                               In the

United States Court of Appeals
                For the Seventh Circuit

No. 12-1592

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                   v.

P RINCE T. B EY,
                                                Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
        No. 1:08-cr-0046-1—Sharon Johnson Coleman, Judge.



         A RGUED A PRIL 3, 2013—D ECIDED JULY 9, 2013




  Before P OSNER, W OOD , and H AMILTON, Circuit Judges.
  H AMILTON, Circuit Judge. Prince Bey appeals his con-
viction for conspiring to possess heroin with intent to
distribute and for aiding and abetting the distribution
of heroin in violation of 21 U.S.C. § 841(a)(1) and § 846.
Bey alleges three errors on appeal: first, that the dis-
trict court erred by not instructing the jury on an entrap-
ment defense; second, that there was insufficient evi-
dence of conspiracy to allow the admission into evidence
2                                               No. 12-1592

of out-of-court statements made by his alleged co-con-
spirator under the co-conspirator exclusion from the rule
against hearsay; and third, that there was insufficient
evidence to support his conviction for the conspiracy
offense. We are not persuaded by any of these arguments.


I. Entrapment Defense
  We can dispense with the entrapment issue quickly
before turning to the facts of the case. Bey was charged
for his involvement in a heroin transaction in which
the buyer was a government informant. Before trial,
Bey suggested that he planned to raise an entrapment
defense and submitted two proposed jury instructions on
the defense. Entrapment occurs when the government
induces a person to commit an offense and he lacked the
predisposition to do so without the inducement. See
United States v. Plowman, 700 F.3d 1052, 1057 (7th Cir.
2012); see also Mathews v. United States, 485 U.S. 58, 62-63
(1988). During trial, however, Bey abandoned the en-
trapment defense. At several points during the govern-
ment’s presentation of its case, the district judge
prohibited the government from presenting evidence of
Bey’s predisposition to involvement in the transaction
because Bey had not yet put on an entrapment defense.
After the government rested its case, Bey chose to rest
without raising an entrapment defense: Bey did not
testify, he called no witnesses, and his counsel with-
drew his proposed entrapment instructions. Accordingly,
the district judge followed Bey’s decision and never
instructed the jury on the entrapment defense.
No. 12-1592                                                3

   This is about as clear a record of waiver as one can
imagine. Bey waived the entrapment defense and cannot
argue on appeal that the judge should have given
the entrapment instruction. See United States v. Walton,
255 F.3d 437, 441 (7th Cir. 2001) (“a waived issue is
unreviewable because a valid waiver leaves no error to
correct and extinguishes all appellate review of the
issue”). In the context of appellate challenges to jury
instructions, we have held that a defendant waives an
objection to jury instructions when he “approved of the
instructions at issue.” See United States v. DiSantis, 565
F.3d 354, 361 (7th Cir. 2009), citing United States v. Pree,
408 F.3d 855, 872 (7th Cir. 2005). The same logic applies
when a party approves not giving an instruction. E.g.,
United States v. Ewings, 936 F.2d 903, 908-09 (7th Cir. 1991)
(finding waiver of objection to jury instructions be-
cause defense asked judge not to give instruction). Here,
Bey considered an entrapment defense, laid some of
the groundwork for it outside the hearing of the jury,
and then withdrew his own proposed entrapment in-
struction. He waived the issue for appellate review. We
now turn to the conspiracy issues.


II. The Conspiracy Issues
  A. Factual and Procedural Background
    1. The Heroin Transaction
  In the fall of 2006, the FBI became interested in a drug
dealer named Vernell Hemphill. The FBI wanted to use a
confidential informant who went by the name “Chub” to
bust Hemphill for selling drugs, but there was a prob-
4                                             No. 12-1592

