differs from joining a conspiracy. United States
v. Blankenship, 970 F.2d 283, 285 (7th Cir.
1992); United States v. Durrive, 902 F.2d 1221,
1225 (7th Cir. 1990). Every seller of large
quantities knows that his buyer intends to
resell, and thus knows that his buyer is involved
in a criminal conspiracy. No one distributes two
kilograms on the street by himself. Lechuga
considered and rejected an argument that
knowledge of impending resale equates to
conspiracy, so this instruction is reversible
error. 994 F.2d at 347-50. (The lead opinion,
which was joined by three judges, Judge Rovner’s
concurring opinion, id. at 357, and the
dissenting opinion, id. at 357-64, also joined by
three judges, agreed on this point. The lead
opinion therefore establishes the holding of the
case. Marks v. United States, 430 U.S. 188, 193
(1977).) Although Lechuga is an en banc opinion,
heavily relied on by Torres-Ramirez, the United
States does not so much as cite it. But this does
not make Lechuga go away. The district judge
needed to tell the jury to look for an agreement
to join the Indiana distribution network, not
just for knowledge of its existence.

  Remand is not appropriate, however, because we
conclude that the evidence would not have
supported a conviction under the proper legal
standard--that the prosecution demonstrate beyond
a reasonable doubt an agreement to commit a crime
other than the immediate sale. Torres-Ramirez
therefore is entitled to acquittal. Cf. Burks v.
United States, 437 U.S. 1 (1978). Even giving the
prosecution the benefit of every inference that
a reasonable jury could draw, we think that this
is a one-sale case. Asked directly to agree to
future sales, Torres-Ramirez declined. He gave
Hardin a pager number, not an agreement. When
L.L. Bean sends out a catalog, it does not agree
to sell every item on demand, or enter into a
conspiracy with the catalogs’ recipients. The
evidence demonstrates that Hardin trusted Torres-
Ramirez, but many a buyer in an ordinary
commercial sale pays first and receives delivery
later.

  Payment before delivery differs from delivery
before payment, the "fronting" transaction from
which an inference of agreement may be drawn. See
United States v. Dortch, 5 F.3d 1056, 1065 (7th
Cir. 1993); United States v. Baker, 1 F.3d 596,
597 (7th Cir. 1993). A dealer who "fronts" drugs
to his customer depends for payment on the
success of the resale venture, making it possible
to infer that the dealer has agreed to
participate in it: the dealer becomes at least a
debt investor in the redistribution venture, if
not an equity investor. The dealer wants the
redistribution to succeed, so he can collect.
Torres-Ramirez and Monte Tyson thus may have
conspired to distribute drugs in California. But
Hardin’s advance payment did not make Torres-
Ramirez a partner in Hardin’s business in
Indiana; at most it made Hardin a (brief)
creditor of Torres-Ramirez’s business in
California. Torres-Ramirez did not care whether
the Evansville redistribution venture succeeded;
he had his money already.

  This record does not demonstrate the multiple
sales that may support an inference of
conspiracy. See Direct Sales Co. v. United
States, 319 U.S. 703, 713 (1943); United States
v. Menting, 166 F.3d 923, 928 (7th Cir. 1999);
Lechuga, 994 F.2d at 349-50. It affirmatively
establishes that Torres-Ramirez did not front
drugs to the Indiana conspiracy and declined an
invitation to agree to supply the Evansville
group with its requirements. And the sentence
implies that the district judge himself must have
thought Torres-Ramirez innocent of conspiracy.
The judge attributed to Torres-Ramirez two
kilograms of cocaine as relevant conduct--the two
kilograms Torres-Ramirez sold to Hardin. Yet
conspirators are accountable under U.S.S.G.
sec. 1B1.3(a)(1)(B) for "all reasonably
foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal
activity". To say that Torres-Ramirez was
responsible for only two kilograms is to say that
no criminal acts of the Evansville group were
"reasonably foreseeable" to him. The judge added
when imposing sentence that Torres-Ramirez "did
not, at least as far as the court knows, did not
know it [the cocaine] was coming here [Indiana]
or did not really care whether it was coming
here." Yet if Torres-Ramirez was ignorant of the
Evansville venture, how is it possible to say
that he joined that venture? The sentence
reflects a considered judgment by the district
court that the only agreement into which Torres-
Ramirez entered was an agreement to sell two
kilograms of cocaine to Hardin, and that
agreement is miles (about 1,740 miles) apart from
an agreement to distribute cocaine in Evansville,
Indiana. See, e.g., United States v. Smith, 34
F.3d 514, 523 (7th Cir. 1994); United States v.
Lamon, 930 F.2d 1183, 1191 (7th Cir. 1991);
United States v. Kimmons, 917 F.2d 1011, 1015
(7th Cir. 1990); United States v. Baker, 905 F.2d
1100, 1106 (7th Cir. 1990).

  The judgments with respect to Byers and
Franklin are affirmed. The judgment with respect
to Torres-Ramirez is reversed, and the case is
remanded with instructions to enter a judgment of
acquittal.
