United States v. Nunez

• Citation: 673 F.3d 661
• Decision Date: 09 March 2012
• Docket Number: No. 11–1927.,11–1927.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Mario NUNEZ, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

673 F.3d 661

UNITED STATES of America, Plaintiff–Appellee,

v.Mario NUNEZ, Defendant–Appellant.

No. 11–1927.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 25, 2012.Decided March 9, 2012.

Andrew S. Boutros (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Joshua B. Adams (argued), Attorney, Chicago, IL, for Defendant–Appellant.

Before BAUER, POSNER, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

This criminal appeal requires us to wrestle once again with the distinction between a “mere” buyer-seller relation and a conspiracy involving a buyer and a seller. For our earlier struggles with the issue, see, e.g., United States v. Colon, 549 F.3d 565 (7th Cir.2008), and the six opinions in United States v. Lechuga, 994 F.2d 346 (7th Cir.1993) (en banc).

The defendant was convicted by a jury of conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and of related offenses, and was sentenced to 85 months in prison. He asks us to order that he be acquitted of the conspiracy charge (and related charges dependent on it), on the ground that no reasonable jury could find him guilty of conspiracy. He asks in the alternative that we order a new trial on the ground that the verdict of conspiracy was against the weight of the evidence.

Since the sale of illegal drugs is a crime, one might think it would make no difference whether a defendant was prosecuted as a seller or as a member of a conspiracy to sell, and hence that the government would be assuming a gratuitous burden, in charging conspiracy, of proving that the defendant was conspiring, and not just selling. The concern—remote from the traditional criticisms of the concept of conspiracy, see, e.g., Krulewitch v. United States, 336 U.S. 440, 445–58, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (Jackson, J., concurring); Harrison v. United States, 7 F.2d 259, 263 (2d Cir.1925) (L. Hand, J.)—is redundancy. United States v. Reynolds, 919 F.2d 435, 439 (7th Cir.1990). But there are legitimate, significant advantages to prosecutors in drug cases not only of proving conspiracy, which is not the same thing as charging conspiracy, but also of obtaining a verdict of conspiracy.

Although the sentence for selling or conspiring to sell is the same when it is based on the same quantity of drugs, 21 U.S.C. § 846, a conspiracy will often, as in this case, embrace a greater quantity than the amount sold by a single defendant; for it will include the amount foreseeable to the defendant that the conspirators intended to sell in furtherance of the conspiracy. True, for conspiracy as for distribution the relevant quantity for purposes of sentencing under the federal sentencing guidelines is limited to the defendant's “jointly undertaken activity,” U.S.S.G. § 1B1.3(a)(1)(B); United States v. Lewis, 110 F.3d 417, 422–23 (7th Cir.1997); United States v. Spotted Elk, 548 F.3d 641, 673–74 (8th Cir.2008); United States v. Laboy, 351 F.3d 578, 582 (1st Cir.2003), a term that while similar to “conspiracy” and often treated as interchangeable with it, see United States v. Alvarado–Tizoc, 656 F.3d 740, 744 (7th Cir.2011), is narrower because the activity undertaken by the defendant in concert with others is more limited than the activity, foreseeable to him, of the entire conspiracy. See United States v. Morales, 655 F.3d 608, 635–36 (7th Cir.2011); United States v. Almanza, 225 F.3d 845, 846 (7th Cir.2000). But proof of conspiracy goes far to establish that the defendant's jointly undertaken activity involved a larger quantity of drugs than those he himself sold.

For purposes of determining statutory (as distinct from guidelines) minimums, moreover, the total amount of drugs attributable to a conspiracy can be aggregated, United States v. Easter, 553 F.3d 519, 523 (7th Cir.2009), but not the amounts involved in multiple counts of distribution. United States v. Resinos, 631 F.3d 886, 888 (8th Cir.2011) (en banc) (per curiam); United States v. Sandlin, 313 F.3d 351, 355–56 (6th Cir.2002) (per curiam); United States v. Harrison, 241 F.3d 289, 291–92 (2d Cir.2001). Statutory minimum sentences, as in 21 U.S.C. § 841(b)(1)(A), (b)(1)(B), are a boon to prosecutors because so many sentences are below the guidelines ranges (in fiscal year 2010, 43 percent of sentences nationwide and 49 percent in the Seventh Circuit, U.S. Sentencing Commission, “National Comparison of Sentence Imposed and Position Relative to the Guideline Range: Fiscal Year 2010,”, www. ussc. gov/ Data_ and_ Statistics/ Annual_ Reports_ and_ Sourcebooks/ 2010/ Table N. pdf, and “Comparison of Sentence Imposed and Position Relative to the Guideline Range by Circuit: Fiscal Year 2010,” www. ussc. gov/ Data_ and_ Statistics/ Annual_ Reports_ and_ Sourcebooks/ 2010/ Table N– 7. pdf (both visited Feb. 23, 2012)).