lem. Though Chub was familiar with Hemphill, he did
not know him well enough to arrange a deal. This is
where Bey came in. Bey was friends with Chub, and Chub
knew that Bey had previously bought cocaine from
Hemphill. Over several weeks, Chub used Bey to arrange
the purchase of 100 grams of heroin from Hemphill.
(Because the conspiracy offense requires proof of an
agreement to commit a crime with someone other than
a government informant, like Chub, the focus is on
whether the evidence shows that Bey conspired with
Hemphill to sell drugs to Chub.)
  Many of the communications between Chub and Bey
were recorded, and those recordings provide a fairly
clear chronology of events. On October 25, 2006 Chub
called Bey to tell him that he was “thinkin’ about openin’
up . . . a line” and asked Chub if he knew of anyone
selling good heroin. Bey responded “well let’s do it” and
told Chub that he knew Hemphill sold high quality
heroin. Chub then asked Bey if he knew how much
Hemphill charged. Bey responded, “I don’t know, but
I could find out, I can, I can find all that out for you
immediately.”
  Bey then went to talk with Hemphill. According
to Bey’s signed written statement made after his
arrest — the admission of which has not been chal-
lenged — Bey next went to a store where Hemphill
worked and told Hemphill that Chub was interested
in buying heroin. At this meeting Hemphill expressed
reservations about dealing with Chub because he had
heard that Chub worked for the government. Bey
No. 12-1592                                               5

assured Hemphill that Chub was not a government
informant, and his reassurance appears to have
satisfied Hemphill, who then quoted a price of $7,500 for
100 grams of heroin. Bey relayed this information to
Chub on November 3, 2006.
  On November 8, 2006, Chub called Bey to tell him that
he was getting ready to do the deal and that he needed
Bey “to take care of everything.” On the same call, Chub
told Bey that he would give him “a stack” ($1,000)
for helping to arrange the deal.
  The deal occurred on November 17, 2006. That after-
noon Bey called Chub and told him that Hemphill was
ready to do the deal. After picking up another man
for some muscle, Chub picked up Bey and they drove
to the clothing store where Hemphill worked. Bey in-
troduced Chub to Hemphill, and Chub and Hemphill
went into a back room to count the money. The money
added up, and Hemphill gave Chub the heroin in return
for the money. Hemphill testified at trial that he then
paid Bey a $200 or $300 finder’s fee for his work in setting
up the transaction. Bey, Chub, and the muscle then left
the store and returned to their respective homes. On
their way home, Bey asked Chub to “Gimme five,” mean-
ing $500 dollars, and Chub responded that he would pay
him later. At trial, Hemphill also testified that he would
not have done the deal if Bey had not vouched for Chub.


    2. The Trial
  Before trial, the government made a Santiago proffer
to admit statements of Bey’s alleged co-conspirator
6                                               No. 12-1592

Hemphill. Under Santiago, a district judge may decide
before trial to admit co-conspirator testimony based on
the government’s proffer that it has sufficient evi-
dence to prove the existence of a conspiracy by a prepon-
derance of the evidence at trial. See United States v. Santi-
ago, 582 F.2d 1128, 1130-31 (7th Cir. 1978), overruled on
other grounds by Bourjaily v. United States, 483 U.S. 171
(1987). This procedure helps streamline trials by permit-
ting the government to introduce co-conspirator testi-
mony at any point during the trial rather than waiting
until after it has provided sufficient independent proof
of conspiracy.
  Hemphill’s out-of-court statements included conversa-
tions between Hemphill and Bey about the price of the
heroin and conversations that Hemphill had with Chub
during the deal. To establish the existence of a con-
spiracy between Bey and Hemphill, at trial the govern-
ment relied on Bey’s written statement, the recorded
conversations, and Hemphill’s trial testimony. This
evidence showed that Bey recommended Hemphill to
Chub as a heroin supplier, that Bey vouched for Chub,
that Bey relayed the price between Hemphill and Chub,
and that Hemphill paid Bey a finder’s fee.
  Following the presentation of the government’s case,
Bey moved for a directed verdict under Rule 29, arguing
that the government failed to prove the existence of an
agreement between Hemphill and Bey — a necessary
element of the conspiracy offense. The judge denied the
motion and allowed the case to go to the jury. The jury
convicted Bey of conspiring to distribute heroin and
No. 12-1592                                               7

aiding and abetting the distribution of heroin, and the
judge sentenced him to 110 months in prison.


  B. Analysis
  Bey argues first that the district judge erred in allowing
the government to introduce Hemphill’s out-of-court
statements because the government failed to provide
sufficient evidence of a conspiracy between Hemphill
and Bey. Second, Bey argues that even with these state-
ments there was insufficient evidence to support his
conspiracy conviction. We take each argument in turn.


