U.S. v. Lechuga

Citation994 F.2d 346
Decision Date13 May 1993
Docket NumberNo. 91-2891,91-2891
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Humberto LECHUGA, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Eric J. Klumb, R. Jeffrey Wagner, argued, Asst. U.S. Attys., Milwaukee, WI, for plaintiff-appellee.

James M. Shellow, argued, Robert R. Henak, Dean A. Strang, Shellow, Shellow & Glynn, Milwaukee, WI, for defendant-appellant.

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

POSNER, Circuit Judge.

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

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

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

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

All this makes good sense when we are speaking of the punishment of uncompleted conspiracies, but what of the punishment of a completed one? Lechuga delivered cocaine in violation of federal criminal law; why should he also be punished for agreeing to deliver it? The stock answer is that a conspiracy has more potential for doing harm than a single individual does. Callanan v. United States, 364 U.S. 587, 593-94, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961). It is not a bad answer, as the facts of this case indicate. Lechuga might have been frightened to deal face to face with Pinto, whom he had 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 pharmacists or other retailers and therefore had to sell directly to the consuming public if at all.

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

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

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

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