Commonwealth v. Doty , 88 Mass. App. Ct. 195 ( 2015 )

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14-P-1373 Appeals Court
COMMONWEALTH vs. PAMELA DOTY.
No. 14-P-1373.
Middlesex. June 9, 2015. - September 3, 2015.
Present: Sullivan, Maldonado, & Massing, JJ.
Controlled Substances. Conspiracy. Evidence, Conspiracy.
Indictment found and returned in the Superior Court
Department on March 30, 2010.
The case was tried before John T. Lu, J.
Edward Crane for the defendant.
Kerry A. Collins, Assistant District Attorney, for the
Commonwealth.
SULLIVAN, J. After a jury trial, Pamela Doty was convicted
of conspiring to distribute cocaine in violation of the
Controlled Substances Act, see G. L. c. 94C, § 40, and failing
to identify herself while operating a motor vehicle. See G. L.
c. 90, § 25, as amended through St. 1989, c. 341, § 114.1 She
1
The Commonwealth filed a nolle prosequi as to a charge of
operating a motor vehicle with a suspended license. See G. L.
2
appeals from the conspiracy conviction, contending that the
evidence, while indicative of a buyer-seller transaction, was
insufficient to show that she agreed to distribute cocaine. We
conclude that the evidence of conspiracy to distribute was
insufficient, and that the conspiracy conviction must be
reversed.
Background. This case arises out of an undercover
investigation conducted by the Marlborough police department.
We set forth the evidence in the light most favorable to the
Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-
677 (1979).
At the request of Marlborough police Detective Manning,
Brian Hart, a civilian "undercover police operative," contacted
Jonathan Wright,2 the defendant's alleged coconspirator, to buy
cocaine. Wright said he could arrange the purchase of cocaine
for Hart, but that Hart would have to wait one-half hour since
the seller was leaving a hospital and needed time to get to the
meeting place. After speaking with Wright, Hart contacted
c. 90, § 23. The jury acquitted the defendant of distribution
of cocaine. See G. L. c. 94C, § 32A(c).
2
Wright was tried separately.
3
Detective Manning, who gave Hart a police department undercover
car, $100 in cash, and a "wire"3 for use during the buy.
Hart drove to Wright's residence in Northborough on
Wright's instructions. Once there, Wright got into Hart's car
and they drove to the Olive Garden restaurant in Marlborough.
Hart parked the car outside of the restaurant and Wright made a
telephone call. Hart heard Wright refer to "Pam," but could not
hear the conversation.
A few minutes later, a red Ford F-150 pickup truck (truck)
pulled up behind Hart's car in the restaurant parking lot;
Wright told Hart that this was the person for whom they were
waiting. Hart could not see who was in the truck since it was
behind him and higher than his car. Detective Manning, who had
been conducting surveillance in the parking lot in an unmarked
car, saw the driver of the truck, later identified as the
defendant, as she drove by. She was the only person in the
truck.
Hart gave Wright $100 for "two fifties," that is, two fifty
dollar bags of cocaine, each weighing one-half gram, an amount
described by one of the detectives as a street-level sale.
3
A wire was described as "an electronic transmitting device
[that] allows the investigators involved in the investigation to
hear the conversation ongoing between the undercover and any
potential dealers." The wire did not record.
4
There was evidence that Hart had purchased drugs from Wright in
the past, but no evidence that the defendant had been involved.
Wright got out of Hart's car, approached the truck, and got
in. The truck pulled forward into a parking spot approximately
fifteen feet behind Hart's vehicle. Neither Hart nor Detective
Manning were able to see what took place inside the truck.
Wright returned to Hart's car shortly thereafter, stated,
"[W]e're all set," and handed two bags of a white substance to
Hart. There was no evidence as to what happened to the cash
Hart gave to Wright. "Two clear plastic knotted bags containing
a white chunk-like substance" were later turned over to
Detective Manning. Testing confirmed the bags contained
cocaine.
Detective Manning followed the truck as it left the
restaurant parking lot and pulled into the parking lot at a
hospital. The defendant entered the hospital, came out "less
than a minute" later, and drove away in the truck. Shortly
thereafter, at the request of Detective Manning, Officer
Hassapes stopped the truck for a civil motor vehicle infraction.
