00-4160 U.S. v. Rivera

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“Repeat sales, without more, simply do not place the participants’ actions into the realm of conspiracy … What it does show is a ‘series of spot dealings at arm’s length between dealers who have no interest in the success of each other’s enterprise.’ Lechuga, 994 F.2d at 349. The evidence that the government presented is just too modest to support the conspiracy charge found by the district court. There is no evidence that Rivera fronted cocaine to Hardin. He expressly refused to do so. No other established method of payment existed that suggests Rivera’s participation in a conspiracy. … Furthermore, there is nothing to support the contention that the transactions were standardized; they involved different people, different prices, different locations, and different methods of payment and delivery. The government did not show a high level of trust between Rivera and Hardin. While the evidence does show that Hardin placed a limited amount of trust in Rivera – he or his brother twice paid first and received delivery of the cocaine later in the day – ‘many a buyer in an ordinary commercial sale pays first and receives delivery later.’

Torrez-Ramirez, 213 F.3d at 982. Evidence of such a system does not suggest a level of trust that would allow the fact finder to infer a conspiracy.

Furthermore, if it shows any trust at all, it is of the non-mutual variety. If anything, Rivera’s requiring payment before delivery of the cocaine shows a lack of trust in Hardin, Tyson, Franklin, and the other charged co-conspirators.

“Although our holding rests on the insufficiency of the evidence, we also agree with Rivera that the district court’s jury instruction number 12 was misleading. The instruction read:

In order to find Enrique Rivera as part of a conspiracy, you need to find he made an agreement. … An agreement can be inferred in several instances. For example, an agreement can be inferred when:

(1) a dealer ‘fronts’ drugs to his customer because his payment depends on the success of the resale venture; or

(2) when a dealer participates in more than one sale; that is, the dealer participates in multiple sales.

The instruction told the jury that a conspiracy could be inferred either when a dealer fronts money or when he participates in multiple sales. Our case law says otherwise.”

Reversed and remanded.

Appeal from the United States District Court for the Southern District of Indiana, Young, J., Flaum, J.