213 F.3d 978 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Daniel Torres-Ramirez, John Douglas Byers,  and Rickey W. Franklin,    Defendants-Appellants.Nos. 99-1791, 99-2316 & 99-2373
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 10, 2000
Decided May 23, 2000

Appeals from the United States District Court  for the Southern District of Indiana, Evansville Division.  No. 3:98CR00017--Richard L. Young, Judge.
Before Easterbrook, Kanne, and Rovner, Circuit Judges.
Easterbrook, Circuit Judge.


1
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.


2
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.


3
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.


4
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:


5
He sold two kilograms of cocaine to  Derrick Hardin in Los Angeles,  California, in June 1996.


6
He met Hardin through George Tyson.


7
Between 1993 and 1995 he fronted modest  quantities of cocaine to George's  brother Monte.


8
Hardin and George Tyson demonstrated  their trust in him by allowing him to  leave with the money and return later  with the cocaine.


9
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.


10
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).


11
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.


12
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).


13
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.


14
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.


15
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.


16
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).


17
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.

