Conspiracy - Drug Cases – Insufficient Evidence

United States v. Brown, 12-2743 (7th Cir. 2013)

A lengthy opinion that clarifies the Seventh Circuit’s jurisprudence on the issue of conspiracy vs. buyer-seller.

United States v. Burgos, 703 F.3d 1 (1st Cir. 2012)

The defendant was a police officer. The government alleged that he was aware that a car repair shop on his “beat,” where his brother-in-law had worked as a mechanic, was a drug dealing location. The defendant also used the repair shop for his own vehicles. The defendant also became aware that the Vice Squad was surveilling the location. The defendant told the owner that his repair shop was “hot.” The First Circuit held that this evidence was insufficient to support the defendant’s conviction of being a member of a conspiracy to possess with intent to distribute drugs.

United States v. LaPointe, 690 F.3d 434 (6th Cir. 2012)

Defendant was charged with conspiracy to possess with intent to distribute oxycodone. He requested an instruction on the lesser included offense of conspiracy to possess oxycodone (a conspiracy). The trial court erred in failing to instruct the jury as requested. First, the court held that the fact that the indictment alleged that the defendants conspired to distribute and to possess with intent to distribute did not mean that a conspiracy to possess was no a lesser included offense because it is not a lesser offense of the conspiracy to distribute. (An indictment frequently charges in the conjunctive, but a jury can convict of either of the methods). Second, the fact that all conspirators did not share the limited conspiracy to simply possess the drugs did no mean that the defendant did not have that limited agreement with others.

United States v. Gaskins, 690 F.3d 569 (D. C. Cir. 2012)

The evidence was insufficient to prove that the defendant was a member of the large drug conspiracy that was prosecuted in this case. Virtually no evidence linked him to any drugs, any drug transactions or conversations about drugs involving the conspirators. One drug sale that was proven had no relationship to the charged conspiracy. The fact that the defendant purchased plane tickets for other conspirators did no link him to the conspiracy because no evidence established that he knew the purpose of the co-conspirators’ travels.

United States v. Silwo, 620 F.3d 630 (6th Cir. 2010)

The defendant was instrumental in procuring a van that was later used to transport marijuana and was also observed engaging in activity that appeared to be counter-surveillance. This evidence, alone, did not suffice to support a conviction for conspiracy to possess with intent to distribute marijuana. The defendant was not present when the van was loaded. The defendant was clearly in a scheme, but the evidence did not show that he knew the scheme involved the distribution of marijuana. For the same reason, the defendant could not be convicted of aiding and abetting the possession with intent to distribute the marijuana.

United States v. Torres, 604 F.3d 58 (2d Cir. 2010)

The evidence was insufficient to support the defendant’s conviction for being a member of a drug conspiracy. The case involved the aborted delivery of two large packages from Puerto Rico to the defendant at a location in New York. UPS attempted to deliver the packages, but the defendant’s identification, though listing his name correctly, failed to show that he resided at that address. UPS refused to deliver the packages to him. Later, UPS brought the packages back to the office and opened them discovering that cocaine was hidden in the packages. The defendant was called to the UPS store and was given the packages, after which he was arrested. This evidence failed to show that he was a knowing member of a narcotics conspiracy. There was no additional evidence that he knew what was concealed in the packages, or that he was being paid to participate in the distribution of cocaine.

United States v. Johnson, 592 F.3d 749 (7th Cir. 2010)

Another conspiracy conviction falls victim to the buyer-seller rule that the Seventh Circuit announced in United States v. Colon (see below). Even if the buyer purchases a large quantity of drugs, this does not make him a conspirator with the seller. Even a repeat wholesale customer is not necessarily a co-conspirator. Indications that a conspiracy existed are such things as (1) sales on credit or consignment; (2) an agreement to look for other customers; (3) payment of commission on sales; (4) an indication that one party advised the other on the conduct of the other’s business; (5) an agreement to warn of future threats to each other’s business stemming from competitors or law enforcement authorities. None of these circumstances were present in this case.

United States v. Caldwell, 589 F.3d 1323 (10th Cir. 2009)

The defendant was asked by another drug dealer for a recommendation of another drug source. The defendant introduced him to his supplier. The defendant was present at the first meeting, but had no further dealings between the other two and received no money, commissions or other benefit from the others’ dealings. This did not make the defendant a member of a three-person drug distribution conspiracy. The mere introduction of a common supplier, made by one drug dealer to another, is not sufficient to create a single conspiracy among all the dealers. Having concluded that there was a variance, the Tenth Circuit then concluded that the variance was not prejudicial and affirmed the conviction.

United States v. Tran, 568 F.3d 1156 (9th Cir. 2009)

The defendant was in a car that exited a warehouse that had been used as a drug distribution site. The defendant was a passenger and the marijuana was in the trunk. There was insufficient evidence establishing that the defendant possessed the marijuana with intent to distribute it, or that he conspired to do so. The Rule 404(b) evidence may have established that he had knowledge of the marijuana (the limited purpose for which the evidence was admitted), but it did not establish that he constructively or actually possessed the marijuana – or aided and abetted the possession of the marijuana – or that he conspired to do so. See also United States v. Sanchez-Mata, 925 F.2d 1166 (9th Cir. 1991) and United States v. Estrada-Macias, 218 F.3d 1064 (9th Cir. 2000).

United States v. Paret-Ruiz, 567 F.3d 1 (1st Cir. 2009)

Though there was considerable evidence that the defendant had conversations with other individuals about possible cocaine loads, the only “agreement” he had to import drugs was with an undercover agent. There was insufficient evidence that the conversations with others matured into an agreement to commit the drug offenses.

United States v. Colon, 549 F.3d 565 (7th Cir. 2008)

The evidence only established the existence of a buyer-seller relationship between the defendant and his supplier. Therefore, he could not be convicted of either conspiracy (with the supplier) or aiding and abetting the conspiracy with the supplier. The Seventh Circuit held that a purchaser – even a wholesale purchaser who buys a large quantity – is not, by that evidence alone, conspiring with the supplier. The Seventh Circuit cited with approval, United States v. Dekle, 165 F.3d 826 (11th Cir. 1999).

United States v. Boidi, 568 F.3d 24 (1st Cir. 2009)

A conspiracy to possess drugs is a lesser included offense of a conspiracy to possess with intent to distribute. The government acknowledged that possession is a lesser included offense of possession with intent to distribute; but argued that this logic does not apply to conspiracy offenses. The First Circuit rejected this argument, but held that in order to insist on such an instruction, the defendant must show that that, on the evience presented, it would be rational for the jury to convict only on the lesser included offense and not the greater one. Failure to instruct the jury on the lesser included offense in this case was error. This case also includes a useful discussion of the “buyer-seller” doctrine that provides that a buyer-seller agreement is not, ipso facto a conspiracy to possession with intent to distribute.

