United States v. Franklin Brown , 726 F.3d 993 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2743
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANKLIN BROWN,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09-cr-671 — James B. Zagel, Judge.
ARGUED FEBRUARY 28, 2013 — DECIDED AUGUST 12, 2013
Before MANION, KANNE, and TINDER, Circuit Judges.
KANNE, Circuit Judge. For five years, Franklin Brown led a
lucrative life in Chicago’s cocaine trade. Eventually, however,
fate caught up with him. Federal authorities arrested Brown
and charged him with conspiracy to distribute cocaine. The
2 No. 12-2743
jury convicted, and the district court sentenced Brown to
nearly twenty-five years in prison. Now, Brown challenges that
result. He claims that he was only a customer to his suppliers,
as opposed to a co-conspirator. If true, that fact would have
prevented a jury from convicting him. Brown also makes a
second, related argument: he claims the district court’s
instructions to the jury provided incorrect guidance on how to
distinguish a buyer-seller relationship from a conspiracy.
Ultimately, we find both arguments unpersuasive and affirm
Brown’s conviction.
I. BACKGROUND
This case traces the relationship between three protagonists:
Franklin Brown, Pedro Flores, and Margarito Flores. The Flores
brothers (sometimes called “the Twins”) ran a massive drug
trafficking operation in the Chicagoland area. Yet the Floreses
did business with only a select few customers—no more than
fifteen, in fact. (R. 190 at 38.) Brown (also known as “Skinny”)
counted among them. Indeed, Brown was one of the Floreses’
“best customers.” (Id. at 49.) Between 2003 and 2008, Brown
bought millions of dollars worth of cocaine from the Twins. No
one contests these facts.
The dispute is whether Brown was more than a “customer.”
Federal authorities did not charge Brown with a substantive
drug trafficking crime; rather, they charged Brown with
conspiracy to possess cocaine with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. (R. 1); (R. 105). For
this reason, a jury could convict Brown only if they found him
a co-conspirator in the Floreses’ trafficking operation—a status
that requires more involvement than a mere customer.
No. 12-2743 3
Thus, characterizing Brown’s relationship with the Twins
sparked intense debate at Brown’s trial. For unknown reasons,
those with the clearest information on Brown’s involve-
ment—the Floreses—did not testify. This omission is particu-
larly notable due to the Floreses’ rigid business practices. The
Twins used couriers to handle physical transactions but
reserved all power to negotiate for themselves. (R. 195 at
89–90); (R. 190 at 36). Consequently, without the Floreses’ own
accounts, the government had to rely on second-hand informa-
tion from couriers to show Brown’s role in the organization.
The couriers provided useful testimony, however. By
piecing together their accounts, the jury could, for example,
grasp the massive extent of Brown’s purchases from the
Floreses. One courier, Jorge Llamas, stated that, over a two-
year period, he met Brown on approximately forty occasions,
each time to deliver between twenty and one hundred kilo-
grams of cocaine. (R. 190 at 69.) Another courier, Cesar Perez,
testified to making between thirty and forty deliveries, each at
least ten kilograms, during a separate three-year period. (R. 195
at 33–34.) At least two other couriers were also responsible for
delivering cocaine to Brown. (R. 190 at 59–60.)
According to the couriers, Brown rarely provided full cash
payment at the time of delivery. For instance, Brown once
provided Perez with only $26,000 for around 57 kilograms of
cocaine. (R. 195 at 54–56.) Throughout Brown’s entire relation-
ship with the Twins, the price of a kilogram of cocaine in
Chicago never dropped below about $16,000. (R. 192 at 111.)
Thus, even at that lowest price, 57 kilograms was worth at least
$912,000—far more than the $26,000 Brown provided at
delivery. Conversely, Llamas testified to several meetings at
4 No. 12-2743
which Brown dropped off five- to seven-figure payments but
did not receive any drugs. (R. 190 at 69.) A third courier,
Hector Simental, similarly testified to receiving several
payments ranging from $250,000 to $1.3 million from Brown,
all without a corresponding delivery of drugs. (R. 191 at
141–43.) Simental also spoke about an accounting ledger in
which Brown’s financial status with the Twins was tracked.
(Id. at 152–62.)
Yet Brown’s involvement with the Floreses did not end
there. Brown received far more than drugs from the Twins. The
Floreses frequently had couriers provide prepaid cell phones
to their business associates to facilitate communication with the
Twins. (Id. at 110–11.) Llamas delivered such phones to Brown.
(R. 190 at 71.) The Twins also had Llamas give Brown a
Chevrolet HHR specially outfitted with a secret compartment
for concealing drugs or money. (Id. at 72–74.) The government
never presented evidence that Brown used the HHR for
subsequent drug trafficking, but it did introduce records
showing that Brown had taken out insurance on the vehicle. (R.
