Petition for Writ of Certiorari — Royel Page, Petitioner v. United States
Supreme Court briefMar 6, 2025
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No. ___-______
__________________________
IN THE
SUPREME COURT OF THE UNITED STATES
__________________________
ROYEL PAGE, Petitioner,
vs.
UNITED STATES OF AMERICA, Respondent.
__________________________
On Petition for a Writ of Certiorari to
the United States Court of Appeals for the Seventh Circuit
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APPENDIX
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Appendix A: En Banc Decision of the Court of Appeals
United States v. Page, No. 21-3221 (7th Cir. Dec. 18, 2024) ................. 1a
Appendix B: Panel Decision of the Court of Appeals
United States v. Page, No. 21-3221 (7th Cir. Aug. 4, 2023) ..................93a
Appendix C: Rule 29 Decision of the District Court (excerpt of transcript)
United States v. Page, No. 2:17-cr-175 (E.D. Wis. July 29, 2021) ..... 103a
Appendix D: Seventh Circuit Pattern Criminal Jury Instructions on
Conspiracy 5.09, 5.10, 5.10(A) (2023 ed.) ........................................... 108a
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3221
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROYEL PAGE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:17-cr-00175-MYS-9 — Michael Y. Scudder, Circuit Judge. *
____________________
ARGUED MAY 22, 2024 — DECIDED DECEMBER 18, 2024
____________________
Before SYKES, Chief Judge, and EASTERBROOK, ROVNER,
BRENNAN, ST. EVE, KIRSCH, JACKSON-AKIWUMI, LEE, PRYOR,
and KOLAR, Circuit Judges. **
* Of the United States Court of Appeals for the Seventh Circuit, sitting
by designation.
** Circuit Judges Scudder and Maldonado did not participate in the
consideration or decision of this appeal.
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No. 21-3221
KIRSCH, Circuit Judge. Royel Page was charged with twelve
counts of attempted heroin distribution and one count of drug
conspiracy. At trial, the government proved that Page repeatedly purchased distribution quantities of heroin from Terrance Hamlin for over a year. Further, the government presented evidence of Hamlin and Page’s relationship that substantially showed a heightened level of trust between them.
For his part, Page denied involvement in the drug trade altogether, painting Hamlin as a biased witness who wholly lied
about their drug transactions. The jury convicted Page on all
counts.
Page appealed his conspiracy conviction on two grounds.
First, he argued that the government failed to present sufficient evidence to sustain his conspiracy conviction. Second,
he urged us to find that the district court plainly erred by not
sua sponte giving a buyer-seller jury instruction, even though
he affirmatively approved the district court’s final instructions and never argued that he and Hamlin had a mere buyerseller relationship. A panel of our court agreed with Page’s
second argument and remanded his case for a new trial. We
vacated the panel’s opinion and voted to rehear the case en
banc.
Our conspiracy and buyer-seller jurisprudence has
strayed far from the Supreme Court’s decision in Direct Sales
Co. v. United States, 319 U.S. 703 (1943). Today, we fix that deviation by holding that repeated, distribution-quantity drug
transactions alone can sustain a conspiracy conviction. Further, we apply the plain error standard as established in
United States v. Olano, 507 U.S. 725 (1993), something we have
not always done in our recent case law. In short, because the
evidence more than sufficiently supports Page’s conspiracy
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conviction, and because the district court did not err, let alone
plainly err, in not sua sponte providing a buyer-seller jury instruction, we affirm.
I
A grand jury charged Royel Page, Terrance Hamlin, and
others with conspiracy to possess with intent to distribute 100
or more grams of heroin, fentanyl, and cocaine. 21 U.S.C.
§§ 841(a)(1), 846. Page was also charged with twelve counts of
attempt to distribute and possess with intent to distribute heroin. Unlike Hamlin and the other defendants, who all pleaded
guilty, Page proceeded to trial.
At trial, the government presented substantial evidence of
Page’s guilt. For over a year and a half, Page purchased heroin
from Hamlin multiple times a week. The quantity of heroin
varied with each transaction, but Hamlin testified that Page
typically purchased between 5 and 56 grams, with the quantities steadily increasing over time. Hamlin also testified that
he eventually sold heroin to Page at a lower price per gram
because Page distributed his supply quickly.
Though not related by blood, Page and Hamlin maintained a close relationship that they likened to one between
an uncle and a nephew. The pair met in person or over the
phone hundreds of times to arrange drug deals and exchange
heroin. The government introduced wiretaps of approximately 133 calls between the two. Hamlin walked the jury
through these calls and explained the coded language he and
Page used to discuss the details of their heroin transactions.
Hamlin explained that they often did not need to discuss
price, however, because he had an established price per gram
rate for Page’s purchases.
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Surveillance corroborated Hamlin’s testimony. On one occasion, for example, Detective Nathan Pennes observed Hamlin park his vehicle outside Page’s house shortly after the pair
had a phone call discussing the sale of 45 grams of heroin. Det.
Pennes watched Page exit his home, walk to Hamlin’s car,
and enter the passenger side. A few minutes later, Page returned home, and Hamlin drove away. Based on his experience and training, Det. Pennes testified that this interaction
likely involved the 45-gram transaction that Page and Hamlin
previously discussed.
In addition to Page’s repeated, large-scale drug transactions with Hamlin, the government introduced evidence
shedding further light on the nature of the pair’s burgeoning
business relationship. For example, Hamlin expressed skepticism at having anyone other than Page involved, testifying
that he warned Page to keep his cousin out of the “business.”
And in line with this view, a recorded phone call showed that
Hamlin was particularly protective of Page, with Hamlin noting that he could not have the same business relationship with
others because Page “earned what [he was] doing.” Moreover, Hamlin allowed Page to purchase heroin partially on
credit, further evidencing the heightened trust between the
pair.
Hamlin testified that, from the beginning, he saw a potential for growth in his drug-dealing venture with Page. And at
one point, Page was agreeable to helping Hamlin expand his
heroin dealing “up north,” emphasizing to Hamlin in a call
that “we can do this” and that he could provide Hamlin with
his expertise in cutting heroin.
Additionally, the government introduced evidence showing that Page and Hamlin jointly sought to ensure the
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delivery of high-quality heroin to Page’s customers. For example, on one occasion, Page told Hamlin that the delivered
supply of heroin was “no good” and asked to switch it out.
Page informed Hamlin that this requested recall was for a customer that “spends good money” and whose business he
could not afford to lose. Hamlin agreed to replace the heroin.
The government introduced significant expert testimony
on drug conspiracies and transactions. Wisconsin Department of Justice Agent Jay Novak described the general inner
workings of drug conspiracies and explained how drug traffickers typically further each other’s efforts to distribute
drugs. Moreover, Agent Novak compared personal-use quantities of heroin with distribution quantities. While Agent Novak testified that heroin quantities of a gram or less typically
reflect purchases made for personal use, quantities above two
grams—like those purchased by Page—are exemplary of distribution levels.
Throughout trial, Page proceeded under the theory that he
was not involved in the drug trade at all, broadly challenging
the evidence that connected him to Hamlin and the intercepted phone calls. For example, through cross examination
and closing argument, Page’s counsel spent considerable time
painting Hamlin as a liar who had a lot to gain in falsely testifying for the government. In doing so, Page’s counsel asked
the jury to consider “who was on that telephone line.” Additionally, Page’s counsel tried to cast doubt on the criminality
of Page’s meetings with Hamlin. Page’s counsel highlighted
that law enforcement never physically observed Page and
Hamlin exchange drugs and suggested instead that their
meetings were innocent encounters between family friends
that involved the exchange of innocuous items.
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At the close of evidence, the district court and the parties
proceeded with a jury instruction conference. Neither party
asked for a buyer-seller instruction. At the close of the conference, the district court asked Page’s counsel, “[F]or the record
the defense is good with the jury instructions, what’s in and
what’s not in?” Page’s counsel responded, “Yes.”
Ultimately, the jury convicted Page on all counts. Page
proceeded to sentencing, where he faced a Sentencing Guidelines range of 97–121 months. The district court sentenced
Page to 90 months on each count to be served concurrently,
and Page appealed, raising two challenges. First, he argues
that there was insufficient evidence to support his conspiracy
conviction. Second, he argues that the district court plainly
erred by not giving a buyer-seller jury instruction sua sponte.
II
We turn first to Page’s sufficiency-of-the-evidence challenge. For such a challenge, we view the evidence in the light
most favorable to the prosecution. United States v. Garcia, 919
F.3d 489, 496 (7th Cir. 2019). To prevail, Page must show that
no rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt. Id.
We have time and again described a defendant’s burden under this standard as “nearly insurmountable.” United States v.
Dessart, 823 F.3d 395, 403 (7th Cir. 2016) (quotation omitted).
We begin by explaining how our conspiracy and buyerseller jurisprudence has drifted far from the Supreme Court’s
guidance. See United States v. Brown, 726 F.3d 993, 1000–01
(7th Cir. 2013) (describing the tension and inconsistency in
our buyer-seller case law). After correcting course, we stress
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that Page’s conviction would stand even under our nowoverruled precedent.
A
To sustain a conspiracy conviction, the government must
prove that two or more people agreed to commit an unlawful
act and that the defendant knowingly and intentionally joined
in that agreement. See United States v. Wright, 85 F.4th 851, 861
(7th Cir. 2023). For a drug-distribution conspiracy, there must
be sufficient evidence for a rational trier of fact to conclude
beyond a reasonable doubt that the defendant knowingly
agreed, at least implicitly, to distribute drugs with another.
United States v. Hidalgo-Sanchez, 29 F.4th 915, 924–25 (7th Cir.
2022); see also United States v. Shabani, 513 U.S. 10, 15 (1994)
(government need not prove an overt act). This inquiry often
leads us to distinguish between conspiracies and mere buyerseller relationships because “[e]vidence showing only that
two people are in a buyer-seller relationship is insufficient to
prove a drug-distribution conspiracy.” Hidalgo-Sanchez, 29
F.4th at 925. However, how we have articulated this distinction has often been confusing and flawed.
The leading authority on the buyer-seller doctrine is Direct
Sales Co. v. United States, 319 U.S. 703 (1943). In that case,
Dr. John Tate purchased from Direct Sales Co. large quantities
of morphine sulphate, which he then illegally distributed to
others. Id. at 704. Specifically, for several years, Direct Sales
sold Tate thousands of morphine sulphate tablets annually,
even though “the average physician in the United States [did]
not require more than 400 one-quarter grain tablets annually
for legitimate use.” Id. at 706. Based on these repeated,
distribution-quantity transactions, Direct Sales was convicted
of conspiracy to distribute narcotics. Id. at 704. Direct Sales
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appealed, relying on the Court’s then-recent decision in
United States v. Falcone, 311 U.S. 205 (1940), for the premise
that mere sales to a buyer combined with knowledge that the
buyer would use the sold items illegally is not enough to
sustain a conspiracy conviction. See Direct Sales, 319 U.S. at
708. The Court rejected that comparison, noting that Falcone
“[came] down merely to this, that one does not become a
party to a conspiracy by aiding and abetting it, through sales
of supplies or otherwise, unless he knows of the conspiracy;
and the inference of such knowledge cannot be drawn merely
from knowledge the buyer will use the goods illegally.” Id. at
709; see also id. at 710 (noting that the Court in Falcone was not
asked to determine whether there was sufficient evidence to
sustain a conspiracy between the buyer and seller).
Instead, the Court distinguished the nature of the goods in
Falcone (there, the defendant sold sugar and yeast to secondary illegal distillers), which “were articles of free commerce”
that “left the seller’s stock and passed to the purchaser’s
hands” as unrestricted commodities capable of “further legal
use.” Id. at 710. The illegality of morphine, as compared to the
legality of sugar and yeast, proved critical to sustaining Direct
Sales’s conspiracy conviction for two reasons: “One is for
making certain that the seller knows the buyer’s intended illegal use. The other is to show that by the sale he intends to
further, promote and cooperate in it. This intent … is the gist
of conspiracy.” Id. at 711; see also id. (opining that the “difference between sugar, cans, and other articles of normal
trade … and narcotic drugs, machine guns and such restricted commodities” arises from “the latters’ inherent capacity for harm and from the very fact they are restricted” and
thereby “makes a difference in the quantity of proof required
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to show knowledge that the buyer will utilize the article unlawfully”).
The Court’s reliance on this distinction makes sense. There
is an inherent and necessary trust between parties to an illegal
transaction—at the least, that the other will not reveal the
transaction to law enforcement—that is not shared by buyers
and sellers of innocuous items. For this reason, facts such as
“quantity sales” or “abnormal increases in the size of the
buyer’s purchases, … which would be wholly innocuous or
not more than ground for suspicion in relation to unrestricted
goods, may furnish conclusive evidence, in respect to
restricted articles, that the seller knows the buyer has an
illegal object and enterprise.” Id. Intent “is not unrelated to”
knowledge. Id. When the evidence establishes repeated,
distribution-quantity transactions in an illicit market, “[t]he
step from knowledge to intent and agreement may be taken.
There is more than suspicion, more than knowledge …. There
is informed and interested cooperation, stimulation,
instigation.” Id. at 713.
A contextual breakdown of the relationship between a
buyer and seller is instructive. Consider the relationship as it
proceeds in the drug distribution setting. First, a seller sells
distribution quantities of a drug to a buyer. (Keep in mind the
government must still prove that the quantity of drugs sold
was indicative of further distribution. This is crucial as it provides the circumstantial evidence of the seller’s knowledge—
namely, that the buyer will sell the drugs to others rather than
simply consume them himself.) At this point, the seller knows
that the buyer has purchased drugs from him for further illegal distribution. Yet, despite this known illegality, the seller
continues to sell distribution quantities of drugs to the buyer,
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and the buyer willingly continues to purchase said quantities.
In this way, the buyer and seller develop, in part, a codependent business relationship wherein they have a shared stake in
each other’s success. As the buyer’s distribution to downstream clients thrives, so too does the seller, now a willing
participant in the dealing through his provision of stock for
the buyer’s enterprise. And if the buyer’s own customer base
grows, he might need to purchase even more drugs (in frequency or quantity) from the seller to satisfy increased demand. This too enhances the stake in the pair’s relationship.
Thus, far from a mere, arms-length buyer-seller relationship,
such evidence of repeated, distribution-quantity transactions,
given the mutually known benefits that flow from such transactions, shows that the buyer and seller knowingly and intentionally entered into an implicit agreement to distribute
drugs.
Of course, a single sale of a restricted good in a low quantity does not, by itself, support a charge of conspiracy, even if
the seller knows that the good will be used for further illegal
activity. Id. at 712. But this does not mean that a seller can sell
contraband “in unlimited quantities.” Direct Sales, 319 U.S. at
712. Rather, as plain from the hypothetical above, when the
evidence shows that a buyer and seller worked in “prolonged
cooperation” for a plainly unlawful purpose—the seller supplying the buyer with stock for his illicit enterprise—“there is
no legal obstacle to finding that the supplier not only knows
and acquiesces, but joins both mind and hand with him to
make its accomplishment possible.” Id. at 713. This is so even
if the agreement between the buyer and seller “was a tacit understanding, created by a long course of conduct and executed in the same way.” Id. at 714. After all, a conspiracy conviction by its very nature requires proof based largely (and
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often, solely) on circumstantial evidence. Thus, when the
charged conspiracy involves the distribution of illicit goods,
the amount of proof needed to support the conspiracy conviction lessens because the illicit nature of the goods itself serves
as a factor supporting an agreement between a buyer and
seller. For these reasons, the Supreme Court had no trouble
affirming Direct Sales’s conspiracy conviction based solely on
evidence of repeated, distribution-quantity sales of morphine.
All told, Direct Sales provides three principles for determining which types of buyer-seller relationships are indicative of a conspiracy. First, repeated, distribution-quantity
sales of innocuous goods between a buyer and seller do not,
on their own, show a conspiratorial agreement, even when
the seller knows that the buyer plans to use those innocuous
goods for illicit activities. Second, a buyer and seller involved
in a low-quantity exchange of illicit goods merely for the
buyer’s personal use are likewise not, without more, engaged
in a conspiracy. Third, a drug conspiracy conviction can be
sustained if the government proves that a buyer and seller engaged in repeated, distribution-quantity drug transactions.
See id. at 714–15 (noting that a conspiracy conviction can
stand “notwithstanding the overt acts consist solely of sales,
which but for their volume, frequency and prolonged repetition, coupled with the seller’s unlawful intent to further the
buyer’s project, would be wholly lawful transactions”).
Our holding today departs from a long line of cases that
have stretched the buyer-seller doctrine too far and deviated
from the standard set in Direct Sales. These cases originate
from our decision in United States v. Colon, 549 F.3d 565 (7th
Cir. 2008). In Colon, we concluded that repeated, distributionquantity transactions alone could not support a conspiracy
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conviction and instead required the presence of additional evidence, such as sales on credit or an agreement between the
buyer and seller to warn of future threats to each other’s business. Id. at 568–70. But that conclusion rested on the same arguments made by the defendant in Direct Sales that the Supreme Court squarely rejected. For instance, we analogized
sales of cocaine to innocent purchases made at one’s local
Wal-Mart: “If you buy from Wal-Mart your transactions will
be highly regular and utterly standardized, but there will be
no mutual trust suggestive of a relationship other than that of
buyer and seller.” Id. at 568. That analogy flies in the face of
Direct Sales and the critical difference discussed above between innocent purchases at one’s local store compared to repeat, distribution-quantity transactions of illicit substances:
the “mutual trust” not present in a transaction with Wal-Mart
is undoubtedly found between the parties to an illicit transaction. Colon thus erred at the outset, resulting in a holding that
has tainted our conspiracy and buyer-seller law.
