United States v. Humberto Lechuga

994 F.2d 346, 1993 U.S. App. LEXIS 11106, 1993 WL 153811

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 13, 1993
• Docket: 91-2891
• Status: Published

Opinions

POSNER, Circuit Judge.

An indictment charged Humberto Lechuga with having in his possession more than 500 grams of cocaine, with the intention of distributing the cocaine; and also with having conspired with Evelio Pinto and unnamed others to distribute the cocaine. 21 U.S.C. §§ 841(a)(1), 846. The jury convicted Lechu-ga on both counts, and the judge sentenced him to 75 months in prison.

A government undercover agent named Carr had arranged to buy 500 grams of cocaine from Pinto. To obtain the cocaine for the sale, Pinto got in touch with Sam Pagan, who had previously sold Pinto cocaine that Pagan had obtained from Lechuga. Pagan relayed Pinto’s order to Lechuga, who designated an apartment building where Pagan was to receive the cocaine from Lechuga for transfer to Pinto and to pay Lechuga for it, presumably with money that Pagan would collect from Pinto at the time of the transfer. Accompanied by Pinto and Carr, Pagan went to the building designated by Lechuga and emerged carrying two packages. One contained the 500 grams (1.1 lbs.) that Pinto had ordered. The other contained 3 ounces. The reason for the second package was that on a previous three-cornered deal involving Lechuga, Pagan, and Pinto, Lechuga had delivered 3 ounces less than Pinto had ordered and paid for. So now Lechuga was making up for the short delivery. As soon as Pagan handed over the packages of cocaine to Pinto, the two were arrested. Lechuga was arrested later.

Leehuga’s main argument — the argument that caused us to decide to hear this case en banc under Circuit Rule 40(f) (rehearing before issuance of the panel’s decision) — is that the mere fact that he sold Pinto a quantity of cocaine too large for Pinto’s personal use, and therefore must have known that Pinto was planning to resell it, is insufficient to prove a conspiracy between Pinto and him. Before today, it was widely assumed that a conviction for participation in a drug conspiracy could be affirmed with no more evidence than that the defendant had sold in a quantity too large to be intended for his buyer’s personal consumption, e.g., United States v. Mancari, 875 F.2d 103, 105 (7th Cir.1989); United States v. Roth, 777 F.2d 1200, 1205 (7th Cir.1985), though some of our cases, notably United States v. Baker, 905 F.2d 1100, 1105-06 (7th Cir.1990), and United States v. Lamon, 930 F.2d 1183, 1191 n. 18 (7th Cir.1991), tugged the other way. Today we resolve the conflict in our cases by holding that “large quantities of controlled substances, without more, cannot sustain a conspiracy conviction.” Id. What is necessary and sufficient is proof of an agreement to commit a crime other than the crime that consists of the sale itself.

To understand the problems created by an allegation of a conspiracy between a seller on the one hand and a buyer for resale on the other, we must take a step back and ask why uncompleted conspiracies are punished, even though the conspiracy here was completed — • the cocaine was delivered to Pinto before he was arrested. It is not a good answer to say that they are punished on the same theory as attempts are punished; for given a law of attempts we must ask why uncompleted conspiracies are also punished. The full answer may include historical accident but there is also a functional reason. Because crimes are difficult to deter by mere threat of punishment, society tries to prevent them and one way to do this is by identifying and incapacitating people who are likely to commit crimes. The risk to civil liberties that would be created by a purely preventive theory of criminal punishment is so great, however, that society insists on definite proof of dangerousness. An attempt is one form of satisfactory proof. A person who goes so far in the preparation of a criminal act as to be guilty of an attempt has given definite proof that he is likely to commit such an act. And likewise a person who agrees to commit a crime, even if he takes no additional preparatory steps and as a result does not come close enough to committing the crime to be guilty of an attempt.

All this makes good sense when we are speaking of the punishment of uncompleted conspiracies, but what of the punishment of a completed one? Lechuga delivered cocaine in violation of federal criminal law; why should he also be punished for agreeing to deliver it? The stock answer is that a conspiracy has more potential for doing harm than a single individual does. Callanan v. United States, 364 U.S. 587, 593-94, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961). It is not a bad answer, as the facts of this case indicate. Lechuga might have been frightened to deal face to face with Pinto, whom he had shortchanged, as it were, on their previous transaction; or he might have been wary about delivering the cocaine to Pinto and Pinto’s customer in person, since then he would be outnumbered two to one and honor among thieves is more an aspiration than a presumption.

