January 25th, 1999

Precedential

97-3224

                                                                                    [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT

                                 ________________________
                                                                            FILED
                                         No. 97-3224           U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                 ________________________             1/25/99
                                                                  THOMAS K. KAHN
                              D. C. Docket No. 96-231-CR-T-25E         CLERK

UNITED STATES OF AMERICA,
                                                                              Plaintiff-Appellee,

                                             versus

DAVID MERCER,
                                                                           Defendant-Appellant.

                                 ________________________

                         Appeal from the United States District Court
                             for the Middle District of Florida
                              _________________________
                                     (January 25, 1999)

Before ANDERSON and BARKETT, Circuit Judges, and RONEY, Senior Circuit Judge.

PER CURIAM:

       David Mercer was convicted of conspiracy to distribute and possession with intent to

distribute cocaine base. Mercer appeals only the conspiracy conviction, for which he received a

mandatory life sentence. Because the government’s evidence is insufficient to establish the

existence of a conspiracy, we reverse.

       This case began when a confidential informant told St. Petersburg, Florida detectives that

he could provide information regarding an investigation of certain individuals suspected of drug

activity, including Mercer co-defendant Carol Miller. On October 3, 1995, the informant asked
Miller where he could purchase one to two ounces of cocaine. Miller referred the informant to

Mercer and gave him Mercer’s address. In a recorded conversation, Miller told the informant that

Mercer was her friend and could be trusted. Miller refused, however, to telephone Mercer or to

accompany the informant to meet Mercer. The informant met with Mercer two days later, on

October 5, 1995, and in recorded conversations discussed the purchase of two ounces of cocaine.

The next day, Mercer sold the informant 27.98 grams of crack cocaine for $1,000. The informant

attempted to arrange another purchase but was unable to contact Mercer.

       Later, in January and February 1996, Mercer sold crack cocaine to an undercover police

detective, as the result of an unrelated drug investigation. In late January, a different informant

identified Mercer to police as a drug dealer. When the detective in charge ran Mercer’s name

through the police computer system, he discovered Mercer was already being investigated. The

detective arranged through his informant to meet with Mercer, and bought 17.6 grams of crack

cocaine for $900. In February, the detective purchased 29 grams of crack cocaine for $1,200.

       The government returned a superceding indictment charging David Mercer and Carol Miller

with conspiracy to distribute cocaine base, from about October 1, 1995 to about August 22, 1996

in violation of 

21 U.S.C. § 846

. The indictment also charged Mercer individually with two

additional counts of possession with intent to distribute cocaine base, in violation of 

21 U.S.C. §

841

(a)(1). Mercer was convicted as charged. For sentencing purposes, the three transactions were

grouped together in the conspiracy count. See U.S.S.G. § 3d1.2, note 8. Because the aggregate

amount of drugs sold was more than 50 grams and Mercer had two or more prior felony drug

convictions, he received a mandatory life sentence for the conspiracy offense. See 

21 U.S.C. §

841

(b)(1)(A)(iii); U.S.S.G. § 3D1.2. He received ten-year sentences for each of the three


                                                2
substantive distribution counts, with the sentences for all counts to run concurrently. See §

841(b)(1)(B).

       Co-defendant, Miller, who in addition to conspiracy was also charged with two counts of

aiding and abetting the distribution of cocaine base, in violation of 

21 U.S.C. § 841

(a)(1) and 

18

U.S.C. § 2

 and with two counts of using a communication facility to facilitate the commission of

drug offenses, in violation of 

21 U.S.C. § 843

(b) was acquitted of all counts, including the

conspiracy charge.

       We must determine whether, when examined de novo in the light most favorable to the

government, there is substantial evidence to support the conspiracy verdict as to David Mercer. See

United States v. Toler, 

144 F.3d 1423

, 1428 (11th Cir. 1998).

       Mercer was convicted of violating section 846 of Title 21 of the United States Code, which

provides:

       [A]ny person who attempts or conspires to commit any offense 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.

21 U.S.C. § 846

.

       To support a conspiracy conviction under section 846, the government must prove (1) an

agreement between the defendant and one or more persons, (2) the object of which is to do either

an unlawful act or a lawful act by unlawful means. See Toler, 

144 F.3d at 1426

. The existence of

the conspiracy and the defendant’s participation in it may be established through circumstantial

evidence. See Toler, 

144 F.3d at 1426

.

       The government contends the evidence proves Mercer conspired with his co-defendant,

Carol Miller, and with unknown co-conspirators. The evidence of conspiracy arises out of Miller’s

conversation with the defendant and the three drug transactions. We can easily dispense with the

                                                3
allegation of conspiracy between Mercer and Carol Miller. The government’s evidence shows that

Miller met with the confidential informant to discuss what drugs Mercer could supply. Miller stated:

“He got to take you to who he deal with, he deal with um, what’s his .. (Unintelligible) .. name. He

deal with somebody he got to take you, I know he do pot, I don’t know what all he do it for, you

need to find out.” She told the confidential informant where to locate Mercer, and encouraged him

to trust Mercer.

