failure to show prima facie case of conspiracy based on one large sale in the absence of evidence that the seller agreed to the charged conspiracy
How later courts described this case
- failure to show prima facie case of conspiracy based on one large sale in the absence of evidence that the seller agreed to the charged conspiracy
Written by the judges who cited it.
The opinion
MERRILL, Circuit Judge
(concurring) :
I concur in Judge Duniway’s opinion but wish to add a thought of my own with respect to conspiracies of the sort we face here.
The conspiracy for which the Government contends is founded not on an agreement between Spanos and Godwin that the latter would sell to Ozment or Herring, but rather on a business relationship and course of dealing from which an agreement respecting resales may be inferred. Because of that relationship and inferred agreement Spanos is charged with conspiratorial responsibility for Godwin’s sale of 50,000 amphetamine tablets to Agent Herring. In order thus to hold him responsible, it is not enough that resale was foreseeable. If an agreement respecting resales is to be inferred it must appear that Spanos to some extent shared Godwin’s interest in such transactions.
*1018 The record below (absent the questioned declarations), in my view fails to make out a prima facie case of such a relationship. To me it indicates quite the contrary. Godwin was not shown to be one of those retailers on whom the success of Spanos’ dealership depended. During a period of a year and a half he had “occasionally” dealt with Spanos. He had access to Spanos, but that was about all he could claim. That Spanos felt any incentive to retain Godwin as a desirable commercial outlet seems to me to be persuasively disputed by the very manner in which the story apparently ends — with Godwin’s final telephone call to Spanos, as overheard by Herring: “Are you going to do any business at all or not, for how long, Tuesday, okay, then I will be in touch.” So far as we know that was the end of the matter.
From this careless finale (preceded by two unsuccessful attempts to do business) I would conclude that Spanos did not share any interest in Godwin’s resale activities and cannot be held responsible for them.