In the
United States Court of Appeals
For the Seventh Circuit

No. 91-2891

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HUMBERTO LECHUGA,

Defendant-Appellant.


Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 88 CR 59--Myron L. Gordon, Judge.


ARGUED APRIL 1, 1992
REARGUED EN BANC DECEMBER 15, 1992--
DECIDED MAY 13, 1993


   Before BAUER, Chief Judge, and CUMMINGS, CUDAHY,
POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION,
KANNE, and ROVNER, Circuit Judges.

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

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

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

   To understand the problems created by an allegation
of a conspiracy between a seller on the one hand and a
buyer for resale on the other, we must take a step back
and ask why uncompleted conspiracies are punished, even
though the conspiracy here was completed--the cocaine
was delivered to Pinto before he was arrested. It is not
a good answer to say that they are punished on the same
theory as attempts are punished; for given a law of at-
tempts we must ask why uncompleted conspiracies are
also punished. The full answer may include historical acci-
dent but there is also a functional reason. Because crimes

are difficult to deter by mere threat of punishment, so-
ciety tries to prevent them and one way to do this is by
identifying and incapacitating people who are likely to
commit crimes. The risk to civil liberties that would be
created by a purely preventive theory of criminal punish-
ment is so great, however, that society insists on definite
proof of dangerousness. An attempt is one form of satis-
factory proof. A person who goes so far in the prepara-
tion of a criminal act as to be guilty of an attempt has
given definite proof that he is likely to commit such an
act. And likewise a person who agrees to commit a crime,
even if he takes no additional preparatory steps and as
a result does not come close enough to committing the
crime to be guilty of an attempt.

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

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

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

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

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

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

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

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

   There might have been a separate agreement between
Lechuga and Pinto. Suppose Lechuga had told Pinto that
he needed a good distributor on the south side of Chicago
and wanted to enter into a long-term relationship with
Pinto to that end. Then it would be as if Lechuga had
hired Pinto to assist him in reaching his market. It should
not make a difference whether an illegal agreement takes
the form of an illegal simulacrum of an employment con-
tract or of a "relational" contract, implying something
more than a series of spot dealings at arm's length be-
tween dealers who have no interest in the success of each
other's enterprise. Vertical integration is not a condition
of conspiracy. And of course the initiative might in our
hypothetical case have come from Pinto rather than from
Lechuga without affecting the analysis. Even the number
of sales, a factor stressed in some cases, would be signifi-
cant only insofar as it cast light on the existence of a con-
tinuing relation, implying an agreement with an objective
beyond a simple purchase and sale and thus an agreement
separate from the sale itself--the latter being an agree-
ment, all right, but not a conspiracy. United States v.
Baker, supra, 905 F.2d at 1106. What made "prolonged
cooperation" a factor in inferring conspiracy in Direct Sales
Co. v. United States, 319 U.S. 703, 713 (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. Pro-
longed cooperation is neither the meaning of conspiracy
nor an essential element, but it is one type of evidence
of an agreement that goes beyond what is implicit in any
consensual undertaking, such as a spot sale.

   A more difficult case, as noted in United States v. Moran,
supra, 984 F.2d at 1302, 1304, would be that of an agree-
ment between A and B for A to make a spot sale of drugs
to B in the future--an agreement with a separate criminal
object, that of making an illegal sale, but an agreement
that seems only adventitiously distinct from the sale itself.
No agreement of any kind between Lechuga and Pinto
separate from the sale of cocaine to Pinto was proved,
however, so Lechuga's conviction for conspiracy cannot
be affirmed on the basis of the agreement with Pinto.
   It does not follow that the conviction must be reversed.
The indictment charged a conspiracy with others besides
just Pinto, and the evidence showed that Lechuga had
in fact conspired with Pagan; therefore the conviction of
conspiracy must be upheld after all. A finding that Lechuga
had conspired with Pagan was within the scope of an in-
dictment worded as this one was, and the fact that the
indictment did not name Pagan is irrelevant. United States
v. Rey, 923 F.2d 1217, 1222 (6th Cir. 1991). It is true that
the focus of both the trial and the appeal was on the al-
leged conspiracy between Lechuga and Pinto. But the gov-
ernment's brief does not describe the conspiracy as being
limited to Lechuga and Pinto. It says that "the evidence
clearly established that Lechuga was supplying resale quan-
tities of cocaine to Pagan and others as part of his ongoing
agreement with Pagan. As such, sufficient evidence existed
to support Lechuga's conspiracy conviction." Lechuga's
reply brief takes issue with the conclusion that there was
sufficient evidence of such a conspiracy, but does not quar-
rel with the characterization of the conspiracy as one that
included Pagan. And at the en banc argument Lechuga's
lawyer acknowledged that it would be proper to affirm
his client's conviction on the basis of such a conspiracy
were it factually supported, which he denied.

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

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

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

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

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

AFFIRMED.







   COFFEY, Circuit Judge, with whom MANION, Circuit
Judge joins, concurring in the judgment.   I agree with
the majority that we must affirm Humberto Lechuga's
conviction. I write separately to make two points.

   First, as the majority agrees, whether the sale of a dis-
tribution-size quantity of cocaine is sufficient to establish a
conspiracy between a buyer (here, Pinto) and seller (here,
Lechuga) to distribute cocaine is not a question presented
by the facts of this case. Granted, because the defense
attorney cleverly focused on that question in the appeal,
and cast aside the central conspiracy charge made in the
indictment, we decided to rehear the case en banc to con-
sider that issue. However, it became clear to several of
the judges during the en banc oral argument that the
Government presented far more evidence in support of
Lechuga's conspiracy conviction than a single sale to Pinto
of a distribution-amount of cocaine. Nevertheless, the plu-
rality, taking the defense counsel's bait, spends the bulk
of its opinion addressing the single-sale question, in ef-
fect issuing an en banc advisory opinion. I believe the
court should address only the issues necessary for resolu-
tion of this case and leave the single-sale question for the
day when it is clearly presented by the facts of a partic-
ular case. In taking this view, I am in harmony with the
position recently urged by Judge Posner in his dissent
in part in Reed v. Gardner, 986 F.2d 1122, 1129 (7th Cir.
1993), where he wisely counseled that "[w]e should not
pronounce on legal questions . . . in a case in which our
answers cannot alter the outcome." See also United States
v. Fischer, 833 F.2d 647, 649 (7th Cir. 1987). Addressing
issues not required for resolution of a case runs the
danger that the "opinion might be ill-informed and un-
reliable because the factual record on which it was based
was incomplete or hypothetical." People of the State of
Illinois v. Archer Daniels Midland, 704 F.2d 935, 942 (7th
Cir. 1983). My view is that unless it is necessary to decide
a question, it is necessary not to decide a question. Instead of
deciding an issue not before us in dicta, we should
decide the case on its merits.