       Although this evidence may be considered in reviewing the sufficiency issue even though

Miller was acquitted, See United States v. Andrews, 

850 F.2d 1557

 (11th Cir. 1988), cert. denied,

488 U.S. 1032

 (1989), there is nothing here to support a finding of conspiracy between Mercer and

Miller. Despite the confidential informant’s repeated requests, Miller refused to telephone Mercer,

or to go with the confidential informant to see Mercer. While the evidence shows that Miller

referred Mercer to the informant as a source for the drug purchase, there is no evidence that she

discussed with the informant or Mercer any details regarding the amount, quality or price of the

cocaine or any particulars concerning the meeting. In short, there is no evidence of any agreement

between Mercer and Miller.

       The question then becomes whether there is sufficient evidence regarding the three drug sales

to support a decision that Mercer was conspiring with unknown persons. The government relies

heavily on the tape-recorded conversations in which Mercer and the police informant attempt to

arrange a sale on October 5, 1995:

        MERCER:        Oh boy ... wait till my partner get in, be about 5 o’clock today.

       CI:             Uh hum.

       MERCER:         And I am, he got to call his boy in Tampa...


                                                 4
       CI:            Come all the way from Tampa?

       MERCER:        Yea.

       CI:            Damn man.

       MERCER:        It won’t take that long ... I got to check it out... get hold of some more guys

                      around here that I know but they gonna run you where from about

                      ah..$750.00 to $800.00 an ounce.

       After Mercer's delivery to the informant was delayed, Mercer said he was considering buying

from another source if he had to wait too much longer.

       MERCER:        I don’t know I ... like I said man, I am just on hold.

       CI:            ... that’s bad business.

                      ........

       MERCER:        I know....But right now I am just waiting on him to call us and then if he don’t

                      call as soon as, uh, my old lady get home, I am going some where else.

       (The actual sale did not occur until the next day, October 6, 1995).

       According to the government, these conversations constitute evidence from which a jury

could reasonably infer that “Mercer had an unknown source who supplied and/or cooked crack

cocaine and that Mercer was involved in more than a buyer/seller relationship with his source.” The

government’s case against Mercer appears to be based on the following syllogism: Since cocaine

comes from out of the country, Mercer must know he is buying from conspirators involved in the

importation and distribution of drugs, and therefore he is a member of the conspiracy. The

government stated as much in its closing argument:

       Now [defendant’s references to sources for the cocaine] shouldn’t surprise you because


                                                 5
       probably most of you know from reading the paper that cocaine comes from where...South

       America. David Mercer got this cocaine from someone to sell it. This wasn’t cocaine he got

       for his own personal use. This was a relatively large amount of crack cocaine. So just about

       everybody out there selling crack cocaine is conspiring with someone else, the person he’s

       getting it from.

          Under the government’s theory, anyone selling crack cocaine can be charged with

conspiracy in addition to the substantive charge. This cannot be the result intended by the

Sentencing Commission when it recognized that conspiracy offenses may be ‘composite,’ involving

multiple underlying offenses and allowed for the grouping of offenses to arrive at a single

“combined” offense level. See generally U.S.S.G. § 3D.

        Justice Jackson, 50 years ago, in discussing the development of the law of conspiracy

referred to Justice Cardozo’s maxim about “the tendency of a principle to expand itself to the limit

of its logic.” See Krulewitch v. United States, 

336 U.S. 440

, 445, 

69 S.Ct. 716

, 719, 

93 L.Ed. 790


(1949) (Jackson, J., concurring).” This case tests the limit of the logic underlying conspiracy law.

The government’s position “stretches the boundaries of conspiracy law to the breaking point.” U.S.

v. Townsend, 

924 F.2d 1385

, 1391 (7th Cir. 1991).

       To properly decide this case, we must make the critical distinction between a conspiratorial

agreement and a buyer-seller transaction. “We punish conspiracy because joint action is, generally,

more dangerous than individual action.” United States v. Townsend, 

924 F.2d 1385

,1394 (7th Cir.

1991). While a sale, by definition, requires two parties, the agreement is to exchange drugs for

money. “The buy-sell transaction is simply not probative of an agreement to join together to

accomplish a criminal objective beyond that already being accomplished by the transaction.”


                                                 6
Townsend, 

924 F.2d at 1394

. On the other hand, “[c]onspiracies, which are really ‘agreements to

agree’ on the multitude of decisions and acts necessary to successfully pull off a crime, pose an

additional risk that the object of the conspiracy will be achieved, and so warrant additional

penalties.” Townsend, 924 F.2d at1394. The essence of the conspiracy, then, is an agreement, not

the commission of the substantive offense. Toler, 

144 F.3d at 1426

. “Where the buyer’s purpose

is merely to buy and the seller’s purpose is merely to sell, and no prior or contemporaneous

understanding exists between the two beyond the sales agreement, no conspiracy has been shown.”

United States v. Beasley, 

2 F.3d 1551

, 1560 (11th Cir. 1993), cert. denied, 

512 U.S. 1240


(1994),(citing United States v. Burroughs, 

830 F.2d 1574

,1581(11th Cir. 1987), cert. denied, 

485

U.S. 969

(1988)).