The defendant gave Officer Hassapes the truck's registration,
but told him that she did not have her license; she gave him her
sister's name and date of birth. Detective Manning also
approached the truck, and recognized the defendant, in the
driver's seat, as the driver of the truck from the Olive Garden
5
parking lot. Detective Manning ran a query in the registry of
motor vehicles system for Pamela Doty, which produced a picture
of the defendant. At trial, both Officer Hassapes and Detective
Manning identified the defendant as the driver of the truck.
The parties stipulated that there was no evidence that
Wright had purchased drugs from the defendant in the past, and
the jury were so instructed at trial. When the prosecutor
referred to the defendant as a "drug dealer" during her closing
argument, the judge further instructed the jury that the parties
agreed that the defendant was not charged with any other offense
and that "[t]he use of the term 'drug dealer' was a slip of the
tongue . . . not to be considered by" the jury.
The indictment alleged that the defendant and Wright
conspired to distribute cocaine under G. L. c. 94C, § 40.4 The
conspiracy charge and a distribution charge (of which the
defendant was acquitted) were tried together without objection.
But see Mass.R.Crim.P. 9(e), 378 Mass. 861 (1979). The
Commonwealth's theory of the case was that the defendant, the
seller, had entered into an agreement with Wright, the
4
General Laws c. 94C, § 40, inserted by St. 1971, c. 1071,
§ 1, provides:
"Whoever conspires with another person to violate any
provision of this chapter shall be punished by imprisonment
or fine, or both, which punishment shall not exceed the
maximum punishment prescribed for the offense, the
commission of which was the object of the conspiracy."
6
middleman, to distribute cocaine to Hart. However, the judge
instructed more broadly, stating that in order to prove a
conspiracy to distribute, "the Commonwealth must prove beyond a
reasonable doubt that the defendant joined in an agreement or
plan with one or more other persons . . . to do something
unlawful."
Discussion. The Controlled Substances Act, see G. L.
c. 94C, does not define the term "conspiracy" in the context of
a conspiracy to distribute. In divining the Legislature's
intent, we look to the relevant precedent under the Federal
statute upon which c. 94C was based, our established and
developing common law of conspiracy,5 see Commonwealth v. Cass,
392 Mass. 799, 801 (1984); Commonwealth v. Colon, 431 Mass. 188,
191 (2000), and the statutory scheme as a whole.
The defendant urges us to adopt the Federal courts'
interpretation of the analogous Federal statute's meaning of an
agreement to distribute in the context of a conspiracy to
5
In Massachusetts, conspiracy is a common-law crime defined
as "the unlawful agreement . . . to do an unlawful act, or . . .
a lawful act for unlawful purposes." Commonwealth v. Cantres,
405 Mass. 238, 240 (1989), quoting from Commonwealth v. Soule, 6
Mass. App. Ct. 973, 973-974 (1979). While no overt act is
required to prove conspiracy, "[t]he Commonwealth must prove
. . . 'that the defendants combined with the intention to
[commit the object crime].'" Id. at 244, quoting from
Commonwealth v. Zakas, 358 Mass. 265, 269 (1970). See
Commonwealth v. Pratt, 407 Mass. 647, 653-654 (1990). Here, the
object of the alleged conspiracy was the distribution of
cocaine.
7
distribute a controlled substance under G. L. c. 94C, § 40.
Because the defendant did not raise this argument below in her
motion for a required finding, we review for error and, if there
was error, for a substantial risk of miscarriage of justice.
Commonwealth v. Bell, 455 Mass. 408, 411 (2009). We address a
far narrower question, that is, on the facts presented, whether
the evidence of this single buyer-seller transaction, without
more, was sufficient to prove a conspiracy to distribute. We
conclude that it was not.
1. Parameters of a conspiracy to distribute. The
indictment here alleged, in relevant part, that the defendant
and Wright conspired to distribute cocaine in violation of G. L.
c. 94C, § 40. The indictment and the judge's instructions were
susceptible to two different interpretations as to the nature of
the conspiracy. The first interpretation is that there was a
conspiracy between A (the defendant) and B (Wright) because they
agreed that A would sell cocaine to B, and that B would buy it.
The evidence in this case of a single buyer-seller transaction
in which the defendant was the seller and Wright was the buyer
was sufficient to prove a sale from A to B; Wright set up the
deal, took the money to the defendant, and returned with drugs.
If a single buyer-seller transaction between A and B is
sufficient to prove the agreement underlying a conspiracy, the
8
evidence here is sufficient.6 However, as discussed more fully
below, this proposition has been consistently rejected by
Federal and State appellate courts interpreting analogous
statutes.