   My second reason for writing separately is to spread
upon the appellate decision record some facts in addi-
tion to the plurality's brief analysis of the evidence we
rely upon to affirm Lechuga's conviction. The indictment
did not specifically name Samuel Pagan as a coconspirator
but instead charged that "Evelio Pinto and Humberto
Lechuga . . . conspire[d] between themselves and with
persons known and unknown to the grand jury to dis-
tribute and possess with the intent to distribute" cocaine.
However, "persons known and unknown to the grand
jury" could certainly include Pagan. We have made clear
that it

"is the grand jury's statement of the existence of the
conspiracy agreement rather than the identity of those
who agree which places the defendant on notice of
the charge he must be prepared to meet. . . . Thus,
the government is permitted to allege in an indict-
ment, as it did in this case, that, in addition to the
defendants named in a conspiracy count, the defen-
dants conspired with others known and unknown to
the grand jury."

United States v. Townsend, 924 F.2d 1385, 1389-90 (7th
Cir. 1991) (citations and internal punctuation omitted). See
also United States v. Kramer, 711 F.2d 789, 796 (7th Cir.),
cert. denied, 464 U.S. 926 (1983) ("There is . . . no re-
quirement that a conspiracy indictment identify uncharged
coconspirators.") Thus, the Government was free to try
the case (as it did) as a Lechuga-Pagan-Pinto conspiracy/1,
even though Pagan was not referred to specifically in the
indictment./2

   In reviewing jury convictions we are required to con-
sider "whether, after viewing the evidence in the light most
favorable to the government, 'any rational trier of fact
could have found the essential elements of the crime be-
yond a reasonable doubt.' " United States v. Lamon, 930
F.2d 1183, 1190 (7th Cir. 1991) (citations omitted) (empha-
sis added). "We may overturn a verdict only when the
record is devoid of any evidence, regardless of how it is
weighed, from which a jury could find guilt beyond a
reasonable doubt." United States v. Durrive, 902 F.2d
1221, 1225 (7th Cir. 1990) (emphasis added). "The evidence
need not be inconsistent with every reasonable hypothesis
of innocence in order to sustain the conviction . . ., and
we will not reweigh the evidence or judge the credibility
of witnesses." United States v. Maholias, 985 F.2d 869,
874 (7th Cir. 1993) (citations omitted). 

   A conspiracy is a combination or confederation between
two or more persons formed for the purpose of commit-
ting a criminal act through their joint efforts. Lamon, 930
F.2d at 1190. The government must prove that the defen-
dant knew of the conspiracy and intended to associate
himself with it. Id. In evaluating a conspiracy conviction,
we need not limit our inquiry to the direct evidence of
the defendant's connection to the conspiracy:

"Conspiracies, like other crimes, may be proved en-
tirely by circumstantial evidence. United States v.
Durrive, 902 F.2d 1221, 1225 (7th Cir. 1990). If the
prosecution presents enough circumstantial evidence
to support, beyond a reasonable doubt, an inference
that the defendants agreed among themselves to dis-
tribute drugs, a jury would justified in convicting
those defendants of conspiring together. The critical
question, then, is whether the jury may reasonably
infer a single agreement among the defendants from
the evidence of the drug transactions presented by
the government."

Townsend, 924 F.2d at 1390 (emphasis added). Moreover,
the "nature of a conspiracy is such that its existence and
the involvement of the co-conspirators in it must often
be proved by circumstantial evidence." United States v.
Sullivan, 903 F.2d 1093, 1098 (7th Cir. 1990) (citation
omitted). "The government need not establish that there
existed a formal agreement to conspire; circumstantial evi-
dence and reasonable inferences drawn therefrom concern-
ing the relationship of the parties, their overt acts, and
the totality of their conduct may serve as proof." Id. This
is especially true in drug conspiracies where the "clandes-
tine" nature of the nefarious scheme makes it "ridiculous
to presume that the government could obtain witnesses
with firsthand knowledge of the group's activities." United
States v. Vega, 860 F.2d 779, 793 (7th Cir. 1988) (citation
omitted). We will affirm a conspiracy conviction if the gov-
ernment has presented substantial evidence connecting the
defendant to the conspiracy. Durrive, 902 F.2d at 1228.

   The record demonstrates conclusively that the jury was
presented sufficient evidence to conclude, beyond a reason-
able doubt, that Lechuga conspired with Pagan to distrib-
ute cocaine. On May 6, 1988, Milwaukee County Sheriff's
Department Detective Kevin Carr, working undercover,
negotiated with Pinto to purchase one-half kilogram of co-
caine for $13,000. Pinto then informed Pagan that a buyer
(Carr) wanted a large stash of cocaine. Pagan proceeded
to arrange the transaction. According to Pagan, his drug
distribution relationship with Lechuga stretched back to
February, 1988. In response to Pinto's message to Pagan
that "he had a friend who wanted cocaine," Pagan called
his supplier Lechuga and told him "I need this amount"
(presumably the half-kilo requested by Carr and Pinto).
Pagan did not choose Lechuga's name out of a phone book,
nor did he rely on the advice of others in contacting Pagan.
Pagan obviously called Lechuga because they had done pre-
vious drug deals and had an on-going supplier-dealer
relationship. Their relationship was sufficiently established
that all Pagan had to do when he learned of Pinto's desire
to buy was pick up the phone, call the defendant Lechuga,
tell him he needed cocaine and give him the order. This
undercuts any contention that Lechuga and Pagan had an
arms-length, adversarial buyer-seller relationship. Accord-
ing to Pagan's testimony, it was not necessary for Lechuga
to inquire into Pagan's identity, nor did he ask for refer-
ences attesting to Pagan's reliability and experience as
a drug retailer. He obviously recognized Pagan's voice on
the telephone, and a simple call from Pagan was more
than sufficient to convince Lechuga without any further
checking to initiate the delivery of the half-kilo in what
Pagan described as a "kind of dry" drug environment.

   According to Pagan, after Lechuga secured the cocaine,
Lechuga dictated the scenario for the sale. Lechuga met
with Pagan and directed him to an apartment building
at 3811 South 35th Street, Milwaukee, Wisconsin where
the drug deal would be consummated. Pagan traveled with
Pinto and Carr to the drug sale site. Lechuga, carrying
a roll of duct tape, arrived at the drug sale site with an-
other man, whom Pagan said Lechuga identified as his
brother-in-law. According to Pagan, he went upstairs and
from behind an apartment door/3 was handed a brown paper
bag by either Lechuga or his companion. Pagan testified
that he could not tell who handed him the bag, but, as
he accepted the bag, Lechuga, whose voice he recognized,
stated, "[h]ere's the bag," and directed him to "bring the
money back." Lechuga's order from the apartment that
Pagan "bring the money back" would allow a rational jury
to conclude, in the language of Townsend, that Lechuga
had a "stake in the success of [the Lechuga-Pagan-Pinto]
enterprise." 924 F.2d at 1397. Lechuga was aware that
Pagan would deliver the cocaine to a third party, collect
the payment from that party, and then return to the drug
distribution apartment and give the money to Lechuga
as previously directed. Lechuga obviously trusted Pagan
to perform these courier functions, because in the drug
world where big money is at stake and death is often the
penalty for error, nothing is left to chance. Moreover, the
fact that Lechuga and Pagan set up the large drug sale
so quickly and efficiently suggests that they were familiar
with one another. This could have lead a rational jury
to conclude that Lechuga and Pagan were not merely
in an arms-length buyer-seller relationship, but instead
were conspiring to distribute cocaine. As we explained in
Townsend, 

"[c]onspiracies exist . . . to lower the transaction costs
of committing crimes. Rather than having 'to discover
who it is that one wishes to deal with, to inform peo-
ple that one wishes to deal and on what terms, to
conduct negotiations leading up to a bargain, to draw
up the contract, to undertake the inspection needed
to make sure that the terms of the contract are be-
ing observed, and so on,' in order to accomplish a
goal . . . conspiracies 'will emerge to organize what
would otherwise be market transactions. . . .' See
Coase, THE FIRM, THE MARKET, AND THE
LAW at 6-7 (1988)."