Colon also stressed the practical reasons for not conflating
a mere sale with a conspiracy. See id. at 569 (emphasizing that
there needs to be evidence of an agreement to commit a crime
other than evidence of the illegal transaction itself). No doubt,
a mere buyer of drugs does not, without more, engage in a
drug distribution conspiracy with a seller. Our holding does
not change that basic principle. But today, we refine what
“more” can transform a mere buyer-seller relationship into
such a conspiracy. Repeated, distribution-quantity transactions of illegal drugs do not reflect a mere buyer-seller relationship between the parties. The buyer-seller defense was
never meant for such a wholesale-level relationship. Cf.
United States v. Delgado, 672 F.3d 320, 333 (5th Cir. 2012) (en
banc) (“The buyer-seller exception prevents a single buy-sell
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agreement, which is necessarily reached in every commercial
drug transaction, from automatically becoming a conspiracy
to distribute drugs. The rule shields mere acquirers and
street-level users, who would otherwise be guilty of conspiracy to distribute, from the more severe penalties reserved for
distributers.”).
Colon and its progeny are now overruled to the extent that
they are inconsistent with this opinion. See, e.g., United States
v. Pulgar, 789 F.3d 807, 813 (7th Cir. 2015); United States v.
Brown, 726 F.3d 993, 999 (7th Cir. 2013); United States v. Johnson, 592 F.3d 749, 755–56 (7th Cir. 2010). This brings us in harmony with our sister circuits. See, e.g., United States v. Mitchell, 596 F.3d 18, 25 (1st Cir. 2010) (rejecting the argument that
a buyer-seller instruction was required because “the evidence
at trial showed that Mitchell was involved in multiple transactions, for large, kilogram-quantities of cocaine, for large
sums of money”); United States v. Siegler, 990 F.3d 331, 338 (4th
Cir. 2021) (“We have repeatedly recognized that evidence of
a single buy-sell transaction involving a ‘substantial quantity
of drugs’ can support a ‘reasonable inference’ of knowing participation in a distribution conspiracy.”) (quotation omitted);
Delgado, 672 F.3d at 333 (Fifth Circuit concluding that the
buyer-seller exception prevents a “single buy-sell agreement,” not transactions in wholesale quantities); United States
v. Mosley, 53 F.4th 947, 957 (6th Cir. 2022) (“[K]nowing entry
into a drug conspiracy may reasonably be inferred when a
buyer repeatedly purchases large quantities of drugs from a
single seller.”) (cleaned up); United States v. Davis, 867 F.3d
1021, 1034 (8th Cir. 2017) (“Eighth Circuit law is clear: ‘[E]vidence of multiple sales of resale quantities of drugs is sufficient in and of itself to make a submissible case of a conspiracy
to distribute.’”) (quotation omitted) (alteration in original);
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United States v. Ivy, 83 F.3d 1266, 1285–86 (10th Cir. 1996)
(“[T]he purpose of the buyer-seller rule is to separate consumers, who do not plan to redistribute drugs for profit, from
street-level, mid-level, and other distributors, who do intend
to redistribute drugs for profit, thereby furthering the objective of the conspiracy.”); United States v. Brown, 587 F.3d 1082,
1090 (11th Cir. 2009) (“[D]ue to the repeated nature of the
transactions and the large quantities involved, a rational trier
of fact could infer a corresponding conspiracy to distribute
the cocaine.”); United States v. McGill, 815 F.3d 846, 929 (D.C.
Cir. 2016) (“Evidence that Simmons facilitated multiple transactions of wholesale drug quantities ‘permits an inference
that [he] had knowledge of the conspiracy and intended to
join.’”) (quotation omitted) (alteration in original).
In sum, evidence of repeated, distribution-quantity transactions of illegal drugs between two parties, on its own, can
sufficiently sustain a drug conspiracy conviction, consistent
with the holding in Direct Sales. Though additional evidence
is no longer required to defeat a sufficiency-of-the-evidence
challenge in this context, see Johnson, 592 F.3d at 755–56 (citing
Colon and listing examples of additional evidentiary factors
needed to sustain a conspiracy conviction despite the presence of repeated, distribution-quantity drug transactions),
our holding does not affect the government’s ability to offer
such additional evidence (which, as discussed below, it did
here) to prove a conspiracy. Further, this additional evidence
may be required in other conspiracy cases where evidence of
repeated, distribution-quantity drug transactions is lacking.
In this case, the government proved that Page met with
Hamlin hundreds of times over the course of a year (at a clip
of approximately three times a week) to purchase distribution
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quantities of heroin. That evidence alone supports a rational
jury’s finding that Page and Hamlin entered into an agreement, at least implicitly, to distribute drugs. Therefore, Page’s
conspiracy conviction must stand.
B
Though Page’s challenge to his conviction fails under the
proper conspiracy standard outlined above, we would
sustain his conviction even under our now-overruled cases
where we improperly held that repeated, distributionquantity drug sales could not alone support a conspiracy. In
those cases, we often turned to our list of additional,
nonexhaustive evidentiary factors referenced above to help
distinguish buyer-seller relationships from conspiracies:
“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 on the conduct of
the other’s business, or an agreement to warn of future threats
to each other’s business stemming from competitors or lawenforcement authorities.” Johnson, 592 F.3d at 755–56. And
evidence showing a level of heightened trust likewise favors
a conspiracy finding. United States v. Vizcarra-Millan, 15 F.4th
473, 507 (7th Cir. 2021). While these additional factors are
instructive, our ultimate inquiry was always a holistic
assessment of whether the jury reached a reasonable verdict.
Hidalgo-Sanchez, 29 F.4th at 925. Stated differently, we ask
whether a conspiracy existed under the totality of the
circumstances. Id.
The evidence of conspiracy in this case consisted of much
more than just repeated, distribution-quantity drug transactions. First, Page and Hamlin maintained a relationship akin
to that of an uncle and a nephew, and they had a general trust
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in one another. Second, as evidenced by several phone calls,
Hamlin advised Page on his drug distribution, in part by recommending that Page not work with specific individuals, and
acknowledged an especially cooperative business relationship with Page. In particular, because Page distributed heroin
at such a fast pace, Hamlin gave him the benefit of a lower
price per gram. Such a benefit reflects Hamlin and Page’s understanding that Hamlin’s short-term revenue losses would
ultimately be usurped by larger profits stemming from Page’s
stable, high-volume drug distribution. Third, Page and Hamlin consistently notified each other about the status of their
drug supply and their clientele. Fourth, Page and Hamlin contemplated expanding their business relationship “up north,”
and Page, at least at first, enthusiastically supported the idea.
Though they ultimately did not agree to expand the business,
a rational jury could certainly rely on this evidence to infer
that Page and Hamlin had an underlying, implicit agreement
to distribute drugs together—otherwise, there would be no
business relationship to expand “up north.” Fifth, Page and
Hamlin exhibited a shared interest in delivering high-quality
heroin to Page’s customers, with Hamlin allowing Page to
swap out a bad batch of heroin intended for a valuable, highpaying customer. And finally, on at least one occasion, Page
purchased heroin partially on credit, which coupled with the
other evidence above, is strong evidence of a conspiracy.
This evidence is overwhelming and indicative of an
implied agreement between Page and Hamlin to distribute
heroin together. A rational trier of fact could have easily
convicted Page of conspiracy based on this record, which
included much more than just evidence of repeated,
distribution-quantity drug sales.
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III
Page also argues that the district court erred by not sua
sponte giving a buyer-seller instruction to the jury. Page did
not request a buyer-seller instruction at trial, and when the
district court asked Page’s counsel if the proposed final jury
instructions were sufficient, counsel responded affirmatively.
While Page possibly waived all challenges to the jury instructions, thus precluding our appellate review, we assume without deciding that Page merely forfeited his request for the
buyer-seller instruction. United States v. Leal, 72 F.4th 262, 266
(7th Cir. 2023) (noting that a response of “no objection” during a jury instruction conference results in forfeiture but describing tension in our case law on the issue). We review
Page’s forfeited jury instruction request for plain error under
Federal Rule of Criminal Procedure 52(b). See Greer v. United
States, 593 U.S. 503, 507–08 (2021). As discussed above, Page’s
case did not warrant a buyer-seller instruction. Nevertheless,
we take this opportunity to clarify what is required for us to
find plain error.
The Supreme Court laid out the test for plain error in
United States v. Olano, 507 U.S. 725 (1993), which it has reaffirmed time and again, most recently in Greer. “To establish
eligibility for plain-error relief, a defendant must satisfy three
threshold requirements”: (1) “there must be an error”; (2) “the
error must be plain”; and (3) “the error must affect ‘substantial rights,’ which generally means that there must be ‘a reasonable probability that, but for the error, the outcome of the
proceeding would have been different.’” Greer, 593 U.S. at
507–08 (quotation omitted). If those three elements are met,
an appellate court must consider a fourth discretionary element: the court may grant plain error relief only if it concludes
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that “the error had a serious effect on ‘the fairness, integrity
or public reputation of judicial proceedings.’” Id. at 508 (quotation omitted). The defendant faces a “difficult” burden in
seeking to establish all four elements needed for plain error.
Id. Under this test, Page’s claim of error fails.
A
For plain error to lie, there must first be an error. A deviation from a legal rule is error unless the rule has been affirmatively waived. See Olano, 507 U.S. at 732–33. Page faces several obstacles in trying to meet this element.
First, for the reasons outlined in the previous section, the
evidence in this case, even under our now-overruled precedent, supported a conspiracy rather than a buyer-seller relationship. Therefore, a buyer-seller instruction was not appropriate.
Second, a buyer-seller instruction would have contravened Page’s theory of defense. Throughout the trial, Page
painted Hamlin, the government’s chief witness, as a liar to
undermine any testimony that identified him as the individual on the other side of Hamlin’s wiretapped phone calls.
Page also suggested that his meetings with Hamlin were innocent encounters between family friends. In doing so, Page
wisely tried to show that he was not involved in the drug
trade at all so that the jury would acquit him of all charges
(and not just the conspiracy charge). A buyer-seller defense
would have done Page no good on 12 of his 13 counts (the
attempt to distribute counts) and would have contradicted his
position on those counts. Moreover, Page conceded at oral argument that he did not present a buyer-seller defense at trial.
Oral Argument at 3:13 (“He did not present a buyer-seller
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theory. That—I fully admit to that. We concede that.”). Thus,
because “we have repeatedly held that a buyer-seller instruction is unnecessary where the instruction would contradict
the defendant’s theory of the case,” United States v. Love, 706
F.3d 832, 839 (7th Cir. 2013), Page’s claim of error fails for this
reason too.
Third, Page’s case presents an odd procedural question:
whether there is ever error when a district court does not sua
sponte give an instruction on a defense theory that a defendant did not request. We conclude there is not. “In our adversarial system of adjudication, we follow the principle of party
presentation,” and “in both civil and criminal cases, … we
rely on the parties to frame the issues for decision and assign
to courts the role of neutral arbiter of matters the parties present.” United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020)
(quotation omitted); see also id. at 375–76 (“[A]s a general
rule, our system is designed around the premise that parties
represented by competent counsel know what is best for
them, and are responsible for advancing the facts and argument entitling them to relief.”) (cleaned up). Courts therefore
“do not, or should not, sally forth each day looking for
wrongs to right. They wait for cases to come to them, and
when cases arise, courts normally decide only questions presented by the parties.” Id. at 376 (cleaned up). In the criminal
context, departures from the party presentation principle are
more common, albeit marginally, most often to protect a pro
se litigant’s rights. See id. at 375.
A district court does not err, let alone plainly err, by not
sua sponte instructing the jury on a potential defense, particularly when the defendant is represented by counsel. The
onus is not on the district court to devise and proffer such
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No. 21-3221
defense theories. And as was the case with Page, there are often strategic reasons for defense counsel’s decision to avoid
presenting a particular theory. A theory of defense, like the
buyer-seller defense, see, e.g., United States v. Douglas, 818
F.2d 1317, 1322–23 (7th Cir. 1987) (discussing defendant’s proposed instruction on the “buyer-seller theory of defense”), is
only injected into a criminal proceeding through the defendant’s case presentation, unlike, for instance, the elements of
an offense, which are injected via an indictment. Thus, it is the
defendant’s obligation to seek an instruction on said defense,
and a district court does not err by not giving such an instruction on its own initiative.
Our sister circuits agree with this view. See, e.g., United
States v. Sago, 74 F.4th 1152, 1160 n.6 (10th Cir. 2023) (“We are
not alone in requiring this of defendants. Of the circuits to
have considered a claim regarding an unrequested
affirmative-defense instruction, most hold there is no error.”)
(collecting cases); United States v. Tyson, 653 F.3d 192, 212 (3d
Cir. 2011) (finding no error in failing to give instruction on
defense to firearms charge when defendant did not request it,
even though “evidence arguably would have supported a[n]
... instruction [on the defense],” because this may have been
part of the defendant’s strategy, and “[i]t is not for the district
court to sua sponte determine which defenses are appropriate
under the circumstances”); see also 1 Paul H. Robinson &
Catherine Palo, Criminal Law Defenses § 68.50 (1984 ed. &
Supp. 2023) (“[T]rial courts should not interfere with a
defendant’s chosen defense theory by giving an instruction
which neither party requested and which may undermine
defendant’s chosen theory. Moreover, trial courts are not
required to provide instructions for every possible theory of
defense just because some supporting evidence may be
020a
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produced at trial, if the defendant has not relied on the
particular defense theory.”).
Because Page conceded that he did not seek a buyer-seller
instruction at conference, the district court did not err by not
inserting that instruction. And even if Page had requested the
instruction at conference, the district court would not have
erred in declining to give it. Page conceded that he did not
present a buyer-seller defense during trial, and no evidence
supported the instruction. To the extent Page suggests that he
injected the buyer-seller defense into the case when he alluded to it during his closing argument, we are not convinced
in light of Federal Rule of Criminal Procedure 30. Under Rule
30, a party seeking an instruction “must” make its request “at
the close of evidence or at any earlier time,” and the court
“must inform the parties before closing arguments how it intends to rule on the requested instructions.” Fed. R. Crim. P.
30(a)–(b). Thus, a party does not properly inject a defense into
a criminal proceeding solely by introducing it during closing
argument. For all these reasons, the district court committed
no error.
B
Even assuming error, the second element of the plain error
inquiry requires that the error be “plain.” The Supreme Court
has described this prong as “synonymous with ‘clear’ or,
equivalently, ‘obvious.’” Olano, 507 U.S. at 734 (quotation
omitted); see also United States v. Frady, 456 U.S. 152, 163
(1982) (noting that relief under Federal Rule of Criminal Procedure 52 requires “error so ‘plain’ the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it”). An error that is
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“subject to reasonable dispute” is not “plain.” Puckett v.
United States, 556 U.S. 129, 135 (2009).
An error (had it existed) in not sua sponte instructing the
jury on the buyer-seller defense would not have been plain.
Page did not present this defense theory, and the evidence of
conspiracy was very strong. Nothing about this record would
have made it obvious to the district court that such an instruction was needed. We need not belabor these points again here.
Instead, we take this opportunity to emphasize the need to
ensure that an error is indeed plain before reversing a district
court’s judgment. In doing so, we clarify that some of our
opinions have not placed sufficient emphasis on the rigorousness of the plain error standard of review.
Consider our recent opinion in United States v. Anderson,
99 F.4th 1106 (7th Cir. 2024). That case turned on whether the
defendant’s 2001 conviction for assault in Florida qualified as
a predicate offense under the Armed Career Criminal Act
(ACCA). Id. at 1110. Specifically, the issue was whether assault under Florida law criminalized reckless conduct—if it
did, it would not qualify as an ACCA predicate. The Eleventh
Circuit was presented with this identical question. It certified
the question to the Florida Supreme Court, and we likewise
held our appeal in abeyance pending that decision. See Somers
v. United States, 355 So. 3d 887, 888 (Fla. 2022). The Florida Supreme Court concluded that assault under Florida law did not
criminalize reckless conduct, see id. at 892–93, and the Eleventh Circuit, upon receiving answers to its certified questions,
held that an assault conviction in Florida qualifies as an
ACCA predicate, Somers v. United States, 66 F.4th 890, 892
(11th Cir. 2023).