The second interpretation is that the Commonwealth must
prove that A (the defendant) and B (Wright) entered into an
agreement to distribute to C, a third party or parties (here
Hart). This is the theory that was argued to the jury. The
defendant maintains that, as a matter of law, the statute
requires that there be some evidence of a knowing and purposeful
agreement to enter into a chain of distribution. The defendant
further contends that the evidence here, which consisted of a
single sale, is insufficient because there was nothing about the
sale that indicated that the defendant knew, much less agreed or
intended, that Wright would further distribute the cocaine to
another person or persons. Thus, the defendant contends, the
Commonwealth failed to prove that the defendant and Wright
entered into an agreement to distribute a controlled substance.
6
The judge's instructions would have permitted the jury to
convict on this basis. With respect to distribution, the judge
instructed as follows: "The term 'distribute' means to actually
deliver a controlled substance to another person other than by
legally administering or dispensing it. . . . Distribution
includes all forms of physical transfer. . . . To distribute
means . . . to hand over to another or to give away or transfer
ownership from one person to another."
9
Our cases have not squarely addressed whether a single
buyer-seller transaction, without more, constitutes a conspiracy
to distribute.7 In interpreting the Controlled Substances Act,
the Supreme Judicial Court has, however, looked to the evolving
case law under the closely analogous Comprehensive Drug Abuse
Prevention and Control Act of 1970 (Federal statute), on which
G. L. c. 94C is modeled. See 21 U.S.C. §§ 801, 846;8
Commonwealth v. Cantres, 405 Mass. 238, 240 (1989); Commonwealth
v. Brown, 456 Mass. 708, 716 (2010). We therefore look to the
7
In Cantres, 405 Mass. at 242-243, the Supreme Judicial
Court held that Wharton's Rule did not bar the defendant's
conviction of conspiracy to distribute controlled substances,
even though the facts of the case were such that only two people
were involved in the conspiracy and the sale. The court held
that since conspiracy requires the showing of an agreement, the
elements of conspiracy are different from the elements of the
substantive offense. Id. at 243-244. In Cantres the parties
did not argue, and the court did not reach, the precise issues
presented here, namely whether there was an agreement, and
whether the Legislature intended to subject the buyer and the
seller to the penalties for conspiracy to distribute in the
absence of proof of an agreement to sell to others.
8
The Uniform Controlled Substances Act, adopted by
Massachusetts and most other States, is based on the Federal
statute. See Commonwealth v. Brown, 456 Mass. 708, 716 (2010);
Commonwealth v. Kobrin, 72 Mass. App. Ct. 589, 595 n.6 (2008).
Section 846 of the Federal statute provides:
"Any person who attempts or conspires to commit any offense
defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the
commission of which was the object of the attempt or
conspiracy."
10
Federal cases, which, though not controlling, are instructive.
See Commonwealth v. Brown, supra.
2. Federal cases. "As a result of the long running 'war
on drugs' waged by the federal government," State v. Allan, 311
Conn. 1, 13 (2014) (Allan), all twelve circuits of the United
States Courts of Appeal have addressed the sufficiency of the
evidence in drug distribution conspiracies. All have held that
evidence of a buyer-seller relationship, without more, does not
constitute a conspiracy to distribute a controlled substance.9
As State appellate courts have grappled with the application of
conspiracy law to drug distribution prosecutions, they have also
held, relying on the Federal cases, that evidence of a buyer-
seller relationship, without more, is insufficient to support a
9
See United States v. Boidi, 568 F.3d 24, 30 (1st Cir.
2009); United States v. Parker, 554 F.3d 230, 234-236 (2d Cir.),
cert. denied sub nom. Baker v. United States, 558 U.S. 965
(2009); United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.
1999), cert. denied, 528 U.S. 1131 (2000); United States v.
Mills, 995 F.2d 480, 485 (4th Cir.), cert. denied, 510 U.S. 904
(1993); United States v. Delgado, 672 F.3d 320, 333 (5th Cir.),
cert. denied, 133 S. Ct. 525 (2012); United States v. Deitz, 577
F.3d 672, 680 (6th Cir. 2009), cert. denied, 559 U.S. 984
(2010); United States v. Johnson, 592 F.3d 749, 754 (7th Cir.
2010); Unites States v. Brown, 726 F.3d 993, 998-999 (7th Cir.
2013); United States v. Donnell, 596 F.3d 913, 924–925 (8th Cir.
