January 20, 1993
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 91-1772

                        UNITED STATES,

                          Appellee,

                              v.

                       GEORGE A. MORAN,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. A. David Mazzone, U.S. District Judge]
                                                    

                                         

                            Before

                     Selya, Circuit Judge,
                                         
               Campbell, Senior Circuit Judge,
                                             
                  and Boudin, Circuit Judge.
                                           

                                         

James L. Sultan with  whom Margaret H. Carter  and Rankin &amp; Sultan
                                                                  
were on brief for appellant.
George  W. Vien,  Assistant United  States Attorney,  with whom A.
                                                                  
John  Pappalardo,  United  States  Attorney,  and  Heidi  E.  Brieger,
                                                                 
Assistant United States Attorney, were on brief for appellee.  

                                         

                                         

     BOUDIN, Circuit Judge.   Appellant George  Moran and two
                          

co-defendants  were convicted by a jury, after a joint trial,

of  various  drug  offenses.    Moran  was  found  guilty  of

conspiring  to distribute  cocaine and  was acquitted  on two

other counts charging him with specific acts of distribution.

All of  the defendants have  appealed, but  the evidence  and

issues  relating to  Moran differ  from those  concerning the

other  defendants  and   we  decide   his  case   separately.

Concluding  that  the  evidence  was  sufficient  to  sustain

Moran's  conviction  for  conspiracy  and  finding  no  other

errors, we affirm.

     The  procedural  history  can  be briefly  stated.    On

August 9, 1990, Moran  and a number  of others were  indicted

under 21  U.S.C.   846  for conspiring to  distribute cocaine

and,  in  other  counts pertaining  to  one  or  more of  the

defendants, with  distribution and  related crimes.   The co-

conspirators   charged  in  the   umbrella  conspiracy  count

included Moran,  the alleged  ringleader  Hobart Willis,  and

others.    Before  trial,  Willis and  three  others  pleaded

guilty.   Moran  and  two  other  defendants  were  tried  in

February  1991 and  convicted on  one or  more counts.   This

appeal followed.

                              I.

     Moran's central  argument on  appeal is the  often made,

but rarely successful, claim that the evidence was inadequate

                             -2-

to  support the verdict against  him.  In  appraising such an

argument, we  "assess the  sufficiency of the  evidence as  a

whole, including all reasonable inferences, in the light most

favorable to  the verdict . .  . ."  United  States v. Lopez,
                                                            

944 F.2d  33, 39 (1st Cir. 1991).  So viewed, we ask "whether

a  rational trier  of  fact could  have  found the  defendant

guilty beyond a reasonable  doubt."  Id.  In  general, issues
                                       

of credibility are  resolved in  favor of the  verdict.   Id.
                                                            

"The  evidence   .  . .  need  not exclude  every  reasonable

hypothesis of  innocence; that is, the  factfinder may decide

among reasonable interpretations of the evidence."  Id.
                                                      

     In  this  case Moran  was  tried  on the  charge,  among

others, that he conspired  with Willis and his co-defendants.

The  "essence" of  conspiracy  is an  agreement  to commit  a
                                               

crime, Ianelli v. United  States, 420 U. S. 770,  777 (1975),
                                

here,  an agreement  between Moran  and others  to distribute

drugs.   Such an agreement  may, of course,  be inferred from

other evidence  including a course of conduct.  United States
                                                             

v. Concemi, 957  F.2d 942,  950 (1st Cir.  1992).  More  than
          

that,  while  the term  "agreement"  is  customarily used  in

defining  conspiracy   and  is  properly  employed   in  jury

instructions, the agreement of  the defendant with others may

be  implicit in  a working  relationship between  the parties

that has never been articulated but nevertheless amounts to a

joint criminal enterprise.

                             -3-

     In this case, taking the evidence  most favorably to the

government, the jury could  have found from direct testimony,

telephone  recordings  and  other  evidence  that  Willis was

engaged  in  a  drug  distribution  conspiracy  with  various

persons during 1988.   As to Moran, the evidence  against him

came almost  entirely from one Paul  Callahan, who cooperated

to  some extent  with  the  Drug Enforcement  Administration.