924 F.2d at 1394-95. The fast-moving working relationship
Pagan and Lechuga exhibited in arranging the drug trans-
action is clear evidence that their transaction costs were
lowered by the principal's familiarity with one another, an-
other nail in the coffin establishing the well-run, guarded
and efficient drug conspiracy headed by Lechuga.

   The evidence also demonstrated that at least one other
Lechuga-Pagan-Pinto cocaine sale had occurred besides the
half-kilo sale that went to Carr. In the bag handed to
Pagan from the apartment was a large plastic bag with a
half-kilo of cocaine, and three sandwich bags containing
one ounce of cocaine each. The half-kilo bag was intended
for Carr. At trial, Pagan explained the significance of the
three one-ounce packages. Pagan testified that he had re-
layed to Lechuga Pinto's complaint that he was shorted
by Pagan and Lechuga in a prior drug deal. Lechuga made
good on the shortage by having Pagan deliver the three
ounces due to Pinto to square the books. Pagan stated
that he delivered the three ounces to Pinto "[b]ecause we
had another deal and we were short on it." The prose-
cutor then asked, "[w]hat do you mean you were short
on this other deal?" Pagan answered, "[w]e had another
deal with him and he claimed that we were short, so I
request from [Lechuga] again the three ounces, and that's
why in the bag you guys found a half-key and three ounces."
(emphasis added). "We" in this exchange meant Pagan
and Lechuga; "him" meant Pinto. Thus, according to Pagan,
he and Lechuga were a drug-selling team. These facts es-
tablish that Lechuga had a conspiratorial agreement with
Pagan under which Pagan would locate customers like Pinto
and Carr, and then act as the cover and intermediary
for Lechuga in the cocaine distribution ring. Pagan was
Lechuga's middleman and general helper in his drug
distribution. Pagan was locating customers for Lechuga,
acting as his conduit for information concerning the
particulars of the drug sale, and then transporting the
drugs and money between Lechuga and the ultimate cus-
tomers./4 

   All of these facts, set forth clearly in the record, dem-
onstrate beyond a reasonable doubt that Lechuga was an
active participant in conspiring with Pagan to sell drugs
to Pinto./5 That is the only issue we need decide in this
case. As I stated previously, I agree with the majority
that Lechuga's conspiracy conviction should be affirmed.
However, as noted above, I do not believe that it is ap-
propriate for us to answer the single-sale question when
the record before us fails to present the issue.


FOOTNOTES


/1
   In his closing argument to the jury, the prosecutor
stated that the evidence clearly established an agreement
between Pinto, Pagan, and the defendant Humberto
Lechuga to distribute cocaine. He also told the jury that
numerous witnesses testified that on May 11 Humberto
Lechuga was "involved in the distribution of cocaine with
Sam Pagan". At oral argument before this court, the
Government attorney stated that the "hub of the con-
spiracy" was the agreement between Humberto Lechuga
and Pagan. Thus, at trial the government did not rely
exclusively on the theory that Lechuga joined an existing
conspiracy between Pagan and Pinto.


/2
   Defense counsel argued at the trial level that Lechuga
could not be convicted of conspiring with Pagan because Pagan was
not named in the indictment. In its memorandum suppor-
ting its motion for judgment of acquittal or a new trial,
defense counsel argued that "it is not enough that
Lechuga and Pagan may themselves have had a con-
spiratorial agreement between [the] two [of them], for the
grand jury alleged that Pinto--Pagan is nowhere named--
and Lechuga, with others, formed a criminal association."
As I have already made clear, and as defense counsel is
well aware, this is an incorrect statement of the law; the
jury was free to convict Humberto Lechuga of conspiracy
if it determined that he had conspired with Samuel Pagan
to distribute the cocaine.


/3
   Detective Carr, a veteran of hundreds of drug in-
vestigations during his nearly five years on the Milwaukee
County sheriff's department's narcotics squad, testified
that he participated in a subsequent police search of the
apartment from which Lechuga and his associate delivered
the cocaine to Pagan. Inside the sparsely furnished apart-
ment, which was rented in the name of Lechuga's brother,
the police found a triple beam scale used to weigh cocaine;
a cocaine press used to compact the drug; large plastic
bags and generic sandwich bags similar to the ones which
contained the cocaine Pagan delivered to Pinto and Carr;
and a roll of duct tape bearing, according to the testimony
of an FBI fingerprint specialist, Lechuga's fingerprints.
These items are the accepted indicia of a drug conspiracy.


/4
   Pagan and Pinto were arrested on the day of the drug
sale shortly after Pagan had emerged from the apartment
building with the cocaine. Lechuga and his companion
were able to evade police capture but they departed in
such a hurry that they left behind the Pontiac they drove
to the drug sale site. The police seized and
impounded the vehicle. Later that evening, according to
the testimony of David Lopez, the owner of the Pontiac,
Lechuga called Lopez and told him that something must
have happened to the car. Lechuga, along with Lopez,
returned to the apartment building and discovered the car
missing, whereupon Lechuga told Lopez that it must have
been stolen. Later that same month, Lechuga was ar-
rested and arraigned, jumped bail, and remained a fugitive
until his apprehension in April, 1991 in Chicago, Illinois,
carrying a bogus driver's license.



/5
   In the same memorandum submitted by defense
counsel to the trial court which we quoted in footnote 2,
defense counsel stated that "[e]ven if Lechuga knew of,
and benefitted from, Pagan's subsequent distribution to
Pinto, then, the Court could infer only a limited agree-
ment to distribute between Lechuga and Pagan."
Lechuga's command to Pagan to "bring the money back"
reveals clearly that he knew of the distribution to Pinto
(even if he did not know Pinto's name), and expected to
benefit from it (in the form of the cash Pagan would ferry
back to him). Defense counsel made this admission in trial
court papers because they believed that the Lechuga-
Pagan conspiracy was "not the conspiracy the indictment
charged; Pinto was alleged to be a member" (emphasis
added). We have previously pointed out that this is an
erroneous assumption. Thus, even on the terms laid out
by defense counsel in the trial court, Lechuga is guilty
of being an active member with Pagan in a conspiracy
to distribute cocaine.