This is the point at which sale for resale rather than for consumption becomes relevant. Contrast two modes of distribution. In one, a bulk dealer like Lechuga sells his inventory directly to the ultimate consumer. So if he has a kilogram of cocaine to sell he breaks it up into numerous small packages (for example, into 500 2-gram packages) and hawks it on street corners. The process of breaking bulk and selling at retail is time-consuming. That will limit the scale of our hypothetical Lechuga’s operations. If all drug dealers were constrained to sell at retail the drug trade would be smaller than it is, just as the legitimate drug trade would be smaller than it is if manufacturers of legitimate drugs were forbidden to sell through pharmacists or other retailers and therefore had to sell directly to the consuming public if at all.

This is an argument for treating any sale of drugs for resale as a conspiracy. It is only a short step to the conclusion that any sale of drugs in a quantity greater than appropriate for individual consumption is presumptively a sale for resale, though the presumption could be rebutted, for example by evidence that the bulk purchaser was planning to throw a huge party at which he would serve his guests cocaine. Many of the objections to this approach are superficial, for example that the federal statute forbidding the sale of, and possession with intent to sell, drugs already imposes heavier penalties the larger the quantity sold or possessed. 21 U.S.C. § 841(b). The quantity goes to the severity of the sentence, not the existence of the crime. United States v. McNeese, 901 F.2d 585, 600-01 (7th Cir.1990). The issue of inferring the crime of conspiracy from the sale of or the agreement to sell a quantity so large that it is almost certainly intended for resale by the buyer rather than for his personal consumption is distinct. Nor is it an objection that to deem the seller (Lechuga) and the buyer (Pinto) members of a conspiracy to distribute drugs would imply that someone who rented Pinto the premises from which he conducted his business of reselling drugs to the ultimate consumers would be a conspirator with Pinto in the sale of drugs, though even if the landlord knew the purpose to which his tenant was putting the premises he would be at most an aider and abettor of Pinto’s illegal business. United States v. Giovannetti, 919 F.2d 1223, 1227 (7th Cir.1990). Someone who provides an input into another’s business usually cares only about selling the input, not about furthering the other’s business. It is different when the buyer is the seller’s distributor, without whom the seller cannot reach the market for his product.

Yet there is still a serious objection to concluding that a sale for resale leagues the seller and the buyer in a conspiracy (which can be inferred from the quantity involved in the sale — but that is not the problem). The objection is that while dangerousness may be the justification for punishing conspiracies separately from attempts and completed crimes, proof of dangerousness cannot be substituted for proof of conspiracy. The conspiracy itself must be proved.

We must therefore ask what a conspiracy is. A criminal conspiracy, the cases say, is an agreement to commit a crime. E.g., Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975); United States v. Blankenship, 970 F.2d 283, 285 (7th Cir.1992). The definition is incomplete, as we shall see. Nevertheless it is a beginning, for there cannot be conspiracy without agreement. What is an “agreement”? The term is like “contract” but is at once broader and narrower. It is broader because it embraces agreements that might for one reason or another, including illegality, not be legally enforceable. It is true that we sometimes speak of an “unenforceable contract” without a sense of semantic strain. But, at least to lawyers, the term “contract” ordinarily signifies an agreement that might in principle be enforced in a court of law, or in some substitute tribunal, such as a panel of arbitrators, agreed to by the parties in advance. Yet some legally enforceable contracts do not involve a “real” agreement in the sense of a meeting of the minds but are enforced because the parties uttered words or engaged in acts that the law deems sufficient to create a legally enforceable contract. In this respect the term “agreement” is narrower than the term “contract.”

This shows that to know what a “contract” is you must be a lawyer; but “agreement” is a lay term, and while it may be difficult to define, it usually is easy to identify. There was an agreement between Le-chuga and Pinto — an agreement on Leehu-ga’s part to sell, and on Pinto’s to buy, a specified amount of a specified product at a specified time and place and for a specified price. Was there therefore a conspiracy? Our cases hold, as do many in other circuits, that there would not be a conspiracy if Pinto were buying for his own consumption. United States v. Kimmons, 917 F.2d 1011, 1016— 17 (7th Cir.1990); United States v. Mancan, supra, 875 F.2d at 105; United States v. Douglas, 818 F.2d 1317, 1321 (7th Cir.1987); United States v. Moran, 984 F.2d 1299, 1302 (1st Cir.1993). Evidently, while proof of an agreement is necessary for a finding of conspiracy, it is not sufficient.