192 at 41–42.) Finally, an investigator recovered title docu-
ments for a Jeep Grand Cherokee with a similar secret com-
partment from Brown’s garbage. (Id. at 34–38); (R. 190 at 86).
Another courier for the Twins—although not one who deliv-
ered cocaine to Brown—was known to drive this Jeep. (R. 190
at 59–60, 85–88.)
When Brown’s trial came to a close, the district court
instructed the jury on the difference between a conspiracy and
a buyer-seller relationship. Earlier in the proceedings, the
wording of this instruction had raised significant disagreement
between Brown and the government. When the district court
No. 12-2743 5
instructed the jury, it decided to combine the two proposed
approaches (more details on the specific wording later).
After deliberating, the jury found Brown guilty of conspir-
acy. (R. 114.) Brown moved for a judgment of acquittal and
argued that the government failed to provide sufficient
evidence. (R. 117.) Brown also moved for a new trial based
upon several other errors purportedly made by the district
court. (R. 130.) The district court denied both motions, (R. 138),
and sentenced Brown to 292 months in prison, followed by 120
months of supervised release, (R. 152). Brown subsequently
appealed. (R. at 153.)
II. ANALYSIS
Brown presents two arguments on appeal. First, he claims
that the government did not present sufficient evidence to
convict him of conspiracy. Second, he argues that the district
court’s buyer-seller jury instruction misstated the law and
misled the jury. We address each argument below but in
reverse order. To determine whether the jury instruction was
appropriate, we must discuss the case law on conspiracy.
Having that discussion first will later make it easier to deter-
mine whether the evidence in this case was sufficient.
A. Buyer-Seller Jury Instruction
Brown and the government cite seemingly disparate cases
for the standard of review that governs challenges to jury
instructions. Yet neither makes clear that we review instruc-
tions in two steps. First, we review de novo whether a particular
jury instruction “accurately summarize[s] the law.” United
States v. Dickerson, 705 F.3d 683, 688 (7th Cir. 2013). If so, then
6 No. 12-2743
we “examine the district court’s particular phrasing of the
instruction for abuse of discretion.” Id. Under the second step,
we reverse “only if it appears both that the jury was misled
and that the instructions prejudiced the defendant.” Id.
1. Accuracy of law
We begin by assessing whether the district court’s buyer-
seller instruction accurately summarized the law—a difficult
proposition. Our case law on buyer-seller relationships has
many dissonant voices. To determine the accuracy of the
district court’s work, however, we will attempt to harmonize
those voices into a well-blended choir.
a. Case law on buyer-seller relationships
In October 2012, our circuit released a revised set of pattern
jury instructions for use in criminal cases. Committee on
Federal Criminal Jury Instructions for the Seventh Circuit,
Pattern Criminal Jury Instructions of the Seventh Circuit (2012),
available at http://www.ca7.uscourts.gov/Pattern_Jury_Instr/
7th_criminal_jury_instr.pdf. One notable revision was to
Instruction 5.10(A), which distinguishes buyer-seller relation-
ships from conspiracies. Id. at 73–74. This distinction may seem
difficult to grasp at first. It stems, however, from an important
tenet of criminal law: conspiracy is a separate offense from the
underlying crime. See, e.g., 21 U.S.C. § 846; 18 U.S.C. § 43(a); 18
U.S.C. § 32(a)(8).
Conspiracy is the extra act of agreeing to commit a crime.
United States v. Jimenez Recio, 537 U.S. 270, 274 (2003); Smith v.
United States, 133 S. Ct. 714, 719 (2013). “That agreement is a
‘distinct evil,’” Jimenez Recio, 537 U.S. at 274, because a group
No. 12-2743 7
of criminals often pose a greater danger than an individual,
United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir. 1991). By
working together, criminals capitalize on economies of scale,
which facilitate planning and executing crimes—thus making
it more likely that a group will complete its unlawful aim. Id.;
see also Jimenez Recio, 537 U.S. at 275. For this reason, we punish
conspiracies separately from the underlying offense, whether
or not that crime comes to fruition. Jimenez Recio, 537 U.S. at
274.
Drug sales complicate the situation. A drug sale is itself an
agreement: a buyer and seller come together, agree on terms,
and exchange money or commodities at the settled rate. United
States v. Rock, 370 F.3d 712, 714 (7th Cir. 2004). But, although
the substantive trafficking crime is an agreement, it cannot also
count as the agreement needed to find conspiracy. United States
v. Avila, 557 F.3d 809, 815 (7th Cir. 2009); United States v.
Lechuga, 994 F.2d 346, 349 (7th Cir. 1993) (en banc) (lead
opinion). Rather, conspiracy to traffic drugs requires an
agreement to advance further distribution. United States v.
Villasenor, 664 F.3d 673, 679–80 (7th Cir. 2011). For example, the
buyer could agree to resell the drugs at the retail level. United
States v. Nunez, 673 F.3d 661, 665–66 (7th Cir. 2012).