   FLAUM, Circuit Judge, concurring.   I agree with the
opinions of Judge Posner and Judge Coffey to the extent
that they establish that Lechuga's conspiracy conviction
is supported by substantial evidence. However, I view this
case as one which does not compel consideration of the
single-large-sale-for-resale question due to its particular
facts. Therefore, I would postpone resolution of this chal-
lenging question until the court is confronted with a con-
spiracy conviction that depends solely on a single distribu-
tion-size sale. At this point, only informed dicta can result
from any analysis of that issue.

   Turning to the merits of the case before us, it is my
opinion that the evidence of conspiracy is not quite as
overwhelming as suggested by Judge Coffey. I believe
Judge Cudahy's thoughtful dissent, on the other hand,
gives too little weight to the jury's role in deciding dif-
ficult cases. After a verdict of guilty, we are obliged to
view the evidence and reasonable inferences from it in
the light most favorable to the government. This impor-
tant principle reflects neither pro-government bias nor
lazy acceptance of the results in close cases. Rather, it
describes the proper deference we give the jury system.
Here, the record presents sufficient evidence to support
a rational jury's verdict to convict, and we should not in-
terfere with that judgment.





   KANNE, Circuit Judge, concurring.   I join in the result
reached in Judge Posner's opinion--affirmance of Lechuga's
conspiracy conviction. I do not believe, however, that the
inclusion of dicta that proposes an absolute rule that a
conspiracy conviction can never be supported solely on the
basis of a single "large quantity" sale of drugs is neces-
sary or correct. The single sale conspiracy rule is an aside
that has not achieved a consensus on this court. I write
separately to express my disagreement with this proposed
broad rule, the analytical framework for which is grounded
in the context of the hand-to-hand drug transaction.

   In my view, such a rule cannot reasonably be extended
to apply to those multi-million dollar drug transactions
found in real life, such as a single sale of a sea-going ship-
load of marijuana, United States v. Kramer, 955 F.2d 479,
482-83 (7th Cir.) (individual deliveries of 15,000, 20,000,
30,000, 14,000, 147,000, 152,000, and 130,000 pounds), cert.
denied, __ U.S. __, 113 S. Ct. 595-96 (1992), or co-
caine, United States v. Gonzalez, 933 F.2d 417, 421-22 (7th
Cir. 1991) (individual deliveries of 1,148 and 2,265 kilo-
grams), or a cargo aircraft load of cocaine, United States
v. Markowski, 582 F. Supp. 1276, 1277-78 (N.D. Ind.
1984) (importation of 864 kilograms valued at $27,000,000),
or a tractor trailer load of marijuana, United States
v. Canino, 949 F.2d 928, 934 (7th Cir. 1991) (individual
deliveries of 27,000 and 18,000 pounds), cert. denied, __
U.S. __, 112 S. Ct. 1940 (1992). That the foregoing
examples involve successive deliveries does not detract
from the size and complex nature of each individual trans-
action. 

   Even when single sales of drugs are not carried out on
such an extraordinary scale, our cases illustrate that major
dealers frequently traffick in "large quantities" of drugs.
E.g., United States v. Liefer, 778 F.2d 1236, 1240 (7th Cir.
1985) (individual deliveries of 2,500 and 7,000 pounds of
marijuana for distribution); United States of America v.
Wables, 731 F.2d 440, 442 (7th Cir. 1984) (storage of 2,500
pounds of marijuana for distribution). It is unfortunate,
but true, that demand exists for such distributable quan-
tities. E.g., United States v. Caban, 962 F.2d 646, 647,
650 (7th Cir. 1992) (defendant agreed to purchase twenty
kilograms of cocaine and 1,000 pounds of marijuana from
undercover agents).

   Today the court suggests a prophylactic rule that the
sale of "large quantities" of narcotics, without more, can-
not sustain a conspiracy conviction. Presumably this rule
would apply to a single sale that requires massive coor-
dination of air, sea, and ground transportation, regardless
if the buyer is a known large-scale distributor and regard-
less if the quantity is so large that it is certainly intended
for resale. If the rule is adopted, a jury will be precluded
from reasonably inferring that a seller of large quantities
of drugs agreed to their distribution by others down the
line, notwithstanding his interest (and stake) in the re-
tailer's successful distribution.

   Ironically, a majority, if not every member, of the court
appears to recognize a drug dealer's interest in successful
distribution. Judge Posner concedes that "[s]omeone who
provides an input into another's business usually cares only
about selling the input, not about furthering the other's
business. It is different when the buyer is the seller's dis-
tributor, without whom the seller cannot reach the market
for his product." Ante at 5. Judge Cudahy acknowledges
as much: "Of course, any wholesaler hopes that his cus-
tomers will be successful. The more the retailers sell, the
more they will buy from the wholesaler." Post at 31. Still,
a majority insists on a rule that knowledge and a stake
in the venture sufficient to prove participation in a con-
spiracy can never be inferred from evidence of a single
large quantity sale.

   When one sells an amount of drugs too large for per-
sonal consumption to a distributor, I am not willing to
foreclose a jury's finding that the seller "join[ed] both
mind and hand" with the buyer to make further distribu-
tion possible. Direct Sales Co. v. United States, 319 U.S.
703, 713, 63 S. Ct. 1265, 1270 (1943). After all, the large
sale transaction is the sine qua non of subsequent dis-
tribution. Conspiracy can be inferred from prolonged co-
operation with another's unlawful purpose, id., (though we
affirm Lechuga's conviction on the evidence of only two
transactions) but not, apparently, from a transaction in-
volving an extraordinarily large quantity of drugs. Neither
Judge Posner nor Judge Cudahy offers an explanation as
to why the first inference is more reasonable and should
carry more weight than the second. Surely it cannot be
said that "prolonged cooperation" makes it more likely
that a seller knew of and agreed to a buyer's distribution
of drugs but evidence of an extremely large sale to the
distributor does not. Both, it seems to me, could be suf-
ficient to allow "[t]he step from knowledge to intent and
agreement [to] be taken." Id.

   It is true that many drug sales--the hand-to-hand vari-
ety--are relatively small and simple transactions, thus pre-
venting a rational factfinder from inferring that the seller
joined a drug distribution conspiracy. It is just as true,
on the other hand, that there are individual sales of such
size and scale that a rational factfinder could properly
draw the inference that the seller had joined a conspiracy
to distribute the drugs involved.

   As I see it, a rule that treats every sale of narcotics
in a conspiracy case as if it were a simple spot sale belies
the nature and reality of today's wholesale drug trade.
Rather than needlessly adopt an absolute standard that
cannot be applied intelligibly as the size and complexity
of the drug sale increases, we should, I believe, allow the
factfinder to assess the nature of the transaction in the
first instance and to draw such reasonable inferences of
conspiratorial membership as the evidence may warrant.






