                                                                                  [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT

                                 ________________________
                                                                             FILED
                                                               U.S. COURT OF APPEALS
                                        No. 97-9065              ELEVENTH CIRCUIT
                                 ________________________             1/21/99
                                                                  THOMAS K. KAHN
                              D. C. Docket No. 6:96-CR-2 (WLS)         CLERK

UNITED STATES OF AMERICA,
                                                                           Plaintiff-Appellee,

                                             versus

ANDREW ALLISON DEKLE, M.D.,

                                                                           Defendant-Appellant.

                                _________________________

                          Appeal from the United States District Court
                              for the Middle District of Georgia
                               _________________________

                                       (January 21, 1999)

Before BIRCH and BARKETT, Circuit Judges, and ALAIMO*, Senior District Judge.

BARKETT, Circuit Judge:

       Andrew Allison Dekle, M.D., appeals his conviction and sentence for one count of

conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 and 129 counts of

distributing controlled substances in contravention of 21 U.S.C. § 841 arising from writing

___________________________

* Honorable Anthony A. Alaimo, Senior U.S. District Judge for the Southern District of Georgia,
sitting by designation.
medically unwarranted prescriptions for Schedule III and IV drugs to a number of women in

exchange for sexual favors.1 Dekle raises a battery of challenges to his convictions and sentence.

Specifically, Dekle argues: (1) that there was insufficient evidence to convict him on all counts

charged in the indictment; (2) that certain items (medical records, drugs, and sexually explicit

photographs of several women) were seized from his office in violation of the Fourth

Amendment to the Constitution and therefore should have been suppressed; (3) that the district

court abused its discretion in admitting these sexually explicit photographs in evidence thereby

prejudicing him; (4) that the government’s reference to his prior indictment further prejudiced

him; and (5) that the district court miscalculated his base offense level for sentencing purposes.

        The evidence at trial revealed that from approximately 1984 until his arrest in 1994,

Dekle issued at least 129 prescriptions for controlled substances without any legitimate medical

justification. The drugs concerned fell into Schedules III and IV of 21 U.S.C. § 812 and may

only be lawfully distributed by a licensed physician “in the course of professional practice.”

United States v. Steele, 147 F.3d 1316, 1317 (11th Cir. 1998) (en banc) (quoting 21 U.S.C. §

802(21)). Dekle wrote these 129 prescriptions -- which accounted for the 129 illegal

distribution counts -- to the four women named in the indictment in exchange for their

willingness either to engage in sexual acts with him or to pose naked for photographs which he

took. Dekle admitted at trial that he took nude photographs of another four female patients as

well.

        We are satisfied that the evidence at trial confirmed that Dekle’s issuance of these


        1
         Upon his conviction, the United States also sought and obtained forfeiture of Dekle’s
medical license, his Drug Enforcement Administration registration number, and three parcels of
real property held in his name. These civil penalties have not been appealed.

                                                 2
prescriptions fell outside the bounds of professional medical practice and thus supports his

convictions for the illegal distribution of controlled substances. We are also satisfied that under

the circumstances presented here the district court did not commit reversible error by denying

Dekle’s motion to suppress or by overruling his objection to the government’s reference to his

earlier indictment.

       As to Dekle’s claim regarding the admission of the photographs, reviewable under an

abuse of discretion standard, we are satisfied that, the error, if any, does not warrant reversal. At

trial, Dekle admitted to engaging in extensive sexual encounters with patients. His defense was

not that sex did not occur or that photographs were not taken, but rather that the prescriptions he

wrote for the women in question were medically appropriate. Thus, the jury heard the testimony

of both Dekle and various women patients regarding sexual encounters and posing for nude

photographs. Although there may not be matching testimony for every act depicted in every

photograph, the jury was clearly informed of the nature of the sexual bargain alleged in exchange

for the prescription drugs. While it could be argued that not every photograph was admissible on

impeachment or other grounds, we cannot say that there was any reasonable likelihood that the

admission of the photographs affected Dekle’s substantial rights. See United States v. Mendez,

117 F.3d 480, 486 (11th Cir. 1997) (“‘[E]videntiary and other non-constitutional errors do not

constitute grounds for reversal unless there is a reasonable likelihood that they affected the

defendant’s substantial rights’ . . . . ”) (quoting United States v. Hawkins, 905 F.2d 1489, 1493

(11th Cir. 1990)). Thus, we affirm Dekle’s convictions for the 129 counts of illegally

distributing controlled substances. We also find no merit in Dekle’s argument that the district

court improperly calculated his base offense level.


