U.S. v. Blankenship

• Decision Date: 21 July 1992
• Docket Number: Nos. 90-2686,90-3116,s. 90-2686
• Citation: 970 F.2d 283
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert BLANKENSHIP and Thomas E. Lawrence, Defendants-Appellants. , and 91-3624.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 283

970 F.2d 283

UNITED STATES of America, Plaintiff-Appellee, v. Robert BLANKENSHIP and Thomas E. Lawrence, Defendants-Appellants.

Nos. 90-2686, 90-3116, and 91-3624.

United States Court of Appeals Seventh Circuit.

Argued Jan. 7, 1992.

Decided July 21, 1992.

Rodger A. Heaton (argued), Patrick Kelley, Asst. U.S. Attys., Springfield, Ill., for plaintiff-appellee.

Walter H. Kasten (argued), Springfield, Ill., for defendant-appellant Lawrence.

Timothy E. Duggan (argued), Springfield, Ill., for defendant-appellant Blankenship.

Before POSNER and EASTERBROOK, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

Courts do not enforce bargains among the producers of illegal drugs, or between these producers and their customers. Extra-judicial remedies tend to be violent, which makes drug running a crime of the young and vigorous. Substitutes for both legal processes and brutality are possible, however; family ties may suffice. Nancy Nietupski, a grandmother in her early 60s, ran a methamphetamine ring through her extended family. She started on the west coast, working with her nephew William Zahm. Later she moved to her sister's farm in Illinois. While sister Violet Blankenship supplied a base of operations, nephew Robert Blankenship helped distribute the drug and collect debts.

Nietupski initially bought methamphetamine from outside sources. When these proved unreliable, Zahm helped her enter the manufacturing end of the business. "Cooking" methamphetamine is messy, and there is a risk of explosion when volatile chemicals such as acetone reach high temperatures. Nietupski and Zahm moved their laboratory frequently, to reduce the risk of detection. In February 1989 Zahm leased from Thomas Lawrence a house trailer in which to set up shop for a day. Nietupski told Lawrence what Zahm planned to make and offered $1,000 or one ounce of methamphetamine; Lawrence preferred the cash and took $100 as a down payment. He covered the floor of the trailer with plastic for protection. Zahm postponed the operation when he could not find a heating control. A few days later Lawrence got cold feet, telling Marvin Bland (one of Nietupski's assistants) that he wanted the chemicals and equipment removed. Bland complied.

Zahm soon joined William Worker to set up a new methamphetamine ring. Agents of the DEA infiltrated the Zahm-Worker clique. Zahm cut his losses by turning against his aunt, whose operations collapsed. Eighteen persons from the Nietupski ring were indicted. Robert Blankenship, Thomas Lawrence, and six others were in one group, all charged in a single count with conspiring to manufacture and distribute methamphetamine. 21 U.S.C. § 846. Of the six, three pleaded guilty and three were acquitted. Blankenship and Lawrence, convicted by the jury, received identical sentences of 120 months' imprisonment plus five years' supervised release.

Blankenship was in Nietupski's enterprise up to his neck, the jury could conclude. Only one of his contentions requires comment. His mother called David Spencer as an expert about the properties of methamphetamine. Spencer volunteered that in clinical trials users cannot distinguish methamphetamine from cocaine. The district judge tolerated Spencer's excursion into this prejudicial subject, and after the lawyers had their fill the judge continued the questioning. His curiosity piqued, the judge asked Dr. Spencer to explain the similarities in chemistry and effects between cocaine and methamphetamine. On being told that methamphetamine and cocaine have "very similar" neurological effects, the judge exclaimed: "So if, for instance, the war on drugs were successful as far as cocaine is concerned, and if cocaine were eliminated, its place could easily be taken by chemically produced, artificially produced methamphetamine?" Spencer replied: "This is precisely what is going on".

Robert Blankenship did not object to this exchange, which is not plain error given the strength of the evidence against him and the tangential subject matter of the colloquy. Still, we trust that such episodes will not recur. The jury's task was to determine whether Blankenship joined the Nietupski organization, not whether methamphetamine is the scourge of the earth. It is hard enough to be a defendant in a drug case without having the judge refer to a "war on drugs" and remind the jury that if the Coast Guard seals the borders against cocaine, labs in the United States will manufacture a close substitute. Criminal trials should be limited to the charges laid against the defendants; they are not apt occasions for inquiries into the sociology and chemistry of drugs. A judge should slake his curiosity out of the jury's hearing.

