U.S. v. Mancari, 88-2215

• Decision Date: 05 May 1989
• Docket Number: No. 88-2215,88-2215
• Citation: 875 F.2d 103
• Parties: 27 Fed. R. Evid. Serv. 964 UNITED STATES of America, Plaintiff-Appellee, v. Bruno MANCARI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 103

875 F.2d 103

27 Fed. R. Evid. Serv. 964

UNITED STATES of America, Plaintiff-Appellee, v. Bruno MANCARI, Defendant-Appellant.

No. 88-2215.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 8, 1989.

Decided May 5, 1989.

Edward M. Genson, Genson Steinback & Gillespie, Chicago, Ill., for defendant-appellant.

Stephen P. Sinnott, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before WOOD, Jr., POSNER, and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

The indictment charged Bruno Mancari and Robert DelPercio with conspiring with each other and "others known and unknown to the Grand Jury" to violate federal drug laws, and with delivering a controlled substance. See 21 U.S.C. Secs. 846 (conspiracy), 841(a)(1) (delivery). The two defendants were tried together. The jury acquitted DelPercio but convicted Mancari of both conspiracy and delivery. The judge sentenced him to four years in prison.

The appeal raises only two points that require discussion. The first is whether, DelPercio having been acquitted of conspiracy, there was sufficient evidence to convict Mancari of conspiracy. The government agrees that for purposes of this appeal the acquittal of DelPercio on the conspiracy count prevents us from upholding Mancari's conviction of conspiracy on the basis of evidence that he conspired with DelPercio, since on that basis the jury, to be consistent, would have had to convict DelPercio too. The government's concession is consistent with the many cases affirming the "rule of consistency," see, e.g., United States v. Sachs, 801 F.2d 839, 845 (6th Cir.1986), but is unwarranted. In United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), the Supreme Court, reaffirming Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), held that the acquittal of a defendant on one count does not invalidate his conviction on the other count(s), even if the acquittal and conviction are inconsistent. Powell was acquitted of conspiracy to possess and possession of cocaine but convicted of using the telephone to facilitate these offenses. In upholding his conviction the Court emphasized that the acquittal was as likely to have been error as the conviction, and that a defendant is in any case protected from being erroneously convicted by his right to challenge the sufficiency of the evidence on appeal--whereas the government has no protection against an erroneous acquittal since with immaterial exceptions it cannot appeal an acquittal. If this approach seems to make inroads into the right to trial by jury, they are no greater than those made by the harmless-error rule, Fed.R.Crim.P. 52(a), which has been interpreted to require that a conviction be upheld if a rational jury would not have been swayed by the error, regardless of whether a real jury might have been. See, e.g., United States v. Kerley, 838 F.2d 932, 937 (7th Cir.1988); United States v. Mazzone, 782 F.2d 757, 763 (7th Cir.1986).

Although Powell and Dunn are cases where the inconsistent verdict was rendered against one defendant, their reasoning applies with undiminished force to a case in which the jury has treated codefendants inconsistently. (Cf. Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), holding that the acquittal of the principal offender does not preclude conviction of his aider and abettor.) The acquittal of a codefendant may have been motivated by sympathy for that defendant but the government can do nothing about it. The jury in this case may just have been sympathetic to DelPercio and acquitted him lawlessly, although this is hardly a compelling inference since as we shall see the evidence against him was weak. But our only point is that after Powell there can be no presumption that the jury acquitted DelPercio because the government had failed to prove him guilty beyond a reasonable doubt, and convicted Mancari lawlessly.

Reexamining the "rule of consistency" in light of Powell, a panel in the Ninth Circuit has concluded that "the acquittal of all conspirators but one does not necessarily indicate that the jury found no agreement to act.... Each case must be examined carefully to see whether evidence of conspiring with others, known or unknown, was produced during the trial." United States v. Valles-Valencia, 823 F.2d 381, 382 (9th Cir.1987) (per curiam) (amending 811 F.2d 1232). So if there is overwhelming evidence of conspiracy, the jury will be assumed not to have convicted lawlessly the conspirator it convicted but instead to have acquitted the other(s) lawlessly. This approach makes good sense in light of Powell, but its applicability to this case is uncertain, as the evidence of DelPercio's participation in the conspiracy was far from overwhelming. The government does not suggest, however, that this might be the reason it does not rely on Powell. It does not cite Powell, or Dunn, or Standefer, or Valles-Valencia. It accepts the rule of consistency and therefore concedes that we must overturn Mancari's conspiracy conviction, irrespective of the evidence against DelPercio, unless we find a conspirator other than DelPercio among those "others known and unknown to the Grand Jury." See United States v. Butz, 784 F.2d 239 (7th Cir.1986) (per curiam); United States v. Gonzalez-Torres, 779 F.2d 626, 630 (11th Cir.1986); United States v. Wright, 742 F.2d 1215, 1224 (9th Cir.1984); United States v. Bell, 651 F.2d 1255, 1258 (8th Cir.1981).

The government's theory was that DelPercio sold cocaine to Mancari for resale to the ultimate consumer. There was considerable evidence that Mancari had other suppliers as well, who the government argues conspired with him, but this argument won't wash. Mancari purchased in small quantities, a quarter of an ounce at most. As far as a supplier could tell based on quantity alone, Mancari was purchasing for his personal consumption. Of course these unknown other suppliers may have known he was buying for resale, but there is no evidence that they did, for there is no evidence about those suppliers. The quantities Mancari bought were not so large that his suppliers must have known he was a dealer rather than a mere user, yet unless they knew this they did not conspire with him. A sale for the buyer's personal consumption, as distinct from a sale for resale, does not a conspiracy make. See, e.g., United States v. Douglas, 818 F.2d 1317, 1321 (7th Cir.1987); United States v. Manzella, 791 F.2d 1263, 1265 (7th Cir.1986); United States v. Butz, supra, 784 F.2d at 241. And there is no such thing as unconscious membership in a conspiracy. "[T]he government must prove that the alleged coconspirator knew of the conspiracy and that he intended to join and associate himself with its criminal design and purpose." United States v. Moya-Gomez, 860 F.2d 706, 758 (7th Cir.1988); see also United States v. Ras, 713 F.2d 311, 314 (7th Cir.1983). In a conspiracy to sell drugs, the supplier must know he is supplying a dealer.

There can of course be conspirators who are not suppliers. The first time Mancari sold cocaine to the government's undercover agent (April 23, 1985), he introduced her to a man named "Gary," and also told the agent that "Butch" would bring the stuff to the apartment where the transaction was to be consummated. When the agent showed up at the apartment at the appointed time, Mancari was there with Gary and two other men. He introduced one of the new men to her as "Butch." Butch, probably Gary, and possibly the third man as well were conspirators with Mancari in the sale to the agent. The same agent made another purchase at the same apartment on May 2, and present with Mancari were Gary and two new men, one named "David." On May 29 another sale to the agent took place, this one in the parking lot of a drugstore, and an unidentified man drove Mancari to and from the assignation. There were subsequent sales as well, but there is no evidence that other conspirators...