United States v. Wheat

• Decision Date: 12 February 2021
• Docket Number: No. 19-4172,19-4172
• Citation: 988 F.3d 299
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William WHEAT, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

988 F.3d 299

UNITED STATES of America, Plaintiff-Appellee,

v.William WHEAT, Jr., Defendant-Appellant.

No. 19-4172

United States Court of Appeals, Sixth Circuit.

Argued: January 29, 2021

Decided and Filed: February 12, 2021

ARGUED: Stephen Ross Johnson, RITCHIE, DILLARD, DAVIES & JOHNSON, P.C., Knoxville, Tennessee, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Stephen Ross Johnson, RITCHIE, DILLARD, DAVIES & JOHNSON, P.C., Knoxville, Tennessee, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: SUTTON, BUSH, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Our court has long interpreted the drug-conspiracy statute, 21 U.S.C. § 846, to prohibit two individuals from knowingly reaching an agreement to distribute drugs. See, e.g. , United States v. Potter , 927 F.3d 446, 453 (6th Cir. 2019). This conspiracy test could be read to cover every drug transaction between a willing seller and a willing buyer, even those for the buyer's personal use. After all, the seller has agreed with the buyer to "distribute" drugs between them. Yet we have also long held that a buyer-seller agreement alone does not establish a "conspiracy" under § 846. See, e.g. , United States v. Grunsfeld , 558 F.2d 1231, 1235 (6th Cir. 1977). This case requires us to consider the justification for and scope of this "buyer-seller" exception to our otherwise broad reading of the drug-conspiracy statute.

The government presented overwhelming evidence that Aaron Reels operated a drug-distribution scheme. The problem? Reels was not on trial. William Wheat was. And the evidence against Wheat showed essentially that he once gave Reels a .3-gram free "sample" of heroin—a sample that led to no further exchanges between them. The government alleged that Wheat agreed with Reels to distribute heroin, and a jury convicted him of a drug conspiracy. We conclude, however, that insufficient evidence supports this conviction. The logic underlying our buyer-seller exception extends to Wheat's agreement to distribute a sample to Reels. And the government did not present enough additional evidence of a broader agreement between Wheat and Reels to distribute heroin to third parties. At the same time, Wheat used his phone to arrange the exchange of the sample. So the government more than sufficiently proved that he used a "communication facility" to facilitate a drug felony. 21 U.S.C. § 843(b). We thus reverse Wheat's conspiracy conviction, affirm his communication-facility conviction, and remand for resentencing.

I

Reels operated a substantial drug-trafficking ring that sold cocaine, heroin, and fentanyl in Cleveland, Ohio. He had multiple heroin suppliers and regularly purchased up to 500 grams of heroin at a time. He would resell this drug in quantities ranging from a gram to an ounce (about 28 grams).

Reels and Wheat were social acquaintances who did not know each other well. In February 2018, Wheat passed along his phone number to Reels through social media. When Reels called, Wheat said that he had come across "something" in Reels's "field." Reels asked: "How is it?" Wheat responded that he would like Reels's opinion ("You tell me"), but that "they" had told him it was "nice." Reels next inquired if "it" had been diluted: "It ain't been played around with, have it?" Wheat assured him: "I don't play around with anything."

The two arranged to meet at a Circle K gas station the next day. While there, Wheat gave Reels a free "sample" of about .3 grams of heroin. Samples are often exchanged between drug dealers who do not know each other well to help potential purchasers decide whether to buy from potential sellers. Testimony in this case suggested that the .3 grams would otherwise cost about $20 to $40 on the Cleveland drug market.

Following their exchange, Reels and Wheat went their separate ways. As for Wheat, a local police officer pulled him over for a traffic violation. The officer let him go with a warning. As for Reels, he immediately called Carl Mileca, a heroin user, and asked him to test the sample. Mileca later informed Reels that Wheat's sample had been strong but not as strong as another recent sample. Mileca also stated that the heroin looked good, had a good smell, and did not have "cut" in it that would dilute its potency. He opined that Reels's customers would buy it.

Reels nevertheless decided not to purchase any heroin from Wheat. He had substantial heroin in "stock" and was not in need of more. Reels and Wheat had no further interactions.