022a
No. 21-3221
23
In Anderson, we endeavored to review the district court’s
ACCA enhancement based on a Florida assault conviction for
plain error because “Anderson did not contest his ACCA designation in the district court.” 99 F.4th at 1110. Yet, our review
effectively addressed the issue de novo in reversing the district court. We pointed to intermediate appellate decisions
from Florida, concluded that the Florida Supreme Court’s decision in Somers did not apply retroactively, and applied the
reasonable probability test to hold that Anderson’s assault
conviction did not qualify as an ACCA predicate. We found
that the district court erred in applying ACCA’s 15 year minimum floor to Anderson’s sentence, id. at 1114, but we did not
explain how this error was clear or obvious. Anderson instead
acknowledged that “[t]he breadth of the Florida aggravated
assault statute at the time of Anderson’s conviction is not easily discerned” and that the case was a “close” one. Id. at 1111–
12. Any error was “subject to reasonable dispute,” Puckett, 556
U.S. at 135, as our majority opinion needed to distinguish a
Florida Supreme Court decision on point and created a split
with the Eleventh Circuit on an identical question. Therefore,
any error in Anderson was not plain.
A standard of review is not to be invoked in name only
and then disregarded. It is a limiting principle on our scope
of review that properly gives deference to a district court and
the arguments the parties made before it. Simply, it keeps an
appeal from turning into a full retrial. For there to be plain
error, a court must give due weight to all four prongs set out
in Olano. Anderson, and opinions like it, would turn out differently under a proper application of this standard.
023a
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No. 21-3221
C
If a defendant establishes the existence of a plain error, he
must still show that the error affected his substantial rights—
that a reasonable probability exists that, but for the error, the
outcome of the proceedings would have been different. Under this prong, “[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Olano, 507 U.S. at 734. In other words, a defendant
claiming that a plain error affected his substantial rights must
“make such an argument or representation on appeal.” Greer,
593 U.S. at 509.
Page did not and could not have met this burden. Even if
the district court’s failure to sua sponte instruct the jury on
the buyer-seller relationship constituted plain error, nothing
in this record suggests that the outcome of the trial would
have differed. As discussed above, this was not a close case;
the evidence did not support a buyer-seller relationship.
Moreover, the district court did more than simply instruct the
jury on the elements of conspiracy. It also provided other
instructions on when a defendant qualifies—and does not
qualify—as a member of a conspiracy. In short, a jury would
have convicted Page even with a buyer-seller instruction in
hand.
D
“Rule 52(b) is permissive, not mandatory.” Olano, 507 U.S.
at 735. Thus, even if a defendant meets the first three threshold elements of plain error, we may grant relief, in our discretion, only if the error had a serious effect on the fairness, integrity, or public reputation of judicial proceedings. This requirement is distinct from the substantial rights prong: “a
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No. 21-3221
25
plain error affecting substantial rights does not, without
more,” satisfy the fourth prong of plain error, “for otherwise
the discretion afforded by Rule 52(b) would be illusory.” Id.
at 737. The fourth prong of Olano “inherently requires ‘a casespecific and fact-intensive’ inquiry.” Rosales-Mireles v. United
States, 585 U.S. 129, 142 (2018) (quotation omitted). In cases
where a finding of plain error would result in additional jury
proceedings on remand, the Supreme Court has suggested
that an appellate court’s discretion under the fourth prong of
Olano should be exercised “sparingly” and “reserved for ‘exceptional circumstances.’” See id. at 142–43 (quotations omitted).
We would decline to exercise our discretion under the
fourth Olano prong. A finding of plain error here would require a wholly new jury trial based on an omitted jury instruction, cf. Jones v. United States, 527 U.S. 373, 389–94 (1999) (finding no plain error for purportedly erroneous jury instructions), even though Page never asked for the instruction, did
not present a defense consistent with the instruction, and affirmatively approved the final jury instructions as written.
Such an error would not affect the fairness, integrity, or reputation of our judicial system.
AFFIRMED
025a
26
No. 21-3221
EASTERBROOK, Circuit Judge, concurring. I join the majority’s opinion and add a few words about the relation between
the party-presentation principle, see United States v. SinenengSmith, 590 U.S. 371 (2020), and plain-error review under Fed.
R. Crim. P. 52(b).
Sineneng-Smith tells us that courts generally should not,
and often must not, inject issues into litigation. Judges should
instead respect the choices made by litigants and their lawyers about which issues to pursue and which to avoid. If lawyers for criminal defendants handle this task poorly, and prejudice ensues, a court miȱęȱȱȱȱěȱ
ȱěȱȱȱǯȱȱȱ¢ȱȱ
for collateral review rather than direct appeal. Massaro v.
United States, 538 U.S. 500 (2003).
Subjects within the discretion of counsel in criminal cases
include selection of a theory of defense and the decision
ȱȱȱȱĜȱǰȱȱȱǰȱdefense, entrapment, or advice of counsel. Many defenses
open the accused to some kind of risk, and counsel must evalȱ ȱȱȱ ȱęȱȱǯȱȱ
entrapment. ȃǽ ǾȱȱȱȱĴȱ ¢ȱȱȱ
entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearȱ ȱ ȱ ǯȱ ȱ ȱ ȱ ȱ ěȱ ȱ Ȭ
vantage, he has brought it upon himself by reason of the nature of the defense.” Sorrells v. United States, 287 U.S. 435, 451–
52 (1932). Many lawyers view “I didn’t do it” and “I was entrapped into doing it” as so incompatible that making both
contentions amounts to a confession of culpability. A defendant is free to take that risk, see Mathews v. United States, 485
026a
No. 21-3221
27
U.S. 58 (1988), but it is not one that a judge may thrust upon
him.
The same is true when the tactic is in the nature of avoidance or mitigation. See Keeble v. United States, 412 U.S. 205,
212–13 (1973) (observing that a lesser-included-ěȱ Ȭ
ȱ ȱ ȱ ȱ ȱ ȱ ĴǼǯȱȱ ¢-seller
argument poses risks to any defendant charged with both
conspiracy and substantive crimes. Arguing that “I didn’t do
it” yet “I was just a buyer of illegal drugs” makes the defense
position inconsistent and creates a risk that jurors may become skeptical about both halves of the either/or proposition.
That sort of risk is apparent in Page’s case, as he denied that
he had anything to do with heroin and depicted Hamlin as a
liar. Arguing that he just bought heroin in spot transactions
with Hamlin could have helped Page against the conspiracy
charge but would have increased the chance of conviction on
the substantive charges. Because the Sentencing Guidelines
link their recommendations to the quantity of drugs included
as relevant conduct under U.S.S.G. §1B1.3, without adding
levels for a conspiracy conviction, see U.S.S.G. §2D1.1 and Application Note 5; §2X1.1(a), trying to avert a conspiracy conviction while increasing the chance of substantive convictions
ȱȱȱȱȱȱȱĴȱȱ¢ȱ ǯȱ
An accused is free to take that risk, see United States v. Cruse,
805 F.3d 795, 815 (7th Cir. 2015), but the choice is one for the
defense rather than the judge.
As far as I can tell, the Supreme Court has never held that
a district judge must, should, or even may raise a contention
such as a buyer-ȱȱǻȱ¢ȱȱĴȱȱȬ
fense, avoidance, or mitigation) when the accused does not
request an instruction on that subject. That is the party-
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No. 21-3221
presentation principle in action. Applied to this case, it means
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ Ĵȱ ȱ ¢-seller
instruction—indeed, that the judge would have erred by including one.
What, then, is the role of plain-error review under Rule
śŘǻǼǵȱ ȱȱȱȱȱ ȱȱȱěȱȬ
jects that the parties did present, even if no one called a blunȱȱȱȂȱĴǯȱȱȱ¢ȱěȱǰȱ
the judge must decide whether it is admissible; a plain error
can be reviewed under Fed. R. Evid. 103(e). And the indictment in a criminal case necessarily requires the judge to craft
ȱȱȱȱȱȱȱȱěǯȱȱȱȬ
ments instruction may be called plain error, consistent with
the party-presentation principle, because the prosecutor
made the elements of the crime an issue.
But Page does not contend that the judge misinstructed the
jury on the elements of conspiracy under 21 U.S.C. §846. All a
prosecutor need prove is agreement to engage in unlawful
drug transactions, with intent to advance the agreement’s object. See United States v. Shabani, 513 U.S. 10 (1994). The judge
told the jury exactly that, following Instruction 5.08(B) of the
ȱ ǯȱȱĴȱȱ ¢ȱ ȱȱȱȱ
Circuit (2023 ed.). A buyer-seller instruction just restates the
elements instruction from the defense’s perspective. See Instruction 5.10(A). (This is why it is a theory of defense rather
ȱȱĜȱǯǼȱȱȱȱȱ¢ȱȬ
tion of the elements instruction and, to the contrary, told the
judge that all of the instructions were correct. That left no
work for Rule 52(b) to do on the subjects that the prosecutor
brought to the case, and no work at all to do on other subjects
that the defense did not bring to the case.
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Once convicted on the substantive counts, a defendant’s
risk/reward calculus for a buyer-seller instruction looks favorable, but the decision whether to request such an instruction
ȱȱȱȱȱȱȱ ȱȱęȱȱǯȱ
Raising a buyer-ȱȱȱȱęȱȱȱȱ
is too late, because there is no error to address.
029a
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No. 21-3221
JACKSON-AKIWUMI, Circuit Judge, joined by ROVNER and
LEE, Circuit Judges, dissenting. Today we revisit two wellworn questions under our conspiracy law. First, what evidence is sufficient to distinguish between a buyer-seller relationship and a conspiracy to distribute drugs? Second, can a
district court plainly err by failing to give a buyer-seller instruction when a defendant doesn’t request one?
On the first question, my colleagues in the majority conclude that evidence of repeat, distribution-sized drug transactions alone can prove conspiracy. They claim to restore our
law to the rule articulated by the Supreme Court in Direct
Sales Co. v. United States 1 because, they contend, a shift in interpretation ushered in by United States v. Colon 2 threw our
circuit offtrack. I do not see restoration but reinvention.
Direct Sales—and every decision on the matter our circuit
has issued since then—holds that repeat drug deals, even in
significant quantities, may establish knowledge of a
conspiracy, but they aren’t enough by themselves to sustain a
conspiracy conviction. The law has always required more—
specifically, proof of intent to join the conspiracy. The
majority’s approach erases the critical element of intent,
effectively collapsing the lines between drug distribution,
aiding and abetting a drug distribution conspiracy, and
conspiracy to distribute drugs.
Worse still are the silences today’s decision offers. There is
silence about the complete consistency of our pre- and postColon precedent, including our 30-year-old en banc decision
1 319 U.S. 703 (1943).
2 549 F.3d 565 (7th Cir. 2008).
030a
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squarely addressing today’s issue, United States v. Lechuga. 3
These prior decisions all hold that large, repeat drug transactions are not enough to sustain a conspiracy conviction. The
majority does not cite—nor have I found—a single decision
by a panel of this circuit holding that repeat, distributionquantity drug transactions alone can sustain a conspiracy
conviction. There is silence on any justification (much less a
compelling one) for not only explicitly overturning Colon and
its progeny, but also implicitly overturning Lechuga. And
there is silence on the significant due process concerns today’s
decision introduces.
On the second question before our court, I cannot agree
with the majority. The law is clear: a district court can plainly
err by failing to give a buyer-seller instruction, even when a
defendant doesn’t request one.
Below, I address these two questions in Parts I and II, respectively. In Part III, compelled by the majority’s unusual detour, I pause to address an unrelated case. I conclude in Part
IV. In short, because this new order of the day upends our
circuit’s conspiracy jurisprudence, I dissent.
I
Page’s Sufficiency-of-the-Evidence Challenge
A jury convicted Royel Page of twelve counts of attempting to distribute and to possess with intent to distribute heroin, plus one count of conspiracy to distribute heroin. On appeal, Page seeks to overturn only the conspiracy conviction.
My colleagues in the majority affirm the conspiracy conviction, concluding that evidence of repeat, distribution-sized
3 994 F.2d 346 (7th Cir. 1993) (en banc), cert. denied, 510 U.S. 982 (1993).
031a
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No. 21-3221
drug transactions are a sufficient basis for that conviction. I
see things differently.
In Part A, I walk through our circuit’s jurisprudence on
drug distribution conspiracies—at least as it stood before today’s ruling. In this section, I first outline the actus reus and
mens rea elements of a drug distribution conspiracy crime. I
then discuss the mens rea element’s distinct knowledge and
intent requirements—the latter of which transforms a buyerseller relationship into a conspiratorial one. From there, I address how our circuit law has always conformed with the
holding of Direct Sales that the illicit nature of goods, paired
with repeat and large-quantity transactions, may suffice to establish knowledge of a drug distribution conspiracy. And our
circuit law has always conformed with the instruction in Direct Sales that “informed and interested cooperation, stimulation, [or] instigation” must exist to establish intent to join the
conspiracy. 319 U.S. at 713. Even in Colon, I explain, our adherence to Direct Sales remained beyond question.
In Part B, I detail how the majority veers off course with
its holding today. In this section, I begin by addressing the
majority’s alarmist portrayal of our circuit’s drug distribution
conspiracy jurisprudence. Yes, we have sometimes struggled
in articulating the precise factors that demonstrate the
informed and interested cooperation, stimulation, or
instigation needed to elevate a defendant’s mens rea from
mere knowledge to intent; but we have never—not once—
abandoned Direct Sales’ clear rule that the sale of illicit goods,
even in repeat and large quantities, cannot by itself establish
intent. I then turn to the majority’s misreading of Direct Sales
and Colon, showing how its analysis diverges from those
precedents and, in doing so, effectively erases the intent
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33
requirement and converts one crime—drug distribution
and/or aiding and abetting a drug distribution conspiracy—
into another: conspiracy to distribute drugs. Finally, I discuss
important considerations the majority does not, including our
strong presumption against overturning precedent without
compelling justification; the majority’s effective overturning
of Lechuga, our 30-year-old en banc decision addressing the
issue we opine on today; and the due process concerns that
today’s decision raises.
In Part C, I apply the law to the facts of this case, demonstrating that under the correct legal framework as it stood before today, Page is entitled to a buyer-seller instruction. The
majority’s claim otherwise does not hold together.
A
Our Drug Distribution Conspiracy Law—Before Today
To understand why the majority’s decision charts a concerning new course, we must first understand our circuit’s
drug distribution conspiracy law before today.
The crime of engaging in a drug distribution conspiracy
sits at the intersection of two distinct crimes: conspiracy and
drug distribution. To prove conspiracy, the government must
establish three elements: (1) that two or more individuals
agreed to commit an unlawful act; (2) that the defendant was
aware of the agreement; and (3) that the defendant intended
to join that agreement. 4 See 21 U.S.C. § 846. To prove drug
4 See United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir. 1991) (“To
join a conspiracy, then, is to join an agreement, rather than a group. It follows that to be a conspirator you must know of the agreement, and must
intend to join it.” (emphasis added) (internal citations omitted)).
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No. 21-3221
distribution, the government must establish two elements: (1)
that the defendant knowingly or intentionally distributed a
controlled substance; and (2) that the substance distributed
was, in fact, a controlled substance. See 21 U.S.C. § 841(a).
These two crimes—conspiracy and drug distribution—
address distinct wrongs, but when combined, they form the
crime of drug distribution conspiracy.
Importantly, as I explain in Section A.1 below, both crimes
involve agreements. Drug distribution typically involves
buyer-seller agreements—agreements to exchange drugs for
money (or something else of value). Conspiracy, by contrast,
hinges on conspiratorial agreements—agreements to further
distribute drugs. With agreements at issue in both crimes, and
the crimes combining to form a third crime (drug distribution
conspiracy), the line between the offenses can grow thin. The
challenge lies in ensuring that buyer-seller relationships are
not miscast as conspiracies.
Direct Sales, which I examine in depth in Section A.2 below, draws the necessary line. It ensures conspiracy charges
remain distinct from other criminal charges by identifying intent as the defining feature of conspiracy. Direct Sales requires
the government to prove that the defendant intended to join
the conspiracy, not merely that he engaged in conduct consistent with the conspiracy’s goals—like buying and selling
drugs (drug distribution) or otherwise helping the drug distribution conspiracy succeed (aiding and abetting a drug distribution conspiracy). By demanding proof of intent to join,
Direct Sales prevents individuals from being swept into conspiracy charges without the collective agreement that the
crime of conspiracy requires.
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Our circuit’s drug distribution conspiracy jurisprudence,
shaped by Direct Sales, reflects these distinctions. It requires
proof of three elements: actus reus (two or more people agree
to commit an unlawful act, namely further distributing
drugs), knowledge of the conspiracy (often inferred from repeat purchases of drugs in large quantities), and intent to join
the conspiracy (demonstrated by informed and interested cooperation). The latter two elements form the mens rea for drug
distribution conspiracy. I explain this in detail in Section A.2
below.
With this foundation laid, I turn to a closer examination of
actus reus and mens rea in drug distribution conspiracy cases.
My goal, again, is to provide the framework for understanding precisely how the majority’s change to our circuit law is
unwarranted, inconsistent with Direct Sales, and much more.
1
Actus Reus
When the government charges a drug seller or buyer with
conspiracy to distribute drugs (instead of or in addition to a
charge of drug distribution), we need to ask: what agreement
does the government contend forms the basis of the conspiracy’s actus reus? Remember: a drug sale is already an agreement to commit an unlawful act—specifically, drug distribution. The buyer and seller come together, negotiate terms, and
exchange money or goods for drugs. United States v. Rock, 370
F.3d 712, 714 (7th Cir. 2004). This is drug distribution—a
straightforward buyer-seller transaction. But while this kind
of transaction involves an agreement to distribute drugs, it
cannot by itself also serve as the conspiratorial agreement necessary to support a drug distribution conspiracy conviction.
