                              In the
 United States Court of Appeals
               For the Seventh Circuit
                           ____________

No. 05-3792
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                  v.

MAREK S. RADOMSKI,
                                               Defendant-Appellant.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 03 CR 22 2—Joan B. Gottschall, Judge.
                          ____________
    ARGUED DECEMBER 13, 2006—DECIDED JANUARY 9, 2007
                          ____________


  Before POSNER, MANION, and EVANS, Circuit Judges.
  POSNER, Circuit Judge. Marek Radomski was convicted
by a jury of conspiring to sell the illegal drug Ecstasy, and
the judge sentenced him to 78 months in prison. He argues
that there was insufficient evidence to convict him. The
government emphasizes that the jury was correctly in-
structed and that (of course) its verdict was unanimous—
and comes close to suggesting that the guilty verdict of a
correctly instructed jury is sacrosanct.
  The defendant’s coconspirator, Zawistowski, was in all
likelihood an Ecstasy dealer, and unlike Radomski he
2                                               No. 05-3792

pleaded guilty (and received a slightly longer sentence
than Radomski—80 months). But there is no evidence
that the defendant agreed with Zawistowski to sell Ecstasy.
Now if Radomski didn’t agree with Zawistowski to sell
Ecstasy, neither did Zawistowski agree with Radomski to
sell Ecstasy. But Zawistowski’s case is not before us.
Anyway he pleaded guilty, and his presentence investiga-
tion report suggests that there may have been another
conspirator, though there is no hint of that in the record of
the present case.
  An FBI informant named Zujko approached Zawistow-
ski—from whom the informant had previously bought a
stolen car—and believing, probably correctly as we said,
that Zawistowski was a dealer in Ecstasy, told him he
wanted to buy some of the drug from him. Zawistowski
agreed to sell Zujko 1,000 Ecstasy pills for $8,000 and
promised that a friend, the supplier from whom he
would get the pills, would “seal [the package containing
the pills] hermetically” so that “dogs can’t sniff it.”
  Zawistowski and Zujko met in a restaurant to consum-
mate the deal. There Zawistowski made a cellphone call
to his friend (who was in fact Radomski), and Zujko
heard Zawistowski ask the friend whether he had “packed
it nicely”—presumably a reference to the dog-proof
packaging that Zawistowski had promised. Zawistowski
and Zujko repaired to the latter’s car, where Zujko
handed him $8,000. Zawistowski said that his friend’s
vehicle was in a nearby parking lot and that he would
get the Ecstasy from the vehicle and be back with it in a
few minutes. Zawistowski walked to the parking lot
with the money and into a truck driven by Radomski,
and off they went. Officers who had staked out the restau-
rant, waiting for the sale of the Ecstasy to take place,
No. 05-3792                                                 3

recorded the license number of the truck, traced it to
Radomski, and arrested both him and Zawistowski in
Radomski’s apartment the next day. They searched the
men, the apartment, and the truck and found some of the
marked money that the informant had given Zawistowski
but no Ecstasy, drug paraphernalia, proceeds from other
sales, sales records, or other evidence of drug dealing.
  There is no doubt that Radomski conspired with
Zawistowski, but conspired to do what? To sell Ecstasy
to the informant? If so, Radomski is guilty of the crime
that he was charged with even if the pair later changed
their minds and decided to defraud the informant instead.
E.g., United States v. Howard, 179 F.3d 539, 542 (7th Cir.
1999). But on the basis of the evidence presented to the
jury, that is no more likely than that they conspired from
the get-go to defraud him. Although a conspiracy to sell a
counterfeit drug is a federal crime, 21 U.S.C. §§ 841(a)(2),
846, a conspiracy to pretend to be offering to sell an illegal
drug is not.
  Yet since cellphone to cellphone conversations in-
volve communications over wires at some point in the
transmission, In re Application of United States for Order
Authorizing Roving Interception of Oral Communications,
349 F.3d 1132, 1138 n. 12 (9th Cir. 2003); Shubert v.
Metrophone, Inc., 898 F.2d 401, 402 n. 5 (3d Cir. 1990), the
conspiracy that Radomski unquestionably joined could
have been charged as a scheme to defraud in violation of
the wire-fraud statute, 18 U.S.C. § 1343, as in United States
v. Dazey, 403 F.3d 1147, 1163 (10th Cir. 2005). But it was
not so charged. Given the feebleness of the prosecution’s
case that Radomski had conspired to sell drugs, the
government’s decision not to charge him in the alterna-
tive with wire fraud, and thus give the jury a choice, is
4                                             No. 05-3792