    1. Admissibility of Co-conspirator Statements
  Bey argues that the district judge erred in allowing the
government to introduce out-of-court statements made
by his alleged co-conspirator, Vernell Hemphill, because
there was insufficient evidence to establish the ex-
istence of a conspiracy between Hemphill and Bey. Ordi-
narily out-of-court statements introduced into evidence
to prove the truth of their contents are barred by the
prohibition against hearsay. See Fed. R. Evid. 802. Out-of-
court statements made by a co-conspirator, however,
are not hearsay if the statements were “made by the
party’s co-conspirator during and in furtherance of the
conspiracy.” Fed. R. Evid. 801(d)(2)(E). To establish ad-
missibility, the government must show by a preponder-
ance of the evidence that a conspiracy existed between
the defendant and the declarant and that the statements
were made in furtherance of the conspiracy. See United
8                                               No. 12-1592

States v. Cruz-Rea, 626 F.3d 929, 937 (7th Cir. 2010). An
unlawful conspiracy exists when two or more people
agree to commit an unlawful act, and the defendant
“knowingly and intentionally” joins in the agreement.
See United States v. Johnson, 592 F.3d 749, 754 (7th Cir.
2010). We ultimately find there was sufficient evidence
of conspiracy to admit the statements.
  Bey does not direct us to specific statements that he
contends were improperly admitted, an omission that
we might treat as a waiver of the issue. To be on the safe
side, though, we have done an independent review of the
record that reveals only one conversation that could
arguably be hearsay. The majority of Hemphill’s state-
ments were not hearsay: Any accounts provided by
Bey of conversations he had with Hemphill were ad-
missible under the party admission exclusion, see Fed. R.
Evid. 801(d)(2)(A), and Hemphill’s in-court testimony
was not hearsay because it was provided in open court.
The only statements made by Hemphill that were
arguably hearsay occurred in a recorded conversation
between Chub and Hemphill describing the deal as it
was happening.1 This recording included a descrip-
tion of Hemphill counting the money and Hemphill and
Chub discussing doing business again in the future, but


1
  We say arguably because much of what Hemphill said as
the drug transaction was happening would not have been
statements offered for their truth, and those that were would
probably fit under the present sense impression exception to
the rule against hearsay. See Fed. R. Evid. 803(1); United
States v. Ruiz, 249 F.3d 643, 646 (7th Cir. 2001).
No. 12-1592                                               9

the conversation itself did not implicate Bey in a con-
spiracy. Hemphill made no direct or indirect reference
to Bey or Bey’s role in the transaction during the con-
versation.
  Because this admitted conversation did not implicate
Bey in the alleged conspiracy, we see no possibility
that there was any error, let alone prejudicial error, in
admitting any evidence under the co-conspirator exclu-
sion to the hearsay rule. Moreover, as discussed in the
next section, there was sufficient evidence of conspiracy
to permit the evidence to be admitted under the co-con-
spirator exclusion.


    2. Sufficiency of the Evidence
  We turn now to whether there was sufficient evidence
to support Bey’s conspiracy conviction. We review chal-
lenges to the sufficiency of the evidence deferentially.
We will overturn a conviction for insufficient evidence
only if, after viewing all of the evidence in the light most
favorable to the prosecution, no rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 319 (1977); United States v. Khattab, 536 F.3d 765, 769
(7th Cir. 2008). When a government agent — like Chub —
is involved in the transaction, a conspiracy conviction
requires proof that the defendant conspired with
someone other than the government agent. See United
States v. Corson, 579 F.3d 804, 811 (7th Cir. 2009). This
means that Bey cannot have conspired with Chub as a
matter of law, so the issue here is whether there was
10                                               No. 12-1592