Callahan's  trial  testimony  came  freighted with  his  long

criminal record, admissions that he procured  false testimony

in  other  proceedings,  and   his  incentive  to  favor  the

government   in  order  to  secure  favorable  treatment  for

himself.  Nevertheless, his testimony was not incredible, was

corroborated on  certain limited points, and  was essentially

uncontradicted.  Thus the jury was entitled to accept some or

all of Callahan's testimony.  

     According to Callahan,  he first met  Moran in 1981  but

had no further contact with him until  June or July 1988 when

he had a friend give Moran his beeper number.  Callahan  then

met  with Moran and sought to purchase  cocaine from him in a

substantial  amount.  Moran replied that he would contact the

"fat man"  (understood by  Callahan to  be Willis)  with whom

Moran  said he  was  dealing  at the  time.    At their  next

meeting, Moran told  Callahan that the fat  man's prices were

too high  but that Moran had another source in the North End.

Moran also said  that he was  going to try  to get a  cheaper

                             -4-

price from "Mary," a  friend of the fat man  later identified

by Callahan  as  a member  of  Willis' ring.    Subsequently,

Callahan and Moran met again and Callahan purchased 500 grams

of cocaine from Moran, after testing it for purity.

     Some  weeks  later,  Callahan again  contacted  Moran, a

further   meeting  ensued,   and   Moran  told   Callahan--in

Callahan's words--that  he (Moran)  was "still looking  in to

ingratiate with the  fat guy."   At the  next meeting,  Moran

offered  a package of what Callahan took to be cocaine; Moran

explained that it came from the fat guy.  The  contents had a

diesel  smell and Callahan rejected the package on the ground

that  his own customers would not  accept it.  Moran left and

then returned several hours later with a kilo of cocaine from

an unidentified source.  Callahan  tested the new package and

purchased a half kilo.

     The  final evidence relating  directly to Moran involved

two telephone calls between him and Callahan in October 1988.

The first call was not tape recorded.  According to Callahan,

Moran  complained during  the call  that federal  agents were

scrutinizing  him.   On cross-examination  Callahan indicated

that  Moran also said during  the call, "I  saw the Pillsbury

Boy  a few  days ago, but  that was  just to  say hi. . . . I

don't have nothing to do with those guys."  Callahan told the

jury that the Pillsbury Boy was Willis.

                             -5-

     The second  conversation occurred  a week later,  it was

tape  recorded with  DEA  assistance, and  the recording  was

offered at trial.   In this conversation  Moran, referring to

his  prior questioning  by federal agents,  said that  it had

occurred  because the agents had seen him with "fatso" two or

three times.  Callahan said he had heard that the fat guy was

being  scrutinized  by  law   enforcement  agents  and  Moran

replied, "Oh, my God.   Unbelievable.  I already told him and

his  first lieutenant,  I  says, I  think  somebody made  you

expendable."     At  trial  Callahan   identified  the  first

lieutenant   as   Mary.     Callahan   concluded  the   taped

conversation by asking Moran, "Can  we do some business?" and

Moran  essentially agreed  (although no  evidence of  further

transactions between them was offered).

     This, omitting  a few intervening  conversations between

Moran and Callahan that add nothing pertinent, is the gist of

the  evidence against Moran.   The  jury, after  hearing this

evidence and evidence of Willis' ring, acquitted Moran of the

two distribution counts  based on the  sales to Callahan  but

convicted  him of conspiracy.  The reason for the discrepancy

is  unclear.  Possibly the jury hesitated to rely solely upon

Callahan to prove the sales, but thought that the tape of the

second  conversation  confirmed  Moran's   relationship  with

Willis regarding drug distribution.  But the discrepancy does

not matter.   The question presented  now is whether,  having

                             -6-

heard the evidence, including  nuances and intimations that a

cold record cannot capture, a rational jury could find beyond

a reasonable doubt that Moran was guilty of conspiracy.