   ROVNER, Circuit Judge, concurring.   I join that portion
of Judge Posner's opinion that finds the evidence of a
Lechuga-Pagan conspiracy sufficient to support Lechuga's
conviction. Like Judge Flaum, I believe such a result prop-
erly defers to the jury's determination of guilt. Although
I agree that Lechuga's conviction should be affirmed on
this alternative ground, I am not entirely comfortable with
the majority's discussion of the primary issue presented in
this appeal--the existence of a conspiracy between Lechuga
and Pinto. I agree with the majority that the evidence
is insufficient to establish a Lechuga-Pinto conspiracy be-
cause a conspiracy conviction cannot be sustained solely
on the basis of a single large quantity sale. Yet, I find
that the majority offers little practical guidance as to the
additional evidence that would be required to support the
inference of an agreement to distribute. The majority's
proposed standard--"proof of an agreement to commit a
crime other than the crime that consists of the sale itself"
(Majority Op. at 3)--seems to me self evident, but it ulti-
mately is of limited utility in considering the facts neces-
sary to infer an agreement to distribute. (See Cudahy, J.,
concurring in part and dissenting in part, at 38 n.9.) I
find Judge Cudahy's opinion more helpful in defining the
types of evidence that would permit such an inference (see
id. at 37-38), and I therefore join that portion of Judge
Cudahy's discussion.






   CUDAHY, Circuit Judge, with whom CUMMINGS and
RIPPLE, Circuit Judges, join, concurring in part and
dissenting in part.   We took this case en banc to untangle
the knotted strands of this circuit's law on the issue of
when the relationship of drug seller to drug buyer con-
stitutes a conspiracy. We intended to answer the question,
"Is evidence of a sale of drugs in quantities greater than
required for personal use enough to support a conviction
for conspiracy of the seller with the buyer?" Although
the majority indicates in dicta that the answer to this
question is "no," it makes little effort to deal with or ex-
plain the considerable body of law in this circuit apparent-
ly to the contrary. See, e.g., United States v. Sergio, 934
F.2d 875, 879 (7th Cir. 1991); United States v. Townsend,
924 F.2d 1385, 1392 (7th Cir. 1991); and United States v.
Roth, 777 F.2d 1200, 1205 (7th Cir. 1985). I happen to
agree with the majority that there is very little in this
record to support a conspiracy between Lechuga and Pinto
(the ostensible buyer), even though that is the very con-
spiracy specified in the indictment. On the facts before
us, Lechuga had no clue as to Pinto's identity or modus
operandi but only knew, based on the amount of drugs
involved, that Pinto was buying for resale. The majority
now says, I think correctly, that this is not enough, but
unfortunately offers few practical suggestions as to what
would be enough.

   Instead of a Lechuga-Pinto conspiracy, the majority now
focuses on Lechuga-Pagan, a putative conspiracy not speci-
fied in the indictment but reachable only through its om-
nibus clause ("other persons known and unknown to the
grand jury"). The majority's approach to the Lechuga-
Pagan relationship consists of endowing snippets of Pagan's
inarticulate testimony with a significance out of all pro-
portion to their apparent import. This is accomplished by
indiscriminate reliance on the mantra to "view the evi-
dence in the light most favorable to the government." But
the majority offers little to establish workable principles
defining conspiracy arising from a buyer-seller relation-
ship. The majority posits the view that, in order to sus-
tain a conspiracy allegation, there must be an agreement
going beyond the simple agreement to buy and sell. So
far so good, but the majority offers little insight into what
facts would establish such a thing. The majority concludes
that the Lechuga-Pinto relationship is not enough but that
the Lechuga-Pagan link is. Because the basic features of
these relationships are essentially the same, however, we
are left to wonder what constitutes a conspiracy and what
does not.

   Lechuga's primary argument on appeal assumes that there
was sufficient evidence to identify him as the man who
sold cocaine to Pagan. Nonetheless, he argues that there
was insufficient evidence to prove that he conspired with
anyone to distribute cocaine. Instead, even when taken
in the light most favorable to the government, Lechuga
contends that the evidence shows nothing more than a
few isolated sales transactions, not a conspiracy.

   The principal focus of the trial and of this appeal has
been the existence of an alleged conspiracy between Lechuga
and Pinto. The majority offers plausible reasons why there
is no Lechuga-Pinto conspiracy. But it does so in the face
of authority in this circuit that the charge of a sale for re-
sale is a sufficient allegation of conspiracy. See, e.g., Sergio,
934 F.2d at 879 ("When a dealer buys for resale from
another dealer . . . it is reasonable to infer 'a limited
agreement to distribute' between the two dealers.") (quot-
ing Townsend, 924 F.2d at 1392); Roth, 777 F.2d at 1205
(middleman who sells drugs to user is a conspirator with
the drug supplier). The theory of these cases seems to
be that the mere knowledge by the seller that the buyer
would redistribute the drugs is enough to constitute a con-
spiracy. But the sine qua non of a conspiracy is not mere-
ly knowledge but an agreement to commit a crime, United
States v. Blankenship, 970 F.2d 283, 285 (7th Cir. 1992),
the existence of which depends upon a meeting of two
or more guilty minds. See 4 Charles E. Torica, Wharton's
Criminal Law sec. 726 at 531 (14th ed. 1981). The record
reveals that, although Lechuga knew that a redistribution
of cocaine was contemplated, he knew nothing about the
identity of the reseller or the expected plan of redistri-
bution./1 There is no evidence that Lechuga ever had a
meeting of the minds with Pinto, or agreed to join a drug
distribution enterprise of which Pinto was a member.

   The majority agrees with this analysis and in fact con-
cludes that a conspiratorial "meeting of the minds" is gen-
erally narrower than a "contract." Ante at 5-6 ("[S]ome
legally enforceable contracts do not involve a 'real' agree-
ment in the sense of a meeting of the minds but are en-
forced because the parties uttered words or engaged in
acts that the law deems sufficient to create a . . . con-
tract. In this respect the term 'agreement' is narrower
than 'contract.' "). Again, so far so good, but, if there is
no conspiracy involving Pinto, how can there be one in-
volving Pagan? For Pagan acted here on behalf of Pinto--
in effect as Pinto's agent for the purchase of cocaine. If
there is no conspiracy with the principal, Pinto (as the
majority finds), how can there be one with the agent? Of
course, the facts must be viewed in the light most favor-
able to the government, but this does not mean that the
facts may be viewed as a springboard for pure specula-
tion. And that is all the majority has provided.

   The majority has attempted to elevate Pagan from Pinto's
purchasing agent to an intimate of Lechuga who "agreed"
with Lechuga to foster the redistribution of the cocaine.
The majority builds its case on a remarkably flimsy foun-
dation: Pagan had become acquainted with Lechuga before
the transaction in question; and Pagan in testimony once
used the pronoun "we" to indicate delivery of cocaine
originating with Lechuga and passing through the hands
of Pagan on its way to Pinto. Also, the sale from Lechuga
to Pagan, acting on behalf of Pinto, was apparently done
on credit. These are facts from which one might indulge
in speculation about agreement, but they do not, in the
best of circumstances, give rise to a rational inference of
conspiracy.