United States v. Hawkins, 547 F.3d 66 (2d Cir. 2008)

The Second Circuit affirms the defendant’s conspiracy conviction, but includes a lengthy discussion that explains why a buyer is not a co-conspirator with the seller, unless something more is shown than the simple buyer-seller relationship. The evidence established in this case an ongoing relationship that the “buyer” would be a distributor for the “seller.”

United States v. Ogando, 547 F.3d 102 (2d Cir. 2008)

The defendant, a hired cab driver, was at the airport waiting to transport a drug smuggler to the smuggler’s intended destination. The smuggler had already been arrested and was wearing a wire. The cab driver, who acknowledged being called earlier and told to meet the person at the airport, was not shown to be a member of the conspiracy and his conviction was reversed by the Second Circuit. The fact that the defendant made certain false statements to the police at the time of his arrest is not sufficient to support the verdict. Though such evidence is admissible and probative, it is not unreasonable to assume that anybody who is arrested might tend to falsify information that looks incriminating, while still being innocent of the charged offense.

United States v. Lorenzo, 534 F.3d 153 (2d Cir. 2008)

Though there was ample evidence that there was a drug smuggling conspiracy and that the two defendants engaged in activity that furthered the conspiracy, there was insufficient proof that the defendants knew that what they were doing was in furtherance of a drug conspiracy. Both defendants participated in ferrying a smuggler from the airport to a hotel and one defendant even delivered money to the smuggler, but no evidence demonstrated that either defendant saw drugs, talked about drugs, or was informed by a knowing participant that they were involved in cocaine smuggling. One defendant’s false exculpatory statement about his activities does demonstrate a consciousness of guilt, it did not show that the defendant was aware that he was involved in a cocaine smuggling conspiracy.

United States v. Wexler, 522 F.3d 194 (2d Cir. 2008)

The defendant, a doctor, wrote prescriptions to a patient for various drugs, including dilaudid. The doctor knew that the patient was distributing the drugs to others and the prescriptions themselves were not medically necessary. The patient did not, however, distribute any of the dilaudid and the prescriptions were not in amounts that would have led the doctor to believe the patient was distributing the dilaudid. Rather, the patient was consuming the dilaudid himself. The patient died from the dilaudid. The jury found the defendant guilty of conspiring to distribute drugs, including distribution that led to the death of that patient. The Second Circuit reversed. With respect to the dilaudid, the doctor and patient had a “buyer-seller” relationship and therefore a conspiracy conviction between them could not be upheld.

United States v. Garcia, 497 F.3d 964 (9th Cir. 2007)

With regard to certain counts, the evidence was not sufficient to prove that the defendant could be held responsible for conduct of other conspirators under a Pinkerton theory, because he was not shown to have been a member of the conspiracy at that time.

United States v. Lopez-Vanegas, 493 F.3d 1305 (11th Cir. 2007)

Though the courts have applied the drug laws extraterritorially, there are limits. In this case, the defendants, while in Florida, discussed transporting cocaine from Colombia to France for distribution throughout Europe. There was no intention that the drugs ever come to (or through) the United States. The Eleventh Circuit held that the defendants could not be convicted in the United States of conspiracy to possess with intent to distribute cocaine. See also United States v. Benbow, 539 F.3d 1327 (11th Cir. 2008) (holding that in a case somewhat similar to Lopez-Vanegas, it was reversible error to fail to instruct the jury that the government was required to prove that the defendant conspired to either possess, or to distribute drugs in the United States).

United States v. Esquivel-Ortega, 484 F.3d 1221 (9th Cir. 2007)

The defendant was a passenger in a van that was found to be smuggling a large quantity of drugs. The evidence was insufficient to convict of possessing the drugs with intent to distribute, or with conspiracy to possess with intent to distribute. Mere presence in the van is not sufficient to convict the defendant of possession or conspiracy.

United States v. Radomski, 473 F.3d 728 (7th Cir 2007)

The defendant and his colleague certainly conspired to do something, and while it is possible that the something was to sell drugs, it was equally likely that they actually conspired to rip off the potential purchaser. Given this state of the record, a conspiracy conviction for conspiring to sell drugs could not be sustained.

United States v. Korey, 472 F.3d 89 (3rd Cir. 2007)

The defendant was charged with using a firearm during and in relation to a conspiracy to distribute cocaine. A correct instruction on the law of conspiracy to distribute cocaine was required. The evidence established that the defendant was asked by a cocaine dealer to kill someone, in exchange for which the dealer would pay the defendant with cocaine. The district court judge instructed the jury that if they found that the defendant agreed to accept cocaine in payment for killing the victim, that is a conspiracy to distribute cocaine. This was erroneous. This instruction failed to explain correctly that a conspiracy to distribute cocaine requires proof of a “unity of purpose” between the conspirators to distribute cocaine and this instruction did not include that concept. Merely accepting payment in the form of cocaine is not the same as sharing a purpose with the dealer to distribute cocaine. Reversible error.

United States v. Arbane, 446 F.3d 1223 (11th Cir. 2006)

The government failed to prove that there were any co-conspirators (other than a government informant) in defendant’s importation offense, thus, a conspiracy conviction could not be sustained. Though there was some evidence of at least one other person’s awareness of the defendant’s plan and that the other person helped store drugs in a foreign county, the evidence was insufficient to prove that the other person conspired to import the drugs. The government is obligated to prove that the defendant and the other person shared the same object in order to find the existence of a conspiracy. If the other person only conspired to possess the drugs, or conspired to distribute the drugs in South America, this would not be sufficient.

United States v. Mendoza-Larios, 416 F.3d 872 (8th Cir. 2005)

Two defendants, driving a car owned by another person, were found guilty of possessing cocaine that was hidden in a welded compartment under the air bag compartment. The Eighth Circuit holds that the evidence was insufficient to convict either defendant. There was no proof that either defendant had knowledge of the drugs that were concealed in the car.

United States v. Dunmire, 403 F.3d 722 (10th Cir. 2005)

Post-Apprendi, the government is required to prove to the jury that a certain threshold quantity of drugs is involved in an offense. In this case, for example, the government was required to prove that the defendant conspired to distribute at least fifty grams (or, as a lesser included offense, five grams) of crack cocaine. The evidence established that she actually distributed 2.97 grams, but the government argued that the surrounding circumstances established a conspiracy to distribute more. The Tenth Circuit rejected this argument, holding that there was insufficient evidence that the defendant conspired to distribute the quantity that would trigger the higher sentence.

United States v. Jones, 393 F.3d 107 (2d Cir. 2004)

The evidence was insufficient to support the defendants’ possession with intent, and conspiracy to possess with intent, convictions. Though the two defendants were located in a house from which drugs were distributed, there was no evidence linking them to the activity.