                                                  3
       We find, however, that the record does not support Dekle’s conviction on one count of

conspiracy to distribute controlled substances. In order to establish the existence of a conspiracy

under 21 U.S.C. § 846, the government must prove that the defendant entered into an agreement

with one or more persons, the object of which agreement was to commit an act made unlawful by

the federal narcotics laws. See United States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998);

United States v. Parrado, 911 F.2d 1567, 1570 (11th Cir. 1990). What distinguishes a conspiracy

from its substantive predicate offense is not just the presence of any agreement, but an agreement

with the same joint criminal objective – here the joint objective of distributing drugs. This joint

objective is missing where the conspiracy is based simply on an agreement between a buyer and

a seller for the sale of drugs. Although the parties to the sales agreement may both agree to

commit a crime, they do not have the joint criminal objective of distributing drugs. As we have

explained,

       the mere agreement of one person to buy what another agrees to sell, standing
       alone, does not support a conspiracy conviction . . . . “The relationship of buyer
       and seller absent any prior or contemporaneous understanding beyond the mere
       sales agreement does not prove a conspiracy to sell, receive, barter or dispose of
       stolen property although both parties know of the stolen character of the goods.
       In such circumstances, the buyer's purpose is to buy; the seller's purpose is to sell.
       There is no joint objective.”

United States v. Solomon, 686 F.2d 863, 876 (11th Cir. 1982) (quoting United States v.

Mancillas, 580 F.2d 1301, 1307 (7th Cir. 1978) (emphasis in original)).2 As Judge Posner

phrased the same point:



       2
        See Toler, 144 F.3d at 1433; United States v. Brazel, 102 F.3d 1120, 1136 (11th Cir.
1997); United States v. Wright, 63 F.3d 1067, 1072 (11th Cir. 1995); United States v. Beasley, 2
F.3d 1551, 1560 (11th Cir. 1993); United States v. Brown, 872 F.2d 385, 391 (11th Cir. 1989);
United States v. Burroughs, 830 F.2d 1574, 1581 (11th Cir. 1987).

                                                 4
       When the sale of some commodity, such as illegal drugs, is the substantive crime,
       the sale agreement itself cannot be the conspiracy, for it has no separate criminal
       object. What is needed for conspiracy in such a case is an agreement to commit
       some other crime beyond the crime constituted by the agreement itself.

United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993) (en banc).3 In the typical drug

distribution scenario, involving a large-volume seller, several mid-level distributors, and

multiple street-level dealers, to the extent that an agreement can be proven as to each participant,

all share the common goal of maximizing the cash returns of the business through the

distribution of the drugs. Cf. United States v. Hess, 691 F.2d 984, 988 (11th Cir. 1982) (in

conspiracy to hijack cargo trucks, “conspirators shared the common goal of increasing their

personal wealth”). It is because of this obvious mutual goal, which exists separate and apart

from the individual transactions necessary to effect it, that a conspiratorial agreement may, in

proper circumstances, be inferred from a series of drug transactions.4

       When two parties are charged with agreeing to distribute drugs, evidence that the parties

understood their transactions to do no more than support the buyer’s personal drug habit is

antithetical to a finding of conspiracy. See Lechuga, 994 F.2d at 348-49 (collecting cases

holding that purchase for one’s own consumption does not evidence a conspiracy to distribute).


       3
          Although Lechuga produced six separate opinions, seven of the eleven judges agreed
with the majority’s formulation of the distinction between a conspiratorial and a buyer-seller
relationship. See id. at 349 (Posner, J., joined by Bauer, C.J., and Easterbrook, J.); id. at 357
(Rovner, J., concurring); id. at 361-62 (Cudahy, J., joined by Cummings, and Ripple, JJ.,
concurring in part and dissenting in part). None of the others disavowed this reasoning; they
disagreed with the majority on other bases.
       4
         Precisely because the drug trade requires a network of buyers and sellers and offers the
prospect of money to be made, the government and the courts exercise care to separate evidence
from which an agreement to distribute might fairly be inferred from evidence of “mere
association” between the parties. See United States v. Hardy, 895 F.2d 1331, 1335 (11th Cir.
1990).