Lawrence has filed two appeals, one from his sentence and the second from an order denying his motion under Fed.R.Crim.P. 33 for a new trial. The district judge thought that Lawrence's appeal deprived him of jurisdiction to hear this motion. That conclusion is mistaken. Although a court may not grant a new trial while an appeal is pending, it may entertain the motion and either deny it or, if inclined to grant a new trial, so certify to the court of appeals. United States v. Cronic, 466 U.S. 648, 667 n. 42, 104 S.Ct. 2039, 2051 n. 42, 80 L.Ed.2d 657 (1984); United States v. Ellison, 557 F.2d 128, 131-32 (7th Cir.1977). As things turn out, the district court's error is not important.

Conspiracy is agreement to violate the law. United States v. Sassi, 966 F.2d 283 (7th Cir.1992). Unless Lawrence willingly joined the Nietupski venture, he did not commit the crime of conspiracy. What evidence was there that Lawrence knew, let alone joined? Nietupski and Zahm told Lawrence what they planned to do in his trailer; Zahm and Lawrence sampled some of the product scraped off the apparatus; for $1,000 he furnished the space, covered the floor with plastic, supplied refreshments, and let Zahm take a shower to wash some acid off his legs. If providing assistance to a criminal organization were the same thing as conspiracy, then Lawrence would be guilty. Yet there is a difference between supplying goods to a syndicate and joining it, just as there is a difference between selling goods and being an employee of the buyer. Cargill sells malt and barley to Anheuser Busch, knowing that they will be made into beer, without being part of Busch; by parallel reasoning, someone who sells sugar to a bootlegger knowing the use that will be made of that staple is not thereby a conspirator, United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940), and someone who buys one load of marijuana has not conspired with the sellers, United States v. Baker, 905 F.2d 1100, 1106-07 (7th Cir.1990).

Falcone illustrates the doctrine that "mere" sellers and buyers are not automatically conspirators. If it were otherwise, companies that sold cellular phones to teenage punks who have no use for them other than to set up drug deals would be in trouble, and many legitimate businesses would be required to monitor their customers' activities. Cf. People v. Lauria, 251 Cal.App.2d 471, 59 Cal.Rptr. 628 (1967) (answering service furnished to prostitute). Yet this does not get us very far, for no rule says that a supplier cannot join a conspiracy through which the product is put to an unlawful end. Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943), makes that point in holding that the jury may infer that a pharmaceutical house selling huge quantities of morphine to a physician over a seven-year span conspired with the physician to distribute the drug illegally.

Where does the "mere" sale end, the conspiracy begin? One may draw a line, as Falcone and Direct Sales did, between knowledge of other persons' crimes and intent to join them, but this restates the elements of the offense without telling us when an inference of intent to join is permissible. Selling a camera to a spy does not make one a traitor--but selling camera and film, developing the prints, enlarging the detail in the critical areas, and collecting half of the payment for the secret information would assuredly land one in prison. Stating polar cases is easy, but locating the line of demarcation is hard. Courts have a tendency in these situations to draw up a list of relevant factors, without describing necessary or sufficient conditions. Lists have burgeoned since Falcone. See Wayne R. LaFave & Austin W. Scott, Jr., 2 Substantive Criminal Law § 6.4(e)(3) (1986) (culling nine factors from the cases and implying that others might be pertinent); cf. Glanville Williams, Criminal Law: The General Part § 124 (2d ed. 1961) (discussing related developments in the United Kingdom).

When writing for the court of appeals in Falcone, 109 F.2d 579 (2d Cir.1940), Learned Hand concluded that a supplier joins a venture only if his fortunes rise or fall with the venture's, so that he gains by its success. Judge Hand offered a similar definition of aiding and abetting in United States v. Peoni, 100 F.2d 401 (2d Cir.1938), and we adopted his approach in United States v. Pino-Perez, 870 F.2d 1230, 1235 (7th Cir.1989) (in banc). On this view the sale of a staple commodity such as sugar or telephone service does not enlist the seller in the criminal venture; in a competitive market the vendor could sell to someone else at the market price, and the buyer could turn to other sources. Anonymous transactions are the norm in markets and do not create criminal liability; when the seller has knowledge but the terms remain the same, there is no reason to infer participation in the enterprise any more than in the Cargill-Busch case we have given. Although the Supreme Court did not discuss this approach in Falcone, we have been favorably disposed in Pino-Perez and, e.g., United States v. Giovannetti, 919 F.2d 1223, 1227 (7th Cir.1990). See also Model Penal Code § 2.06(3)(a) and commentary at 315-16 (1985) (supplier...