Often, the government will have only circumstantial
evidence of a further agreement, which requires the jury to
make an inference to convict. Defendants readily challenge the
sufficiency of such evidence, which has led to an array of cases
in our court that parse out when the inference was permissible.
Answering some of those questions proved easy. Mere
knowledge of further illegal use, for example, may make the
8 No. 12-2743
seller an aider and abettor to further drug crimes committed by
the buyer but not a co-conspirator. United States v. Moreland,
703 F.3d 976, 984 (7th Cir. 2012). Being a co-conspirator
requires more. As the Supreme Court aptly put it: a co-conspir-
ator has “a stake in the venture” and therefore exhibits
“informed and interested cooperation.” Direct Sales Co. v.
United States, 319 U.S. 703, 713 (1943) (internal quotation marks
omitted). For short-hand, we have referred to arrangements
without this substantive relationship as “buyer-seller relation-
ships,” which contrast with conspiracies.
Determining whether someone has “a stake in the venture”
is easier said than done—especially with circumstantial
evidence. To assist juries, the previous version of our pattern
instruction on buyer-seller relationships provided a list of
factors to consider. Committee on Federal Criminal Jury
Instructions for the Seventh Circuit, Pattern Criminal Federal
Jury Instructions for the Seventh Circuit 93 (1998), available at
http://www.ca7.uscourts.gov/pjury.pdf. The list included:
“[w]hether the transaction involved large quantities,”
“[w]hether the parties had a standardized way of doing
business over time,” “[w]hether the sales were on credit or on
consignment,” “[w]hether the parties had a continuing
relationship,” “[w]hether the seller had a financial stake in a
resale by the buyer,” and “[w]hether the parties had an
understanding that the [goods] would be resold.” Id. In our
cases, we used a similarly worded list but often added “the
level of mutual trust between the buyer and seller.” United
States v. Contreras, 249 F.3d 595, 599 (7th Cir. 2001); accord
United States v. Nubuor, 274 F.3d 435, 440 (7th Cir. 2001). We
explained that none of the factors were dispositive but pro-
No. 12-2743 9
vided no further guidance on weighing the various consider-
ations. See, e.g., United States v. Melendez, 401 F.3d 851, 854 (7th
Cir. 2005); United States v. Rivera, 273 F.3d 751, 755 (7th Cir.
2001).
Recently, we became concerned with that approach. We
recognized that most of the factors did not actually distinguish
conspiracies from buyer-seller relationships. Consider an
example using Wal-Mart. See United States v. Colon, 549 F.3d
565, 568–69 (7th Cir. 2008). Most private citizens do not have a
“stake” in Wal-Mart. They are merely casual buyers. Yet many
of those same people regularly conduct standardized transac-
tions with the discount retailer (two factors from the old
pattern instruction). For example, a man can buy two sticks of
deodorant for $3.49 each, every other Friday. These transac-
tions, despite exhibiting frequency, regularity, and standard-
ization, do not evince the substantial relationship entailed in a
conspiracy. See id.; see also Nunez, 673 F.3d at 665. Thus,
although circumstantial evidence can prove conspiracy, United
States v. Carrillo, 435 F.3d 767, 776 (7th Cir. 2006), several
factors in the old pattern instruction did not permit that
inference beyond a reasonable doubt, United States v. Johnson,
592 F.3d 749, 754–55 (7th Cir. 2010). Rather, those factors were
equally consistent with a buyer-seller relationship. Id.In response, we identified a new, nonexhaustive list of
characteristics that more precisely pinpoint the distinction.
These considerations include:
sales on credit or consignment, an agreement to look
for other customers, a payment of commission on
sales, an indication that one party advised the other
10 No. 12-2743
on the conduct of the other’s business, or an agree-
ment to warn of future threats to each other’s busi-
ness stemming from competitors or law-enforce-
ment authorities.
Id. at 755–56 (internal footnote omitted); accord Colon, 549 F.3d
at 568–70. Two considerations warrant further discussion here:
sales on consignment and sales on credit. In the former, the
seller permits the buyer to return unsold drugs. Johnson, 549
F.3d at 755 n.5. The latter is more familiar—the buyer “fronts”
the drugs but expects payment for the entire shipment at a
later date. Id. at 756 n.5. In both, the seller has affirmatively
chosen terms favorable to the buyer, which demonstrates the
“informed and interested cooperation” discussed earlier. Direct
Sales, 319 U.S. at 713.
Important differences, however, distinguish consignment
and credit sales. In United States v. Johnson, we described
consignment sales as “quintessential evidence of a conspiracy.”