It turns out, however, that Reels's drug trafficking had drawn the attention of the Drug Enforcement Administration (DEA). Since October 2017, Reels had unwittingly sold large amounts of drugs to confidential informants working with the DEA. DEA officers had also been tracking Reels's movements (using a device on his car) and conversations (using a wiretap on his phone).

Through these efforts, the officers understood that Reels had been "shopping around" for heroin suppliers when he met with Wheat. They recorded the phone conversation between Reels and Wheat and secretly monitored them at the Circle K. Because the DEA officers had not previously come across Wheat, they asked the local police officer to pull him over to make an identification. The DEA officers had also learned that Mileca was Reels's main "tester" who tried samples to determine the quality of each source's heroin. They recorded Reels's calls with Mileca, including the call about Wheat's sample.

Two months after Reels's interaction with Wheat, the officers executed search warrants at Reels's properties. They recovered 319 grams of heroin, 200 grams of a heroin-fentanyl mixture, and 138 grams of cocaine.

The government charged Reels and six others, including Wheat, in an 18-count indictment. The indictment listed Wheat on two counts. The first charged Wheat with a conspiracy to possess with intent to distribute and to distribute at least 100 grams of heroin and 40 grams of fentanyl—quantities that would subject him to a minimum five-year sentence. 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. The second charged Wheat with using a communication facility (his phone) in furtherance of a drug-trafficking crime. Id. § 843(b).

After the other defendants pleaded guilty, Wheat stood trial. At the close of the evidence, the government withdrew the drug-quantity charges from the conspiracy count. It took this "unorthodox step" due to the lack of evidence that Wheat could foresee that the conspiracy involved those quantities. So, on the first count, the jury was asked simply whether Wheat had entered into a conspiracy to distribute or possess with intent to distribute heroin or fentanyl. The second communication-facility count remained unchanged. Ultimately, the jury found Wheat guilty on both counts. The court sentenced him to an above-guidelines 27-month term of imprisonment.

II

A

Wheat raises various challenges to his conspiracy conviction, but we begin and end with his sufficiency-of-the-evidence challenge. He argues that, without more, his decision to give a heroin sample to a known drug dealer does not show that he entered into an agreement to distribute drugs with the dealer under 21 U.S.C. § 846. Wheat faces a demanding standard of review: He must show that no rational jury could have found the essential elements of a conspiracy beyond a reasonable doubt. See United States v. Potter , 927 F.3d 446, 453 (6th Cir. 2019). "Yet the issue here, or at least the aspect we find troubling, actually poses the ‘legal’ question whether the conduct the jury could reasonably have found to have occurred amounts to a conspiracy under the statute." United States v. Moran , 984 F.2d 1299, 1302 (1st Cir. 1993). We thus start with "first principles" about what qualifies as a drug conspiracy under 21 U.S.C. § 846. Id.

The drug laws make it "unlawful" to "knowingly or intentionally" "distribute" or "possess with intent to ... distribute ... a controlled substance[.]" 21 U.S.C § 841(a)(1). They, in turn, make it unlawful to conspire to commit these crimes: "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." Id. § 846. When analyzing the meaning of this conspiracy statute, we think it helpful to separate the basic legal question (what does the statute require?) from the basic evidentiary question (what evidence will allow a jury to find the statutory requirements?).

1. What does the conspiracy statute require? Although our caselaw sometimes lists three elements to prove a conspiracy under § 846, our model jury instructions identify only two. Yet a mere "semantic difference" separates these tests. Potter , 927 F.3d at 453. Stated succinctly, a drug conspiracy requires the government to show that two or more individuals have agreed to violate a drug law (such as § 841(a)(1) ’s ban on distributing drugs) and that the defendant knowingly and voluntarily entered into this agreement. See id. This drug-conspiracy test comports with the usual understanding of a "conspiracy," "the essence of which is an agreement to commit an unlawful act." Iannelli v. United States , 420 U.S. 770, 777, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975).

As the test shows, conspiracy (like attempt) is an "inchoate" offense. See United States v. Robinson , 547 F.3d 632, 638 (6th Cir. 2008). The government need not prove that the conspirators completed their agreed-upon drug crime. See id. In fact, it need not prove that the conspirators even took an overt act to implement the crime. United States v. Shabani , 513 U.S. 10, 17, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994). The knowing agreement to distribute drugs in violation of § 841(a)(1) is itself the completed crime of a distribution conspiracy. The traditional theory behind barring this...