       In the case of a purchaser of narcotics, we have held that agreement may be inferred when

the evidence shows a continuing relationship that results in the repeated transfer of illegal drugs to

the purchaser. See United States v. Beasley, 

2 F.3d 1551

 (11th Cir. 1993); United States v. Bascaro,

742 F.2d 1335

,1359 (11th Cir. 1984), cert. denied sub nom., Hobson v. United States, 

472 U.S. 1017


(1985). In Beasley, the evidence against defendant established more than a buyer-seller relationship

between defendant and the seller. The seller testified that defendant purchased crack cocaine from

him on several occasions during seller’s short stay in Mobile and that he sometimes fronted the

cocaine to defendant. The seller knew from what street corner defendant was selling the cocaine.

The seller testified that he and defendant “split up” three kilograms of cocaine. From this evidence,

the jury could have reasonably inferred a continuing course of conduct between the parties designed

to result in the distribution of cocaine from that particular street corner.

       In Bascaro, the defendants were among the selling group’s best buyers, they purchased from


                                                   7
the selling group on numerous occasions, and maintained a close relationship with the selling group.

The selling group relied upon the defendant’s participation and cooperation for its success. The

court determined the evidence was more than sufficient to sustain the conclusion that the defendants

had entered into a conspiratorial agreement with the other co-defendants. 

742 F.2d at 1359

.

       We have held the evidence sufficient to support a conspiracy involving unknown persons

where there were numerous references to other conspirators and details regarding the conspiratorial

agreement. See United States v. Martinez, 

96 F.3d 473

, 477(11th Cir. 1996), cert. denied, __ U.S.

__, 

117 S. Ct. 998

 (1997); United States v. Carcaise, 

763 F.2d 1328

(11th Cir. 1985). In United

States v. Martinez, the government presented the following evidence:

       Gallo contacted a government agent and stated that he was interested in a “drug rip.” At a
       later meeting, Gallo said “said that he had the guns and the people ready [to steal the 50
       kilograms of cocaine]. He was a professional. He had done this before.” Finally, Gallo was
       to receive 25 kilograms of cocaine as his share of the “drug rip.”

96 F.3d at 477

.

       We held that the defendant’s statement that “he had the guns and the people ready” was

legally sufficient to conclude that the defendant had entered into a conspiracy with someone to steal

cocaine.

       In Carcaise, we upheld defendant’s conviction for conspiracy to possess drugs with intent

to distribute based on numerous statements referring to “the guy,” “my friend” and “these people”

and references to the details of the drug delivery. 

763 F.2d at

1331 n.6.

       At the other end of the spectrum, where the evidence proved only a buy-sell transaction, this

Court has reversed a conviction for drug conspiracy. See United States v. Wright, 

63 F.3d 1067


(11th Cir. 1995). Concluding that the evidence was insufficient to establish conspiracy, the Court

noted that the “record reveals little conversation between [the seller] and the Appellant, and no

                                                 8
evidence that an actual agreement was consummated.” 

63 F.3d at 1072

.

       Applying this law to the facts in this case, we can infer from Mercer’s remarks that he had

a buy-sell relationship with an unnamed source. The evidence is legally insufficient, however, to

show a conspiratorial agreement to distribute drugs. Nor does Mercer’s single reference to “my

partner” establish the existence of a partnership for purposes of this case. When looked at in

context, the term partner probably was used in the colloquial sense as someone with whom he had

dealings with. This vague reference without more is insufficient to establish a conspiratorial

agreement. See, e.g., United States v. Morris, 

836 F.2d 1371

,1374 (DC Cir. 1987)(court rejected

a reference to “my people” being available “after 3:00." as sufficient to establish a regular source).

In fact, Mercer’s comment that he would go somewhere else if he did not hear from his supplier

belies the inference that he had a conspiratorial agreement with a particular supplier.

       The government also argues that cocaine sales made by Mercer on two other occasions, in

late January 1996 and in late February 1996 are evidence of a continuing conspiracy because

Mercer’s “method of distributing crack cocaine appeared to be the same in early 1996 as it was in

October 1995.” In late January 1996, a different informant introduced Mercer to a new customer,

a police detective, and Mercer sold cocaine to the detective on two occasions. These sales came

about as the result of an unrelated drug investigation. There is little in the record about these sales

other than that they occurred. As we have stated, the mere fact that the sales took place cannot alone

support an inference of conspiracy. See United States v. Wright, 

63 F.3d 1067

(11th Cir. 1995).

        In this case there is no evidence of anything other than at most a buyer-seller relationship.

There was no evidence of a common design or purpose to join Mercer with anyone other than

government agents. The evidence shows simply that his co-defendant Miller knew that Mercer sold


                                                  9
drugs and that he had sources from which he could get drugs, that Mercer had a source for drugs and

if that source failed he would “go somewhere else,” that he bought quantities of cocaine from some

unknown source and sold it to police agents presumably at a profit. Having carefully reviewed the

record, we conclude that evidence is insufficient to sustain Mercer’s conspiracy conviction.

       REVERSED.




                                                10