2010), cert. denied, 562 U.S. 1181 (2011); United States v.
Lennick, 18 F.3d 814, 819 (9th Cir.), cert. denied, 513 U.S. 856
(1994); United States v. Ivy, 83 F.3d 1266, 1285–1286 (10th
Cir.), cert. denied sub nom. Hickman v. United States, 519 U.S.
901 (1996); United States v. Bacon, 598 F.3d 772, 776 (11th Cir.
2010); United States v. Baugham, 449 F.3d 167, 171-172 (D.C.
Cir.), cert. denied sub nom. Wells v. United States, 549 U.S.
966 (2006).
11
conviction of conspiracy to distribute controlled substances.10
As the Connecticut Supreme Court has pointed out, see id. at 15,
the Federal cases rely on two distinct lines of reasoning. The
first centers on the nature of the agreement, the second on
legislative intent.
a. Nature of the agreement. One group of appellate courts
holds that "in a buyer-seller relationship, there is no
singularity of purpose and thus no meeting of the minds. . . .
'In such circumstances, the buyer's purpose is to buy; the
seller's purpose is to sell.' United States v. Donnell, [596
F.3d 913, 924–925 (8th Cir. 2010)]; see United States v. Brown,
[726 F.3d 993, 1001 (7th Cir. 2013)] ('People in a buyer-seller
relationship have not agreed to advance further distribution of
drugs; people in conspiracies have. That agreement is the
key.'). Accordingly, a mere buyer-seller relationship lacks an
essential element necessary to form a conspiracy." Allan,
supra. See, e.g., United States v. Moran, 984 F.2d 1299, 1303
10
See State v. Allan, supra; Heckstall v. State, 120 Md.
App. 621, 625-627 (Ct. Spec. App. 1998); People v. Justice, 454
Mich. 334, 335-336 (1997); State v. Pinkerton, 628 N.W.2d 159,
162-163 (Minn. Ct. App. 2001); State v. Serr, 575 N.W.2d 896,
899 (N.D. 1998); State v. Gonzalez, 606 N.W.2d 873, 876 (N.D.
2000); State v. Gunn, 313 S.C. 124, 133-134 (1993); State v.
Horne, 324 S.C. 372, 381 (Ct. App. 1996); Reed v. Commonwealth,
213 Va. 593, 594 (1973); Zuniga v. Commonwealth, 7 Va. App. 523,
528-529 (1988); State v. Smith, 189 Wis. 2d 496, 502-504 (1995);
State v. Cavallari, 214 Wis. 2d 42, 48-50 (Ct. App. 1997). Cf.
People v. Stroud, 392 Ill. App. 3d 776, 799-802 (2009).
12
(1st Cir. 1993).11 These courts define a conspiracy to
distribute to mean that there must be an agreement between A and
B to sell to C.
These cases also rely in part12 on the principle that mere
knowledge of or acquiescence in the conspiracy to distribute is
not sufficient to satisfy the intent element of the crime. See,
e.g., United States v. Parker, 554 F.3d 230, 235-236 (2d Cir.),
cert. denied sub nom. Baker v. United States, 558 U.S. 965
(2009); United States v. Ivy, 83 F.3d 1266, 1285–1286 (10th
Cir.), cert. denied sub nom. Hickman v. United States, 519 U.S.
901 (1996). Our general common law of conspiracy likewise
requires a showing of more than mere knowledge or acquiescence;
intent to enter the agreement to commit the crime is also
required. See Commonwealth v. Beal, 314 Mass. 210, 222 (1943);
Commonwealth v. Camerano, 42 Mass. App. Ct. 363, 366 (1997);
Commonwealth v. Melanson, 53 Mass. App. Ct. 576, 580-581 (2002).
b. Legislative intent. Some cases also reason "that,
under the common-law definition of conspiracy, 'when a buyer
purchases illegal drugs from a seller, two persons have agreed
to a concerted effort to achieve the unlawful transfer of the
11
To the extent that the Federal cases appear to adopt the
reasoning embodied in Wharton's Rule, however, that line of
reasoning was expressly rejected in Cantres, 405 Mass. at 242-
243, and we do not rely on them in that respect. See note 7,
supra.
12
See note 11, supra.