   Pagan admittedly had met Lechuga before this transac-
tion. Pagan's acquaintanceship with Lechuga, however,
was not sufficiently close to enable Pagan to distinguish
Humberto Lechuga from his brother, Raul. In any event,
we may assume that the mine-run of narcotics purchasers
are acquainted with their sellers. There is nothing to sug-
gest that drug dealers do business only with strangers.
From acquaintanceship alone it is certainly not permissi-
ble to infer a meeting of the minds--an agreement. This
is even more emphatically the case where one party mis-
takes the other for his brother. The majority also quotes
Pagan as testifying, "We had another deal with him [Pinto]
and he claimed that we were short, so I request from
[Raul] [Lechuga] again the three ounces." Ante at 10.
Particularly considering that to Pagan English was a sec-
ond, and still somewhat foreign, language, there is no
basis for inferring an agreement from this offhand com-
ment. For an intermediate seller to include his supplier
in the sweep of the plural pronoun "we" in a statement
that both he and his supplier would have to make up for
a short delivery is hardly grounds for inferring a con-
spiracy. 

   The very circumstances of the transaction suggest that,
while there may have been an agreement between Pagan
and Pinto to arrange for the purchase of cocaine, there
certainly was none between Lechuga and Pagan to dis-
tribute it. First, undercover detective Carr sought to buy
500 grams of cocaine from Pinto. Pinto then called Pagan
to obtain the drugs. Pagan, in turn, called Lechuga to set
up the purchase. Then, Carr, Pinto and Pagan drove to
an apartment building where Lechuga had indicated he
would make delivery. Lechuga was not there, so Pagan
sought further instruction from a woman later identified
as Lechuga's sister-in-law. The woman told Pagan that
Lechuga was then on his way to the pick-up point. Pagan
and his associates returned to the apartment building and,
a few minutes later, Lechuga and a companion arrived.
Pagan met Lechuga in the building and took delivery of
481 grams plus 3 ounces of cocaine. More specifically, Pagan
took the cocaine from someone, later identified as Lechuga,
who stuck his hand out from behind a partially open door.
Pagan returned to his associates and gave the 481 grams
to Carr and the 3 ounces to Pinto. Pinto and Pagan were
subsequently arrested but Lechuga and his companion had
already departed. These circumstances may support an
inference that Pagan was an agent and a coconspirator
of Pinto, but nothing about them suggests a conspiracy
with Lechuga. Literally, as well as figuratively, the deal-
ings with Lechuga were at arm's length.

   The majority's reference to Pagan as a possible "go-
between, facilitator, sales agent, and general helper," ante
at 9, merely makes colorful, but misleading, verbiage sub-
stitute for analysis. There is no evidence that Pagan agreed
with Lechuga to do anything except to buy drugs on be-
half of Pinto and, under the majority's very analysis, this
is not enough./2 There is no agreement going beyond the
agreement to buy and sell itself. To call someone a "mid-
dleman" or a "facilitator" does not make her a coconspir-
ator with either the party above him or the party below
him in the chain of distribution. A "middleman" or a "fa-
cilitator" is a buyer who also sells or a seller who also
buys. Calling someone a "middleman" certainly does not
permit an inference that he has, by this activity alone,
become part of a larger distribution operation and entered
the realm of conspiracy.

   The case law in this circuit remains tangled, and I doubt
that the majority opinion provides serviceable guidelines
to dispel the confusion. Thus, the government has pointed
to the language of some of our cases and argued that a
sale for resale is evidence enough for the jury "to infer
a limited agreement to distribute between the two dealers."
United States v. Sergio, 934 F.2d 875, 879 (7th Cir. 1991).
See also United States v. Koenig, 856 F.2d 843, 854 (7th
Cir. 1988).

   But the proposition that a sale for resale is sufficient
evidence of participation in a conspiracy runs headlong
into United States v. Baker, 905 F.2d 1100 (7th Cir. 1990)./3
In Baker, one defendant, Wireman, was convicted of con-
spiracy based on his purchase of 200 pounds of "ditch
weed," a noxious, low-quality variety of marijuana which
no single individual could possibly consume in such quanti-
ties. In the opinion, we stated that even a large purchase
does not demonstrate that the defendant "knew the exist-
ence and scope of the conspiracy and sought to promote
its success . . . any more than a purchase of 100 tons
of steel to build a skyscraper shows that the buyer has
'joined' the corporate enterprise of the manufacturer." Id.
at 1106 (citations omitted). The proposition that a sale for
resale is enough is also explicitly rejected in Lamon,
which notes that the conviction in Koenig, 856 F.2d 843,
was based not only on the large volume of the purchases
but also on the extensive cooperation between the buyer
and the seller. Lamon, 930 F.2d at 1191 n.18.

   One possibility on the facts of this case is that Lechuga
joined an ongoing conspiracy between Pagan and Pinto.
But although Lechuga presumably knew that Pagan would
resell or reconvey the cocaine, he did not know to whom
or in what manner. If the language of Baker governs,
Lechuga did not know the "scope" of the putative Pagan-
Pinto conspiracy. 905 F.2d at 1106. Knowledge of a buyer's
illegal objectives does not establish an agreement to help
him carry out those objectives. United States v. Durrive,
902 F.2d 1221, 1225 (7th Cir. 1990) ("[M]ere knowledge
of, approval of, association with, or presence at a conspir-
acy is insufficient to establish [a defendant's participation
in a conspiracy]."). As we noted in Townsend:

The suppliers in a "chain" are not necessarily inter-
ested in the success of a particular retailer, or group
of retailers, down the line. If the chain is character-
ized by sporadic dealings between independent dealers,
what do suppliers care if the middlemen are able to
unload the stuff further?

924 F.2d at 1391. Of course, any wholesaler hopes that
his customers will be successful. The more the retailers
sell, the more they will buy from the wholesaler. But prov-
ing participation in a conspiracy requires "substantial" evi-
dence. Durrive, 902 F.2d at 1225-30. This presumably means
that proof of more than an abstract desire for more busi-
ness is required.

   An appropriate standard of proof of conspiracy helps en-
sure that vicarious responsibility will not be improperly
assessed. Coconspirators are liable for crimes committed
by other members of the conspiracy in furtherance of the
conspiracy. Pinkerton v. United States, 328 U.S. 640, 647
(1946). To hold that a defendant joined a conspiracy there-
fore exposes that person to much more than criminal
liability for joining the conspiracy itself: he also faces
conviction for the substantive crimes committed by other
members of the conspiracy. Townsend, 924 F.2d at 1389.
In Townsend we also stated: "To join a conspiracy . . .
is to join an agreement . . . . [T]o be a conspirator you
must know of the agreement . . . and intend to join it
. . . ." Id. at 1390 (citations omitted)./4 Here Lechuga had
no adequate knowledge of any agreement between Pagan
and Pinto (whose very identity was unknown to Lechuga).
Although Lechuga supplied cocaine to the Pagan-Pinto dis-
tribution chain through two apparently arms-length sales
to Pagan, Lechuga was wholly unaware of what activities
Pagan, or any subsequent occupier of a place in the chain
of distribution, might undertake. The relationship of Lechuga
to Pagan is simply that of seller to buyer or to buyer's
agent. The sale was consummated by Pagan taking deliv-
ery on Pinto's behalf. For his part, Pinto gave an order
to Pagan and Pagan saw that it was filled. None of this
in any way changed the simple seller-buyer relationship
between Lechuga and Pagan. And, as we have said re-
peatedly (but unfortunately not consistently) elsewhere,
a buyer-seller relationship, standing alone, is insufficient
to prove participation in a conspiracy. See Townsend, 924
F.2d at 1394; Baker, 905 F.2d at 1106. But see United
States v. Sergio, 934 F.2d 875 (7th Cir. 1991); Townsend,
924 F.2d at 1392; United States v. Roth, 777 F.2d 1200,
1205 (7th Cir. 1985).