549 F.3d at 755 n.5. “[A] jury could easily infer an agreement to
distribute” from that arrangement because “the supplier will
not get paid until the middleman resells the drugs.” Id. at
755–56 n.5. In other words, the buyer and seller have en-
meshed their interests. To that commentary, we add that a
consignment arrangement also exhibits another key attribute
we have stressed in identifying conspiracies: an “actively
pursued course of sales.” United States v. Suggs, 374 F.3d 508,
518 (7th Cir. 2004); accord Direct Sales, 319 U.S. at 712 n.8
(discussing “stimulation or active incitement to purchase” as
indicative of a conspiracy). The seller’s favorable terms
encourage the buyer to accept more drugs to sell at the retail
No. 12-2743 11
level, and, in the long-term, encourage the buyer to continue
the business relationship.
Credit sales, in contrast, do not necessarily permit an
inference of conspiracy. Johnson, 592 F.3d at 756 n.5. Unlike
consignment sales, credit sales are not always premised on
further distribution. For example, a buyer could purchase a
quantity consistent with personal consumption. If the buyer
indeed uses the drugs himself, the seller has not actively
incited and agreed to further distribution. In addition, the
buyer and seller’s interests would not be enmeshed in the same
way, since the buyer would not be reselling the product to pay
back the debt. Therefore, to prove conspiracy, more evidence
is required than a single sale, on credit, in a quantity consistent
with personal consumption. That additional proof can come in
a variety of forms—including factors from the old pattern jury
instruction, such as frequency and quantity. In other words,
once the government has shown some evidence that can
distinguish a conspiracy from a buyer-seller relationship (i.e.
something akin to those examples found in our new list), then
other circumstantial evidence can bolster that argument,
including evidence that would not, by itself, distinguish a
conspiracy. Id.; United States v. Vallar, 635 F.3d 271, 287 (7th Cir.
2011).
There is disagreement in our case law, however, over what
other evidence, when combined with a credit arrangement, is
sufficient to infer conspiracy. One proposition seems generally
uncontroversial: if a person buys drugs in large quantities (too
great for personal consumption), on a frequent basis, on credit,
then an inference of conspiracy legitimately follows. See, e.g.,
Johnson, 592 F.3d at 756 n.5; United States v. Zaragoza, 543 F.3d
12 No. 12-2743
943, 948–49 (7th Cir. 2008); United States v. Bender, 539 F.3d 449,
453–54 (7th Cir. 2008); United States v. Bustamante, 493 F.3d 879,
885 (7th Cir. 2007); United States v. Medina, 430 F.3d 869, 881–82
(7th Cir. 2005).1
Less clear is what combinations of those three characteris-
tics—a credit arrangement, a large quantity, and frequent sales
—are sufficient. Johnson, for example, implies all three are
necessary. In that case, we said that evidence “becomes
sufficient” when there is an “ongoing wholesale buyer-seller
relationship” on credit, which the opinion defines as “repeat
purchases” of “large quantities” on credit. Johnson, 592 F.3d at756 n.5 (emphasis added); accord Vallar, 635 F.3d at 287. If
evidence only becomes sufficient when all three characteristics
are present, it would seem all three are required for a permissi-
ble inference.
Other cases debate the sufficiency of lesser combinations.
For example, does a single transaction, in a wholesale quantity,
on credit, permissibly support an inference of conspiracy? We
have cases that answer both ways, each supporting its conclu-
sion with other case-specific considerations. See United States v.
Smith, 393 F.3d 717, 719–20 (7th Cir. 2004) (single large transac-
tion on credit sufficient when middleman referred to
1
In United States v. Nunez, we suggested that perhaps these three character-
istics “just reveal a commonplace wholesale relationship.” 673 F.3d at 665.
Yet, only a few paragraphs later, the opinion suggests that “wholesaling of
illegal drugs on credit” might “give rise to an automatic inference of
conspiracy.” Id. (emphasis added). The conflicting statements are both dicta,
however. The court declined to decide the issue and instead relied on other
grounds to affirm the conspiracy conviction. See id. at 666.
No. 12-2743 13
defendant-supplier and his colleagues as “my boys,” and
offered to get a larger quantity from defendant-supplier when
amount sold to informant came up short); United States v.
Dortch, 5 F.3d 1056, 1065 (7th Cir. 1993) (single large credit
transaction sufficient when parties had a history of several
other cash purchases); United States v. Fort, 998 F.2d 542, 546
(7th Cir. 1993) (single large credit transaction sufficient when
buyer promised to make further purchases in the future);
United States v. Baker, 905 F.2d 1100, 1106–07 (7th Cir. 1990)
(single large transaction on credit insufficient when buyer
“unilaterally changed the deal from cash to credit”). Yet
another series of cases disagree over whether a credit arrange-
ment alone is sufficient to infer conspiracy. Compare United
States v. Dean, 574 F.3d 836, 843 (7th Cir. 2009) (“the evidence
of fronting alone may be sufficient to support [the defendant’s]
conviction”), with Johnson, 592 F.3d at 756 n.5, and United States
v. Kozinski, 16 F.3d 795, 809 (7th Cir. 1994) (“standing alone, the
credit transactions are insufficient evidence of an agreement for
[the defendant] to be a distributor”). Reflecting this tension, the
Committee charged with drafting the new pattern jury
instruction diplomatically noted “that particular factors do not
always point in the same direction.” Committee Comment,
Pattern Criminal Jury Instructions of the Seventh Circuit (2012),
supra, at 73–74.
