United States v. Cathey

494 F. App'x 633
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 10, 2012
DocketNo. 12-1760
StatusPublished

This text of 494 F. App'x 633 (United States v. Cathey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cathey, 494 F. App'x 633 (7th Cir. 2012).

Opinion

ORDER

Byron Cathey was convicted after a jury trial of participating in a drug conspiracy and distributing cocaine. On appeal he argues that the evidence is insufficient to show he engaged in a conspiracy or, as the government theorized, aided and abetted a drug sale. Because the evidence is sufficient to sustain both convictions, we affirm the judgment.

A grand jury charged Cathey and Douglas Greer with one count of conspiracy to possess and distribute cocaine, 21 U.S.C. §§ 846, 841(a)(1), and one count of distribution of cocaine, id. § 841(a)(1). Greer pleaded guilty to the conspiracy and did not testify for either side at Cathey’s trial. At that trial the government presented recordings of phone calls and meetings showing that Cathey had brokered a drug deal.

The DEA wanted to target Greer. Their informant, Tommie Jones, had lost contact with Greer years earlier but knew that Cathey, a longtime friend of Jones, was acquainted with Greer and would have his phone number. Cathey agreed to assist and called Greer to discuss the quantity, price, and location for the exchange of money and cocaine. Cathey and Jones [634]*634exchanged phone calls in which Jones asked Cathey to negotiate a lower price from Greer. During one call Cathey told Jones that Greer was unhappy about lowering his price; Cathey then handed his phone to Greer, who spoke directly to Jones and agreed to meet in person. The three men later met to work out the details, including a fee to be paid to Cathey, and agreed to make the exchange that same night. At the appointed time, Jones met Cathey and got into Cathey’s car while they waited for Greer. Cathey tried to keep an agitated Jones calm by assuring him that Greer would arrive soon. When Greer arrived Jones left Cathey’s car and gave Greer a bag containing money in exchange for approximately 7 kilograms of cocaine. Agents arrested Greer immediately; Cathey already had departed and was arrested later.

At the close of the evidence, Cathey moved orally for a judgment of acquittal. See Fed.R.Crim.P. 29(a). Cathey’s motion, defense counsel told the district court, “really only goes to the conspiracy count, Count 1.” According to counsel, the government had proved that “Jones was going to pay Cathey’s broker’s fee,” and thus, counsel reasoned, Cathey’s agreement had to be with Jones, not Greer. The district court denied the motion, saying only that the evidence on both counts is sufficient. After the jury verdicts, Cathey renewed his motion in writing. See Fed.R.Crim.P. 29(c). This time Cathey challenged both counts but on the same basis as before: Cathey was working Jones’s side of the transaction and thus could not have conspired with, or aided and abetted, Greer.

On appeal Cathey challenges the sufficiency of the evidence for both of his convictions. More precisely, he contends that the district court erred in denying his Rule 29 motions, but that is the same as saying that the evidence fails to support his convictions. See United States v. Johns, 686 F.3d 438, 446 (7th Cir.2012). Cathey argues that the evidence linked him only to Jones in the drug deal, and thus he insists that he could not be convicted on either count because Jones as a government informant lacked the requisite criminal intent. We will uphold Cathey’s convictions if any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

To convict Cathey of conspiracy under § 846, the government needed to prove that he knowingly and intentionally joined in an agreement with one or more other persons to violate the drug laws. See United States v. Avila, 557 F.3d 809, 814 (7th Cir.2009); United States v. Corson, 579 F.3d 804, 810 (7th Cir.2009). The government was not required to prove, however, that Cathey performed any overt act in furtherance of the conspiracy. See United States v. Garcia, 45 F.3d 196, 198 (7th Cir.1995). An agreement between a set of defendants to sell drugs on one occasion can be a conspiracy by itself. United States v. Herrera, 54 F.3d 348, 354 (7th Cir.1995); United States v. Baskin-Bey, 45 F.3d 200, 205 (7th Cir.1995).

An accused can be found guilty of an unlawful act under an aiding-and-abetting theory if he associates with, participates in, and contributes towards the success of that act. United States v. George, 658 F.3d 706, 708 (7th Cir.2011). The government may support this theory through a defendant’s oral communication with the seller, id., his non-criminal conduct that facilitates the crime, United States v. Hatchett, 245 F.3d 625, 641 (7th Cir.2001), by using the same evidence that supports the existence of a conspiracy, George, 658 F.3d at 708 n. 5; Garcia, 45 F.3d at 199, or by attributing to the defendant liability for the reasonably foreseeable acts of his co-[635]*635conspirators committed during and in furtherance of the conspiracy, Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).

Cathey asserts that his role in the drug exchange was only as a broker; apparently he assumes that a broker cannot be guilty of conspiracy or a substantive crime such as distribution. But we and our sister circuits have affirmed the convictions of brokers (also called “steerers” or “middlemen”) several times, both for conspiracy, see United States v. Gilmer, 534 F.3d 696, 702 (7th Cir.2008); United States v. Payton, 328 F.3d 910, 911-12 (7th Cir.2003) (collecting cases); Garcia, 45 F.3d at 197-99; United States v. Cea, 914 F.2d 881, 886-87 (7th Cir.1990) (distinguishing broker who aids drug deal from one who only directs buyer to seller); United States v. Sostre, 967 F.2d 728, 732 (1st Cir.1992); United States v. Tarantino, 846 F.2d 1384, 1394-95 (D.C.Cir.1988); United States v. Rodriguez, 765 F.2d 1546, 1552-53 (11th Cir.1985), and for substantive offenses, see Gilmer, 534 F.3d at 702 (possession of heroin); Garcia, 45 F.3d at 199-200 (delivery of narcotics); United States v. Ashley, 606 F.3d 135

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245 F.3d 625 (Seventh Circuit, 2001)
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273 F.3d 751 (Seventh Circuit, 2001)
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United States v. Gilmer
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Bluebook (online)
494 F. App'x 633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cathey-ca7-2012.