The rationale for the own-consumption exception is that when a crime requires the joint action of two people to commit (prostitution, adultery, incest, bigamy, and duelling are other examples), a charge of conspiracy involves no additional element unless someone else is involved besides the two persons whose agreement is the sine qua non of the substantive crime. The rationale could be questioned, on the ground that it is at most a reason for requiring that the sentences for the conspiracy and the completed crime run concurrently (though even this is unnecessary if the legislature intends cumulative punishment, Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983)), or perhaps that the punishment for the conspiracy be capped at the punishment for the completed crime on the theory that the punishment prescribed for the specific offense is the best evidence of what the legislature thought a proper sanction for the defendant’s conduct. Considerations such as these have persuaded the Supreme Court to demote the rule that forbids punishing as conspirators the minimum number of offenders necessary for a joint-action crime from a strict rule (“Wharton’s Rule”) to a principle of statutory interpretation. Iannelli v. United States, supra, 420 U.S. at 785-86, 95 S.Ct. at 1293-94.

There is another way to understand the own-consumption exception, however — a way that shows that, at least in some of its manifestations, as in this case, it is not an exception at all, but an instantiation of the rule that makes conspiracies criminal. A conspiracy is not merely an agreement. It is an agreement with a particular kind of object — an agreement to commit a crime. .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 required for conspiracy in such a case is an agreement to commit some other crime beyond the crime constituted by the agreement itself. We shall see that there was such an agreement here (as there had been in Iannelli) — the agreement between Lechuga and Pagan to cooperate in the sale of drugs to Pinto. The object of the agreement was to commit the crime of selling drugs to Pinto. But insofar as there was an agreement between Lechuga and Pinto merely on the one side to sell and on the other to buy, there was no conspiracy between them no matter what Pinto intended to do with the drugs after he bought them. Lechuga would not, merely by selling to Pinto, have been agreeing with Pinto to some further sale. A person who sells a gun knowing that the buyer intends to murder someone may or may not be an aider or abettor of the murder, but he is not a conspirator, because he and his buyer do not have an agreement to murder anyone.

There might have been a separate agreement between Lechuga and Pinto. Suppose Lechuga had told Pinto that he needed a good distributor on the south side of Chicago and wanted to enter into a long-term relationship with Pinto to that end. Then it would be as if Lechuga had hired Pinto to assist him in reaching his market. It should not make a difference whether an illegal agreement takes the form of an illegal simulacrum of an employment contract or of a “relational” contract, implying something more than a series of spot dealings at arm’s length between dealers who have no interest in the success of each other’s enterprise. Vertical integration is not a condition of conspiracy. And of course the initiative might in our hypothetical ease have come from Pinto rather than from Lechuga without affecting the analysis. Even the number of sales, a factor stressed in some cases, would be significant only insofar as it cast light on the existence of a continuing relation, implying an agreement with an objective beyond a simple purchase and sale and thus an agreement separate from the sale itself — the latter being an agreement, all right, but not a conspiracy. United States v. Baker, supra, 905 F.2d at 1106. What made “prolonged cooperation” a factor in inferring conspiracy in Direct Sales Co. v. United States, 319 U.S. 703, 713, 63 S.Ct. 1265, 1270, 87 L.Ed. 1674 (1943), was that it showed that the defendant not only knew that it was selling drugs to someone for use in an illicit enterprise but had “jointed] both mind and hand with him to make its accomplishment possible.” See also id. at 712 n. 8, 63 S.Ct. at 1269 n. 8. Prolonged cooperation is neither the meaning of conspiracy nor an essential element, but it is one type of evidence of an agreement that goes beyond what is implicit in any consensual undertaking, such as a spot sale.

A more difficult case, as noted in United States v. Moran, supra, 984 F.2d at 1302, 1304, would be that of an agreement between A and B for A to make a spot sale of drugs to B in the future — an agreement with a separate criminal object, that of making an illegal sale, but an agreement that seems only adventitiously distinct from the sale itself. No agreement of any kind between Lechuga and Pinto separate from the sale of cocaine to Pinto was proved, however, so Lechuga’s conviction for conspiracy cannot be affirmed on the basis of the agreement with Pinto.

It does not follow that the conviction must be reversed. The indictment charged a conspiracy with others besides just Pinto, and the evidence showed that Lechuga had in fact conspired with Pagan; therefore the conviction of conspiracy must be upheld after all. A finding that Lechuga had conspired with Pagan was within the scope of an indictment worded as this one was, and the fact that the indictment did not name Pagan is irrelevant. United States v. Rey, 923 F.2d 1217, 1222 (6th Cir.1991). It is true that the focus of both the trial and the appeal was on the alleged conspiracy between Lechuga and Pinto. But the government’s brief does not describe the conspiracy as being limited to Lechuga and Pinto. It says that “the evidence clearly established that Lechuga was supplying resale quantities of cocaine to Pagan and others as part of his ongoing agreement with Pagan. As such, sufficient evidence existed to support Lechuga’s conspiracy conviction.” Lechuga’s reply brief takes issue with the conclusion that there was sufficient evidence of such a conspiracy, but does not quarrel with the characterization of the conspiracy as one that included Pagan. And at the en banc argument Lechuga’s lawyer acknowledged that it would be proper to affirm his client’s conviction on the basis of such a conspiracy were it factually supported, which he denied.