United States v. Cruz, 363 F.3d 187 (2d Cir. 2004)

The defendant was “hired” by a drug dealer to assault some men, but later the task was changed to “watch my back [while I finish] a deal.” This evidence was not sufficient to support a conviction of the “back-watcher” for possession with intent to distribute. While the defendant may have known that some type of crime was in progress, there was insufficient proof that he knew that it was a drug deal. See also United States v. Rodriguez, 392 F.3d 539 (2d Cir. 2004) (in same case, another defendant’s conspiracy conviction was likewise insufficiently proven).

United States v. Garcia-Torres, 280 F.3d 1 (1st Cir. 2002)

Though the evidence was sufficient to prove that the defendant participated in a kidnapping and murder, there was insufficient proof that he was aware that the crimes were designed to further (or were in any way related to) his colleagues’ drug enterprise. He could not be convicted of conspiracy of possession with intent to distribute cocaine.

United States v. Cartwright, 359 F.3d 281 (3rd Cir. 2004)

The evidence was insufficient to prove that the defendant was a knowing “lookout” for a drug transaction (as opposed to some other offense) and therefore his convictions for being a member of a drug conspiracy and for aiding and abetting the drug offense were reversed on sufficiency grounds. The government failed to prove that the defendant knew specifically that the illegal activity in which he was participating involved drugs rather than some other form of contraband. The court notes several other Third Circuit cases that have overturned drug conspiracy and aiding and abetting convictions because of the absence of evidence that the defendant agreed to participate in the specific crime alleged in the indictment. (NOTE: The Third Circuit later issued an opinion questioning whether this case utilized the proper standard of review, United States v. Caraballo-Rodriguez, 726 F.3d 418 (3rd Cir. 2013).

United States v. Gore, 154 F.3d 34 (2d Cir. 1998)

Proof of the existence of a buyer-seller relationship, without more, is not sufficient to prove the existence of a conspiracy. The § 846 conviction in this case was reversed.

United States v. Dekle, 165 F.3d 826 (11th Cir. 1999)

A buyer-seller relationship does not qualify as a § 846 conspiracy. The buyer’s purpose is to buy; the seller’s purpose is to sell. There is, therefore, no joint objective. Even if the sales are repeated, there is no proof of a conspiracy, unless the sales are for the purpose of re-sale and the generation of proceeds.

United States v. Mercer, 165 F.3d 1331 (11th Cir. 1999)

A co-defendant was approached by an informant about buying drugs. The co-defendant referred the informant to the defendant, but refused to personally make an introduction, or to call the defendant. This did not sufficiently establish the existence of a conspiracy between the defendant and the co-defendant. Additional evidence that the defendant sold cocaine to undercover officers did not establish a conspiracy, because the person from whom the defendant was buying the drugs (to then sell to the undercover agent) was not shown to have been in a conspiratorial relationship with the defendant (as opposed to simply being his supplier). The government’s additional theory (all cocaine comes from South America, and therefore the distribution of cocaine is part of a conspiracy) was rejected by the Eleventh Circuit, as well.

United States v. Toler, 144 F.3d 1423 (11th Cir. 1998)

The evidence against one of the indicted conspirators was insufficient. The only evidence at trial was that the defendant allowed a former boyfriend to use her apartment (she had moved to her mother’s apartment) for a brief period of time. She did not consent to his use of the apartment to deal, or store drugs. After the drug dealer over-stayed his welcome, the defendant changed the locks on the apartment and appropriated some drugs he left behind to reimburse her for utility expenses. The Eleventh Circuit held that this evidence was insufficient. The court also explained that the “slight evidence” rule did not refer to the quantum of evidence needed to support a conviction (only proof beyond a reasonable doubt will suffice), but refers to the extent of the defendant’s participation in the conspiracy that the government must prove.

United States v. Jensen, 141 F.3d 830 (8th Cir. 1998)

Witnesses identified Jensen as their methamphetamine supplier. Witnesses testified that occasionally they bought drugs from Jensen and re-sold them. This evidence was not sufficient to support a conspiracy conviction. The evidence only established a series of buyer-seller relationships.

United States v. Thomas, 150 F.3d 743 (7th Cir. 1998) and 284 F.3d 746 (7th Cir. 2002).

The defendant indisputably sold crack cocaine to an informant. Two sales of drugs (plus a prior sale of bogus drugs) occurred during the course of one week. There was no evidence that the defendant had any stake in the informant’s subsequent sales. The Seventh Circuit held that the trial court erred in failing to instruct the jury that a mere buyer-seller relationship does not suffice to convict the seller for being in a conspiracy with the buyer. An agreement (the essence of a conspiracy) is not the equivalent of repeated transactions, though the latter may be evidence of the former. The defendant requested an instruction to this effect, but failed to object. Nevertheless, it was plain error to fail to instruct the jury on this principle. Upon retrial, moreover, the evidence was insufficient to establish the existence of a conspiracy. United States v. Thomas, 284 F.3d 746 (7th Cir. 2002). The government’s evidence established that the defendant sold cocaine to another person and through the other person, to his customers. This evidence did not establish that the defendant “conspired” with the other people. This only demonstrated a buyer-seller relationship. Even if the seller knows that the buyer is re-selling the drugs, this does not prove that there is a conspiracy.

United States v. Idowu, 157 F.3d 265 (3rd Cir. 1998)

The government failed to prove that the defendant was aware of the specific unlawful object of the conspiracy. Though the government satisfactorily proved that the defendant was a knowing participant in some form of unlawful activity involving contraband, there was insufficient proof that he was aware that the co-conspirator was involved in a drug transaction. (NOTE: The Third Circuit later issued an opinion questioning whether this case utilized the proper standard of review, United States v. Caraballo-Rodriguez, 726 F.3d 418 (3rd Cir. 2013).

United States v. Meyer, 157 F.3d 1067 (7th Cir. 1998)

The trial court erred in failing to instruct the jury that a conspiracy could not be proven with proof of only a buyer-seller relationship. The defendant purchased drugs from his co-defendants, sometimes for cash, sometimes on credit. Though there was considerable evidence that the defendant was also involved in various aspects of the drug dealing enterprise (constructing false fuel tanks, transporting drugs, acting as a “lieutenant”), there was also evidence that he was simply one of many customers of the principal distributors. The jury should have been instructed on the law regarding a “buyer-seller” relationship.

United States v. Morillo, 158 F.3d 18 (1st Cir. 1998)

The evidence failed to support defendant’s drug conspiracy conviction. The government theorized that the defendant’s apartment in Puerto Rico was used by various mules as the operational center for drug storing and packaging. Though the defendant had previously lived in the apartment and paid rent there, he was not shown to have been involved in any drug dealing, nor was there evidence that he participated in any of the storing or packaging of the drugs.