     No court lightly overturns a jury verdict on the  ground

that  the jury  lacked  sufficient evidence,  for the  jury's

central role and competence is to weigh the evidence and find

the facts.   Yet the issue  here, or at  least the aspect  we

find troubling, actually  poses the "legal" question  whether

the conduct  the jury  could reasonably  have  found to  have

occurred amounts to a  conspiracy under the statute.   In our

view, the  jury here had  no rational  basis to infer,  as it

often  may  in  conspiracy  cases,  that  the  defendant  was

effectively an employee  or a formal  "share partner" in  the

ring.   The  most  that the  jury  could find  without  sheer

speculation was that the  relationship was what was portrayed

on the  surface.  At this  point we are driven  back to first

principles to determine whether this relationship amounted to

a criminal conspiracy.

     Our starting point is the legal definition of conspiracy

as an  agreement  by the  defendant  with another  person  or

persons to commit the  crime in question.  Ianelli,  420 U.S.
                                                  

at 777; United  States v. Glenn, 828 F.2d 855,  857 (1st Cir.
                               

1987).   The evidence in  this case, taken  most favorably to

the government,  shows that Willis  agreed to supply  Moran a

package which  Moran represented  to be cocaine,  which Moran

                             -7-

tendered  to Callahan,  and which  Callahan then  rejected as

tainted with a  diesel smell.  This connection  between Moran

and Willis is bolstered, or so  the jury could have found, by

Moran's prior use of Willis as a source of supply, by Moran's

unsuccessful  initial effort  to  buy drugs  from Willis  for

Callahan,  by  Moran's  desire  to  ingratiate  himself  with

Willis, by  Moran's encounters  with Willis  and Mary and  by

Moran's knowledge that Willis was under federal scrutiny.  On

appeal,  the  government  argues  that  the  evidence  surely

demonstrates a conspiracy either  as charged (with Willis and

others) or, at the very least, between Moran and Willis.

     An  agreement surely  existed between  Willis  and Moran

relating  to drugs.    But if  the  evidence showed  only  an

agreement  by Willis  to sell  drugs to  Moran, it  would not

necessarily  show  them   to  be   co-conspirators  in   drug

distribution.   There is substantial law,  including cases in

this circuit, that a single drug sale  does not automatically

make  buyer and  seller  co-conspirators.   United States  v.
                                                         

DeLutis,  722  F.2d  902,  906 (1st  Cir.  1983)  (collecting
       

cases). This  "rule" in  varying forms prevails  or has  been

intermittently adopted in a number of circuits, including the

Second,  Fifth,  Sixth, Seventh  and  Eighth.   E.g.,  United
                                                             

States  v. Douglas, 818 F.2d  1317, 1321 (7th  Cir. 1987) ("a
                  

mere    buyer-seller    relationship,   without    more,   is

inadequate").  

                             -8-

     Surprisingly  the reason for excluding such buyer-seller

cases  from the definition of conspiracy is not wholly clear,

and some explanation  is needed since even  an unplanned sale

involves  an  agreement  between  seller and  buyer  and  the

offense  of drug distribution (at least by the seller).  Some

have thought  it to follow  from the so-called  Wharton rule,

now much reduced in  force by Iannelli v. United  States, 420
                                                        

U.S. 770 (1975), that a  crime legally requiring a  plurality

of actors (e.g., dueling) should not have a conspiracy charge
              

superimposed upon it.   Other courts have felt that  a single

purchase   and  sale  do   not  involve  the   union  of  two
                                                    

participants in a manner that increases either the likelihood

that the individual crime  will be committed or that  the two

will extend their joint  endeavor to new crimes.   The latter

explanation has force in  the case of an unplanned  spot sale

with no agreement beyond that inherent in the sale.  It makes

less sense  where the agreement is to make a sale at a future

point, an  agreement that  does increase the  likelihood that

the crime will be  committed.  Yet even  in the latter  case,

the  transaction  may seem  to some  to  lack the  quality of

jointness--the  hallmark  of  conspiracy--in the  sense  that

seller  and   buyer  are  not  part  of   the  same  criminal

enterprise.    