Admittedly, much of the confusion stems from our own
imprecision. For example, in United States v. Moreland, we
discussed the significant support for an approach that “infers
conspiracy from wholesale sales on credit.” 703 F.3d at 985.
According to the opinion, “wholesale sales on credit” repre-
sents “two factors” from our old list (a large quantity and a
14 No. 12-2743
credit arrangement), although the plural use of “s” in “sales”
could also be read to imply that multiple purchases are
required for that inference. Id. Similarly, in United States v.
Vallar, we noted the presence of wholesale quantities early in
the opinion, 635 F.3d at 277, but, when describing why we
upheld the conviction, we referred only to the fact that there
were repeated purchases on credit, id. at 287.
Even though many of our cases do not state the legal
standard in precisely the same way, however, most of them
would have reached the same outcome under each other’s
jurisprudence. In Vallar, for example, the defendant engaged in
repeated sales, in wholesale quantities, on credit. Id. at 277, 287.
These three characteristics would satisfy even the restrictive
test set out in Johnson, despite the fact that the opinion did not
explicitly mention all three when explaining its reasoning. The
same is true for many other cases. See, e.g., Dean, 574 F.3d at
843; United States v. Frazier, 213 F.3d 409, 415 (7th Cir. 2000);
United States v. Ferguson, 35 F.3d 327, 331 (7th Cir. 1994); United
States v. Cabello, 16 F.3d 179, 182 (7th Cir. 1994).
That latent consistency suggests we are informally using a
“totality of the circumstances” approach. Indeed, the new
pattern jury instruction further buttresses that conclusion. The
instruction deliberately uses open-ended phrasing (“the
government must prove that the buyer and seller had [a] joint
criminal objective”), which encourages case-specific analysis.
Pattern Criminal Jury Instructions of the Seventh Circuit (2012),
supra, at 73. Yet our case law makes it sound otherwise—as if
we are trying to outline a bright-line approach based on
specifically dictated considerations. These two approaches
No. 12-2743 15
raise the classic dichotomy between judicial flexibility and
doctrinal clarity. See Pierre Schlag, Rules and Standards, 33
UCLA L. Rev. 379, 383–89 (1985). Either approach has merit, but
a clearer statement of our methodology would significantly aid
both litigants and district judges.
We will thus make such a statement. The underlying
question beneath all buyer-seller cases is whether there was a
conspiracy. We discuss buyer-seller relationships at such
length because they do not qualify as conspiracies. People in a
buyer-seller relationship have not agreed to advance further
distribution of drugs; people in conspiracies have. That
agreement is the key. Agreements come in infinite varieties,
however. Consider an analogy using contracts—another form
of agreement. Every year, businesses form countless individu-
alized contracts. This variation does not change the fact that
each is still an agreement.
Our approach to conspiracies must—and does—account for
the similar diversity in criminal agreements. For this reason,
we consider the totality of the circumstances. We take into
account all the evidence surrounding the alleged conspiracy
and make a holistic assessment of whether the jury reached a
reasonable verdict. True, repeated consideration of similar
circumstances seems to have identified a few per se rules. As
discussed earlier, either a consignment arrangement, or a
relationship exhibiting all three Johnson factors—multiple,
large-quantity purchases, on credit—are widely accepted as
sufficient proof of a trafficking conspiracy. Indeed, when either
of those conditions are satisfied, a reasonable jury can make
that inference. Notice, though, that we develop per se rules by
16 No. 12-2743
watching similar situations repeat themselves—and thus
seeing that the totality of the circumstances leads to the same
conclusion.
Admittedly, our list of example considerations may make
it sound as if we are checking off boxes and only looking for
specified indicia. That is not the case. The fact that so many of
our cases reach consistent outcomes, despite inconsistent, or
even contradictory, statements of the weight various consider-
ations hold, demonstrates that the list is merely a starting point
for our analysis. If we were to give that list talismanic power,
we would be liable to fixate on particular kinds of facts at the
expense of other informative evidence. Thus, “[r]ather than
needlessly adopt[ing] an absolute standard that cannot be
applied intelligibly,” we allow the circumstances of each case
to speak for themselves. Lechuga, 994 F.2d at 357 (Kanne, J.,
concurring). And in so doing, our specifically focused analyses
do not lose sight of the larger picture—deciding whether the
jury reasonably discerned an agreement to further trafficking
of drugs.
b. The district court’s instruction
The preceding discussion illustrates the immense challenge
of trying to craft a jury instruction that captures our case law
on buyer-seller relationships. The district judge had two
paragraphs to summarize what has taken several pages here.