United States v. Valerio, 48 F.3d 58 (1st Cir. 1995)

The police searched an apartment known to have been occupied by a co-defendant. Drugs were found in the apartment, as well as a gun. The defendant was also in the apartment. Rent receipts were found in the defendant’s name, but the co-defendant testified that the defendant rarely stayed there. The landlord also testified that he had never seen the defendant there before, though rent receipts were made out in her name. Though the government need not exclude every reasonable hypothesis of innocence in order to sustain the conviction, the court is loath to stack inference upon inference in order to uphold the jury’s verdict. There was no evidence that the defendant participated in, or helped facilitate, the distribution of drugs. There was no proof that she intended the drugs found in the apartment to be distributed. Thus, the only theory relied on by the government was the inference that, from the quantity of drugs found, it could be inferred that she was part of a conspiracy to distribute drugs. But the government failed to establish that this defendant was even aware of the bulk of the cocaine secreted in the apartment.

United States v. Ocampo, 964 F.2d 80 (1st Cir. 1992)

The evidence failed to establish the defendant’s participation in a conspiracy to distribute cocaine. Though defendant shared a townhouse with another conspirator and probably knew about the cocaine sales, there was insufficient evidence to show that she had agreed to participate in the transaction. A conspiracy cannot be established by piling inferences upon inferences.

United States v. Aponte-Suarez, 905 F.2d 483 (1st Cir. 1990)

The evidence failed to support a conspiracy conviction for one of the defendants. This defendant had been asked by other conspirators for the use of his airstrip. He refused. Later, however, he introduced one conspirator to another, but did not participate in any subsequent efforts toward the successful completion of any drug importation venture. Although the defendant was aware that the drug importation scheme was taking place, the government presented no evidence that he participated in the venture at all besides the mere introduction of one conspirator to another. “Clearly, this evidence is insufficient to establish guilt.”

United States v. Steuben, 850 F.2d 859 (1st Cir. 1988)

The evidence was sufficient to sustain a conviction of the boat captain, the mechanic, and the English-speaking seaman. The evidence was not sufficient with regard to another crewman who was present during a communication between the captain and the overseer of the marijuana scheme as no other evidence linking him to the crime was presented.

United States v. Glenn, 828 F.2d 855 (1st Cir. 1987)

The indictment in this drug conspiracy case charged the defendant with being a member of a conspiracy to import and possess marijuana from Thailand and hashish from Pakistan. The evidence only connected the defendant to the conspiracy involving Pakistan hashish. The variance was sufficient that a new trial should have been granted to the defendant.

United States v. Atehortva, 17 F.3d 546 (2d Cir. 1994)

Members of a cocaine conspiracy had a falling out and one of the leaders decided to kidnap and hold for ransom another member. The leader recruited the appellant to carry out the task. The government introduced no evidence, however, that the appellant knew that the purpose of the kidnapping was to hold the victim for ransom related to a cocaine transaction debt. Though the appellant was undeniably guilty of kidnapping, this evidence did not support a conviction for conspiracy to possess and possess with intent to distribute cocaine. The evidence also failed to establish that the defendant possessed a weapon in connection with a narcotics trafficking offense.

United States v. Nusraty, 867 F.2d 759 (2d Cir. 1989)

The evidence was insufficient to convict the defendant of participating in a conspiracy to smuggle heroin. There was no direct evidence of the defendant’s agreement with any co-conspirators and no evidence that would warrant an inference that the defendant, in fact, had joined the conspiracy.

United States v. Thomas, 114 F.3d 403 (3rd Cir. 1997)

While the evidence was sufficient to prove that the defendant knew he was engaged in some kind of illicit activity, the evidence did not establish that he knew the object of the conspiracy was possession with intent to distribute a large quantity of cocaine. (NOTE: The Third Circuit later issued an opinion questioning whether this case utilized the proper standard of review, United States v. Caraballo-Rodriguez, 726 F.3d 418 (3rd Cir. 2013).

United States v. Obialo, 23 F.3d 69 (3rd Cir. 1994)

Though there was sufficient evidence of defendant’s actual possession with intent to distribute heroin, there was insufficient evidence to establish that he conspired with anybody to do so. During discussions with an informant about the drugs, the defendant did use the term “we” when discussing how the heroin was smuggled into the country, and there was evidence that the defendant’s uncle had some heroin and paraphernalia at his house. Nevertheless, the uncle was granted a Rule 29 directed verdict on the basis that the evidence of his knowledge of the drugs in his house and evidence of his participation in a conspiracy was insufficient. The evidence did not support the trial court’s holding that the defendant was shown to have conspired with unknown “third persons.” Though it is not necessary for the government to actually name the other conspirators, the government must introduce evidence that the defendant conspired with someone. Also, the mere amount of heroin in which the defendant was involved does not alone establish that he was part of a conspiracy.

United States v. Salmon, 944 F.2d 1106 (3rd Cir. 1991)

The defendant clearly was acting as a lookout for a narcotics transaction. While the evidence showed that he knowingly acted as a lookout, however, there was no evidence that he knew the transaction involved the distribution of cocaine. A conviction for aiding and abetting the cocaine transaction, or for conspiring to possess with intent to distribute cocaine, could not be sustained on this evidence alone. (NOTE: The Third Circuit later issued an opinion questioning whether this case utilized the proper standard of review, United States v. Caraballo-Rodriguez, 726 F.3d 418 (3rd Cir. 2013).

United States v. Terselich, 885 F.2d 1094 (3rd Cir. 1989)

Drugs were found hidden in an automobile. Though the defendant shared driving chores and lodging with the driver, there was no evidence of his participation in a conspiracy.

United States v. Wexler, 838 F.2d 88 (3rd Cir. 1988)

While there was substantial evidence that the jury could conclude that the defendant was involved in a conspiracy concerning the movement of a truck’s cargo, there was no evidence that the defendant knew the cargo was hashish. His conviction for conspiracy to distribute hashish was reversed on sufficiency grounds. (NOTE: The Third Circuit later issued an opinion questioning whether this case utilized the proper standard of review, United States v. Caraballo-Rodriguez, 726 F.3d 418 (3rd Cir. 2013).

United States v. Lewis, 53 F.3d 29 (4th Cir. 1995)

The defendant participated in a deal to possess with intent to distribute cocaine. Arguably, however, the only other “conspirators” were government informants/agents. The defendant requested an instruction to advise the jury that a conspiracy can only occur if at least one of the other conspirators is not a government agent. The trial court committed reversible error by failing to instruct the jury in accordance with this request.

United States v. Baker, 985 F.2d 1248 (4th Cir. 1993)

The defendant was charged with conspiring to possess with intent to distribute cocaine; however, there was a plausible theory that he intended to purchase the cocaine in order to consume it. It was reversible error to fail to instruct the jury on the lesser offense of conspiring to possess cocaine.