inexplicable. The government’s reckless gamble suc-
ceeded in the district court, but fails in this court.
  The government latches on to the informant’s testimony
that he heard Zawistowski ask Radomski whether he had
“packed it [the Ecstasy] nicely,” and argues that this is
evidence that Radomski had the Ecstasy with him in his
truck. But had that been true, traces probably would have
been found there. And since the pair obviously did not
intend, when Zawistowski met the informant in the
restaurant, to deliver any Ecstasy to him, why would
Radomski have nicely packed (or for that matter badly
packed) a quantity of Ecstasy? It is far more likely that
Zawistowski said what he did to Radomski in the infor-
mant’s presence in order to reassure the informant that
the deal would go through. Zawistowski of course did
not know that Zujko was an informant, so he had to allay
any concerns that a genuine prospective buyer of Ecstasy
would have that the seller would take his money and
decamp. Also, Zawistowski had to fear that unless he
appeared to have an accomplice, Zujko might try some
rough stuff: when they left the restaurant to get the money
from Zujko’s car, Zujko (had he not been an informant)
might have pulled a gun on Zawistowski, intending to
steal the Ecstasy. He would be less likely to do that if he
thought that Zawistowski had an accomplice lurking
nearby.
  The government asks: if it was a rip off, why didn’t
Zawistowski pretend to sell Zujko a stolen used car, for
which he might have charged more than $8,000 in which
event Zawistowski and Radomski would make more
money than they did by pretending to sell him Ecstasy? But
the fact that Zujko had bought one stolen car from
Zawistowski didn’t mean he wanted another one; and it
was Ecstasy that he was asking Zawistowski for, not a car.
No. 05-3792                                                 5

  We acknowledge the legitimacy of the government’s
concern lest facile invocations of a “rip-off defense”
prevent the conviction of drug dealers arrested before a
sale is consummated. The dealer can always argue that
he never intended to sell drugs to the prospective buyer,
but merely to defraud the buyer. But the argument will
fall flat if the circumstances indicate that an agreement to
sell drugs was made or if the defendant is found to have
drugs in sale quantity or there is other evidence that he
is a drug dealer. United States v. Berchiolly, 67 F.3d 634,
638 (7th Cir. 1995); United States v. Badger, 983 F.2d 1443,
1447, 1449 (7th Cir. 1993); United States v. Mattos, 74 F.3d
1197, 1200 (11th Cir. 1996). But this case is unusual. Neither
Radomski nor Zawistowski was found with drugs or
drug paraphernalia or any other evidence that might
indicate that they had intended to deliver drugs to Zujko.
Moreover, they in fact ripped off Zujko—they absconded
with his money, without supplying him with any drugs,
and not because their attempt to sell him drugs was
disrupted by an arrest or otherwise interrupted.
  There was no evidentiary basis for a finding of guilt
beyond a reasonable doubt. Zawistowski’s guilty plea is
not and could not be evidence in Radomski’s case, United
States v. Johnson, 26 F.3d 669, 677 (7th Cir. 1994); United
States v. Jones, 468 F.3d 704, 709 (10th Cir. 2006); United
States v. Modena, 302 F.3d 626, 631 (6th Cir. 2002), because
to allow a coconspirator’s guilty plea in evidence might
make the jury think the trial a formality, since if one
coconspirator is guilty, so must the others be. There is at
least a bare possibility, moreover, that there was a third
conspirator, who may have conspired with Zawistowski
to sell Ecstasy; but there is no evidence that Radomski was
a party to such a conspiracy.
6                                              No. 05-3792

   There is no great mystery about why the jury neverthe-
less voted to convict Radomski. He did conspire with
Zawistowski to commit a criminal act, as well as trying to
kick one of the policemen who arrested him. (Radomski
is a former trainer of the Polish boxer Andrew Golota—the
world’s most colorful boxer. See http://en.wikipedia.org/
wiki/Andrew_Golota.) And his accomplice was in all
likelihood a drug dealer. But not having been charged
with the crime he actually committed, Radomski is en-
titled to an acquittal.
                                                 REVERSED.

A true Copy:
       Teste:

                         _____________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                   USCA-02-C-0072—1-9-07