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No. 21-3221
Id. (“[T]he government must prove that the defendant conspired to commit some crime beyond that agreement.”). To
say otherwise would conflate a simple buyer-seller transaction with a broader drug distribution conspiracy. See Lechuga,
994 F.2d at 349 (requiring “proof of an agreement to commit
a crime other than the crime that consists of the sale itself”). 5
For this reason, we have consistently held that a conspiracy to
distribute drugs demands something more at the actus reus
stage—specifically, an agreement to further distribute drugs
beyond the initial sale. United States v. Smallwood, 188 F.3d 905,
912 (7th Cir. 1999) (citing Lechuga, 994 F.2d at 349); see also
United States v. Shabani, 513 U.S. 10, 16 (1994) (explaining that
“the criminal agreement itself is the actus reus” in a conspiracy
case). Although conspiratorial agreements can be inferred
from circumstantial evidence, reliance on such evidence
should not “obscure the basic fact that the agreement is the
essential evil at which the crime of conspiracy is directed.” See
Iannelli v. United States, 420 U.S. 770, 777 n.10 (1975) (citing Direct Sales, 319 U.S. at 711–13).
2
Mens Rea
As with actus reus, the government almost always turns to
circumstantial evidence to establish the two separate mens rea
5 While Lechuga generated six separate opinions, seven of the eleven
judges agreed with Judge Posner’s formulation of the distinction between
a conspiratorial relationship and a buyer-seller relationship. See United
States v. Torres-Ramirez, 213 F.3d 978, 982 (7th Cir. 2000) (“The lead opinion, which was joined by three judges, Judge Rovner’s concurring opinion,
id. at 357, and the dissenting opinion, id. at 357–64, also joined by three
judges, agreed on this point. The lead opinion therefore establishes the
holding of the case.”).
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requirements of knowledge and intent. See id. at 714. Two key
Supreme Court cases—United States v. Falcone, 311 U.S. 205
(1940), and Direct Sales, 319 U.S. at 712–13—have long made
clear that, even when the government relies on circumstantial
evidence, knowledge of the conspiracy and intent to join the
conspiracy remain essential elements of the drug distribution
conspiracy crime.
In Falcone, the Supreme Court held that mere knowledge
by the seller that the buyer intended to use the commodity
unlawfully, without more, is not enough to support a conspiracy conviction. 311 U.S. at 210–11. In that case, wholesalers
that regularly sold large quantities of sugar and yeast to bootleggers were not considered conspirators, despite knowing
the illegal uses to which the products would be put. Id. at 210.
The Court explained that knowledge of the unlawful end-use
was insufficient; proof of intent to join the conspiracy was still
required. Id. In short, Falcone insisted that the government go
further—showing not only that the defendants knew about
the illegal activity, but that they intentionally joined the agreement to further the illegal activity. 6 Id.
Three years later, in Direct Sales, the Supreme Court clarified what more is needed to transform knowledge into intent.
Direct Sales was a drug manufacturer and wholesaler. Direct
Sales, 319 U.S. at 704. The company sold morphine sulphate to
a doctor in such large quantities, so frequently, and over such
6 Of course, knowledge of the conspiracy, combined with the fact that a
seller provides a buyer with the means to commit a further illegal act,
might turn the seller into an aider and abettor of the buyer’s future crime.
See Lechuga, 994 F.2d at 349. But that knowledge is not enough to turn the
seller into a co-conspirator. Id. More on aiding and abetting liability in a
bit.
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a long period that it must have known the doctor could not
lawfully dispense the amounts received and was thus distributing the drug illegally. Id. at 705. The company also “actively
stimulated” these purchases by employing a cost-saving mail
order system that allowed it to offer lower prices than its competitors. Id. The Court reaffirmed Falcone’s principle that mere
knowledge of illegal use, without more, cannot establish conspiracy. Id. at 709. It then examined whether, considering the
facts, the seller had both knowledge of the conspiracy and intent to join it. Id. at 711–14.
The first factor the Direct Sales Court considered was the
nature of the merchandise. In Falcone, the commodities sold—
sugar and yeast—were innocent in themselves, while in Direct
Sales, the commodity was the restricted drug morphine. Direct
Sales, 319 U.S. at 711–12. The Court considered the difference
in the types of goods “important for two purposes.” Id. at 711
“One is for making certain that the seller knows the buyer’s
intended illegal use. The other is to show that by the sale he
intends to further, promote and cooperate in it.” Id. (emphasis
added).
How does the nature of the merchandise inform the
knowledge requirement, according to Direct Sales? The restricted nature of a commodity “makes a difference in the
quantity of proof required to show knowledge that the buyer will
utilize the article unlawfully,” Direct Sales explained. Id. at 712
(emphasis added). The Court added that “additional facts,
such as quantity sales, high-pressure sales methods, abnormal increases in the size of the buyer’s purchases, etc., which
would be wholly innocuous or merely suspicious in relation
to unrestricted goods, may furnish conclusive evidence, in
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respect to restricted articles, that the seller knows the buyer has
an illegal object and enterprise.” Id. (emphasis added).
And how does the character of the merchandise inform the
separate intent requirement? According to Direct Sales, the restricted nature of a commodity “has a further bearing upon the
existence and the proof of intent.” Id. (emphasis added). As
Direct Sales explained, “[k]nowledge, equivocal and uncertain
as to [unrestricted goods], becomes sure as to the other,” and
“[s]o far as knowledge is the foundation of intent, the latter
thereby also becomes the more secure.” Id. at 711–12 (emphasis
added). “More secure,” though, does not mean fully secure;
so the mens rea analysis in Direct Sales did not end. As the
Court acknowledged, “[n]ot every instance of sale of restricted goods, harmful as are opiates, in which the seller
knows the buyer intends to use them unlawfully, will support
a charge of conspiracy.” Id. at 712. This means sometimes,
even where the evidence clearly establishes knowledge, it still
falls short of proving intent. Id.
Direct Sales took pains to distinguish the analysis of
knowledge from that of intent. Id. at 711 (“While [intent] is not
identical with mere knowledge that another purposes unlawful action, it is not unrelated to such knowledge.”). First, no
evidence of knowledge means no intent, the Court said. Id. at
711–12 (stating that “knowledge is the foundation of intent”
and “without the knowledge, the intent cannot exist” (citing
Falcone, 311 U.S. 205)). Second, equivocal evidence of
knowledge also means no intent. This is because “charges of
conspiracy are not to be made out by piling inference upon
inference, thus fashioning what, in [Falcone], was called a
dragnet to draw in all substantive crimes.” Id. (internal citations omitted). And third, definite evidence of knowledge can
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still mean no intent. “There may be circumstances in which
the evidence of knowledge [of unlawful activity] is clear,” Direct Sales concluded, “yet the further step of finding the required intent [to join the unlawful activity] cannot be taken.”
Id. at 712.
So, Direct Sales moved past the character of the merchandise to examine a second factor: quantity and regularity. The
Court concluded that sales of restricted goods occurring in
significant “volume, frequency, and prolonged repetition,”
may suffice to establish knowledge, but that knowledge must
still be “coupled” with the distinct and separate requirement
of intent. Direct Sales, 319 U.S. at 714–15 (explaining the sales
“would be wholly lawful transactions” “but for their volume,
frequency and prolonged repetition, coupled with the seller’s
unlawful intent to further the buyer’s project”) (emphasis
added); see also id. at 712 n.8, 712–13.
That brings me to the third factor Direct Sales considered:
whether the evidence shows “informed and interested cooperation, stimulation, instigation.” Id. at 713. The Court held
that a conspiracy conviction may not lie even against a defendant engaged in “a more continuous course of sales, made
either with strong suspicion of the buyer’s wrongful use or
with knowledge, but without stimulation or active incitement
to purchase.” Id. at 712 n.8. Unlike in Falcone, where the evidence fell short, the evidence in Direct Sales revealed the necessary stimulation or active incitement to purchase: there was
evidence that the wholesaler tried to “stimulate” sales
through quantity discounts, “high-pressure” mail solicitations, and changes to its order forms that encouraged more
frequent purchases. Id. at 705–07, 712. With this evidence, the
jury could conclude that the wholesaler intended by its efforts
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to informedly and interestedly cooperate, stimulate, and instigate the drug distribution conspiracy. See id. at 712. Absent
such actions, the evidence could not show intent—just “suspicion, knowledge, acquiescence, carelessness, indifference,
[or] lack of concern.” 7 Id.; see also United States v. Gabriel, 810
F.2d 627, 634 (7th Cir. 1987) (“The intent necessary to support
a conviction for conspiracy … is ‘more than knowledge, acquiescence, carelessness, indifference, lack of concern,’ but rather is ‘informed and interested cooperation, stimulation, instigation.’” (quoting Direct Sales, 319 U.S. at 713 (1943))).
Boiled down, Direct Sales and Falcone tell us that a jury may
conclude that a defendant knowingly and intentionally joined
a drug distribution conspiracy when three elements are present: the defendant (1) dealt in restricted goods, (2) in “high
volume, frequency, and over a prolonged period,” and (3) exhibited “informed and interested cooperation, stimulation, instigation.” Direct Sales, 319 U.S. at 712–13. If the evidence
shows only the first two things, knowledge may exist, but not
necessarily intent. And without intent, there can be no conspiracy conviction. Our ruling in United States v. Menting
sums up well how this circuit applies Direct Sales:
7 See also Direct Sales, 319 U.S. at 712–13 (“But this is not to say that a
seller of harmful restricted goods has license to sell in unlimited quantities, to stimulate such sales by all the high-pressure methods .… When the
evidence discloses such a system, working in prolonged cooperation with
a physician’s unlawful purpose to supply him with his stock in trade for
his illicit enterprise, there is no legal obstacle to finding that the supplier
not only knows and acquiesces, but joins both mind and hand with him to
make its accomplishment possible. The step from knowledge to intent and
agreement may be taken. There is more than suspicion, more than
knowledge, acquiescence, carelessness, indifference, lack of concern.
There is informed and interested cooperation, stimulation, instigation.”).
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More than 55 years ago, the Supreme Court upheld a conspiracy conviction in which the overt
acts consisted solely of “sales, which but for
their volume, frequency and prolonged repetition, coupled with the seller’s unlawful intent to
further the buyer’s project, would be wholly
lawful transactions.” Direct Sales Co. v. United
States, 319 U.S. 703, 714–15, 63 S. Ct. 1265, 87
L.Ed. 1674 (1943). Following that guidance, this
court has looked for evidence of “a prolonged and
actively pursued course of sales coupled with the
seller’s knowledge of and a shared stake in the
buyer’s illegal venture” in order to distinguish
a conspiracy from a simple buyer-seller relationship. United States v. Pearson, 113 F.3d 758,
761 (7th Cir. 1997) (citation omitted). Other important indicia of conspiracy include “the length of
affiliation, the established method of payment[,] …
the extent to which the transactions are standardized, and the demonstrated level of mutual trust.”
Id. 8
8 Another useful summary comes from our decision in United States
v. Clay, in which we reasoned:
Although the nub of a conspiracy is an agreement, a simple agreement between a buyer and seller to exchange
something of value for cocaine cannot alone constitute a
conspiracy because such an agreement is itself the substantive crime. See United States v. Lechuga, 994 F.2d 346,
349 (7th Cir. 1993) (en banc); see also United States v.
Kozinski, 16 F.3d 795, 808 (7th Cir. 1994). The ‘something
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more’ that is necessary for the existence of a true drug distribution conspiracy is a further understanding between
the buyer and seller, often implicit, that usually relates to
the subsequent distribution of the narcotics …. Just how
implicit that understanding can be to sustain a conspiracy, and how circumstantial the proof of it will typically
be, was demonstrated in Direct Sales Co. v. United States,
319 U.S. 703 (1943).…
The Court noted that the knowledge alone that one is supplying inputs to another’s illicit business cannot support
a finding of conspiracy. But knowledge is sometimes accompanied by an intent to further or cooperate in the secondary endeavor .…
What sort of evidence will allow … a trier of fact to make
the inference that buyer and seller are dealing not just
with disinterested eyes narrowly focused on the purchase
at hand but with a mutual understanding about subsequent distribution? Direct Sales indicates that a prolonged
and actively pursued course of sales coupled with the
seller’s knowledge of and a shared stake in the buyer’s
illegal venture is sufficient to sustain a finding of conspiracy.… Many things will inform this question of degree;
for example the length of the affiliation, the established
method of payment, the available supplying or marketing
alternatives, the extent to which the transactions are
standardized, and the demonstrated level of mutual
trust.…. No one of these, or other, circumstantial factors
will typically be dispositive because each is only an imperfect indicant of whether a true conspiracy existed. If
enough point in the direction of a concrete, interlocked
interest beyond the consummation of the individual buysell deals themselves, we will not disturb the conclusion
reached by the finder of fact that at some point the association blossomed into a cooperative venture.”
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166 F.3d 923, 928 (7th Cir. 1999) (emphasis added).
In the 90 years since Direct Sales, our caselaw has built a
framework for determining when a buyer-seller relationship
crosses the line into a conspiracy. That framework focuses on
whether the relationship involves “a prolonged and actively
pursued course of sales,” Pearson, 113 F.3d at 761—or, as Direct Sales put it, “informed and interested cooperation, stimulation, instigation,” 319 U.S. at 712—which can be “coupled
with the seller’s knowledge of and shared stake in the buyer’s
illegal venture,” Pearson, 113 F.3d at 761, to establish a drug
distribution conspiracy. The “[f]actors that bear on that assessment,” United States v. Contreras, 249 F.3d 595, 599 (7th Cir.
2001), have repeatedly surfaced in our decisions:
x United States v. Sergio, 934 F.2d 875, 877, 879 (7th Cir.
1991) (affirming drug conspiracy conviction based on “large
quantities,” “regular shipments,” and “fronting,” among
other things);
x United States v. Thompson, 944 F.2d 1331, 1342–43 (7th
Cir. 1991) (affirming based on “large quantities,” “number of
transactions,” and fact that buyers “picked up [] cash from []
couriers and in turn arranged to have other couriers drive cocaine to Milwaukee where [the seller] would receive it”);
x United States v. Severson, 3 F.3d 1005, 1010 (7th Cir.
1993) (affirming based on “several” purchases of “marijuana
packaged in Ziploc bags” and “fronting”);
x United States v. Dortch, 5 F.3d 1056, 1065 (7th Cir. 1993)
(affirming based on “three sales” of “distributable amounts,”
37 F.3d 338, 341–42 (7th Cir. 1994).
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“one of which included ‘fronted’ cocaine,” and discussing factors);
x United States v. Cabello, 16 F.3d 179, 182 (7th Cir. 1994)
(affirming based on “prolonged cooperation” and “fronting”
on a “highly regular basis”);
x United States v. Zarnes, 33 F.3d 1454, 1465–68 (7th Cir.
1994) (affirming based on transaction frequency, standardized dealings, and “fronting,” among other things, and discussing factors);
x United States v. Ferguson, 35 F.3d 327, 331 (7th Cir. 1994)
(affirming based on transaction frequency, transaction size,
and “fronting”);
x United States v. Clay, 37 F.3d 338, 342–43 (7th Cir. 1994)
(affirming based on “regular purchases,” transaction size, and
“fronting,” among other things);
x United States v. Penny, 60 F.3d 1257, 1259, 1263 (7th Cir.
1995) (affirming based on “numerous transactions,” “large
quantities,” and “fronting”);
x United States v. Larkins, 83 F.3d 162, 166 (7th Cir. 1996)
(affirming based on “kilogram quantities” and credit sales);
x United States v. Pearson, 113 F.3d 758, 761 (7th Cir.
1997) (discussing the Seventh Circuit “refin[ing] [its] calculus” “[o]ver the years” on “identify[ing] a few factors more
relevant than others in determining whether a conspiracy existed” and affirming conspiracy conviction based on large,
monthly, and standardized drug transactions, and the fact
that “[the buyers] paid many thousands of dollars for the
drugs and then went shopping before actually receiving the
cocaine”);
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x United States v. Berry, 133 F.3d 1020, 1023 (7th Cir. 1998)
(affirming because “buying and selling of crack occurred between Berry and Vinson” and “Vinson provided security services, made runs, and packaged Berry’s crack,” as well as discussing factors);
x United States v. Meyer, 157 F.3d 1067, 1074–75 (7th Cir.
1998) (affirming based on “numerous drug transactions over
a span of more than four years,” “large quantities,” and “consult[ing] his father [the co-conspirator] regarding drug
buys”);
x United States v. Hach, 162 F.3d 937, 943–44 (7th Cir.
1998) (affirming based on “frequent and repeated transactions,” “amounts fit for more than personal consumption,”
standardized transactions, and credit sales, among other
things, and discussing factors);
x United States v. Smallwood, 188 F.3d 905, 913 (7th Cir.
1999) (affirming based on frequent transactions, credit sales,
discounted sales, and advice, among other things, and discussing factors);
x United States v. Sanchez, 251 F.3d 598, 602 (7th Cir. 2001)
(affirming “[b]ased on th[e] evidence of repeat sales, the
promise of future sales, standardized dealings, [] the level of
trust between the parties,” and “the quantity of drugs,” and
discussing factors);
x United States v. Adkins, 274 F.3d 444, 450–51 (7th Cir.