United States v. Giunta, 925 F.2d 758 (4th Cir. 1991)

The defendant was charged with conspiracy to import drugs. The conspiracy involved two undercover agents, the defendant, and others. The proof at trial showed that the defendant’s motive in dealing with the undercover agents was to “rip them off,” not to actually pursue any drug transaction. This was not sufficient evidence to sustain the defendant’s conviction for conspiracy to import drugs. Also, a “facilitator’s” efforts to put a willing buyer in contact with a willing seller does not necessarily prove that he is a member of a conspiracy to sell or buy drugs. Finally, if two “facilitators” are working at helping a buyer to purchase drugs, but one of the facilitators is actually planning only to rip off the buyers, then the other facilitator cannot be found guilty of a conspiracy with the bogus facilitator. Note: A subsequent Fourth Circuit decision overruled the standard of review invoked by Giunta. United States v. Burgos, 94 F.3d 849 (4th Cir. 1996).

United States v. Ross, 58 F.3d 154 (5th Cir. 1995)

Two drug dealers sold cocaine to an undercover agent. The agent did not have the correct change to pay the dealers, but they agreed to make the change among themselves. This evidence, alone, did not make the two dealers conspirators. The mere act of making change, albeit for an illegal transaction, does not provide proof beyond a reasonable doubt that the two were conspirators.

United States v. Flores-Chapa, 48 F.3d 156 (5th Cir. 1995)

The evidence was not sufficient to support the defendant’s drug conspiracy conviction. The only evidence linking the defendant to the conspiracy was his possession of a small amount of cocaine, a pager which linked him to other members of the conspiracy, and the unsupported testimony of agents who opined that someone other than the other conspirators was also involved.

United States v. Maltos, 985 F.2d 743 (5th Cir. 1992)

Mere presence and association is not sufficient to support a conspiracy conviction. The government may not prove up a conspiracy merely by presenting evidence placing the defendant in a climate of activity that reeks of something foul. Here, the evidence was insufficient.

United States v. Rosas-Fuentes, 970 F.2d 1379 (5th Cir. 1992)

No evidence supported the inference that the defendant controlled the vehicle in which marijuana was found or that he controlled the marijuana. There was no proof that the defendant even knew of the marijuana hidden in the gas tank. His possession conviction, therefore, was reversed. The government could not rely on a Pinkerton theory because there was no evidence that he knowingly entered into a conspiracy.

United States v. Menesses, 962 F.2d 420 (5th Cir. 1992)

Simply because one associates with conspirators does not mean that a jury can reasonably find that he is a member of the conspiracy. Here, the evidence did not support the inference that the defendant was involved in the conspiracy to distribute drugs. Juries must not be allowed to convict on mere suspicion and innuendo.

United States v. Sacerio, 952 F.2d 860 (5th Cir. 1992)

Defendant agreed to drive a car for a friend from Miami to New Orleans. He was stopped in Mississippi and, after consenting to a search of the car, two kilos of cocaine were discovered hidden in the car. In the meantime, defendant had requested a friend to come out and help him. When the room was searched where the defendant and his friend were staying, 1/2 gram of cocaine was found. The evidence did not support the defendant’s (or his friend’s) conviction for conspiracy to possess the cocaine in the car or possession of cocaine in the car. Although some of the circumstances are suspicious, mere suspicion cannot support a verdict of guilty. It is not enough that the defendant merely associated with those participating in a conspiracy, nor is it enough that the evidence “places the defendant in a climate of activity that reeks of something foul.”

United States v. Skillern, 947 F.2d 1268 (5th Cir. 1991)

The evidence did not support one of the defendant’s conspiracy convictions. In this case, the defendant associated with the conspirators, and another conspirator speculated that the defendant was involved. Another witness testified that the defendant and another were present at a particular transaction and stated that “they” did this and that, without specifying who was actually engaged in the transaction. This evidence did not support a conspiracy conviction.

United States v. Guerra-Marez, 928 F.2d 665 (5th Cir. 1991)

The evidence did not support defendant’s conspiracy conviction. The government relied on the fact that the defendant was related to another conspirator and had discussed a heroin deal with the supplier of the other conspirator. The evidence showed, however, that the defendant was not conspiring with the other conspirators charged in the indictment. In short, while the evidence showed that the defendant distributed drugs, the evidence did not show that this conduct was part of the conspiracy proved at trial.

United States v. Lewis, 902 F.2d 1176 (5th Cir. 1990)

The evidence was not sufficient to sustain one defendant’s conviction for conspiracy. The only evidence relating to this defendant was his relationship to an individual who was in possession of cocaine. The defendant’s mere presence at the scene where drugs were seized and the fact that he had a beeper, like the other defendant, was not sufficient to sustain his conviction for being a conspirator.

United States v. Villasenor, 894 F.2d 1422 (5th Cir. 1990)

Though the evidence supported defendant’s conviction for possessing marijuana with intent to distribute, there was inadequate evidence that he was a member of a conspiracy to do so. There was no proof that he knew of any unindicted co-conspirators. While there likely were co-conspirators, there was no proof as to who they were or what roles they played with regard to the marijuana found in the defendant’s house.

United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir. 1988)

The defendant was arrested and in possession of a cellular telephone and a large amount of cash. While this may have created a suspicion that he was a drug trafficker, it was not sufficient to sustain a conviction for conspiracy to possess marijuana with intent to distribute.

United States v. Peters, 15 F.3d 540 (6th Cir. 1994)

The police executed a search warrant at an apartment. The male was found in the bedroom, where a small quantity of cocaine and a firearm were also found. A female was found downstairs, dressed in a nightgown. This evidence was insufficient to convict the female of possessing either the gun or the drugs. The evidence also failed to establish that the two were engaged in a conspiracy.

United States v. Superior Growers Supply Co., 982 F.2d 173 (6th Cir. 1992)

The trial court properly dismissed an indictment which charged the defendant supply company with supplying materials so that others could grow marijuana. The indictment charged the defendant with conspiring to aid and abet the growing of marijuana. The problem here is combining the conspiracy and aiding and abetting offenses. In order to conspire to aid and abet, there must be a crime in progress that the defendant agreed to aid. Here, there was no allegation in the indictment that there was a crime being aided or a crime that the defendant agreed to aid. The court considered Falcone and Direct Sales in reaching this result: a supplier of innocent material can only be convicted of conspiring to produce an illegal product if the supplier knows of the end result and intends to further the illegal ends of the manufacturers.

United States v. Pearce, 912 F.2d 159 (6th Cir. 1990)

The record was devoid of any evidence that two defendants entered into an agreement to distribute drugs. One defendant’s mere presence in the house does not, by itself, demonstrate any tacit or mutual understanding between him and the other defendant to distribute drugs. Furthermore, the fact that one of the defendants shouted, “It’s a bust!” when the police entered the house does not contribute sufficient evidence to sustain the verdict.