13
drugs from the seller to the buyer. . . . [This] would
constitute a conspiracy with the alleged objective of a transfer
of drugs.' . . . United States v. Parker, supra, 554 F.3d at
234; see United States v. Delgado, [672 F.3d 320, 333 (5th
Cir.), cert. denied, 133 S. Ct. 525 (2012)]." Allan, supra at
15. These cases appear to recognize a possible conspiracy
between A and B to sell to B. Contrast Cantres, 405 Mass. at
242-243. However, they go on to carve out a far narrower
definition of a conspiracy to distribute.
"[T]hese courts further reason that Congress did not intend
to subject buyers, particularly addicts, who purchase drugs for
personal use, to the severe liabilities intended for
distributors. . . . United States v. Delgado, supra, at 333
('[t]he rule shields mere acquirers and street-level users, who
would otherwise be guilty of conspiracy to distribute, from the
more severe penalties reserved for distribut[o]rs')." Allan,
supra at 15-16. Therefore, these Federal appellate courts
conclude, as a matter of legislative intent, that a conspiracy
must involve something more than a simple buyer-seller
transaction. See, e.g., United States v. Ivy, supra; United
States v. Parker, supra at 235. Accord State v. Pinkerton, 628
N.W.2d 159, 162-163 (Minn. Ct. App. 2001); State v. Smith, 189
Wis. 2d 496, 502-504 (1995).
14
As previously noted, our State statute is modelled on the
Federal statute. See Commonwealth v. Brown, 456 Mass. at 716;
Commonwealth v. Kobrin, 72 Mass. App. Ct. 589, 595 n.6 (2008).
"We [likewise] interpret a statute 'according to the intent of
the Legislature ascertained from all its words . . . to the end
that the purpose of its framers may be effectuated.'"
Commonwealth v. Wynton W., 459 Mass. 745, 747 (2011), quoting
from Commonwealth v. Deberry, 441 Mass. 211, 215 (2004). See
Hanlon v. Rollins, 286 Mass. 444, 447 (1934). The Controlled
Substances Act, G. L. c. 94C, from its inception in 1971, has
provided different penalties for the crime of possession and the
crime of distribution. See St. 1971, c. 1071, §§ 32, 34.13 The
seller is exposed to a greater penalty than the buyer.
However, a person charged with conspiracy to distribute is
punishable in accordance with the penalties imposed on a
13
Currently, simple possession of cocaine is punishable by
incarceration for up to one year, or a fine of not more than
$1,000, or both. G. L. c. 94C, § 34. By contrast, the crime of
distribution of cocaine carries with it a sentence of up to ten
years in State prison or two and one-half years in a jail or
house of correction, or a fine of $1,000 to $10,000, or both if
charged under G. L. c. 94C, § 32A(a). If charged with
distribution under G. L. c. 94C, § 32A(c), the defendant may be
sentenced to not less than two and one-half years nor more than
ten years in State prison, or to imprisonment in a jail or house
of correction for not less than one nor more than two and one-
half years, and a fine of not less than $1,000 or more than
$10,000. A repeat offender convicted of distribution of cocaine
may be sentenced to no less than three and one-half years and no
more than fifteen years; a fine of not less than $2,500 and not
more than $25,000 may be imposed. G. L. c. 94C, § 32A(d).
15
distributor, see G. L. c. 94C, § 40, and "the seller and buyer
would, as coconspirators, be subject to the same penalty."
State v. Pinkerton, supra at 163. If a one-time, street-level,
buyer-seller transaction by A to B constituted a conspiracy
between A and B to sell to B, the street-level addict would be
subject to the same penalties as a distributor. This is clearly
contrary to the intent of the statute, which contains graduated
penalties based on the fundamental distinction between
possession and distribution.
3. Sufficiency of the evidence. The foregoing analysis of
the nature of the agreement and the structure of the statutory
scheme as a whole illuminates the legislative intent to define a
conspiracy to distribute in a manner tailored, with specificity,
to the crime of drug distribution. We conclude that proof of
this single buyer-seller transaction (here A to B, the defendant
to Wright) is insufficient to prove a conspiracy to distribute,
because of the absence of evidence that the defendant agreed
with Wright to distribute to others. See, e.g., United States
v. Izzi, 613 F.2d 1205, 1210 (1st Cir. 1980).14
14
In Izzi, the amount sold was significantly higher. Under
the United States Court of Appeals for the First Circuit's
interpretation of the buyer-seller rule, a single sale, even of
a significant quantity, is not sufficient to prove conspiracy.
That issue is not presented here and we do not decide it. See
Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 (1984)
(reserving question). Likewise, we do not address those
16
"[I]t must be shown that the defendant was aware of the
objective of the conspiracy which was alleged." Commonwealth v.