2001) (affirming based on “large quantities,” standardized
transactions, and credit sales, and discussing factors);
x United States v. Haywood, 324 F.3d 514, 517 (7th Cir.
2003) (affirming based on “larger quantities,” transaction
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frequency, and standardized transactions, and discussing factors);
x United States v. Hicks, 368 F.3d 801, 805–06 (7th Cir.
2004) (affirming based on “quantity of drugs,” transaction frequency, standardized transactions, paying of “consult” fee,
and “fronting,” and discussing factors);
x United States v. Suggs, 374 F.3d 508, 518–19 (7th Cir.
2004) (affirming based on “large quantities,” “long-term pattern of distribution,” and “monitor[ing] the presence of police,” and discussing factors);
x United States v. Askew, 403 F.3d 496, 502, 504 (7th Cir.
2005) (affirming based on “weekly sales of large quantities of
PCP” and “fronting,” and discussing factors);
x United States v. Carrillo, 435 F.3d 767, 776 (7th Cir. 2006)
(affirming based on large quantities; repeat transactions;
“fronting”; the buyer took cash from seller to pay rent on
home where drugs were stored; the seller was listed on the
lease; and, after a car stuffed with heroin had been seized by
the DEA, the seller, through an attorney, attempted to claim
the car, among other things, and discussing factors);
x United States v. Eberhart, 467 F.3d 659, 669 (7th Cir.
2006) (affirming based on “ample evidence that Eberhart dealt
in large quantities of drugs, bought and sold drugs on credit,
and cooperated with Bolden over a significant period of
time,” and discussing factors);
x United States v. Fuller, 532 F.3d 656, 662–63 (7th Cir.
2008) (affirming based on transactions “on a steady basis,”
“distribution amounts,” standardized transactions, and
“fronting,” among other things, and discussing factors); and
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x United States v. Zaragoza, 543 F.3d 943, 947–48 (7th Cir.
2008) (affirming based on “regular[]” purchases, standardized transactions, and “fronting,” among other things, and
discussing factors).
We decided United States v. Colon in due course, tweaking
our existing list of factors. An earlier Seventh Circuit pattern
jury instruction on buyer-seller relationships had outlined a
set of factors drawn from our cases up to that point. 549 F.3d
at 570–71. Those factors included: (1) whether the parties developed a standardized way of doing business over time; (2)
the level of mutual trust between the buyer and seller; (3)
whether the parties had a continuing relationship; (4) whether
the seller had a financial stake in the buyer’s resale; (5)
whether there was an understanding that the goods would be
resold; and (6) whether sales were made on credit or consignment. Id. at 570. Colon flagged a critical issue, however: only
the last factor really distinguished conspiracies from buyerseller relationships while the others were in fact consistent
with both scenarios. Id.
To address that problem, Colon set aside the previous list
in favor of a new one designed to more accurately distinguish
between a conspiracy and a simple buyer-seller relationship.
This updated, non-exhaustive list included: (1) sales made on
credit or consignment; (2) an agreement to help find other
customers; (3) payment of commissions on sales; (4) evidence
that one party advised the other on how to conduct their business; and (5) an agreement to warn each other about threats
to the business, whether from competitors or law enforcement. Id. at 570–71. As it turns out, all of these “new” factors
had already made appearances in our pre-Colon caselaw.
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And, since then, we have applied the factors as listed in Colon. 9
Until today, our precedent—while perhaps not always
polished at the edges when it comes to the “factors”—has
nonetheless maintained a clear and consistent standard:
repeat drug transactions, even those involving large
quantities, do not establish the necessary intent to conspire.
The government must do more than point to repeat,
distribution-quantity sales; it must show “informed and
interested cooperation, stimulation, instigation” in or of the
broader drug distribution conspiracy. Direct Sales, 319 U.S. at
712. Without this showing of intent, there is no conspiracy.
B
Our Drug Distribution Conspiracy Law—After Today
The majority tells us that our long-held rule—requiring
more than repeat, distribution-quantity drug transactions to
sustain a drug conspiracy conviction—is yesterday’s news.
9 See, e.g., United States v. Kincannon, 567 F.3d 893, 897 (7th Cir. 2009);
United States v. Avila, 557 F.3d 809, 816 (7th Cir. 2009); United States v. Johnson, 592 F.3d 749, 756 n.5 (7th Cir. 2010); United States v. Rea, 621 F.3d 595,
608 (7th Cir. 2010); United States v. Villasenor, 664 F.3d 673, 680 (7th Cir.
2011); United States v. Vallar, 635 F.3d 271, 286–87 (7th Cir. 2011); United
States v. Nunez, 673 F.3d 661 (7th Cir. 2012); United States v. Pulgar, 789 F.3d
807, 812–13 (7th Cir. 2015); United States v. Musgraves, 831 F.3d 454, 462–63
(7th Cir. 2016); United States v. Moreland, 703 F.3d 976, 985 (7th Cir. 2012),
holding modified by United States v. Jett, 908 F.3d 252 (7th Cir. 2018); United
States v. Maldonado, 893 F.3d 480, 485 (7th Cir. 2018); United States v. Neal,
907 F.3d 511, 516 (7th Cir. 2018); United States v. Brown, 726 F.3d 993,1000
(7th Cir. 2013); United States v. Vizcarra-Millan, 15 F.4th 473, 510–11 (7th
Cir. 2021).
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In so declaring, the majority opinion begins by catastrophizing the state of our drug distribution conspiracy law,
painting a picture that distorts reality. It then misquotes and
misinterprets Direct Sales and Colon, effectively sidestepping
the specific intent requirement and transforming drug distribution and/or liability for aiding and abetting a drug distribution conspiracy into conspiring to distribute drugs. After
that, it falls silent, offering no salve for the serious due process
issues its holding creates; no comment on the lack of a compelling reason to abandon our strong presumption against
overturning precedent; and no explanation for implicitly
overturning Lechuga, a longstanding en banc decision addressing the very same issue.
1
The Majority Opinion Invents Inconsistency
Where None Exists
The majority opinion opens with what might seem like a
small misstep. But that misstep, in truth, sets a foundation for
the great error to come—that is, eliminating the longstanding
intent requirement in drug distribution conspiracy cases.
The majority opinion begins with a sweeping critique of
our existing law, asserting that “[o]ur conspiracy and buyerseller jurisprudence has strayed far from the Supreme Court’s
decision in Direct Sales ….” Ante, at 2. To support this claim,
the majority cites United States v. Brown, 726 F.3d 993, 1000–01
(7th Cir. 2013), with a parenthetical stating that Brown “describe[d] the tension and inconsistency in our buyer-seller
case law.” Ante, at 6.
But Brown doesn’t do what the majority suggests. In fact,
Brown mentions Direct Sales three times, and none of those
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mentions critique our precedent or suggest that we’ve deviated from the Supreme Court’s guidance. Brown, 726 F.3d at
998–99. Rather than fault our jurisprudence for straying from
Direct Sales, Brown acknowledges that our precedent has been
internally inconsistent—but only in a narrow respect: in articulating the precise factors needed to establish informed and
interested cooperation, stimulation, or instigation. Id. at 1001
(“Admittedly, much of the confusion stems from our own imprecision.”).
Put differently, in Brown, our court recognized the need to
provide a clearer statement about the factors we consider
when deciding whether knowledge has become intent. 726
F.3d at 1001. Agreements come in infinite shapes and sizes,
Brown observes, and our list-of-factors approach to conspiracies must—and does—account for this variety. Id. at 1001–02.
The previous version of our pattern instruction on buyerseller relationships provided a list of factors, which Colon
simply updated, Brown explains. Id. at 998–99. Even though
“many of our cases do not state the legal standard in precisely
the same way,” Brown notes that “most of them would have
reached the same outcome under each other’s jurisprudence.”
Id. at 1001–02. The key insight in Brown was that the consistency of results across our cases, despite occasional differences in wording, suggested that we had been employing a
“totality of the circumstances” approach all along. Id. Thus,
the majority is wrong to frame Brown as a sweeping critique
of our drug distribution conspiracy precedent rather than a
case clarifying how the factors articulated in Colon were to be
applied.
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The majority’s framing lays the groundwork for the major
shift its decision occasions: the quiet excision of the intent requirement from our drug distribution conspiracy law.
2
The Majority Opinion Reinterprets Direct Sales and Colon
The majority next turns its attention to Direct Sales and Colon, distorting the reasoning in the two cases, and—in the
end—effectively eliminating the intent requirement from our
drug distribution conspiracy framework.
i.
I start with Direct Sales. The majority’s treatment suffers
from three flaws.
First, the majority misrepresents Direct Sales by suggesting
that—where there’s repeat, distribution-quantity transactions
of goods—the illicit nature of the goods ends the analysis. According to the majority, “[t]he illegality of morphine [in Direct
Sales], as compared to the legality of sugar and yeast [in Falcone], proved critical to sustaining Direct Sales’s conspiracy
conviction for two reasons:” ensuring “the seller knows” and
showing “[the seller] intends.” Ante, at 8.
But Direct Sales never elevated the illegality of goods to a
decisive factor in determining whether a defendant took part
in a drug distribution conspiracy—even where there’s large,
repeat transactions. Direct Sales, in fact, explicitly rejected that
rule. The Direct Sales Court described the restricted nature of
morphine as “important for two purposes”: providing some
proof of knowledge and, separately, providing some proof of
intent. 319 U.S. at 711. Specifically, Direct Sales explains that
the legality of a good makes “a difference in the quantity of
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proof required to show knowledge that the buyer will use the
article unlawfully” and “[t]he difference in the commodities
has a further bearing upon the existence and the proof of intent.” Id. (emphasis added). Direct Sales goes on to explain
that, though the illicit nature of goods can amount to conclusive proof of knowledge when sold in large quantities, 10 it
does not constitute conclusive proof of intent. Id. at 712–13.
Far from making the illicit character of the goods dispositive, the Supreme Court treated it as just one consideration in
assessing whether repeat, large-scale transactions can demonstrate the separate and distinct elements of knowledge and intent to conspire. By allowing the illicit nature of goods to
shoulder more weight than Direct Sales permits, the majority
opinion downplays, if not outright erases, Direct Sales’s clear
line between knowledge and intent.
***
Second, the majority errs in its treatment of the second
consideration in Direct Sales: quantity and frequency of transactions.
To start, the majority correctly observes that “facts such as
‘quantity sales’ or ‘abnormal increases in the size of the
buyer’s purchases, … which would be wholly innocuous or
not more than ground for suspicion in relation to unrestricted
goods, may furnish conclusive evidence, in respect to
10 See Direct Sales, 319 U.S. at 712 (holding that “additional facts, such
as quantity sales, high-pressure sales methods, abnormal increases in the
size of the buyer’s purchases, etc., which would be wholly innocuous or
merely suspicious in relation to unrestricted goods, may furnish conclusive evidence, in respect to restricted articles, that the seller knows the
buyer has an illegal object and enterprise” (emphasis added)).
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restricted articles, that the seller knows the buyer has an illegal
object and enterprise.’” Ante, at 9 (emphasis added). But what
comes next is perplexing. The majority doubles back and asserts that repeat, distribution-sized transactions prove intent.
This conclusion flatly contradicts its observation above. Id.
Worse, it squarely conflicts with Direct Sales, which makes
clear that even conclusive evidence of knowledge—like that
inferred from sales in large quantities—does not, on its own,
establish intent. See Direct Sales, 319 U.S. at 711–12.
Two, in an attempt to support its conclusion that drugs,
repeat transactions, and large quantities suffice, the majority
offers what it calls an “instructive” breakdown of the buyerseller relationship in cases involving repeat, distribution-level
drug sales. In doing so, however, the majority collapses two
distinct legal concepts—conspiracy and aiding and abetting
liability—into one.
The majority asserts that when a seller repeatedly supplies
distribution-quantities of drugs, the seller inevitably realizes
the buyer is reselling the drugs illegally. Ante, at 9. As the
buyer’s illegal distribution network expands, so does the
seller’s stake, creating what the majority calls a “codependent
business relationship” where both parties have “shared stake
in each other’s success.” Id. at 10. The more the buyer’s customer base grows, the more the seller profits, which according
to the majority solidifies the implicit agreement between the
two to further distribute drugs. Id. at 9–10.
Not only does the conclusion that intent can be inferred
from a combination of drugs, repeat transactions, and large
quantities run headlong into Direct Sales, this very
argument—conjuring a “codependent business relationship”
and “shared stake in each other’s success” based on repeat,
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distribution-quantity drug transactions alone—was squarely
rejected by this court in Townsend, more than a decade before
Colon. In Townsend, the government contended that a seller
who repeatedly engages in distribution-quantity drug deals
with a known dealer must be aware that the buyer is
connected to a broader drug distribution conspiracy. 924 F.2d
at 1391–92. The government’s logic in that case was that
because both the buyer and seller benefited from these
transactions, they each knowingly and intentionally joined
the larger conspiracy. Id.
We rejected that reasoning, explaining: “Taken to its extreme, the government’s logic suggests that anyone selling or
buying drugs from any [] of these defendants could also have
been convicted as a coconspirator.” Id. at 1390. Here was our
rejection in full:
We think the government’s argument stretches
the boundaries of conspiracy law to the breaking point. We recognize that, by their very nature, drug conspiracies are loosely-knit ensembles.… [But] mere knowledge of the hub’s activities, or those of the other spokes, is not enough
to tie the conspiracy together.… Neither of these
paradigms suffices … to show mutual support
or interest among the component parts of the organizational construct. They don’t eliminate the
need to inquire directly into whether the defendants had a mutual interest in achieving the
goal of the conspiracy .… “[I]t is … hard[] to tell
just what agreement can reasonably be inferred
from the purchase, even the repeated purchase,
of contraband ….” Borelli, 336 F.2d at 384. By
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definition, market transactions—whether in legal or illegal markets—benefit both parties, but
we do not assume, ab initio, that they carry with
them the excess baggage of conspiracy.… 11
Id. at 1391–92.
Indeed, as we further explained in Townsend, “we cannot
say that every act of distribution taken by [the buyer], once
[the seller] became involved with [the buyer], was in the furtherance of their conspiracy.” Id. (quoting United States v.
North, 900 F.2d 131, 134 (8th Cir. 1990)). Even if a seller admits
that he knew the buyer resold drugs to others, one possibility
is that those additional sales formed part of the buyer’s own
distribution operation—not the conspiracy’s. Id. at 1393. Another possibility is that the buyer and seller may face liability
11 Of course, “[w]e cannot [] reasonably assume that everyone with
whom a drug dealer does business benefits, directly or indirectly, from his
other drug deals. In fact, any inference should probably run in the other
direction. There is—hard though it may be to believe—a finite supply of
drugs. Those in the market to sell or buy large quantities (for distribution)
are just as likely, if not more, to be competitors as collaborators.” Townsend, 924 F.2d at 1393; see also United States v. Thornton, 972 F.2d 764, 769–
70 (7th Cir. 1992) (“[A] conspiracy is essentially a business enterprise with
illegal purposes that like a legal business enterprise is characterized by
cooperative relationships between its members. And, … just like other
commodities, there is a limited supply of drugs, meaning that if the government could pool all levels of a distribution chain into one conspiracy
without providing some evidence that the members intended to join in a
cooperative association with a common goal, it would be just as likely, if
not more likely, that the persons pooled together would be competitors
rather than persons working in concert to achieve a common objective.”
(internal citations omitted)).
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for aiding and abetting a drug distribution conspiracy. Id. at
1393–94.
Conspiracy and aiding and abetting liability—though
close cousins—are distinct legal concepts: in the drug context,
conspiring to distribute drugs involves knowing of and intentionally joining the conspiracy, see Direct Sales, 319 U.S. at 712;
aiding and abetting a drug distribution conspiracy involves
knowingly helping the conspiracy succeed, see Nye & Nissen
v. United States, 336 U.S. 613, 619–20 (1949) (citing United States
v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (Hand, J.)). “[W]e do
not subject [buyers and sellers] to additional liability as conspirators simply because they aided the conspiracy and derived a benefit from doing so.” Townsend, 924 F.2d at 1393 (citing Nye, 336 U.S. at 620; Pereira v. United States, 347 U.S. 1, 11
(1954)). This is because we cannot infer intent to join the conspiracy based on aid to the conspiracy. Id. (“[W]e cannot infer
that both parties agreed to work together to achieve that result from the fact that they engaged together in some other
crime.”) (citing Falcone, 311 U.S. 205)). For these reasons,
though a buyer-seller relationship involving repeat, largescale drug transactions may be enough to sustain a conviction
for aiding and abetting a drug distribution conspiracy, it is
not enough to establish intent to join the conspiracy and,
therefore, cannot sustain a drug distribution conspiracy conviction.
Three, in addressing cases involving a single sale of a restricted good in a small quantity, the majority opinion again
misquotes—and in doing so, misstates—the Supreme Court’s
reasoning in Direct Sales. The majority states: “Of course, a
single sale of a restricted good in a low quantity does not, by
itself, support a charge of conspiracy, even if the seller knows
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that the good will be used for further illegal activity. [Direct
Sales, 319 U.S.] at 712. But this does not mean that a seller can
sell contraband ‘in unlimited quantities.’” Ante, at 10.