United States v. Mims, 92 F.3d 461 (7th Cir. 1996)

The defendant defended this drug conspiracy charge on the basis that he was a purchaser of cocaine from the alleged supplier and was not a co-conspirator. The court held that the mere agreement to buy cocaine supplied by another person does not amount to a conspiracy. Even one who is a frequent purchaser is not necessarily a conspirator. Moreover, even proof that one purchases drugs from another for the purpose of re-selling the drugs is not necessarily sufficient to prove a conspiracy. Unless there is an agreement that binds the parties in the illicit enterprise, the mere fact that one buys drugs from another, even if the buyer later re-sells the drugs, is not sufficient to prove a conspiracy. The failure to properly instruct the jury in this case amounted to plain error.

United States v. Smith, 34 F.3d 514 (7th Cir. 1994)

A conspiracy conviction cannot be based solely on proof that the defendant purchased a large quantity of cocaine base from another on one occasion.

United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993)(en banc)

Evidence that a defendant sold a quantity of drugs to another person in excess of a consumer quantity is not alone sufficient to sustain a conviction for conspiracy to distribute cocaine. Though it is assumed that the purchaser will distribute the cocaine, this does not, alone, establish that there was a conspiracy between the defendant and his wholesale purchaser. There must be proof of an agreement to commit a crime other than the crime that consists of the sale itself. The evidence of a conspiratorial relationship between the defendant and his purchaser, as well as subsequent purchasers, was sufficient in this case.

United States v. Blankenship, 970 F.2d 283 (7th Cir. 1992)

Defendant rented his trailer to people who he knew intended to manufacture methamphetamine at that location. The court concluded that, under the facts of this case, said conduct alone did not suffice to make the defendant a co-conspirator in the methamphetamine manufacturing conspiracy. The court canvassed the law, dating back to Judge Learned Hand’s decision in United States v. Falcone, 109 F.2d 579 (2d Cir. 1940), the Supreme Court decision in Falcone, 311 U.S. 205 (1940), and Direct Sales Co. v. United States, 319 U.S. 703 (1943). Even the fact that the defendant charged exorbitant rent for the trailer does not alter the result. In deciding that the landlord was not guilty of being a member of the conspiracy, the court also discusses the reasons why a purchaser is not a member of the conspiracy.

United States v. Sullivan, 903 F.2d 1093 (7th Cir. 1990)

The defendant was found in possession of cocaine when stopped at the train station in Chicago. He was convicted of possession with intent to distribute cocaine and conspiracy to possess with intent to distribute cocaine. There was no evidence that the defendant was acting in concert with any other person, however. The mere fact that the defendant had a substantial quantity of cocaine with a high purity level does not indicate that he was engaged in a conspiracy. This simply does not constitute sufficient evidence to prove the existence of a conspiracy.

United States v. Mancari, 875 F.2d 103 (7th Cir. 1989)

The defendant was charged with being a member of a narcotics conspiracy. The only named co-conspirator was acquitted. Though there were other suppliers, this evidence was admitted as “other crimes evidence” without notice having been given to defendant of the possibility that this evidence would be used to establish his membership in a conspiracy. Evidence insufficient.

United States v. Douglas, 818 F.2d 1317 (7th Cir. 1987)

It is plain error for the trial court to fail to give a “buyer/seller” instruction. That is, a buyer and seller of narcotics are not engaged in a conspiratorial relationship sufficient to justify a conviction for conspiracy. The defendant has a right to a clear instruction on this point.

United States v. Manzella, 791 F.2d 1263 (7th Cir. 1986)

The defendant was a broker in a major cocaine deal, but never possessed, either constructively or actually, the cocaine involved. He could not be convicted of the substantive offense of possessing the drug with the intent to distribute. He could, however, be convicted of conspiring to distribute the drug. Furthermore, under the Pinkerton doctrine, as a conspirator, he could be held liable for the crimes of another if committed in furtherance of the conspiracy. Because the government did not rely upon the Pinkerton doctrine, the possession with intent to distribute charge is reversed.

United States v. West, 15 F.3d 119 (8th Cir. 1994)

On several occasions, the defendant sold consumer quantities of cocaine to several individuals. This evidence only established a buyer-seller relationship, which is not enough to support a conspiracy conviction.

United States v. Rork, 981 F.2d 314 (8th Cir. 1992)

Following defendant’s conviction for conspiring to distribute cocaine, the district judge granted a judgment of acquittal; the Eighth Circuit affirmed. The defendant was present when his friend sold cocaine to an undercover agent. Defendant’s knowledge, coupled with his presence, was not enough to sustain a conspiracy conviction.

United States v. Carper, 942 F.2d 1298 (8th Cir. 1991)

Evidence that the defendant had sold methamphetamine, coupled with evidence that he knew a supplier of methamphetamine, did not suffice to prove that the defendant and the other person were conspiring to sell methamphetamine.

United States v. Sweeney, 817 F.2d 1323 (8th Cir. 1987)

The person acting as a government informant in negotiating a drug purchase with the defendant cannot be the defendant’s co-conspirator in connection with those drug sales.

United States v. Wiseman, 25 F.3d 862 (9th Cir. 1994)

Though the defendant drove a car loaded with marijuana, the government never proved that he was aware of what was in the car. It was not his car, and the undisputed evidence was that he was asked by a co-defendant to “fetch” the car and was never told what was in the car. A conspiracy conviction cannot be sustained on this evidence. A later Ninth Circuit case questioned the standard of review used by the Ninth Circuit in this case. United States v. Nevils, 598 F.3d 1158 (9th Cir. 2010).

United States v. Ramos-Rascon, 8 F.3d 704 (9th Cir. 1993)

Evidence that the defendants were present during discussions about a drug transaction and that they were later present when drugs were delivered to an undercover agent was insufficient to support a conviction for either conspiring to possess drugs or for aiding and abetting the possession of the drugs. After reviewing the various theories the government advanced to support the conviction, the court wrote, “That a defendant is probably guilty is not enough. Our system works well. We can be proud of the safeguards that protect the innocent, even though they sometimes allow a guilty person to go free. No system can ensure accurate results in all cases. We learned long ago that it is better to err on the side of caution than to convict an innocent person. That historic wisdom remains true today, notwithstanding the current willingness to abandon constitutional protections in order to further the seemingly endless and potentially futile war on drugs.”

United States v. Martin, 4 F.3d 757 (9th Cir. 1993)

The evidence failed to show that one of the defendants was involved in the overall conspiracy as charged in the indictment. The defendant introduced an undercover agent to his partner in the drug business. Unknown to the defendant, however, his “partner” double-crossed him and began dealing to the undercover agent, along with the other co-conspirators. The defendant was not aware of these other deals and thus could not be convicted of being a member of that conspiracy.