   United States v. Roth seems to contain a less demand-
ing test for conspiracy than, for example, Sergio, and in-
cludes the following passage: "[W]hile the ultimate con-
sumer is not himself a conspirator . . . the middleman
is." 777 F.2d at 1205. It is true that this language ap-
pears as dicta in the middle of a discussion of prosecutorial
misconduct before a grand jury. It is also possible that
the passage has no application to mere dealers but only to
a somehow more entangled species of "middlemen." And,
in context, the panel in Roth may have been referring
to parties who were acting as agents of the defendant.
Id. ("The risk of Roth's being caught would have been
overwhelming. He had to have middlemen between him
and the drug addicts who were his ultimate consumers.").
As previously noted, here Pagan--a man in the middle
if not a "middleman"--was acting on behalf of the buyer
to fill the buyer's order.
   The significant passage in Sergio, suggesting a broad
inference to be drawn from the sale of substantial quan-
tities of drugs, may be best read as a loose reference to
Townsend, where we cited Baker approvingly, 924 F.2d
at 1394, and used language that was rather more precise
than in Sergio: "If [wholesale dealer] A knows of, and ben-
efits from, [retail dealer] B's subsequent distribution, we
may infer a limited agreement to distribute between A
and B . . . . But agreement to join other endeavors and
distributors cannot be drawn merely from knowledge the
buyer will use the drugs illegally." Id. at 1392 (internal
quotations omitted). It may also be significant that in
Sergio itself, and in the cases that cite Sergio with ap-
proval, there was substantial evidence of the defendant's
involvement in the charged conspiracy, above and beyond
the sale for resale. Sergio, 934 F.2d at 879 (noting the de-
fendant's "continuous involvement with the conspiracy");
United States v. Thompson, 944 F.2d 1331, 1342-43 (7th
Cir. 1991) (deals at issue were "more than isolated arms-
length transactions" and "reveal[ed] a high degree of trust
and cooperation"), cert. denied, 112 S. Ct. 1177 (1992); and
United States v. Atterson, 926 F.2d 649, 655 (7th Cir.)
(regular purchases and drug sales records suggest that
defendant was "warehouseman" for the marijuana), cert.
denied sub nom. Laurelez v. United States, 111 S. Ct.
2909 (1991).

   Perhaps anticipating that we might not strictly apply
the language of Sergio, the government has also argued
that the extra three ounces that Lechuga delivered to
Pagan, who in turn delivered them to Pinto, indicate a
sort of ongoing relationship of trust from which the jury
could infer a conspiracy. But these additional ounces do
nothing to change the role of Lechuga as an arms-length
supplier to the Pagan-Pinto chain. They indicate merely
that Pagan had bought cocaine from Lechuga once before
and that Lechuga was a sufficiently honest broker to make
up for a short delivery./5 Certainly, these facts, or similar
facts, might well be found in any number of other typical
arms-length sales. In sum, it is fair to conclude, even though
some of our cases suggest otherwise, that there is not
sufficient evidence to support an inference that Lechuga
joined or participated in a Pagan-Pinto conspiracy.

   The possibility remains that Lechuga and Pagan, with-
out reference to Pinto, together agreed separately to dis-
tribute cocaine. The majority finds such a conspiracy be-
tween Lechuga and Pagan on the grounds that Pagan
knew Lechuga was a drug dealer and knowing this "as-
sisted him in distributing drugs to at least one dealer far-
ther down the chain of distribution . . . ." Ante at 9.
I suppose that every cocaine supplier who sells to a re-
seller "assists" the reseller in the sense that, without the
original provision of a supply, the reseller would have
nothing to pass on down the line. This merely describes
the economics of distribution; however, it does not address
the occurrence of a meeting of the minds. There is abun-
dant authority that Pagan's activities vis-a-vis Lechuga
are insufficient to prove a conspiracy. United States v.
Kimmons, 917 F.2d 1011, 1015 (7th Cir. 1990); United
States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.), cert.
denied, 439 U.S. 958 (1978).

   The majority purports to distinguish the dealings be-
tween Lechuga and Pagan from those between Lechuga
and Pinto. Even the second leg (Lechuga-Pinto) of this
comparison has its difficulties since Lechuga did not even
know who Pinto was and had no direct dealings with him.
A seller-buyer relation between Lechuga and Pinto can be
postulated only on the theory that Pagan acted as Pinto's
agent in making the purchase from Lechuga. In any event,
the majority correctly states that to establish a conspir-
acy, either between Lechuga and Pinto or Lechuga and
Pagan, there must be "proof of an agreement to commit
a crime other than the crime that consists of the sale it-
self." Ante at 3. But what is lacking here is evidence from
which such a further agreement between Lechuga and
Pagan rationally can be inferred.

   Lechuga and Pagan did sell and buy cocaine, and ap-
parently they agreed to do so some time before the sale
was consummated. But this sales agreement alone may
not form the basis for affirming Lechuga's conviction for
conspiring to distribute cocaine. Like the majority, I too
look for "proof of an agreement to commit a crime other
than the crime that consists of the sale itself." Specifically,
I search for an agreement to distribute cocaine. The issue
in this case, as I see it, is what evidence will permit an
inference that such an agreement to distribute exists. The
majority does not provide a satisfactory answer to this
question. 

   As has been repeatedly noted, a conspiracy requires
agreement, and there is a difference between knowing that
something will occur--even as an absolute certainty--and
agreeing to bring that same "something" about. After all,
the relationship between a buyer and seller is presump-
tively adversarial: "the buyer's purpose is to buy [presum-
ably at the lowest possible price]; the seller's purpose is
to sell [presumably at the highest possible price]." United
States v. Ford, 324 F.2d 950, 952 (7th Cir. 1963). Hence,
to find an agreement to cooperate in distributing cocaine
requires evidence going considerably beyond the mere ex-
istence of a buyer-seller relationship.

