United States Court of Appeals For the Seventh Circuit
Conspiracy — sufficiency of the evidence
Where the defendant purchased wholesale quantities of controlled substances on credit, the evidence was sufficient to support his conviction for conspiracy with the suppliers.
“The jury instructions were repetitive and confusing, and included an open-ended list of factors from which membership in a conspiracy could be inferred: ‘whether the transactions involved large quantities of controlled substances; whether the parties had a standardized way of doing business over time; whether the parties had a continuing relationship; whether a defendant had a stake in the outcome of the conspiracy; whether the parties had an understanding that the controlled substances would be resold; whether there existed a level of mutual trust between the parties; [and] any other factor you find relevant to your determination.’ Notice that the list includes wholesaling but not credit, except that the last item in the list could include anything. (This circuit’s recently amended pattern jury instructions disapprove the laundry-list approach to inferring conspiracy. Seventh Circuit Pattern Jury Instructions 5.10A, Committee Comment, pp. 73-74 (2012); see also United States v. Johnson, supra, 592 F.3d at 758; United States v. Colon, supra, 549 F.3d at 570-71.) But in addition the judge instructed the jury that it could infer conspiracy from ‘selling large quantities of controlled substances on credit,’ or ‘repeatedly selling controlled substances on credit.’ Of course Phipps did not sell on credit; he was the buyer. But the jury could find that he knew that his supplier would not sell him wholesale quantities of drugs on credit unless he agreed to resell them, and by thus agreeing with his supplier to commit a crime (the resale of the illegal drugs) he became a conspirator.”
Appeals from the United States District Court for the Southern District of Indiana, Magnus-Stinson, J., Posner, J.