Furthermore, Brown’s case arose at a particularly difficult time.
The new pattern instruction, although proposed, had not yet
been adopted. The government had also informed the court
that the proposed instruction confused another jury in a
different case. (R. 192 at 211–12.) Alternatively, the old instruc-
No. 12-2743 17
tion was still available but had received sharp criticism from
our court. See generally Colon, 549 F.3d 565.
Despite the district court’s unenviable task, we must still
review the accuracy of the court’s instruction de novo. Dickerson,
705 F.3d at 688. We begin by comparing Brown’s proposed
instruction with the one selected by the district court. Brown’s
instruction tracked the new (at the time, proposed) pattern
instruction verbatim. Brown’s proposed instruction read:
A conspiracy requires more than just a buyer-
seller relationship between the defendant and
another person. In addition, a buyer and seller of
cocaine do not enter into a conspiracy to possess
cocaine with intent to distribute simply because
the buyer resells cocaine to others, even if the
seller knows that the buyer intends to resell the
cocaine.
To establish that a buyer knowingly became a
member of a conspiracy with a seller to possess
cocaine with intent to distribute, the government
must prove that the buyer and seller had the joint
criminal objective of distributing cocaine to others.
(R. 119.) In response, the government proposed a different
instruction. The district court decided to combine the language
of the two proposed instructions. The instruction issued by the
court read as follows:
A conspiracy to distribute drugs or possess drugs
with intent to distribute requires more than simply
18 No. 12-2743
an agreement to exchange money for drugs which
the seller knows will be resold.
In order to establish that a defendant knowingly
conspired to distribute drugs or possess drugs
with intent to distribute with a person from whom
the defendant bought drugs, the government must
prove that, in addition to agreeing to buy drugs,
the defendant further agreed to participate with
the seller in an arrangement involving mutual
dependence, cooperation or assistance in distribut-
ing drugs. Such an agreement may be proved by
evidence showing sales on credit, in which the
buyer is permitted to pay for all or part of the
drugs after the drugs have been re-sold, coupled
with other evidence showing mutual cooperation
and an ongoing arrangement between the defen-
dant and the seller.
(R. 115 at 23.)
The key differences between the two instructions come in
the last two sentences. First, the version used by the court
added the phrase, “the government must prove that, in
addition to agreeing to buy drugs, the defendant further
agreed to participate with the seller in an arrangement involv-
ing mutual dependence, cooperation or assistance in distribut-
ing drugs.” (Id.) This sentence accurately states the law. See
Nunez, 673 F.3d at 664 (describing a conspiracy as “a coopera-
tive relationship” and a “relationship of mutual assistance”);
Townsend, 924 F.2d at 1392 (describing members of a conspir-
acy as either “mutually dependent on one another” or
No. 12-2743 19
“render[ing] mutual support”); see also Suggs, 374 F.3d at 518(describing a conspiracy as a “shared stake in the illegal
venture,” along with “a prolonged and actively pursued course
of sales”); accord United States v. Fuller, 532 F.3d 656, 662 (7th
Cir. 2008).
The district court’s other major modification to Brown’s
proposed instruction is similarly grounded in our case law. In
the last sentence of the instruction, the district court said,
“[s]uch an agreement may be proved by evidence showing
sales on credit, … coupled with other evidence showing
mutual cooperation and an ongoing arrangement between the
defendant and the seller.” (R. 115 at 23.) This sentence charts a
tripartite avenue to conviction: (1) sales on credit; (2) “an
ongoing arrangement”; and (3) “mutual cooperation.” (Id.)
That guidance accurately summarizes the law. Several cases
have found two of those characteristics—repeated transactions
(“an ongoing arrangement”) on credit—as sufficient to affirm
a conspiracy conviction. See, e.g., Vallar, 635 F.3d at 287;
Ferguson, 35 F.3d at 331. Thus, requiring repeated sales on
credit, plus “mutual cooperation,” exceeds what those cases
require. Furthermore, the added characteristic (“mutual
cooperation”) speaks to the spirit of what we are looking for—
a “shared stake in the illegal venture,” along with an “actively
pursued course of sales.” Suggs, 374 F.3d at 518. The phrase
allows for case-specific analysis, thereby enabling the jury to
consider relevant indicia beyond the specific kinds of facts
previously articulated in our cases.
Importantly, in the district court’s instruction, repeated
transactions and “mutual cooperation” are used to bolster an
20 No. 12-2743
inference of conspiracy only after credit sales have been shown.