Evidence of prior crimes is less likely to be barred from admission by Fed.R.Evid. 404(b)(1) in a conspiracy case, because prior crimes are likely to be germane to establishing that the defendant had a relationship with other participants in his drug deals that went beyond mere buying or selling. See United States v. Gilmer, 534 F.3d 696, 705 (7th Cir.2008); United States v. Penson, 896 F.2d 1087, 1092–93 (7th Cir.1990); United States v. Mercado, 573 F.3d 138, 144 (2d Cir.2009).

Out-of-court statements by a conspirator are freely admissible in evidence against his coconspirators as admissions of a party opponent, rather than being inadmissible as hearsay, Fed.R.Evid. 801(d)(2)(E); United States v. Rea, 621 F.3d 595, 604 (7th Cir.2010); United States v. Lopez, 649 F.3d 1222, 1238 (11th Cir.2011); United States v. Diaz, 597 F.3d 56, 67 (1st Cir.2010), although their admissibility requires not that conspiracy be charged but only that it be proved by a preponderance of the evidence. United States v. Bolivar, 532 F.3d 599, 604 (7th Cir.2008); United States v. Martinez de Ortiz, 907 F.2d 629, 632 (7th Cir.1990) (en banc).

The evidentiary burden on the government of proving a conspiracy often is lighter than that of proving multiple charges of distribution in order to maximize the quantity of drugs for which the defendant can be held responsible. Prosecuting every sale between seller and buyer in this case, for example, would have been difficult. The government had video evidence of only two sales. Proving the others beyond a reasonable doubt would have depended on the credibility of the seller, who had been induced to testify for the government and would be vulnerable to cross-examination. To persuade a jury to convict on a single conspiracy charge the government need prove only an agreement. Quantity is not an element, United States v. Garcia, 580 F.3d 528, 535 (7th Cir.2009); Barker v. United States, 7 F.3d 629, 634 (7th Cir.1993), and proof of an overt act is not required. United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994).

Charging a conspiracy can avoid a statute of limitations defense that would be effective against a charge of distribution. The statute of limitations for conspiracy does not begin to run against an individual conspirator until he withdraws from the conspiracy, United States v. Wren, 363 F.3d 654, 663 (7th Cir.2004), and it is difficult to prove that one has withdrawn other than by becoming a government informant; mere cessation of activity on behalf of the conspiracy is not enough. Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912); United States v. Paladino, 401 F.3d 471, 479–80 (7th Cir.2005); United States v. Borelli, 336 F.2d 376, 388 (2d Cir.1964) (Friendly, J.). And finally a small fry prosecuted for membership in a conspiracy is unlikely to obtain a severance of his trial from that of the ringleaders. See United States v. Tiem Trinh, 665 F.3d 1, 17 (1st Cir.2011).

In the present case, however, by charging conspiracy in addition to distribution the government handed the defendant his only ground of appeal—a vexing ground because of the difficulty of drawing a clear line between sales, and conspiracies to sell, in particular cases.

The difficulty is illuminated by an antitrust analogy. Section 1 of the Sherman Act punishes contracts, combinations, and conspiracies in restraint of trade, 15 U.S.C. § 1, and the distinction among these terms is unimportant. If a seller signs a contract with a buyer that sets a floor under the retail price at which the buyer may resell the seller's product, the resulting limitation on intrabrand price competition can be challenged under section 1 as a contract in restraint of trade, but equally as a conspiracy in restraint of trade; for “conspiracy” in section 1 is simply a pejorative term for a contract, both “conspiracy” and “contract” signifying an agreement, a meeting of minds. That is equally true when one person agrees to sell illegal drugs to another. Of course to be legally enforceable a contract requires certain formalities, which will not be found in a conspiracy. But their absence is of no moment; a criminal contract is unenforceable whatever form it takes.

The federal drug laws, however, insist on the distinction between a conspiracy and a contract of sale. E.g., United States v. Vallar, 635 F.3d 271, 286–87 (7th Cir.2011); United States v. Johnson, 592 F.3d 749, 754–57 (7th Cir.2010); United States v. Delgado, 672 F.3d 320, 322–35 (5th Cir.2012) (en banc); id. at 362–70 (dissenting opinion), and cases cited in id. at 363 n. 20. As explained in United States v. Colon, supra, 549 F.3d at 569, quoting United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir.1991), “there are practical reasons for not conflating sale with conspiracy. ‘A sale, by definition, requires two parties; their combination for that limited purpose does not increase the likelihood that the sale will take place, so conspiracy liability would be inappropriate.’ ” But “a conspiracy involves more people and can therefore commit more crimes; and...