While the majority’s citation may seem at first blush to
support its position, it decidedly does not. The Direct Sales
Court indeed observed that a seller cannot sell restricted
goods “in unlimited quantities.” Id. at 712–13. But the
majority opinion leaves out critical context: the Supreme
Court did not make this “unlimited quantities” observation to
suggest that any sale beyond a small, single transaction
satisfies the elements of a drug distribution conspiracy
charge. Id. Quite the opposite. The Direct Sales Court made
that reference to underscore that, even where “unlimited
quantities” of drugs are at issue, the analysis is not done.
Rather, the defendant’s intent—not his knowledge—remains
central to the drug distribution conspiracy inquiry:
The difference in the commodities has a further bearing upon the existence and the proof of intent. There
may be circumstances in which the evidence of
knowledge is clear, yet the further step of finding the required intent cannot be taken. Concededly, not every instance of sale of restricted
goods, harmful as are opiates, in which the
seller knows the buyer intends to use them unlawfully, will support a charge of conspiracy.
But this is not to say that a seller of harmful restricted goods has license to sell in unlimited
quantities, to stimulate such sales by all the highpressure methods, legal if not always appropriate, in the sale of free commodities .…
Id. (emphasis added).
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Four, the majority further muddles the “quantity and frequency” consideration by conflating two distinct factors:
number of sales (that is, frequency), and “prolonged cooperation.” The majority says:
Of course, a single sale of a restricted good in a
low quantity does not, by itself, support a
charge of conspiracy, even if the seller knows
that the good will be used for further illegal
activity. Id. at 712. But this does not mean that a
seller can sell contraband “in unlimited
quantities.” [Id.] Rather, as plain from the
hypothetical above, when the evidence shows
that a buyer and seller worked in “prolonged
cooperation” for a plainly unlawful purpose—
the seller supplying the buyer with stock for his
illicit enterprise—“there is no legal obstacle to
finding that the supplier not only knows and
acquiesces, but joins both mind and hand with
him to make its accomplishment possible.” Id. at
713.
Ante, at 10 (citing Direct Sales, 319 U.S. at 712–13).
To the extent the majority believes that repeat transactions
necessarily imply “prolonged cooperation,” I must disagree.
Repeat transactions may serve as evidence of the prolonged
cooperation, but the two factors remain distinct. The number
of sales is “significant only insofar as it cast[s] light on the existence of a continuing relation”—that is, “prolonged cooperation”—which could imply an agreement beyond a simple
purchase and sale. Lechuga, 994 F.2d at 349–50. Direct Sales
says so:
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What made “prolonged cooperation” a factor in
inferring conspiracy in Direct Sales Co. v. United
States, 319 U.S. 703, 713 (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 “join [ed] both mind and
hand with him to make its accomplishment possible.” See also id. at 712 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.
Lechuga, 994 F.2d at 350; see also United States v. Brack, 188 F.3d
748, 761 (7th Cir. 1999) (citing Lechuga, 994 F.2d at 349–50;
United States v. Thomas, 150 F.3d 743, 745 (7th Cir. 1998) (per
curiam)); see also United States v. Mims, 92 F.3d 461, 463 (7th
Cir.), on reh'g, 101 F.3d 494 (7th Cir. 1996).
***
Third, the majority’s reading of Direct Sales misquotes the
Supreme Court regarding the “informed and interested cooperation, stimulation, instigation” necessary to establish intent.
See 319 U.S. at 713. The majority opinion misconstrues the central holding in Direct Sales not once, ante, at 11 (“For these reasons, the Supreme Court had no trouble affirming Direct
Sales’s conspiracy conviction based solely on evidence of repeated, distribution-quantity sales of morphine.”); not twice,
ante, at 11 (“All told, Direct Sales provides three principles for
determining which types of buyer-seller relationships are indicative of a conspiracy.… [and the] [t]hird, [is] a drug conspiracy conviction can be sustained if the government proves
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that a buyer and seller engaged in repeated, distributionquantity drug transactions.”); but three times, ante, at 7
(“Based on these repeated, distribution-quantity transactions,
Direct Sales was convicted of conspiracy to distribute narcotics.”). No portion of the majority opinion accurately acknowledges, much less grapples with, the Supreme Court’s careful
consideration of the “informed and interested cooperation,
stimulation, instigation” necessary to prove intent. The only
sentence in the majority opinion that cites this language once
again misquotes Direct Sales. The majority would have the
reader believe that repeat, distribution-quantity transactions
involving illicit goods bridge the gap between knowledge and
intent—that these types of transactions by themselves show
“informed and interested cooperation, stimulation, [and] instigation.” See ante, at 9. But, as I explained above, Direct Sales
says the opposite: Alone, such transactions do not establish
the stimulation or active incitement necessary to transform
knowledge into intent. See ante, at 38–42, 53–62.
ii.
I turn now to the majority’s Colon analysis. This analysis
suffers from two flaws.
First, the majority opinion claims that Colon is the
“origin[]” of “a long line of cases that have stretched the
buyer-seller doctrine too far and deviated from the standard
set in Direct Sales.” Ante, at 11. According to the majority, Colon introduced a requirement for “additional evidence,” like
sales on credit or warnings about future threats, to support
conspiracy convictions. See ante, at 12. But the majority’s attempt to pin these factors on Colon doesn’t hold up. As shown
above, the additional evidence discussed in Colon wasn’t an
invention of the Colon panel; it was a straightforward
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application of the rule set forth in Direct Sales—a rule our circuit has faithfully adhered to ever since, at least until today.
See ante, at 49–50.
Second, in discussing Colon, the majority states that
“[r]epeated, distribution-quantity transactions of illegal
drugs do not reflect a mere buyer-seller relationship between
the parties.” Ante, at 12. Again, this assertion directly contradicts Direct Sales. As discussed, Direct Sales establishes that
quantity and frequency at best create certainty as to
knowledge, leaving intent outstanding. 319 U.S. at 714–15.
And where there is no intent, there is no conspiracy—instead,
a mere buyer-seller relationship exists. Id. at 712.
3
The Majority Opinion’s Other Omissions
The majority opinion reaches its conclusion but says nothing about three critical considerations and consequences: the
absence of any compelling reason for overturning Colon and
its progeny; the silent undoing of Lechuga, our decades-old en
banc decision on the same issue; and the serious due process
concerns today’s ruling introduces.
i.
We’ve long held that panel decisions should be overturned by the en banc court only when compelling reasons
demand it. See United States v. Carpenter, 104 F.4th 655, 658 (7th
Cir. 2024); see also Arizona v. Rumsey, 467 U.S. 203, 212 (1984)
(explaining that the doctrine of stare decisis “carries such persuasive force” that departing from it has “always required”
“special justification”). What reason does the majority give?
None.
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Colon and its progeny correctly interpret and apply Direct
Sales. Ante, 49–50. To the extent that the majority thinks otherwise, I note our rule that “[m]ere disagreement with the law
or a desire to see the law change is not enough.” Carpenter, 104
F.4th at 658 (citing Tate v. Showboat Marina Casino P’ship, 431
F.3d 580, 582 (7th Cir. 2005) (“[I]f the fact that a court considers one of its previous decisions to be incorrect is a sufficient
ground for overruling it, then stare decisis is out the window,
because no doctrine of deference to precedent is needed to induce a court to follow the precedents that it agrees with.”)).
No intervening Supreme Court decision compels us to reconsider our settled view.
Nor is there a circuit split of the kind that would justify
breaking with our prior rulings. Rather, today’s decision
shifts us from one side of an inter-circuit divide to the other.
See United States v. Lamon, 893 F.3d 369, 371 (7th Cir. 2018) (explaining that “the mere existence of a circuit split does not justify overturning precedent”); Buchmeier v. United States, 581
F.3d 561, 566 (7th Cir. 2009) (counseling against “one circuit’s
restless movement from one side of a conflict to another”).
No intra-circuit conflict exists either. See Buchmeier, 581
F.3d at 566. We’ve done nothing new in this circuit since Direct Sales. Since then, we have held clearly and consistently
that quantity and frequency of drug transactions alone are insufficient to sustain a drug distribution conspiracy conviction.
We said “no”—repeat, distribution-quantity drug sales
are not enough—in Townsend, a 1991 case decided almost two
decades before Colon. It’s hard to tell “just what agreement
can reasonably be inferred from the purchase, even the repeated purchase, of contraband,” we explained. Townsend,
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924 F.2d at 1392 (quoting United States v. Borelli, 336 F.2d 376,
383 (2d Cir.) (Friendly, J.), cert. denied, 379 U.S. 960 (1964)).
And “[t]he mere purchase or sale of drugs (even in large
quantities) does not demonstrate an agreement to join a drug
distribution conspiracy .…” Id. at 1394.
We said “no”—repeat, distribution-quantity drug sales
are not enough—in Contreras, a 2001 case decided well before
Colon. There, we held that “[t]he multiple purchases [of ‘onekilogram quantities’] by themselves,” “without any additional evidence of the kind we have mentioned”—such as
“fronting” or “favorable pric[ing] on the cocaine on the expectation of future purchase”—“do not permit the inference that
the [] supplier conspired with [the buyer].” Contreras, 249 F.3d
at 599.
We again said “no”—repeat, distribution-quantity drug
sales are not enough—in Rivera, another pre-Colon case from
2001. There, we held that the buyer’s repeated large quantity
purchases and seller’s “knowledge of the buyer’s illegal activities or resale objectives,” did not transform a “mere buyerseller arrangement” into a conspiracy. 273 F.3d at 755–56 (internal citations omitted). We concluded that the evidence
“show[ed] none of the plus factors necessary to infer … a conspiracy.” Id. at 755–56.
We said “no” once again—repeat, distribution-quantity
drug sales are not enough—in Thomas, a pre-Colon case from
2002. There, we concluded, “[p]roof that Thomas sold a distribution quantity of crack cocaine to Jones on one or more
occasions does not by itself establish that Thomas conspired
with Jones and her associates.” 284 F.3d at 751. “That Thomas
was aware of the conspiracy to distribute narcotics does not
establish his membership in the conspiracy” as “[k]nowing of
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a conspiracy differs from joining a conspiracy.” Id. at 752 (first
emphasis added) (quoting Torres-Ramirez, 213 F.3d at 982).
“One who deals in larger quantities of narcotics will invariably realize that his buyer intends to resell,” we said, “and that
in all likelihood he will have help from others in doing so.
That knowledge alone does not render the seller liable as a coconspirator.” Id. (citing Torres-Ramirez, 213 F.3d at 982).
And we said “no” once again in Askew—yet another preColon case decided in 2005. “[I]n the case of a drug conspiracy,
evidence of repeated sales alone is not enough to support a
conviction. Rather … in conspiracy cases the jury must assess
a host of factors—including repeated sales—to determine
whether an agreement beyond the simple purchase of drugs
exists.” Askew, 403 F.3d at 503 (citing Mims, 92 F.3d at 466); see
also Mims, 92 F.3d at 463 (explaining that, “while purchase of
narcotics for resale is evidence of a conspiratorial agreement
(especially when the purchases are repeated as they were
here), a buyer-seller relationship alone is insufficient to prove
a conspiracy”).
Most critically, we said “no” in Lechuga—our en banc decision from 1991 addressing the very issue the full court decides today. The lead opinion concluded that “large quantities
of controlled substances, without more, cannot sustain a conspiracy conviction.” Lechuga, 994 F.2d at 347. “What is necessary and sufficient is proof of an agreement to commit a crime
other than the crime that consists of the sale itself.” Id.; see also
United States v. Baker, 1 F.3d 596, 597 (7th Cir.), cert. denied, 510
U.S. 956 (1993) (“[T]here must be facts in evidence in addition
to a sale for resale from which proof of a conspiracy to distribute can be inferred.”). Lechuga treated frequency no different:
“the number of sales” was “significant only insofar as it cast
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light on the existence of a continuing relation, implying an
agreement with an objective beyond a simple purchase and
sale—the latter being an agreement, all right, but not a conspiracy.” Id. at 349–50.
The fact that we decided Lechuga en banc cannot be swept
aside. The case demands our attention—far more than the silence the majority affords it. In my review of our circuit law,
I found no instance where our en banc court overturned a
prior en banc decision absent an intervening change in the
law by the Supreme Court. See, e.g., Minn-Chem, Inc. v.
Agrium, Inc., 683 F.3d 845, 852 (7th Cir. 2012) (en banc) (overturning a prior en banc decision based on the “recent string of
decisions” issued by the Supreme Court “undermin[ing] the
holding” in the prior en banc decision). That makes sense. If
we require a compelling reason to overturn a three-judge
panel decision, how much more when considering whether to
overturn an en banc decision—a ruling that is supposed to
represent the collective wisdom of the full court? 12
But today, for the first time in our court’s history, the
majority says “yes”: quantity and frequency alone can sustain
a drug distribution conspiracy conviction. In saying “yes,” the
12 We consider several other factors in deciding whether to overturn
precedent, including (1) whether the rule is supported by a single, isolated
case or a series of cases (as this dissent has noted, the rule that repeat, distribution-quantity drug transactions cannot sustain a drug conspiracy was
approved and followed in more than three dozen panel decisions and one
en banc decision), see Tate, 431 F.3d at 583; and (2) whether reliance interests have built up around the decision (here, the reliance interests at stake
are obvious, where a rule that repeat, distribution-quantity drug transactions cannot sustain a drug conspiracy conviction has stood unchallenged
in this circuit for over 80 years), see id. at 583; see, e.g., United States v. Title
Ins. & Trust Co., 265 U.S. 472, 486 (1924).
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majority opinion does not cite—nor have I found—a single
decision by a panel of this circuit holding that repeat,
distribution-quantity drug transactions alone can sustain a
drug distribution conspiracy conviction. That is not
surprising. The rule the majority announces today has never
been the law of this circuit.
What we are gaining from this jurisprudential disruption
is unclear, but what we risk losing—respect as a court committed to making decisions grounded in the rule of law no
matter the case—is all too evident. 13
ii.
The majority’s decision to effectively eliminate the intent
requirement from our drug distribution conspiracy law raises
serious due process concerns.
The Due Process Clause of the Fifth Amendment guarantees that no person shall be deprived of life, liberty, or property without due process of law. U.S. CONST. amend. V. Due
13 The consequences of today’s decision will be felt beyond sufficiency
of the evidence challenges. Take plea bargains for example. We have
based our drug conspiracy plea bargaining jurisprudence on the bedrock
principle that repeat, distribution-quantity transactions, by themselves,
are insufficient to support a conspiracy conviction. United States v. Goliday,
41 F.4th 778, 783 (7th Cir. 2022) (“Time and again we have underscored
that proof of an ordinary buyer-seller relationship alone is insufficient to
support a conviction under § 846.” (citing United States v. Neal, 907 F.3d
511, 515 (7th Cir. 2018); United States v. Long, 748 F.3d 322, 325 (7th Cir.
2014))); Long, 748 F.3d at 326 (“The government may … not rely solely on
purchases and sales, which after all are present in both buyer-seller and
conspiracy arrangements.… Standing alone, []large-quantity sales …
can[not] sufficiently distinguish a conspiracy from an ordinary buyerseller relationship.”). What now?
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process requires that the government prove each element of a
crime beyond a reasonable doubt. See In re Winship, 397 U.S.
358, 364 (1970). Criminal conspiracy, in particular, has always
required that the government prove the defendant knowingly
and intentionally entered into an agreement to commit a
crime. See Direct Sales, 319 U.S. at 712. By effectively excising
the intent requirement from the drug distribution conspiracy
law of our circuit, my colleagues relieve the government of its
burden to prove all elements of a conspiracy, striking at the
heart of due process. 14
The Due Process Clause also protects against vague laws
that fail to provide adequate notice of prohibited conduct or
encourage arbitrary enforcement. See Kolender v. Lawson, 461
U.S. 352, 357 (1983). Without the requirement of intent, the
line between a buyer-seller relationship and a conspiracy is
blurred, expanding prosecutorial discretion and inviting arbitrary enforcement.
Plainly, our rules for overturning precedent and our duty
to uphold the Constitution both counsel against the majority’s
decision.
14 To illustrate the due process stakes involved in eliminating the in-
tent requirement, consider the line between conspiracy and aiding and
abetting liability—theories that we keep distinct for good reason. “True,
aiding and abetting presupposes the existence of more than one actor, but
aiders and abettors are already punished as principals.” Townsend, 924 F.2d
at 1393 (emphasis added); see also Nye, 336 U.S. at 620. “To justify imposing additional criminal liability, there must be some additional evidence
that their actions are intended to bring about the object of the conspiracy.”
Id. (citing Iannelli, 420 U.S. at 777–78). Notably in this case, the conspiracy
charge carried a mandatory minimum five years’ imprisonment that an
aiding and abetting charge would not have.
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C
Under Our Old Law, a Buyer-Seller Instruction
Is Appropriate
Now, I turn to the facts of this case, applying the correct
legal framework as it existed before today’s decision. Under
that framework, Page is entitled to a buyer-seller instruction.
The majority’s claim otherwise falls flat.