     This may  seem a fine point  but it is one  that goes to

the  root  of conspiracy  law:   conspiracy  is treated  as a

                             -9-

separate crime because of  the jointness of the endeavor.   A
                      

multiplicity of actors united to accomplish the same crime is

deemed to present a  special set of dangers, either  that the

criminal end will be achieved, Callanan v. United States, 364
                                                        

U.S.  587, 593 (1961), or that the conspiracy will carry over

to new crimes, United  States v. Rabinowich, 238 U.S.  78, 88
                                           

(1915),  or both.   See 2 W.  LaFave &amp; A.  Scott, Substantive
                                                             

Criminal Law   6.4(c) (1986) (summarizing the rationale).  It
            

is these  dangers stemming from jointness  that justify early

intervention to  stem conspiracies  even before they  rise to

the  level of attempts and to impose a separate punishment on

the conspirators  even if  they fail  to achieve  their ends.

This  special set  of dangers is  present if  two individuals

agree that one  of them will sell cocaine and  the other will

assist;  it is arguably not  present if one  merely sells the

same cocaine  to another  without prearrangement and  with no

idea of or interest in its intended use.  In the latter case,

both may  be guilty--one  of distribution  and  the other  of

possession--but  without  more  they  are  not  conspirators.

Glenn, 828 F.2d at 858.
     

     At some point the relationships  converge.  A pattern of

sales  for resale  between  the same  persons, together  with

details supplying a context  for the relationship, might well

support a  finding of  conspiracy.   Id. at 857-58.   Even  a
                                       

single  sale for resale, embroidered with evidence suggesting

                             -10-

a joint undertaking between  buyer and seller, could suffice.

United  States v. Carbone, 798  F.2d 21, 27  (1st Cir. 1986).
                         

Common  knowledge, interdependence,  shared  purpose and  the

other  ingredients of  a  conspiracy are  matters of  degree.

Almost everything in such a case depends upon the context and

the details.    The  evaluation  of the  facts  is  entrusted

largely to the jury.

     In  this case, taking  a practical rather  than a formal

view of the matter, we believe that the  jury was entitled to

conclude that  the arrangement amounted  to a  conspiratorial

agreement between  Willis and  Moran for the  distribution of

drugs.   Based  on testimony  that the  jury was  entitled to

credit, Moran  (according to  Callahan) admitted that  he was

dealing with Willis, an  admission suggesting that Willis had

supplied Moran with drugs in the past.  Moran then  turned to

Willis as his  first choice  of supplier in  seeking to  fill

Callahan's first order.  Although Willis' price  was too high

for this  first transaction, for the  second one Moran--after

expressing  his  desire  to  bolster  his  relationship  ("to

ingratiate  with the fat guy")--again turned to Willis.  This

time Moran did  acquire from Willis a  resale sized quantity,

even  though  Callahan  then  rejected the  shipment.    This

picture of a continuing sale-for-resale relationship, even if

Willis  was not  the  exclusive supplier,  was reinforced  by

Moran's other contacts with  Willis and knowledge of his law-

                             -11-

enforcement jeopardy.  See United States  v. Anello, 765 F.2d
                                                   

253, 261 (1st Cir.), cert. denied, 474 U.S. 996 (1985).
                                 