Nelson, 370 Mass. 192, 196 (1976). Nothing in the record
suggests the defendant knew of, much less agreed to, the
distribution of the drugs to Hart or others. See Commonwealth
v. Beal, 314 Mass. at 222 ("mere knowledge of an unlawful
conspiracy is not sufficient to make one a member of it").
Compare Commonwealth v. Rose, 84 Mass. App. Ct. 910, 911 (2013).
There also is no evidence that the amount in question was so
significant as to permit the inference of further distribution.
See Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 (1984)
(Kaplan, J.) (quantity of drugs sold may permit an inference of
distribution; reserving question whether quantity alone may be
sufficient). Cf. Commonwealth v. Sepheus, 468 Mass. 160, 165
(2014) (0.4 grams of cocaine insufficient to support conviction
of possession with intent to distribute); Commonwealth v.
Acosta, 81 Mass. App. Ct. 836, 840-841 (2012) (same, 3.16 grams
of cocaine). There is no evidence of business dealings between
the defendant and Wright other than a single sale, and the jury
were so instructed on two different occasions. Compare
Commonwealth v. Stoico, 45 Mass. App. Ct. 559, 562 (1998). In
sum, there is no suggestion here of an ongoing business
circumstances in which the sale of small quantities of drugs
would support a conspiracy to distribute.
17
arrangement, the amounts were small, and there is no evidence
that the defendant knew of Wright's plans to sell the drugs and
agreed to sell to Wright based on a shared understanding of
further distribution.15 "A single sale of drugs without more
does not establish a conspiracy." United States v. Izzi,
supra.16
The defendant has urged us to define the circumstances in
which a sale would constitute a conspiracy by explicitly
adopting the Federal buyer-seller rule. In particular, the
defendant asks us to adopt the rationale of the United States
Court of Appeals for the Seventh Circuit regarding the proof
required to show the element of agreement in a conspiracy to
distribute controlled substances. Because there are no facts in
the record that would permit a jury to find beyond a reasonable
doubt that the defendant knew of and agreed to the distribution
of cocaine to Hart, there is no basis to find an agreement to
distribute, regardless of the legal standard employed.17
15
The Commonwealth points to the fact that the defendant
gave a false name as consciousness of guilt. This evidence does
permit the inference of guilt regarding the possession or sale
of the cocaine, but giving a false name does not tend to show
that the defendant formed an agreement to enter into a
conspiracy to distribute controlled substances.
16
See note 14, supra.
17
We therefore do not address the quantum of proof to show
an agreement to distribute beyond that articulated by our
existing cases. Some State and Federal appellate courts state
18
Conclusion. For these reasons, we conclude that the
evidence was insufficient to prove a conspiracy to distribute
cocaine. "[F]indings based on legally insufficient evidence are
inherently serious enough to create a substantial risk of
miscarriage of justice." Commonwealth v. Bell, 455 Mass. at
411-412 (quotation omitted). The conviction on the charge of
conspiracy to distribute cocaine is reversed and the verdict is
set aside.
So ordered.
explicitly that knowledge of resale alone does not necessarily
establish an agreement to enter into a narcotics distribution
conspiracy. See, e.g., United States v. Hawkins, 547 F.3d 66,
77 (2d Cir. 2008); State v. Gonzalez, 606 N.W.2d at 876; Zuniga
v. Commonwealth, 7 Va. App. at 528-529. Several jurisdictions
look to multiple factors, including but not limited to: "sales
on credit or consignment; United States v. Hawkins, supra, 547
F.3d at 75; large quantities of drugs; United States v.
Yearwood, 518 F.3d 220, 226 (4th Cir.), cert. denied, 555 U.S.
861 . . . (2008); multiple transactions; United States v.
Becker, 534 F.3d 952, 957–958 (8th Cir. 2008); standardized
dealings; United States v. Hawkins, supra, at 74; a level of
mutual trust; id.; and the continuity of the relationship
between the parties. United States v. Deitz, supra, 577 F.3d at
681." Allan, 311 Conn. at 20. The United States Court of
Appeals for the Seventh Circuit requires evidence such as proof
of sales on commission or consignment, an agreement to warn of
future threats, or payment of commission on sales in addition to
a standardized, regularized wholesale buyer-seller relationship.
See United States v. Johnson, 592 F.3d at 755-756. None of
these factors is present here. As noted above, these cases are
informative but not controlling.