The critical issue is whether, on the one hand, the relationship between Lechuga and Pagan is properly characterized as that of a spot seller and a spot buyer; or, on the other hand, whether the sale was from Lechuga to Pinto with Pagan functioning as a go-between, facilitator, sales agent, and general helper. If, knowing that Lechuga was a drug dealer, Pagan assisted him in distributing drugs to at least one dealer farther down the chain of distribution, namely Pinto, then Lechuga and Pagan were coconspirators. United States v. Aguilar, 948 F.2d 392, 396 (7th Cir.1991); United States v. Boyer, 931 F.2d 1201 (7th Cir.1991); United States v. Townsend, 924 F.2d 1385, 1400-01 (7th Cir.1991); United States v. Rivera, 855 F.2d 420 (7th Cir.1988). If Lechuga and Pagan had the same simple seller-buyer relationship as Lechuga and Pinto, then, for the reasons explained earlier, there was no conspiracy between them.

We must take a closer look at the facts concerning their relationship. Pagan was asked on direct examination what his purpose had been in seeking to meet Lechuga. He answered that it had been to “get in some kind of [drug] deals.” He was then asked, “What did you want to do with drugs with [Lechuga]?” Answer: “Just sell it.” It is apparent that he wanted to sell drugs on Lechuga’s behalf, for when the two had first met he had told Lechuga, “I know these [sic ] this guy, he’s looking for some amount [of drugs], and he [Lechuga] had it.” In other words, Pagan had a customer (although his testimony is not entirely clear on this point, apparently it was Pinto) for a particular amount of drugs, and he wanted Lechuga to supply him with the necessary amount. This is hardly consistent with Lechuga’s being a spot seller unaware of what activities Pagan, or any subsequent occupier of a place in the chain of distribution, might undertake. Le-chuga knew precisely what Pagan was going to do with the drugs he sold him. Pagan told Lechuga what he was going to do with them.

This was in February 1988. In May, Pinto told Pagan that he had a friend who wanted cocaine, so Pagan “called [Lechuga],” and told him the amount he needed. The inference is inescapable that Pagan told Lechuga that Pinto would require an extra three ounces to make up for a previous short delivery by Lechuga and Pagan. For Pagan testified that the reason Pinto was to get an extra three ounces was that “We had another deal with him [Pinto] and he claimed that we were short, so I request from [Lechuga] again the three ounces.” The “we” is obviously Lechu-ga and Pagan. A rational jury could infer from the testimony we have summarized that Lechuga and Pagan were dealing jointly with Pinto, with Pagan’s role that of a sales agent. Therefore the jury’s finding of conspiracy is adequately supported by the evidence.

Lechuga challenges his conviction on a number of other grounds, but they have no merit and require little discussion. Most were waived in the district court, and therefore can be raised in this court only if they demonstrate plain error, Fed.R.Crim.P. 52(b), which is to say an error that must be corrected in order to avert a miscarriage of justice. United States v. Caputo, 978 F.2d 972, 974 (7th Cir.1992). The challenges to the wording of the indictment and to the instructions are frivolous. Lechuga presents slightly more substantial Brady and Miranda issues. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As to the first, he argues that the government should have been required to disclose to him that it had “threatened” its star witness, Pagan, with prosecution for his own part in the conspiracy if he did not cooperate by testifying against Lechuga. But the only “threats” consisted of occasional.reminders to Pagan of something that was obvious- — that, having participated in the conspiracy, he could be prosecuted. He testified that he had not been prosecuted, and the jury was left to draw the obvious inference — that his fate depended on his effectiveness as a witness against Lechuga. Disclosure of the so-called “threats” would have added nothing.

Lechuga’s principal defense at trial was that Pagan had confused him with Lechuga’s brother Raul. But Lechuga had told the police when he was arrested that his brother had been in Mexico for the past six months. This admission was used at trial to knock down his defense of mistaken identification. He argues that the admission was extracted from him without his having first received the Miranda warnings. He did not make the argument at trial, and it is barred on appeal because, although this is a close case on the question whether Lechuga was involved in a conspiracy, it is not a close case on whether Pagan was dealing with him rather than his brother. On that issue the evidence against Lechuga was overwhelming, so that exclusion of the admission could not have made a difference.

AFFIRMED.