United States v. Umagat, 998 F.2d 770 (9th Cir. 1993)

Several people were involved in numerous marijuana smuggling ventures into Guam. On the last haul, some of the conspirators enlisted the defendant, a rental car dealer, to provide a non-traceable car; he agreed. There was no evidence that he was aware of the full scope of the smuggling conspiracy. The defendant’s reward for providing the car was an ounce of marijuana.

United States v. Ocampo, 937 F.2d 485 (9th Cir. 1991)

The evidence did not support defendant’s conviction for possession with intent to distribute and for conspiracy to possess with intent to distribute. A pickup, parked in the garage of defendant’s house, was found to contain 82 kilos of cocaine; the defendant did not have a key to the truck, but a fingerprint of the defendant was found on one window of the truck. Though defendant was seen in the company of another conspirator who was involved in the distribution of cocaine, the evidence did not support defendant’s conviction on either a substantive or conspiracy count.

United States v. Sanchez-Mata, 925 F.2d 1166 (9th Cir. 1991)

The evidence did not sufficiently link the defendant with the conspiracy to possess with intent to distribute marijuana. Defendant was a passenger in a car containing 141 pounds of marijuana in the trunk, but there was no other link between him and the drugs. The government introduced evidence that he had a prior drug conviction, but this did not suffice to establish anything other than that he may have had knowledge of the existence of the marijuana; however, knowledge alone is not sufficient to sustain a conspiracy conviction.

United States v. Ramirez, 880 F.2d 236 (9th Cir. 1989)

The defendant was found in the master bedroom of his mother’s house during the execution of a search warrant. Substantial quantities of heroin and cocaine were found in the residence. A triple beam scale was found in plain view in the bathroom. A jar of heroin in the bathroom drawer, cocaine in a shoe box, a quantity of currency, drug packaging material, and a ledger recording drug sales were also located. A roll of $20 bills with traces of cocaine, as well as a razor blade and some plastic bags, were found on the defendant’s person. Nevertheless, the evidence was insufficient to convict the defendant for conspiracy to distribute the cocaine and heroin found in the house. The evidence only established the defendant was a cocaine user in a house where large amounts of cocaine were found.

United States v. Penagos, 823 F.2d 346 (9th Cir. 1987)

The evidence was insufficient to link the defendant to a narcotics conspiracy where the only evidence was that he had been observed looking up and down the street as nearby drug dealers loaded and unloaded cocaine from automobiles.

United States v. Jones, 44 F.3d 860 (10th Cir. 1995)

There was insufficient evidence to support the conviction of a passenger of a car which was transporting over 200 kilos of cocaine for either conspiracy to possess the drugs or for aiding and abetting the possession of the drugs. Throughout the interrogation of the driver on the side of the interstate, the passenger said virtually nothing: she did not have keys to the car or the trunk; she did not have any belongings in the trunk where the cocaine was; nor were the passenger’s fingerprints found on the cocaine. Even if a jury could believe that the passenger had knowledge of the drugs in the trunk, mere knowledge that the car in which she was a passenger contained cocaine does not make her a conspirator.

United States v. Riggins, 15 F.3d 992 (10th Cir. 1994)

A state trooper stopped a van in which the defendant was a passenger. The driver consented to a search of the car. In a bag belonging to another passenger (not the defendant), the trooper found cocaine. This evidence did not support a conviction of the defendant for conspiring to possess cocaine. Evidence of mere presence at the scene of the crime or association with co-defendants is not enough to support a conspiracy conviction. “We cannot sustain a conspiracy conviction if the evidence does no more than create a suspicion of guilt or amounts to a conviction resulting from piling inference on top of inference.”

United States v. Anderson, 981 F.2d 1560 (10th Cir. 1992)

Though the defendant was seen delivering a small quantity of marijuana to other conspirators, the evidence did not establish that he was a member of the others’ conspiracy to distribute large quantities of marijuana. Only by piling inference upon inference could the conviction for conspiracy be sustained.

United States v. Evans, 970 F.2d 663 (10th Cir. 1992)

The mere knowledge of illegal activity, even in conjunction with participation in a small part of the conspiracy, does not by itself establish that the person has joined the grand conspiracy. Thus, even if a person knows that his cocaine comes from Medellin, that does not make him a member of a grand conspiracy including all purchasers of Medellin cocaine. Also, a single conspiracy does not exist merely because several people purchase cocaine from a common supplier. There must be a shared objective joining the spokes of the wheel. Here, one conspirator was shown to have purchased four ounces of cocaine from the principal supplier. There was no evidence that this was not for personal consumption. Though she had scales which she provided to the supplier on one occasion, this could have been an isolated act among friends, as opposed to an act in furtherance of the conspiracy. The proof in this case amounted to proof that this defendant simply occupied the position of a buyer, as opposed to a conspirator. The court must be particularly vigilant when the government seeks to bring many individuals under the umbrella of a single conspiracy. The risk is that a jury will be so overwhelmed with evidence of wrongdoing by other alleged co-conspirators that it will fail to differentiate among particular defendants.

United States v. McIntyre, 836 F.2d 467 (10th Cir. 1987)

The defendant purchased cocaine from several sources and, in certain instances, shared cocaine with the informant and others. Nevertheless, the evidence was insufficient to sustain the defendant’s conviction for conspiracy to distribute cocaine.

United States v. Jones, 808 F.2d 754 (10th Cir. 1987)

The defendant, a doctor, lost his license to write prescriptions. Thereafter, he tried to help his assistant get a job with another doctor where he could write fraudulent prescriptions. The evidence was insufficient in this case to convict the defendant of being a member of the drug conspiracy.

United States v. Lopez-Ramirez, 68 F.3d 438 (11th Cir. 1995)

A truck containing cocaine and an unidentified passenger drove to a house where the defendant resided and backed up to the garage. It was not established that the defendant was the passenger. The driver was seen unloading the cocaine in the garage, and the defendant was seen standing in the garage at this time. This evidence was insufficient to convict the defendant of conspiracy to possess the drugs or for possessing the drugs with intent to distribute. Mere association with a conspirator and presence in a vehicle that engages in counter-surveillance maneuvers is not sufficient to establish participation in a conspiracy to distribute cocaine or possession with intent to distribute cocaine. There was no evidence in this case that the defendant was aware of the contents of the container that was unloaded into the garage of the house where she was arrested.