As evidence that Page joined a conspiracy with drug supplier Terrance Hamlin, the majority first points to the personal
relationship between the men. See ante, at 3. The majority considers that relationship, described at trial as akin to that of an
uncle (Hamlin) and nephew (Page), as evidence of mutual
trust. Yet, trust between a buyer and seller, even if rooted in a
longstanding personal relationship, does not necessarily
transform routine drug transactions into a conspiracy. When
that trust arises from a familial connection, as it did here, it is
also likely that any warnings exchanged between the two men
were the product of genuine solicitude as opposed to a shared
criminal enterprise. Cf. United States v. de Soto, 885 F.2d 354,
367 (7th Cir. 1989) (explaining that “[c]ourts must be especially watchful to uphold this principle”—that “[t]he government must prove that the defendant took some step beyond
‘mere association with, knowledge of, approval of, or presence at a conspiracy’”—“when a conspiracy is alleged to be
composed of family members”).
Second, the majority claims that Hamlin’s advice to Page
about avoiding certain individuals—coupled with Hamlin’s
description of a “cooperative” business relationship with
Page—suggests a conspiracy. See ante, at 16. This is a leap. For
one, it wasn’t “individuals” (plural) that Hamlin advised
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Page to be circumspect around, but a single person: Page’s
cousin. Furthermore, a jury could find that a seller who provides guidance to ensure the buyer’s continued satisfaction is
acting in self-interest to protect future sales, not necessarily to
advance a joint conspiracy. Even where the facts suggest that
“[the seller] made some effort to please and keep [the buyer]
as a customer,” or reflects “an ongoing effort to cultivate [the
buyer] as a customer,” “what they do not reflect is a shared
stake in the success of [the buyer’s] distribution enterprise.”
Thomas, 284 F.3d at 754. The seller may have done “what any
good haberdasher might do—[the seller] got to know his customer’s needs and aimed to meet them.” Id. (citing Rivera, 273
F.3d at 756 (“The government showed only that [the defendant] wanted [his customer’s] business—that is indicative of a
buyer-seller relationship, not a conspiracy.”)).
Third, the majority highlights as evidence of a conspiracy
Hamlin’s decision to give Page a lower price per gram because Page could move drugs quickly. See ante, at 16. But offering a discount to a high-volume customer is a standard
business practice in both legitimate and illicit marketplaces.
See Pulgar, 789 F.3d at 813 (holding evidence was insufficient
to sustain conspiracy conviction, even though “Pulgar, no
doubt, sold large quantities of cocaine to Schmidt at wholesale prices for a period of eleven years”); Vizcarra-Millan, 15
F.4th at 510–11 (“We do not need to determine whether the
$100 is better described as a front or a discount. Either way it
was extremely weak evidence of conspiracy.”).
Fourth, the majority states that Page and Hamlin “consistently notified each other about the status of their drug supply
and their clientele.” Ante, at 16. But the majority does not support this claim with facts from the record, nor does it explain
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how “consistently notifying” each other on the “status” of
drug supply—whatever these terms may mean—helps us distinguish between a buyer-seller and a conspirator.
Fifth, the majority emphasizes a conversation between
Page and Hamlin about expanding their separate businesses
“up north” as evidence of a conspiracy. See ante, at 16. But this
discussion didn’t lead to anything, perhaps because Page was
pursuing his own, separate venture with buyers in that region. In short, a buyer’s rejection of a seller’s proposal to
merge their businesses may not be evidence of an agreement
to further distribute, but evidence militating against such an
agreement.
Lastly, the majority points to a single instance in which
Hamlin allowed Page to return a tainted bag of heroin, calling
this a “sale on credit” and evidence that Page and Hamlin
shared an interest in delivering high-quality heroin to Page’s
customers. See ante, at 4, 16. The facts tell a different story. A
sale on credit in the context of drug transactions involves supplying drugs without immediate payment, with the expectation of future payment after resale. Askew, 403 F.3d at 502, 504.
That didn’t happen here. Page had already paid for the heroin
and was merely exchanging a defective product. This was no
more a “sale on credit” than a consumer returning an item for
a refund that must be used at the same store. The store already
has the buyer’s money; it is willing to take back the product,
but instead of supplying a refund in cash, it gives the buyer
the chance to purchase something else.
Crucially, this kind of transaction doesn’t necessarily indicate mutual trust or a shared interest in each other’s success
the way that sales on credit might. There is no trust on the
part of the seller who holds the buyer’s money in hand and
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there is only negligible trust on the part of the buyer who, unless the seller goes out of business, will hold the product in
hand too. No mutual trust is necessary—everyone comes out
even. Indeed here, neither party needed to trust the other at
all: Page cashed in his refund immediately, exchanging the
bad batch of heroin for a better batch. So Hamlin never risked
lost profits, and Page did not risk Hamlin shutting down
shop. That is unlike a seller who allows a customer to obtain
drugs on the promise of payment at a later date. See TorresRamirez, 213 F.3d at 982 (“Payment before delivery differs from
delivery before payment, the ‘fronting’ transaction from
which an inference of agreement may be drawn.” (emphasis
added) (internal citations omitted)).
Ultimately, the evidence the majority relies on falls short
of what we have required to rule out a buyer-seller instruction. Until today.
II
Page’s Buyer-Seller Instruction Challenge
I now turn to the issue of the missing buyer-seller instruction. Page contends that the district court should have instructed the jury on the difference between a drug distribution conspiracy and a conventional buyer-seller relationship.
Page did not, however, object to this omission at trial. That
leaves us to review the issue for plain error. See United States
v. Olano, 507 U.S. 725, 734 (1993). We reverse a conviction under the plain error standard when (1) an error occurred; (2) it
was plain; (3) it affected the defendant’s substantial rights;
and (4) it seriously affected the fairness, integrity, or public
reputation of the judicial proceedings. See id. at 732. The
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majority concludes that no plain error occurred. I disagree. In
the sections that follow, I address each part of the plain error
test.
A
There Was Error
First, there was error. A defendant is entitled to an instruction if: (1) “the instruction represents an accurate statement of
the law;” (2) “the instruction reflects a theory that is supported by the evidence;” (3) “the instruction reflects a theory
which is not already part of the charge;” and (4) “the failure
to include the instruction would deny the defendant a fair
trial.” United States v. Walker, 746 F.3d 300, 307 (7th Cir. 2014)
(cleaned); see also United States v. Douglas, 818 F.2d 1317, 1320–
21 (7th Cir. 1987). The first and third criteria are not in dispute.
Page’s proposed instruction is faithful to the law and was not
already part of the charge. The remaining criteria—the second
and fourth—are whether the evidence at trial supported such
an instruction and whether its absence compromised the fairness of the trial.
The second question asks whether the proposed buyerseller instruction reflects a buyer-seller theory that is supported by the evidence or, as Grimes also puts it, has “some
foundation in the evidence, however tenuous.” United States
v. Grimes, 413 F.2d 1376, 1378 (7th Cir. 1969) (citing United
States v. Phillips, 217 F.2d 435, 442–43 (7th Cir. 1954)); see also
United States v. Buchmeier, 255 F.3d 415, 427 (7th Cir. 2001)
(holding that “[a] defendant’s theory of defense need only
have ‘some foundation in the evidence, however tenuous,’”
to require an instruction). “[W]here there is proof,” “[i]t is not
the province … of the trial court[] to appraise the
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reasonableness or unreasonableness of the evidence.” Phillips,
217 F.2d at 442. “That is unnecessary, for in criminal cases the
defendant is entitled to have presented instructions relating
to a theory of defense for which there is any foundation in the
evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.” Id. at 443.
Having examined the trial transcripts, I agree with Page
that the theory that his involvement with Hamlin constituted
a mere buyer-seller relationship, rather than that of coconspirators in a drug distribution conspiracy, has “some
foundation in the evidence.” As discussed above in
addressing Page’s sufficiency of the evidence challenge, when
we accurately assess what the government and the majority
insist are indicia of conspiracy, we see that not much at trial
suggested a conspiracy beyond evidence showing Page
repeatedly purchased distribution-sized quantities of heroin.
And, again, that’s not enough.
As for the fourth question—whether the failure to include
the instruction would deny the defendant a fair trial—we
have answered “yes” where the evidence of the conspiracy
was “far from overwhelming” and “the evidence could have
been interpreted by the jury as indicating that the defendants
were merely purchasers from the conspiracy.” Douglas, 818
F.2d at 1322.
For these reasons, the district court’s failure to give a
buyer-seller instruction was error. The majority’s contrary
conclusion rests on a faulty foundation. I make three observations about this below, the first being the longest. See post, at
50–60 (discussing Page’s theories of defense), 60–61 (reprising
discussion of repeat, distribution-quantity transactions), 61–
62 (discussing sua sponte instructions).
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One, the majority contends that Page was not entitled to a
buyer-seller instruction because it would have contravened
Page’s theory of defense. This is because, the majority says,
Page painted Hamlin as a liar and suggested that his meetings
with Hamlin were innocent encounters between family
friends. Page’s goal, the majority thinks, was to show that he
was not involved in the drug trade at all, so that the jury
would acquit him of both the drug distribution charges and
the conspiracy charge—not just the latter. And because “we
have repeatedly held that a buyer-seller instruction is unnecessary where the instruction would contradict the defendant’s
theory of the case,” ante, at 19 (quoting United States v. Love,
706 F.3d 832, 839 (7th Cir. 2013)), the majority opinion explains, Page’s claim of error fails.
The majority opinion misreads the facts and the law in two
ways. One, Page did advance the theory that he engaged in a
buyer-seller relationship; so, a buyer-seller instruction would
not have conflicted with Page’s defense theory. Two, while
our consideration of whether a defendant put forth a buyerseller theory is relevant, it is not dispositive. Our inquiry into
whether a buyer-seller theory has some foundation in the evidence extends beyond the defendant’s arguments to a holistic review of the record. I take each of these in turn.
Page did assert at trial that he engaged in a buyer-seller
relationship. Recall that Page did not testify, so his defense
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theories would come through his counsel’s opening statement, cross-examinations, and closing argument. 15
15 The majority states that “a party does not properly inject a defense
into a criminal proceeding solely by introducing it during closing argument.” Ante, at 21. This analysis falters for three reasons.
One, it is irrelevant. Page did not raise the buyer-seller theory for the
first time in closing argument; he introduced and developed the theory
during cross-examination. See, e.g., Trial Tr. at 734:5–14.
Two, even if Page had introduced the buyer-seller theory for the first
time during closing argument, the Supreme Court has made it clear that
closing argument is counsel’s opportunity to synthesize the evidence and
articulate the defense theory. See Herring v. New York, 422 U.S. 853, 861–62
(1975). “It is only after all the evidence is in that counsel for the parties are
in a position to present their respective versions of the case as a whole.
Only then can they argue the inferences to be drawn from all the testimony
.…” Id. at 862 (describing “the opportunity finally to marshal the evidence
for each side before submission of the case to judgment”). Far from being
a procedural afterthought, closing argument is the moment when counsel
“make[s] a proper argument on the evidence and the applicable law in his
favor, however simple, clear, unimpeached, and conclusive the evidence
may seem.” Id. at 860. Surely, the majority can appreciate the importance
of closing argument, given its emphasis on the fact that, “through cross
examination and closing argument, Page’s counsel spent considerable
time painting Hamlin as a liar.” Ante, at 5.
Three, the majority’s invocation of Rule 30 fares no better. The majority asserts that defendants cannot raise a theory for the first time during
closing argument because, “[u]nder Rule 30, a party seeking an instruction
‘must’ make its request ‘at the close of evidence or at any earlier time,’ and
the court ‘must inform the parties before closing arguments how it intends
to rule on the requested instructions.’” Ante, at 21 (citing Fed. R. Crim. P.
30(a)–(b)). But the reliance on Rules 30(a) and (b) is misplaced. These rules
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During closing, defense counsel argued that Page purchased controlled substances for personal use, although the
evidence was contradictory, arguing “a [distribution] amount
is whatever … the government … wants a [distribution]
amount to be”—whether it be a quarter gram, a half gram,
one gram, two grams, three grams, or more. Trial Tr. at 815:4–
17. And if “some heroin user” has two baggies in his pocket,
defense counsel argued, the government will say even that is
a distribution amount. Trial Tr. at 815:17–19. And if the heroin
user says it is not (“that is my personal use amount”) the government will say “there was a lot found.” Trial Tr. at 815:17–
22.
Defense counsel did not stop there, stating:
apply to “requested instructions” made pursuant to Rule 30(a) and neither
party requested a buyer-seller instruction here.
Rule 30(d), however, governs objections to jury instructions, including
objections to a court’s failure to give an instruction. Rule 30(d) expressly
permits objections to be raised before the jury retires to deliberate: “A
party who objects to any portion of the instructions or to a failure to give
a requested instruction must inform the court of the specific objection and
the grounds for the objection before the jury retires to deliberate.” Fed. R.
Crim. P. 30(d). This rule makes clear that omissions can—and should—be
addressed even late in the trial process.
Rule 30(c) reinforces this point. As the Advisory Committee notes explain, Rule 30(c) allows the court to “instruct both before and after arguments, which assures that the court retains power to remedy omissions in
pre-argument instructions or to add instructions necessitated by the arguments.” Fed. R. Crim. P. 30, advisory committee notes to 1987 amendments
(emphasis added). This flexibility exists precisely to address situations like
this one, where an omitted instruction becomes necessary in light of the
evidence and closing arguments.
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And I would counter that with there [are] individuals, and maybe somebody in our families,
who like[] to go to Costco or Sam’s Club. And
why is that? Because you can buy a large bulk
material allegedly at a lower price.… [Y]ou go
and buy in larger bulk, one, because it means
you’re not going back and forth. You have what
you want. And you can use it over time for what
you want.
And do you know what else it provides for personal use people? Safety. Because every time
you have to go out and purchase a drug from
somebody, you’re putting yourself at risk. No
matter the level of trust that you may have,
you’re putting yourself at risk. And some addicts and personal use people don’t want to put
themselves in that kind of risk where they have
to go out every day or every other day or once a
week, because that is the big risk you’re taking.
Trial Tr. at 815:23–816:13. A jury can interpret these arguments only one way: Page purchased controlled substances in
bulk for personal use—not to distribute. It is clear that Page
did assert a buyer-seller defense theory, making the buyerseller instruction fully consistent with his defense—not at
odds with it, as the majority concludes. 16
16 The majority contends that appellate counsel conceded at oral argu-
ment that trial counsel did not present a buyer-seller theory. I disagree.
See Oral Argument at 22:15. And even if reasonable jurists could read
counsel’s various remarks differently, any seeming concession was far
from deliberate, clear, and unambiguous. See Robinson v. McNeil Consumer
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Perhaps the majority’s real concern is not that the buyerseller instruction would have contradicted Page’s defense theory, but rather that Page presented two defense theories that
seem, at first glance, to be at odds. On one hand, Page claimed
innocence, arguing that he did not buy or sell drugs and was
thus not guilty of drug distribution. On the other, he claimed
to be a mere buyer-seller, arguing that if he did buy drugs, it
was solely for personal use or to sustain his own separate operation, not as part of a larger conspiracy and he therefore was
not guilty of drug distribution conspiracy. I have two responses. First, these two theories are not inconsistent. Second,
even if they were inconsistent, that would not nullify the need
for a buyer-seller instruction.
Here’s why Page’s two defense theories were not inconsistent. By charging both drug distribution and drug distribution conspiracy, the government itself invited the jury to consider multiple possibilities. The government’s case-in-chief,
through its witnesses and arguments, suggested that Page
distributed drugs. Those same witnesses and arguments also
suggested that Page conspired to do the same. When a defendant, as here, declines to testify and otherwise remains silent regarding the charges, he neither admits nor denies any
specific crime. At the close of such a case, the jury must assess
guilt or innocence on each charge after considering the distinct
defenses applicable to each. In this context, trial counsel can
argue that (1) the government failed to prove beyond a reasonable doubt that Page committed drug distribution; and (2)
Healthcare, 615 F.3d 861, 872 (7th Cir. 2010) (explaining that, “in order to
qualify as judicial admissions, an attorney’s statements must be deliberate, clear and unambiguous”).
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even if the government proved Page bought drugs that Hamlin sold, the government did not prove beyond a reasonable
doubt that Page joined a conspiracy to further distribute the
drugs he purchased from Hamlin. It then would fall to the
jury to determine whether Page bought drugs that Hamlin
sold and, if so, whether Page’s actions amount to mere drug
purchases within a buyer-seller relationship or the intentional
joining of a broader conspiratorial agreement. So, Page’s two
defense theories are not inconsistent; they are merely gardenvariety alternative contentions and framing these alternative
defenses is one way a defendant can respond to the government’s multi-faceted charges.
Here’s why, even if Page’s two defense theories were inconsistent, that inconsistency would not preclude a buyerseller instruction. The law does not require a defendant to
concede guilt on a drug distribution charge to receive a buyerseller instruction on a related drug distribution conspiracy
charge. Criminal defendants are entitled to assert inconsistent
defenses at trial. See Mathews v. United States, 485 U.S. 58, 65–
66 (1988) (permitting the inconsistent defenses of denial and
entrapment). This principle reflects a core tenet of modern
criminal jurisprudence: a defendant is entitled to the full
measure of constitutional protections when mounting a defense against prosecution. It underscores a commitment to
limiting governmental overreach in criminal trials, ensuring
that the burden of proof remains firmly on the government as
to all charges. Winship, 397 U.S. 358 (1970) (holding that the
Due Process Clause requires the government to prove every
element of every crime beyond a reasonable doubt); Taylor v.