(R. 115 at 23.) Thus, despite what Brown argues, it does not
matter that repeated sales and “mutual cooperation” might
not, on their own, distinguish conspiracies from buyer-seller
relationships. As our earlier discussion made clear, once some
evidence that distinguishes conspiracies from buyer-seller
relationships is shown (here, credit sales), the jury can use
other non-distinguishing circumstantial evidence to buttress
that inference. Johnson, 592 F.3d at 756 n.5. The district court’s
instruction gave the jury precisely that guidance.
For these reasons, we find the district court’s instruction
accurately summarized the law on buyer-seller relationships.
2. Specific phrasing
Under the second step of our analysis, we must also decide
whether the district court’s phrasing of the instruction consti-
tuted an abuse of discretion. Dickerson, 705 F.3d at 688. It was
not. The case law on this issue is muddled, and the district
court tried to use phrases that the jury would find meaningful.
We do not feel those choices misled or confused the jury in a
way that warrants reversal.
Brown first argues that the court’s instruction did not
specifically state that the jury must acquit if it found only that
the seller knew the buyer would resell the drugs. Although
true, that omission would not have confused the jury. The first
sentence of the instruction explicitly stated, “[a] conspiracy to
distribute drugs or possess drugs with intent to distribute
requires more than simply an agreement to exchange money
for drugs which the seller knows will be resold.” (R. 115 at 23.)
Thus, the instruction makes clear that mere knowledge of
No. 12-2743 21
further sales is not a conspiracy. Furthermore, the jury also
received an instruction that, if it did not find the existence of a
conspiracy beyond a reasonable doubt, then it must acquit. (Id.
at 20.) Therefore, when considered in tandem, these two
instructions provide the guidance Brown claims was lacking.
Brown also argues that the instruction invoked an imper-
missible multi-factor approach. This argument misconstrues
our precedent. Some of our opinions on buyer-seller instruc-
tions indeed criticize a multi-factor approach to this issue. See,
e.g., Nunez, 673 F.3d at 664–66; Colon, 549 F.3d at 567–70. This
criticism, however, was primarily aimed toward the old
pattern instruction. See Nunez, 673 F.3d at 664–66 (criticizing
several factors in the old instruction); Colon, 549 F.3d at 567–70.
As discussed earlier, that instruction not only provided no
guidance on how to weigh its various factors, but it also
included several factors that did not actually distinguish
conspiracies from buyer-seller relationships. Our cases do not
prohibit a multi-factor approach per se. Rather, district courts
must be careful to avoid the maladies that plagued our old
pattern instruction. The court in this case certainly did so.
Finally, Brown alleges that the district court abused its
discretion by even offering an instruction that discussed credit
sales, because, according to Brown, the government did not
show any evidence of credit sales. This argument serves as an
apt transition into the second section of this opinion, which
discusses sufficiency of the evidence. More details can be found
in the section below, but, for now, we simply state that there
was sufficient evidence for the court to include credit sales in
the instruction.
22 No. 12-2743
Thus, for the reasons listed above, we find the wording of
the district court’s buyer-seller instruction was not an abuse of
discretion.
B. Sufficiency of the Evidence
Brown also challenges the sufficiency of the evidence
against him. We accord “great deference” to jury verdicts.
United States v. Love, 706 F.3d 832, 837 (7th Cir. 2013). Conse-
quently, “we review the evidence in the light most favorable to
the government” and will reverse only if no “rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. Here, the government needed
to prove (1) that Brown agreed with another person to commit
an unlawful act; and (2) that Brown knowingly and intention-
ally joined the agreement. See Avila, 557 F.3d at 814.
As Brown rightly notes, the government did not introduce
any evidence of what Brown did with the drugs after he
purchased them from the Floreses. Therefore, any further
distribution (and any agreement to that distribution) had to be
inferred. For that proposition, the government relied on credit
sales, along with several other bits of circumstantial evidence.
Brown claims that these pieces did not allow a reasonable jury
to convict beyond a reasonable doubt. We disagree.
Brown begins by arguing that a reasonable jury could not
have concluded that he bought his drugs on credit from the
Twins. The government responds that Brown waived this
argument. For support, the government cites Brown’s motion
for a new trial, which stated that “the evidence adduced at trial
established illegal drug sales on credit.” (R. 130 at 5.)
No. 12-2743 23
We cannot accept the government’s argument on this close
issue. Brown vigorously argued throughout the trial, as well as
in his motion for a judgment of acquittal, that the evidence did
not show sales on credit. As the government acknowledges,
Brown’s new trial motion incorporated by reference all
objections and positions taken during trial, which would
therefore include those previous protestations. (Id. at 1.) Given
that waiver principles are liberally construed in the defendant’s
favor, United States v. Anderson, 604 F.3d 997, 1002 (7th Cir.