                                                 5
We made this point clearly in United States v. Brown, 872 F.2d 385 (11th Cir. 1989), where we

reversed a defendant’s conviction for conspiracy to distribute cocaine (and conspiracy to possess

with intent to distribute cocaine) despite evidence showing that “on several occasions” the

defendant received “small amounts of cocaine, either from four to six grams or from six to eight

grams.” Id. at 390. The defendant was known to his supplier as a “cocaine user,” and there was

no evidence that the defendant turned around and sold this cocaine or performed any errands or

collections for his supplier or otherwise assisted the ongoing “business.” Id. Recognizing that

“‘the existence of a simple buyer-seller relationship alone does not furnish the requisite evidence

of a conspiratorial agreement’” and that these transactions revealed nothing more than isolated

purchases for personal consumption, we held the evidence insufficient to infer the defendant’s

knowledge of, and intent to join, the existing conspiracy. Id. at 391 (quoting United States v.

Bascaro, 742 F.2d 1335, 1359 (11th Cir. 1984)).

       The same result obtains where the defendant purchases a small quantity of an illegal drug

to share with another person. In United States v. Hardy, 895 F.2d 1331 (11th Cir. 1990), we

overturned a defendant’s conviction for conspiracy to distribute cocaine where the evidence

showed that the defendant “helped [another] purchase an eighth of an ounce of cocaine for their

joint personal use.” Id. at 1334. We held that the purchase and joint use of a small quantity of

the drugs was “an insufficient basis for the inference that [the defendant] intended to distribute

cocaine or entered into an agreement to do so.” Id. Nor did we find that the defendant’s

“transfer [on a separate occasion] of a small amount of cocaine to a guest in his home” altered

this conclusion. Id. at 1335.

       Dekle’s relationship with his female patients falls within the boundaries demarcated by


                                                 6
these cases. Theirs was a variant of the standard buyer-seller relationship; instead of paying

Dekle with money for the illegal narcotics and prescriptions he issued, the patients paid with

sexual favors. The evidence shows no more than that they “purchased” the drugs from Dekle for

their own personal consumption, and on one or two occasions, shared the drugs with a friend or

relative. This evidence falls short of proving a joint criminal objective between any of the

patients and Dekle to distribute drugs to third parties. It suffers from the same shortcomings we

recognized in Brown and Hardy.

       We are not persuaded by the government’s argument that the fact that these exchanges

were repeated turns a buy-sell agreement into a conspiracy. While we have held “that agreement

may be inferred when the evidence shows a continuing relationship that result[ed] in the repeated

transfer of illegal drugs to the purchaser,” United States v. Johnson, 889 F.2d 1032, 1035-36

(11th Cir. 1989), the cases in which we have done so involved typical drug transactions intended

for resale and the generation of proceeds. If the evidence only shows a buy-sell relationship, the

fact that the sales are repeated, without more, does not support an inference that the buyer and

seller have the same joint criminal objective to distribute drugs.

       Nor are we persuaded that the fact that one of Dekle’s patients referred another woman to

Dekle suffices to support the conviction of conspiracy. The testimony revealed that Dekle had

asked Ms. Sheridan if she had “any girlfriends that he might like,” and that Sheridan thought of

Dekle when her friend Ms. Bishop asked her if she “kn[e]w of anyone that she might be able to

get the [money for her] car payment from.” R7:119. Sheridan then called Dekle and he told

Sheridan to tell Bishop to come to his office that evening. Id. at 127. Sheridan did not tell

Bishop that she was getting prescription drugs from Dekle at the time, though Bishop may have


                                                 7
been aware of that. Id. at 128. That evening, in exchange for allowing him to take nude

photographs of her, Dekle wrote Bishop a check for her car payment. Id.

       This evidence is not sufficient to support Dekle’s conviction for conspiracy to distribute

drugs because it failed to show that Sheridan agreed to help Dekle find women willing to trade

sex for drugs as charged in the indictment. See Toler, 144 F.3d at 1426 (“[T]he government

must prove the conspiracy it charged in the indictment rather than some other conspiracy.”).

Although Bishop did eventually begin to exchange sex for prescriptions from Dekle, there was

no evidence that the referral was for Dekle to give Bishop drugs; the only evidence was that

Bishop sought money and Dekle paid her. In short, although testimony indicates that Sheridan

and Bishop knew about the illicit bargain the other had with Dekle, and that Dekle knew that

both women were aware of his unlawful prescription writing, this does not give rise to the

inference that Dekle conspired with either woman to distribute drugs.

       Accordingly, for the foregoing reasons, Dekle’s convictions for counts 2-129 are

affirmed, and his conviction for one count of conspiracy to distribute drugs in violation of 21

U.S.C. § 846 is reversed. We remand the case to the district court for resentencing in light of our

disposition of the conspiracy count.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




                                                 8
9