Kentucky, 436 U.S. 478 (1978) (emphasizing the presumption
of innocence as a bedrock principle of American criminal law,
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and requiring explicit instructions to the jury to prevent implicit shifting of the burden of proof).
Even when two defenses appear inconsistent as to each
other, an instruction on both theories is required if, as here,
the law supports both theories and some foundation in the
evidence provides a basis for their application—even if that
evidence is “weak, insufficient, inconsistent, or of doubtful
credibility.” Phillips, 217 F.2d at 443. 17 This principle is especially important in drug cases, as the government often
charges defendants with drug distribution and drug distribution conspiracy. In these cases, the government’s own evidence blurs the line between distribution and conspiracy, often presenting the same facts as equally suggestive of both.
Yet, under the majority’s rule, any defendant who dares to
defend himself against the drug distribution charge by claiming innocence when he is also charged with drug distribution
conspiracy, must—as a matter of law—forfeit the opportunity
to instruct the jury on his alternative buyer-seller defense.
17 See also Eberhart, 467 F.3d at 666 (“A jury instruction [] does not have
to completely track the defense presented; it need only represent ‘a theory
that is supported by the evidence.’” (quoting Buchmeier, 255 F.3d at 426));
Douglas, 818 F.2d at 1318, 1321 (concluding that the defendant’s buyerseller theory was supported by the record despite “confusing and contradictory” evidence about the relationship between the co-conspirators and
defendants, and about whether the drug amounts were distribution quantities or personal use quantities); United States v. Cruse, 805 F.3d 795, 815
(7th Cir. 2015) (explaining that “the government’s understanding of [Love,
Johnson, Askew, and Fort]” as holding that defendants who deny buying
and selling drugs are barred from receiving a buyer-seller instruction as a
categorical matter “is in tension with Mathews v. United States, 485 U.S. 58,
63–64 (1988), which holds that inconsistent defense theories are permissible”).
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This imposes an untenable burden on defendants and risks
significant constitutional harm.
To be sure, a defendant who denies distributing drugs
while simultaneously asserting a buyer-seller defense takes
on significant strategic risks. But strategic calculations are for
the defendant and jury to navigate; our responsibility is to ensure the jury is properly instructed on the law.
And still, our analysis of whether the buyer-seller theory
has some foundation in the evidence does not end there. We
have explained that whether a defendant brings forth a buyerseller theory is only one consideration. We also conduct a holistic review of the evidence, including the facts and arguments presented by the government, to make this determination. See Phillips, 217 F.2d at 440–41 (rejecting as clearly erroneous the argument that the government’s evidence can
never entitle the defendant to a jury instruction). 18
18 In Phillips, this court considered whether a defendant could rely
“upon favorable testimony given by government’s witnesses” in presenting this defense or if “there must be testimony coming from his side of the
case” “as a prerequisite to his right to such an instruction.” On this, we
said:
We think this was clearly an erroneous idea, the effect of
which was to shift the burden of proof.…
We think the government’s contention, apparently embraced by the trial court, that a defendant is not entitled
to an instruction embodying a theory merely because it is
predicated upon proof adduced by the government, is not
the law.…
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Here, the government layered protracted testimony distinguishing personal use quantities from distribution quantities upon weak conspiratorial evidence, thereby carving out
space for the jury to confuse conspiracy with a buyer-seller
relationship. The government opened its case by telling the
jury that Page purchased “distribution quantities” of heroin,
ranging from over twelve grams up to fifty-six grams at a
time, juxtaposing this amount against “user quantit[ies]” of
heroin, ranging from 0.1 grams for beginners up to 0.5 grams
for heavy users. Trial Tr. at 153:13–24. One government witness testified that forty-five grams (one of the amounts Page
received from Hamlin) is “a larger quantity” of heroin: “It
[T]he vital question from the time a plea of not guilty is
entered until the return of the verdict, is whether upon all
the evidence, by whatever side adduced, guilt is established beyond reasonable doubt.…
[The government] then cites United States v. Phelps, 8 Cir.,
160 F.2d 858, 874, and Meyer v. United States, 7 Cir., 258 F.
212, 216, for the proposition that a court will not instruct
on ‘a defense not made by the defendant.’ These cases furnish no support for the contention. They hold nothing
more than that the court will not instruct upon a theory
unsupported by evidence. Certainly they do not indicate,
even by inference, that the evidence must come from the
defendant’s side of the case.
217 F.2d at 440–41 (citations omitted); see also Askew, 403 F.3d at 504 (“[W]e
must still review the evidence presented by the government to determine
whether it was such that a jury could confuse a buyer-seller relationship
with a conspiratorial one.”); Douglas, 818 F.2d at 1321 (explaining that,
when determining whether a defendant’s theory of defense is supported
by the evidence, the court “must [] analyze[] [the conspiracy case] according to its specific facts” and “consider whether the defendant has put forth
the defense during trial”).
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would not be for personal use. I believe 45 grams of heroin
would be an amount that someone would purchase to sell to
other people.” Trial Tr. at 408:7–12. And a different government witness took care to explain that a distribution quantity
of heroin is sold in larger chunks held in sandwich, quart, or
gallon-sized bags, while user quantities are sold in small bag
corners called bindles. Trial Tr. at 724:23–726:6.
The government also pushed back against the suggestion
that Page purchased controlled substances for personal use.
The government elicited testimony about things personal users commonly possess (e.g., straws, spoons, bindles, needles
and other things “like that indicating ingestion”) in contrast
to items distributors commonly possess (e.g., larger packaging materials, smaller packaging materials, scales, grinders,
blenders, and adulterants). Trial Tr. at 726:7–22. Another government witness answered “no” again and again when asked
during direct examination if he saw any needles, syringes,
straws, rolled-up dollar bills, or burned aluminum foil in
Page’s home. Trial Tr. at 349:16–350:1. He also found significant that Page never showed signs of being sick or told authorities he was going to be sick when taken into custody because, in “[the witness’s] experience in dealing with both heroin users and heroin distributors, … heroin users will … at
some time say [] they’re going to be sick because they’re going
to start withdrawing .…” Trial Tr. at 350:2–14.
In short, the government repeatedly emphasized the volume of drugs Page purchased from Hamlin and indicators
that Page did not personally use drugs. The government did
this to counter trial counsel’s argument that, to the extent
Page was buying drugs from Hamlin, it was merely as a buyer
rather than a partner in a distribution conspiracy.
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For these reasons, I conclude that the buyer-seller theory
did have some foundation in the evidence.
Two, the majority contends that Page was not entitled to a
buyer-seller instruction because, under our new law as established by today’s decision, evidence of repeat, distributionquantity transactions is sufficient to sustain a conspiracy conviction. Ante, at 14–15. This conclusion cannot stand for the
reasons I outlined earlier in this dissent. See ante, at 51.
Further, we have repeatedly held the opposite: “Our finding [] that [a] jury had sufficient evidence to convict [a defendant] on the conspiracy count does not automatically negate
his claim that the judge committed plain error in failing to
provide the jury with a buyer-seller instruction.” Askew, 403
F.3d at 503; see also United States v. Gee, 226 F.3d 885, 894–96
(7th Cir. 2000) (finding that the jury had sufficient evidence to
convict on the conspiracy charge, but reversing for failure to
give a buyer-seller instruction); Mims, 92 F.3d at 466 (finding
ample evidence to support the conspiracy conviction, but reversing because the judge gave a flawed buyer-seller instruction). “‘[B]ecause the line between a conspiracy and a mere
buyer-seller relationship is difficult to discern, district judges
should instruct juries in appropriate situations on the distinction’ and ‘inform juries that repeated transactions do not constitute a conspiracy.’” Askew, 403 F.3d at 503 (quoting Gee, 226
F.3d at 895); id. (citing Thomas, 150 F.3d at 745 (“[T]he jury
should be told that agreement—the crime of conspiracy—cannot be equated with repeated transactions. This is the office of
the buyer-seller instruction. It reminds juries that distribution
of drugs is not itself conspiracy, although a history of transactions may be evidence of conspiracy.”)).
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Three, the majority posits that a district court can never err
“by not sua sponte instructing the jury on a potential defense,
particularly when the defendant is represented by counsel,”
framing the question as an “odd procedural” one. Ante, at 19.
But this cannot be: it turns the plain error standard on its
head.
The plain error standard exists precisely to address triallevel errors—whether by the court or counsel—that undermine a defendant’s constitutional rights in a way that warrants correction, even absent preservation. See Olano, 507 U.S.
at 732–34. While appellate courts generally defer to counsel’s
strategic decisions, the plain error doctrine acknowledges the
reality that representation by counsel does not guarantee perfect safeguarding of a defendant’s rights. Trial counsel may
fail to request a necessary instruction for a variety of reasons—mistake, inexperience, or even misguided strategy. The
plain error standard ensures that, when an obvious legal error
affects a defendant’s fundamental rights, courts may act to
preserve the fairness and integrity of the judicial process. 19
The majority’s rule that a district court never errs in failing
to provide a sua sponte instruction when the defendant is represented categorically absolves the district court of responsibility for ensuring the jury is properly instructed and effectively eliminates appellate review for all unpreserved
19 The concurrence “add[s] a few words about the relation between
the party-presentation principle … and plain-error review.” Ante, at 26
(internal citation omitted). Yet it nowhere acknowledges that plain error
review is “an exception to the norm of party presentation.” Barrados-Zarate
v. Barr, 981 F.3d 603, 605 (7th Cir. 2020).
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instructional errors, no matter how apparent or prejudicial
the omission. 20 This cannot be the law.
For these reasons, the district court’s failure to provide the
buyer-seller instruction in this case was error. I now turn to
the remaining steps of the plain error analysis.
B
The Remainder of the Plain Error Test is Met
The error was plain. The majority opinion explains that
“[a]n error (had it existed) in not sua sponte instructing the
jury on the buyer-seller defense would not have been plain.
Page did not present this defense theory, and the evidence of
conspiracy was very strong. Nothing about this record would
have made it obvious to the district court that such an instruction was needed.” Ante, at 22. On all three fronts, the majority
is wrong.
20 See Douglas, 818 F.2d at 1321 (holding that the district court plainly
erred by not giving a buyer-seller instruction sua sponte, where the theory
had “some foundation in the evidence,” and that without the instruction,
the jury might have mistakenly believed that mere drug sales alone sufficed to establish a conspiracy); Gee, 226 F.3d at 895 (holding that the district court plainly erred and “should have sua sponte included a buyerseller instruction because it knew that the conspiracy evidence was
weak”); id. (“[B]ecause the line between a conspiracy and a mere buyerseller relationship is difficult to discern, district judges should instruct juries in appropriate situations on the distinction.… The proffered evidence
of a conspiracy was circumstantial and not overwhelming. The evidence
was as consistent with a buyer-seller relationship as it was with a conspiracy. The instructions allowed the jury to make a guilty finding without
determining whether the government had proved the existence of a conspiracy.…”).
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As I explained previously, a buyer-seller theory had some
foundation in the evidence, and the evidence of conspiracy
was weak. Moreover, it should have been obvious to the district court. The district court’s comments at Page’s sentencing
hearing make this point. The court emphasized the reach of
Page’s drug distribution and the harm it caused. But even the
court remarked that it did not believe—based on “[its] impression from the trial evidence”—that Page had accepted
Hamlin’s offer to expand their businesses individually or collectively. Sent. Tr. at 40–41. For these reasons, I conclude that
the district court’s error in not providing the buyer-seller instruction was plain.
The error affected Page’s substantial rights because “the
failure of the jury to be initially instructed on the defendant[’s] theory of defense, where the evidence tying [him] to
the larger conspiracy was tenuous, denie[s] [him] a fair trial.”
Douglas, 818 F.2d at 1322.
And the error seriously affected the fairness, integrity, or
public reputation of the judicial proceedings. Indeed, failure
to provide the buyer-seller instruction allowed the jury to
convict Page of conspiracy to distribute drugs based on evidence that pointed no more to conspiracy than to mere drug
distribution. See Olano, 507 U.S. at 736.
III
On United States v. Anderson
Before I conclude, I address United States v. Anderson, 99
F.4th 1106 (7th Cir. 2024). The majority has taken the unusual
step of criticizing a duly issued recent opinion of our court,
rather than following the normal course of seeking to rehear
en banc a case it believes a panel of our court wrongly
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decided. See ante, 22–23. I do not know why the majority
spends so much of its time in an opinion about Royel Page’s
case discussing Denny Anderson’s case. In any event, contrary to the majority’s complaints, Anderson properly applied
the plain error standard. I now detour—as the majority has
done—to explain why.
The issue in Anderson was whether Anderson’s 2001 conviction for aggravated assault could have been based on reckless conduct. At the time of his conviction, Florida appellate
courts were split on whether aggravated assault included
reckless conduct.
The majority here suggests that this split precludes plain
error, see ante, at 22–23, but the opposite is true. The Supreme
Court requires a defendant like Anderson to present only one
case showing that the statute applied to reckless conduct. See
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (outlining
the realistic-probability test). Anderson did so—indeed, he
pointed to two such cases. See LaValley v. Florida, 633 So. 2d
1126, 1127–28 (Fla. Dist. Ct. App. 1994); Kelly v. Florida, 552 So.
2d 206, 208 (Fla. Dist. Ct. App. 1989). It was thus plain error
to rule that the statute never criminalized reckless conduct at
the time of Anderson’s conviction when courts twice upheld
convictions for aggravated assault based on reckless conduct.
The majority also says that no plain error could have occurred in Anderson because, in its view, the Florida Supreme
Court and Eleventh Circuit ruled differently on the question
presented in Anderson. See ante, at 23. This is wrong for two
reasons. First, courts have found plain error even in the face
of a circuit split. See In re Sealed Case, 573 F.3d 844, 851–52
(D.C. Cir. 2009) (finding plain error despite circuit split because statute was clear); United States v. Salas, 889 F.3d 681,
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687 (10th Cir. 2018) (finding plain error despite circuit split
because law was settled within the circuit). Second, neither
the Florida Supreme Court nor the Eleventh Circuit ruled on
the narrow state-law question presented in Anderson. In 2022,
the Florida Supreme Court held that aggravated assault could
not be based on reckless conduct. Somers v. United States,
355 So. 3d 887, 888 (Fla. 2022). But that ruling said nothing
about what Florida’s law meant before 2022. Then, relying on
federal rules of statutory construction, the Eleventh Circuit
held that Somers applied retroactively. Somers v. United States,
66 F.4th 890 (11th Cir. 2023). But we must use Florida’s state
law, not federal law, to interpret Florida’s statutes. See Erie R.
Co. v. Tompkins, 304 U.S. 64, 78 (1938); Lexington Ins. Co. v.
Rugg & Knopp, Inc., 165 F.3d 1087, 1093 (7th Cir. 1999). And as
Anderson explained, under Florida law, the Florida Supreme
Court’s interpretation of its aggravated-assault law was
plainly not retroactive. See Florida v. Barnum, 921 So. 2d 513,
528 (Fla. 2005); see also Anderson, 99 F.4th at 1111–12 (discussing Florida statutory interpretation).
Finally, the majority appears to suggest that, because Anderson’s analysis involved several steps, its finding of plain error was wrong. But this court has not shied away from finding
plain error when an analysis is complex, including when, as
in Anderson, the court must use the categorical approach. See,
e.g., United States v. Turner, 55 F.4th 1135, 1142–43 (7th Cir.
2022) (determining on plain-error review that Illinois cocaine
conviction was not a felony drug offense); United States v.
Ruth, 966 F.3d 642 (7th Cir. 2020) (same); United States v. Garcia, 948 F.3d 789, 792–94 (7th Cir. 2020) (determining on plainerror review that Indiana marijuana conviction was not a felony drug offense); United States v. De La Torre, 940 F.3d 938,
950–52 (7th Cir. 2019) (determining, on what the defendants
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there acknowledged was plain-error review, that Indiana
methamphetamine conviction was not a felony drug offense);
see also United States v. Hagen, 911 F.3d 891, 895–97 (finding
plain error after complex five-part analysis). For these reasons, I disagree with the majority’s criticism of Anderson.
IV
Conclusion
The majority’s decision—not Colon, as the majority tells
it—directly contravenes the Supreme Court’s holding in Direct Sales. Direct Sales does not stand for the proposition that
repeat, large-quantity drug transactions alone suffice to sustain a drug distribution conspiracy conviction. Before Colon,
after Colon, and even in our en banc decision in Lechuga, our
precedent has faithfully adhered to Direct Sales’s clear call for
intent to join the conspiracy as evidenced by informed and
interested cooperation, stimulation, or instigation, even
where a buyer and seller repeatedly transact in distributionquantities of drugs. The majority, unable to point to a single
case from this court endorsing its interpretation or any compelling justification for overturning our precedent, nevertheless forges ahead with a new rule.
Likewise, the district court plainly erred by failing to provide sua sponte the buyer-seller instruction. The majority’s
holding, that a district court cannot plainly err by failing to
sua sponte give a buyer-seller instruction when a defendant
does not request one, as well as the various other justifications
offered by the majo
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