United States v. Newton, 44 F.3d 913 (11th Cir. 1994)

The defendant rented an apartment for the leader of a drug conspiracy so that the leader could have a place for his girlfriend to live. There was no evidence that the defendant used (or knowingly used) tainted funds to make any of the rent payments or that the apartment was used to facilitate the drug conspiracy in any way. This evidence did not support a money laundering conviction or a conviction for aiding and abetting the drug conspiracy. It is not enough that the defendant knew the kingpin, and it is not enough that he leased a house for the kingpin. Association with a co-conspirator is insufficient to prove participation in a conspiracy. At a minimum, the defendant must willfully associate himself in some way with the criminal venture and willfully participate in it as he would in something he wished to bring about.

United States v. Stanley, 24 F.3d 1314 (11th Cir. 1994)

The defendant was a passenger in a car being driven by a drug distributor and which had another occupant who was involved in the distribution of drugs. Drugs that were to be distributed were in the car. This evidence alone did not suffice to convict the defendant of either a conspiracy or substantive offense involving the drugs.

United States v. Clavis, 977 F.2d 538 (11th Cir. 1992)

In assessing whether the evidence is sufficient in a conspiracy case, the proper standard is whether, viewing the evidence in a light most favorable to the government, the jury necessarily must have entertained a reasonable doubt concerning the guilt of the defendant. The previously announced standard, which held that, once the existence of a conspiracy has been established, only slight evidence need connect the defendant to it, is not the proper standard and will not be employed.

United States v. Andrews, 953 F.2d 1312 (11th Cir. 1992)

The government offered no evidence linking the defendant to the conspiracy alleged in the indictment. Though the defendant was shown to have bought cocaine on several occasions, there was nothing to link these purchases with the conspiracy alleged in the indictment. On the contrary, the evidence showed that the defendant was a competitor of the other individuals in the conspiracy.

United States v. Mieres-Borges, 919 F.2d 652 (11th Cir. 1990)

The evidence was not sufficient to convict one of the defendants of conspiring to possess with intent to distribute cocaine. Mere presence, even coupled with flight, is not sufficient to convict the defendant of possession or of conspiring to possess.

United States v. Villegas, 911 F.2d 623 (11th Cir. 1990)

The evidence against one defendant was insufficient to sustain a conviction for conspiracy to possess with intent to distribute cocaine. The government’s theory was that the defendant was engaged in counter-surveillance activity when he accompanied his brother to the site of a drug transaction and then “stood guard” while the transaction occurred inside. In reversing the conviction, the Court reviews a number of prior Eleventh Circuit decisions which reversed convictions on sufficiency grounds.

United States v. Khoury, 901 F.2d 948 (11th Cir. 1990)

The defendants were convicted of conspiring to create a counterfeit substance. 21 U.S.C. §841(a)(2). At a minimum, the government must provide some evidence that the conspirators planned to place on the substance or its container a trademark, a trade name, or other identifying mark of a manufacturer other than the person actually manufacturing the substance. The government failed to introduce sufficient evidence in this case, and a conviction on this count was reversed.

United States v. Hernandez, 896 F.2d 513 (11th Cir. 1990)

The evidence was insufficient to sustain one defendant’s conviction for conspiracy to possess with intent to distribute cocaine. The defendant was clearly associated with a member of the conspiracy who transacted in drugs and was present when the transaction occurred. Although the defendant’s prior conviction for a drug offense was probative of his intent to join the conspiracy, there was no proof that he had any knowledge that a conspiracy even existed. Conspiratorial intent cannot exist without knowledge; evidence of knowledge must be clear and unequivocal.

United States v. Hardy, 895 F.2d 1331 (11th Cir. 1990)

The defendant frequently had parties at his home where guests would consume cocaine. Fifteen of the defendant’s friends and acquaintances testified at trial that they had been at his home and had consumed cocaine there. None of these witnesses, however, identified the defendant as a drug dealer. There was no evidence that the defendant at any time possessed more than an eighth of an ounce of cocaine or that he had ever earned money through the sale of cocaine. The evidence was not sufficient to sustain a conviction for conspiracy to possess with intent to distribute cocaine. The fact that the defendant possessed and shared a small amount of cocaine is not a sufficient basis for the inference that he intended to distribute cocaine or entered into an agreement to do so. There was no evidence that he possessed drug packaging paraphernalia, large quantities of money, “cut,” or any other items that would support the inference that he intended to distribute cocaine, rather than consume it himself. Furthermore, joint possession of a controlled substance does not prove a conspiracy to distribute. Finally, transferring a small amount of cocaine to a guest in his home does not support a conviction beyond a reasonable doubt. One isolated incident of distribution does not establish a prior contemporaneous agreement, which is necessary for a conspiracy conviction. The Court concluded with the admonition, “Conspiracy law is not a dragnet for apprehending those with criminal dispositions.”

United States v. Kelly, 888 F.2d 732 (11th Cir. 1989)

The defendant, a criminal defense attorney, was prosecuted for being a member of a drug conspiracy. The attorney was approached by a former client who was working undercover for the government. The client sought to have the attorney obtain cocaine from another client, but the attorney refused. The government alleged that the attorney was in a conspiracy to protect the other client’s cocaine. The Eleventh Circuit reverses. The attorney did what he should do – refuse to participate in the proposed plan.

United States v. Brown, 872 F.2d 385 (11th Cir. 1989)

The defendant purchased less than an ounce of cocaine from the lead member of the cocaine conspiracy on several occasions. The evidence was insufficient to support the defendant’s conviction for conspiracy to distribute or possess with intent to distribute cocaine. There was no evidence that he resold the cocaine or took any other measures to aid the objects of the conspiracy.

United States v. Fredericks, 857 F.2d 733 (11th Cir. 1988)

A deputy sheriff’s conspiracy conviction was not based on sufficient evidence where the government’s proof was limited to evidence that the defendant was seen standing on a bridge while smugglers were bringing marijuana ashore. The testimony of the witnesses was that the person might have been standing next to what appeared to be a police car. But their testimony identifying the defendant was inconclusive and uncorroborated.

United States v. Andrews, 850 F.2d 1557 (11th Cir. 1988)

Overruling the decision of the former Fifth Circuit, the Eleventh Circuit holds that a drug conspiracy defendant may be convicted despite the fact that his co-conspirator was found not guilty in a joint trial. Because there was sufficient evidence to support the defendant’s conviction, the inconsistent verdict does not invalidate his conviction.

United States v. Fernandez, 797 F.2d 943 (11th Cir. 1986)

Evidence that the defendant recommended a pilot to a person who wished to import marijuana by air was not sufficient to establish the existence of a conspiracy to possess marijuana with the intent to distribute on the part of the referrer.

United States v. Morris, 836 F.2d 1371 (D.C.Cir. 1988)

The defendant sold a total of three ounces of PCP to a co-defendant on two occasions. Though he also referred to “my people” being available for the sale of drugs, this was not sufficient to support his conviction for conspiracy to distribute and possess with intent to distribute PCP. The evidence failed to support the inference that the co-defendant was a regular source.