2010), we are not convinced that Brown knowingly and
intentionally waived this argument, see United States v. Olano,
507 U.S. 725, 733 (1993).
Considering Brown’s argument, however, does not mean
we are persuaded by it. Rather, we find a rational jury could
have concluded that Brown purchased drugs on credit. For
example, Perez testified that he once delivered approximately
57 kilograms of cocaine to Brown and received only $26,000 in
return. (R. 195 at 54–56.) Yet that shipment was worth at least
$912,000. (R. 192 at 111.) As another example, Simental testified
that he received money from Brown but never delivered drugs
to him. (R. 191 at 141–43.) These payments were usually more
than $250,000 and were sometimes as much as $1.3 million.
(Id.) Simental also testified to the contents of a ledger in which
Brown’s financial status with the Twins was tracked. (Id. at
152–62.)
Brown raises several concerns about this evidence. First, he
argues that these transactions could have represented prepay-
ments for future shipments rather than post-payments for
shipments received on credit. Brown also contests the contents
24 No. 12-2743
of the ledger. The entries are all abbreviated, including the
ambiguous “Sky,” which Simental testified referred to Brown’s
nickname, “Skinny.” (Id. at 205–208.)
As to Brown’s first argument about prepayments, we do
not see how it would help his case. Even if Brown had prepaid
for the drugs, his interests would still be enmeshed with the
Floreses’ in the same way as with a credit arrangement, only
with the roles reversed. As to the other argument (and to the
first, if it could help Brown), we note that Brown’s account
could have been true. But a reasonable jury could have also
found, beyond a reasonable doubt, the government’s version
of the story. And because a reasonable jury could make that
conclusion, there was sufficient evidence that Brown pur-
chased drugs on credit. This is not speculation, as Brown
claims, but a legitimate inference grounded in evidence.
Furthermore, the government’s evidence of conspiracy
encompassed far more than just a credit arrangement. First, the
couriers testified to repeated transactions in large quantities.
Perez said that he made deliveries to Brown about thirty to
forty times and that each shipment was more than ten kilo-
grams. (R. 195 at 33–34.) Similarly, Llamas testified that he also
(and independently) met with Brown thirty to forty times over
the course of two years, either to deliver drugs or receive cash
payments. (R. 190 at 69.) Finally, Simental testified to ten
transactions in three months, in which he received payments
from Brown between $250,000 and $1.3 million. (R. 191 at
141–43.) When considered together, this evidence falls into one
of our per se rules, which permits an inference of conspiracy
after demonstrating repeated transactions, in wholesale
quantities, on credit.
No. 12-2743 25
Even beyond the standard considerations discussed in our
case law, situation-specific circumstances further show just
how integral a part Brown played in the Floreses’ venture.
Llamas, for example, testified that he delivered prepaid cell
phones to Brown so that Brown could use them to contact the
Twins. (R. 190 at 71.) Llamas also testified that the Twins
provided Brown with a specially outfitted Chevrolet HHR that
had a “trap” to conceal drugs. (Id. at 73.) Brown contests this
evidence. He claims, for instance, that the government pro-
vided no evidence that Brown actually used the HHR to
distribute drugs. He also notes that the government failed to
provide evidence that Brown had not paid the Floreses for the
HHR through an arms-length transaction.
Again, although the jury could have believed Brown’s
version, it also could have believed the government’s version
beyond a reasonable doubt. Evidence showing that Brown took
out insurance on the HHR strongly implies that Brown used it.
(R. 192 at 41–42.) And given that the vehicle had a special
compartment for hiding drugs, if Brown used the HHR, it
would be reasonable to infer that he used it to distribute drugs.
Also, the millions of dollars worth of business Brown was
providing the Twins could lead a reasonable jury to conclude
that the Twins gave Brown the vehicle as a gift to aid in further
distribution. After all, the more Brown sold, the more money
the Floreses would make. In this way, the Floreses had a
“shared stake in the illegal venture,” along with an “actively
pursued course of sales.” Suggs, 374 F.3d at 518; accord Fuller,
532 F.3d at 662. As we have demonstrated, a rational jury could
have come to this conclusion. Therefore, the evidence against
Brown was sufficient for conviction.
26 No. 12-2743
As a final note, we mention the Jeep Grand Cherokee. In
May 2007, another courier in the Flores drug conspiracy was
pulled over while driving a Jeep Grand Cherokee with a
hidden trap for concealing drugs. (R. 190 at 85–88); (R. 192 at
27). An investigator later found the title documents for this
vehicle in Brown’s trash. (R. 192 at 34–38.) The fact that Brown
possessed these documents shows substantial involvement in
the Floreses’ organization, especially given that the courier
known to drive the Jeep was one who did not even make
deliveries to Brown. (R. 190 at 59–60, 85–88.) This detail is but
one more piece of support for the jury’s verdict.
Given the above, a jury could rationally conclude, beyond
a reasonable doubt, that Brown conspired with the Floreses.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Brown’s conviction.