   Here the record shows clearly only that Lechuga and
Pagan had been acquainted since February 1988, and that
prior to their arrest in May 1988 Lechuga twice sold Pagan
cocaine. Pagan, acting independently, then redistributed
it to Pinto. Obviously, this evidence permits an inference
of an existing supplier-dealer relationship, but this is not
a relationship from which a conspiracy to distribute can
be inferred. Thus, in Direct Sales v. United States, 319
U.S. 703, 713 (1943), the Court upheld the conspiracy con-
viction of a morphine wholesaler that knew that its physi-
cian-customer was selling the morphine to addicts. This
conclusion, however, emerged only after the Court empha-
sized the company's "prolonged cooperation with [the phy-
sician's] unlawful purpose." Id. The Court distinguished the
case from one involving "single or casual transactions, not
amounting to a regular course of business, regular, sus-
tained and prolonged, and involving nothing more on the
seller's part than indifference to the buyer's illegal pur-
pose and passive acquiescence in his desire to purchase,
for whatever end." Id. at 712, n.8. Compare United States
v. Falcone, 311 U.S. 205, 208 (1940) (conspiracy conviction
overturned when evidence did "not do more than show
knowledge by respondents that the materials would be
used for illicit distilling . . . ."). The case before us is
much more like Falcone than like Direct Sales; a conspira-
torial agreement to distribute cocaine cannot be inferred
from evidence of two arm's-length sales transactions, even
between dealers who had met three months earlier. There
is nothing about these sales to suggest that they are out
of the ordinary.

   The majority concludes that the record is replete with
evidence of the "something more" that permits an inference
that Lechuga and Pagan were conspirators. For example,
some of its members point to evidence that Lechuga was
willing to sell cocaine after "a simple call from Pagan."
Ante at 16 (Coffey, J., concurring). I fail to see how this
suggests anything beyond an ordinary buyer-seller rela-
tionship. Lechuga had admittedly sold to Pagan once be-
fore and, when Pagan exhibited a desire to buy again,
Lechuga was apparently pleased to oblige. Willingness to
please and good service do not add up to conspiracy. To
call these few typical transactions a conspiracy is incon-
sistent with Direct Sales and Falcone.

   It has also been suggested that Lechuga's instruction
to Pagan to "bring the money back" shows that Lechuga
"had a 'stake in the success of [the Lechuga-Pagan-Pinto]
enterprise.' " Ante at 17 (Coffey, J., concurring) (quoting
Townsend, 924 F.2d at 1397). But the circumstances show
only that Pagan bought on credit, and a credit transac-
tion standing alone in no way changes the adversarial rela-
tionship between a buyer and seller. See Baker, 905 F.2d
at 1106. This was not a sale on consignment, in which
Pagan had the option of paying Lechuga for the cocaine
or returning any unsold amount. Such an arrangement
would indeed link Lechuga's economic benefit from the
transaction to Pagan's success in distributing the cocaine.
But here, the only rational inference to be drawn from the
instruction "bring back the money" is that Pagan had to
pay for the cocaine irrespective of his ability to resell it./6
If it means anything, this evidence suggests that Lechuga
had implicitly refused to enter into a distribution agree-
ment with Pagan; Lechuga had declined to take a stake
in Pagan's success or that of any larger enterprise./7

   All this discussion raises the crucial question: If a sale
for resale is not enough evidence of a conspiracy, what
is? Although no exhaustive catalog is possible, examples
are not difficult to find. Clearly, "prolonged cooperation"
between buyer and seller is sufficient evidence of a con-
spiracy to distribute drugs. Direct Sales, 319 U.S. at 713./8
So too might be evidence that the putative buyer is really
working as the seller's agent. Such evidence would, in
many circumstances, destroy the presumption that the
parties are dealing at arm's length and would show an
agreement to distribute. Sales on consignment may also
establish a conspiracy since they indicate an ongoing rela-
tionship of the sort that "lower[s] the transaction costs
of committing crimes," Townsend, 924 F.2d at 1394, and
also show that the seller has a "stake in the success of
[the buyer's] enterprise." Id. at 1397. See United States
v. Saunders, 973 F.2d 1354, 1360 (7th Cir. 1992) (a single
consignment transaction may support an inference of con-
spiracy), cert. denied, 113 S. Ct. 1026 (1993). Evidence that
the parties had standardized their transactions with one
another might also lead to an inference that they were
engaged in a cooperative effort. We also noted recently
that evidence of "trust" and "mutual benefit" will support
a conspiracy conviction, even though the parties' dealings
appear to involve merely a "simple sale of cocaine." United
States v. Goines, No. 91-1185, 1993 U.S. App. LEXIS 4969,
at *29 (7th Cir. Mar. 17, 1993). See generally United States v.
Blankenship, 970 F.2d 283, 286-89 (7th Cir. 1992) (discussing
the "line of demarcation" between sale and conspiracy)./9

   In sum, the evidence shows nothing more than a typical
buyer seller relationship between Lechuga and Pagan.
Further, Lechuga did not have the requisite knowledge
of Pagan's arrangements with Pinto to be said to have
joined that purported conspiracy. Accordingly, Lechuga's
conviction for conspiracy must be reversed. I, therefore,
respectfully dissent in the matters indicated.


FOOTNOTES



/1
   The majority engages in imaginative but wholly insupportable
speculation that "Lechuga might have been frightened to deal face
to face with Pinto, whom he had short-changed . . . ." Ante at
3. The fact is that Lechuga never had an opportunity to deal face
to face with Pinto.


/2
   In the words of the majority, "If Lechuga and Pagan had the
same simple seller-buyer relationship as Lechuga and Pinto, then,
for the reasons explained earlier, there was no conspiracy
between them." Ante at 9. The fact is that Lechuga dealt with
Pagan as Pinto's buying agent. Lechuga's relationship to Pagan
was identical to his relationship to Pinto.


/3
   Three defendants in Baker petitioned for certiorari. The Su-
preme Court denied all three. Baker v. United States, 111 S. Ct.
206 (1990); Manus v. United States, 111 S. Ct. 270 (1990); Manns
v. United States, 111 S. Ct. 686 (1991).


/4
   Knowledge is thus a necessary but not a sufficient precursor
to participation in a conspiracy.


/5
   Perhaps there is honor among "thieves." And I cannot imagine
that a drug dealer who habitually shorted his customers would
stay in business long. There is nothing extraordinary here from
which conspiracy might be inferred.


/6
   Drug dealers, like most participants in an underground
economy,
likely have effective collection methods.


/7
   Pagan was an independent businessman who purchased cocaine
from Lechuga to supply his own customers, and Lechuga had no
direct pecuniary interest in his success.


/8
   On this point, I agree with the majority: "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." Ante at 8 (emphasis added).


/9
   The majority has implied that citation of these factors
pointing to conspiracy is too generalized to be of much help in
the future. But the majority's efforts at a bright-line rule are
even more unavailing. The majority's carefully crafted rule does
little more than state the obvious: to prove a conspiracy to
distribute cocaine one must show something more than an agreement
to sell, in fact, one must show an agreement to distribute. This
statement, however, offers no insight into the facts from which
such an agreement may be inferred. My answer to the difficult
question, "What more than a sale for resale is necessary to prove
a conspiracy?" is multi-faceted. This is inescapable since this
is the only way to take into consideration the many variables
that distinguish knowledge that something will occur, e.g.,
subsequent distribution, from an agreement to bring that
something about.