sufficient evidence to find that Bey conspired with
Hemphill to sell the heroin to Chub.
  The government’s evidence of a conspiracy between
Bey and Hemphill was not overwhelming, but it was
enough. The clearest evidence was Hemphill’s testimony
that he paid Bey a share of his take for bringing Chub
to the deal. This evidence of payment by Hemphill,
combined with the evidence that showed Bey had pur-
chased drugs from Hemphill in the past, relayed price
and quantity information between Hemphill and Chub,
attended the transaction, and reassured Hemphill that
Chub was trustworthy, was enough to allow a rea-
sonable trier of fact to find not only that Bey agreed
to help Chub buy the heroin, for which he could not be
convicted, but also that he knowingly and inten-
tionally agreed with Hemphill to help him sell the heroin.
  To prove the existence of a conspiracy, the govern-
ment must show that Bey “knowingly and intentionally”
joined in an agreement with another person to commit an
unlawful act. Johnson, 592 F.3d at 754; United States v.
Rollins, 544 F.3d 820, 835 (7th Cir. 2008). Depending on
the specific circumstances, a person who acts as a middle-
man or broker for a drug deal between a buyer and a
seller can conspire with the buyer, the seller, or both. E.g.,
United States v. Gilmer, 534 F.3d 696, 702-03 (7th Cir. 2008)
(middleman conspired with seller); United States Lechuga,
994 F.2d 346, 350 (7th Cir. 1993) (en banc) (plurality
opinion) (middleman conspired with seller to distribute
drugs). But not all middlemen conspire with both the
buyer and the seller. See United States v. Thomas, 284
No. 12-1592                                               11

F.3d 746, 753, 756 (7th Cir. 2002) (finding insufficient
evidence that defendant who brokered four spot sales
of crack between buyer and sellers conspired with
buyer); United States v. Contreras, 249 F.3d 595, 599-600
(7th Cir. 2001) (insufficient evidence of conspiracy
between defendant and middleman because record did
not reveal middleman had “stake in the success” of the
operation).
  In a case, like this one, in which a government
informant brings a middleman to the deal, we must make
sure that there is an evidentiary basis for the jury to
conclude beyond a reasonable doubt that the middle-
man had an agreement with the seller to distribute drugs
in addition to the agreement to help the informant buy
drugs. It is important to pay attention to the role played
by each participant in the transaction so as not to turn
the conspiracy offense into “a simple substitute for a
drug distribution conviction.” United States v. Rivera, 273
F.3d 751, 756 (7th Cir. 2001).
  Evidence that the middleman had a clear stake in the
seller’s sales is typically sufficient to permit the jury to
infer the existence of an agreement with the seller. See
United States v. Colon, 549 F.3d 565, 568-70 (7th Cir.
2008) (recognizing the following as evidence that distin-
guishes a conspiracy from a buyer-seller relationship:
sales on credit, agreement to look for customers, payment
of commission, provision of significant business advice); cf.
Contreras, 249 F.3d at 600 (insufficient evidence of con-
spiracy between a drug seller and a middleman where
there was no evidence that the middleman “had a stake”
12                                              No. 12-1592

in the seller’s sales). In the absence of evidence of an
explicit agreement, such evidence provides the jury with
a basis for choosing the inference that the middleman
had an additional agreement with the seller over the
competing inference that the middleman was working
with only the informant buyer. Cf. United States v.
Williams, 592 F.3d 749, 755 (7th Cir. 2010) (“In this situa-
tion, the evidence is essentially in equipoise; the plausi-
bility of each inference is about the same, so the jury
necessarily would have to entertain a reasonable doubt
on the conspiracy charge.”). Because the jury was pre-
sented with such evidence here, it had an adequate basis
to conclude that Bey had an agreement with Hemphill.
  Hemphill testified that he paid Bey a finder’s fee for
his help in arranging the sale. This testimony, when
paired with the extensive evidence that Bey was acting
as a middleman between Hemphill and Chub, provided
the necessary support for the inference that Bey agreed
to help Hemphill sell heroin. The fact of payment pro-
vided probative evidence that Bey had a shared stake
in Hemphill’s sale and allowed the other evidence pre-
sented by the government to be read in a reasonable
manner consistent with a conspiracy between Bey
and Hemphill. With the evidence of payment, it was
reasonable for the jury to infer that Bey recommended
Hemphill to Chub and helped organize the deal not just
because Chub asked him to but because he also had a
separate agreement with Hemphill to help promote
Hemphill’s drug distribution enterprise. In other words,
Bey was a broker working for both sides.
No. 12-1592                                                 13

  This evidence of agreement to commit the unlawful
act of heroin distribution is sufficient to support Bey’s
conspiracy conviction. Although Bey suggests that his
role in the transaction was too minimal to support a
conspiracy conviction because he did not decide the
price, quantity, or other terms of the transaction, the
conspiracy offense does not require such high-level
participation. See United States v. Garcia, 45 F.3d 196, 198-99
(7th Cir. 1995) (affirming conviction of middleman who
did not set the price, quantity, or terms of transaction).
  The judgment of the district court is A FFIRMED.




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