     We  think  that a  realistic  appraisal  of Moran's  and

Willis' relationship  would permit  a  jury to  find that  it

amounts  to  an  implicit   agreement  and  comprehends   the

continuing supply by one to the other  of drugs for resale to

customers.  See United States v. Geer, 923 F.2d 892, 895 (1st
                                     

Cir. 1991).  Even  though Moran was not  an employee nor  did

Willis  and Moran formally divide the profits, in this case a

jury could conclude that both Willis and Moran had an ongoing

stake in the success of Moran's  own sales of the drugs Moran

acquired  from Willis.  See Glenn,  828 F.2d at 857-58.  From
                                 

those sales Moran could profit directly and Willis indirectly

through  the maintenance  of  the  drug distribution  channel

crucial for a drug  network.  See generally Direct  Sales Co.
                                                            

v.  United  States, 319  U.  S.  703, 717  (1943).   Such  an
                  

arrangement,  we think, is  not only an  agreement within the

ordinary  conspiracy-law ambit  but  is one  that unites  two

participants   in  seeking   to  accomplish   the   crime  of

distribution   and   involves   both  of   the   dangers   of
                                    

conspiracy--increased likelihood of  success and extension to

other crimes--to which the  cases advert.  We think  that the

pragmatic approach  of  Direct Sales  in defining  conspiracy
                                    

foreshadows  the result  in  this case  and, given  Congress'

intent  to stamp out drug  transactions, it certainly did not

                             -12-

mean  to  narrow the  conspiracy concept  when it  enacted 21

U.S.C.   846, the statute involved in this case.

     We leave  for another day  the lesser variations  on the

same  theme.    Obviously  a  single  sale  in  resale  sized

quantities presents  one problem and an  advance agreement to

make a single  sale involves  another.  Where  one draws  the

line is more  a matter of discerning congressional policy and

intent  than  an  exercise  in logic,  and  the  case-by-case

approach  is for the  present the wisest course.   As for the

classic    single    sale--for    personal    use,    without

prearrangement,  and with nothing more--the precedent in this

circuit  as well  as  others treats  it  as not  involving  a

conspiracy.   In such cases the jointness  element is clearly

at  a minimum, if  it exists at  all.  Where  nothing more is

involved, we reaffirm existing authority that such a  case is

not a conspiracy.

                             II.

     Moran's remaining arguments are less formidable than his

attack  on  the sufficiency  of  the evidence.    Moran first

argues  that even  if the  evidence was  adequate to  prove a

conspiracy between Willis and Moran, it was not sufficient to

prove Moran to be  a member of the larger  conspiracy charged

in the indictment.  This  variance, he argues, prejudiced him

by associating him with  more powerful and extensive evidence

                             -13-

against other defendants.  We agree that there was probably a

variance but find that it was not prejudicial.

     The  indictment  charged   a  single  drug  distribution

conspiracy,  naming as  co-conspirators  Willis,  Moran,  six

other  named defendants,  and "other  persons both  known and

unknown  to the  Grand Jury  . . .  "   At trial  much of the

evidence related to  the two other defendants who pleaded not

guilty and to Willis and his relations  with defendants other

than  Moran.   The references  of Mary  to one  side, nothing

linked  Moran to any of the ring members other than Willis or

any of  the transactions charged elsewhere  in the indictment

other than Moran's own sales to Callahan. 

     On this record, it is true that the evidence pointing to

a Willis-Moran  conspiracy is  far stronger than  evidence of

conspiracy between  Moran and the Willis ring  as a whole.  A

very  serious problem would be presented if the jury had held

Moran liable  for other  substantive crimes committed  by the

ring.  Compare Glenn.   The situation is different  where the
                    

government charges a defendant with a crime (here, conspiracy

to  distribute) but the  facts proven at  trial vary somewhat

from  those charged in the  indictment.  In  that case, it is

settled law that a  conviction for the crime charged  will be

affirmed unless the variance as to the facts is shown to have

prejudiced the defendant.  Berger v. United States,  295 U.S.
                                                  

78  (1935);  Fed. R.  Crim  P.  52(a)(variance not  affecting

                             -14-

substantial  rights  may be  disregarded).    Convictions are

often sustained  under  this principle  where the  indictment

alleges  a single  conspiracy  but multiple  conspiracies are

actually  proved.    E.g., United  States v.  Sutherland, 929
                                                        

F.2d 765, 772 (1st Cir.), cert. denied, 112 S. Ct. 83 (1991).
                                      

     In  this case, Moran does  not and could  not claim that

the variance deprived him of notice of the charge adequate to

prepare  a defense.  Rather he contends that the disparity in

evidence--specifically,  the  array  of  witnesses  and  tape

recordings   incriminating    other   defendants--created   a

"spillover"  effect that  enhanced the narrower  case against

him.   See Sutherland, 929 F.2d  at 772.  The enhancement may
                     

be  assumed;  motions for  severance  are  routinely made  in

conspiracy cases, partly to escape  this taint.  The question

is whether  the impact threatened  to deprive defendant  of a

fair trial.  We conclude that it did not.

     Most  of the  evidence  concerning Moran  was distinctly

different from  the evidence against others.  It derived from

Callahan's  testimony and  concerned  his  transactions  with

Moran.  Similarly, Moran's relationship with Willis was based

upon Callahan's  description buttressed  by Moran's  own tape

recorded statements.   The distinct  separation between  this

evidence  and  evidence  of  other  Willis-related activities

diminished  the risk  of  jury confusion.   Indeed,  on these

facts the risk appears  to have been minimal compared  to the

                             -15-

usual mass conspiracy case.  Under  these circumstances we do

not think  the  apparent variance  even  arguably  threatened

Moran's right to a fair trial.

     Finally,  Moran   argues  that   error   inheres  in   a

supplementary  instruction  given  to  the  jury  during  its

deliberations.   Jury  deliberations  began  on February  14,

1991, and the next day the jury sent in the following written

question, as described by the trial judge:

             The  indictment  states, quote,  David
          Elwell,   Richard  Morretto   and  George
          Moran,  defendants,  combined,  conspired
          and agreed with  each other -- underlined
          "with  each  other"  --  and  with  other
          persons,  both known  and unknown  to the
          grand  jury,  close   quote.    Does  the
          statement   mean   these  three   --  and
          circled --  people  conspired  with  each
          other --  and "with each  other" is again
          underlined.  Your instruction seems to be
          different from the indictment.  Signed by
          the foreperson.

The judge  then re-instructed  the jury, reminding  them that

"first,  remember  the indictment  is  only  the charge,  the

accusation.   It is not evidence.   It is not  a statement of

the law.  On  the other hand, my instructions are a statement

of the  law and are binding on you."  The judge then repeated

his prior  instructions on  conspiracy (two or  more persons,

agreement to commit  crime charged, defendant's knowledge  of

unlawful purpose and knowing joinder).   Within the hour, the

jury   returned  its   verdict,   including  the   conspiracy

conviction of Moran.

                             -16-

     On appeal, Moran agrees that "[v]iewed in isolation, the

judge's  instructions  were  unobjectionable,"  and  this  is

clearly so:  the response to  the jury's question  was clear,

correct, and  precisely answered  the question posed.   Moran

argues, however,  that in context the  instruction could have

led  the  jury  to  believe  that  it  could   disregard  the

indictment  entirely   and  convict  the  defendant   of  any

conspiracy it chose.  There  is a distinct possibility,  says

Moran,  that  the  jury convicted  him  of  a  conspiracy not

charged such as a  conspiracy with Callahan or  "a conspiracy

with Willis, different  from that involving  Moretto, Polito,

and Elwell."

     Moran's  counsel   at  trial  did  not   object  to  the

supplementary  instruction  and  any  objection  is therefore

waived absent a showing of serious prejudice.   United States
                                                             

v. Maraj, 947 F.2d 520, 525 (1st Cir. 1991).  No such showing
        

has  been  made here.    Further, we  do not  think  that the

instruction invited the jury  to disregard the charge in  the

indictment;  indeed,  the supplementary  instruction reminded

the jury that the agreement here charged was "to possess with

intent to  distribute cocaine."   As for the  suggestion that

the jury  convicted Moran for such a  conspiracy with Willis,

rather than with Willis and others in his ring, this may well

be so.  But as cases like Sutherland show, such an outcome is
                                    

                             -17-

not conviction for a "different crime"  than that charged but

is merely a permissible variance.

     Affirmed. 
             

                             -18-
