By Steve Statsinger (Introduction by David Zapp)
United States v. Hawkins addresses an issue that comes up in discussion among defendants and lawyers all the time: Does a buyer of drugs really have a connection to the seller except as a customer? The law recognizes the distinction and says that simply being a buyer is insufficient to warrant a finding that the buyer is the seller’s conspirator. Unfortunately, there are exceptions to the law. A comparison of cases shows uneven application of the buyer-seller rule, and it looks like any court could find exceptions if it wanted to. But the law is important and it is worth knowing what factors are relevant in the rare instance where it could apply. In US v. Hawkins, the buyer was found to be a conspirator because the he was purchasing drugs for resale and the seller knew this. United States v. Hawkins, No. 07-3018-cr (2d Cir. October 16, 2008) (Straub, Raggi, CJJ, Sessions, DJ)
Alex Luna sold drugs in Danbury, Connecticut, from 2002 to 2005. Warren Hawkins was convicted, after a jury trial, of one count of conspiring with Luna to distribute less than 500 grams of cocaine and less than five grams of crack. After the verdict, the district court granted Hawkins’ Rule 29 motion [to dismiss on the ground of insufficiency] finding that, although Hawkins bought drugs from Luna with intent to resell them, there was insufficient evidence to establish that Hawkins participated in Luna’s conspiracy. On the government’s appeal, the circuit reversed.
Background
In February 2005, Hawkins spoke with a another Luna co-conspirator about purchasing five grams of cocaine. They discussed price, quality, and how Hawkins would raise the money, but the sale did not take place. A few days later, Hawkins spoke with Luna and said that some of his co-workers were looking for drugs; they agreed on a quantity, 3.5 grams, and the sale was completed. Five days later, Hawkins purchased 7 more grams from Luna. Six days after that, Hawkins called Luna and asked him to sell him 3.5 grams on credit. Hawkins said he would sell the drugs to the customer and immediately repay the debt. This sale did not take place.
One co-conspirator testified that Hawkins was an addict who bought drugs, but was neither a drug dealer nor a member of the Luna organization. This witness characterized Hawkins as a “go-between.”
The Circuit’s Decision
The court began its analysis with a discussion of the “buyer-seller rule,” under which a mere buyer-seller relationship “is insufficient to establish a conspiracy” because there is no agreement to “advance any joint interest.” However, while the existence of buyer-seller relationship alone does not establish a conspiracy, if there is additional evidence showing an agreement to join together and accomplish an objective beyond the sale transaction, the evidence can support a finding that the parties participated in a conspiracy. Some of the factors that should be considered on this question are the length of the parties’ affiliation, the level of mutual trust, standardized dealings, sales on credit, and the quantities involved. However, even evidence that a buyer intends to resell the product instead of personally consuming it does not necessarily establish that the buyer has joined the seller’s distribution conspiracy, because more is required than “mere knowledge of the purpose of the conspiracy.”
Here, however, it was clear that (1) the Luna conspiracy existed, (2) Hawkins knew about it, (3) purchased drugs from it, (4) intended to resell at least some of the drugs, and (5) Luna knew this. The court found that these last two factors constituted sufficient evidence that Hawkins participated in Luna’s conspiracy by entering into a distribution agreement with Luna himself that “afforded Hawkins a source of cocaine and Luna another outlet – albeit small – for his contraband.” Moreover, the evidence supported an inference that Hawkins was “not freelancing;” but rather that he “agreed to engage in this conduct with Luna on an ongoing basis” and that “Hawkins and Luna trusted each other to work together as supplier and street-level dealer.”
Hawkins purchased drugs, or sought to, from Luna on several occasions within a short time. He brought potential customers to Luna’s attention, made arrangements with Luna to obtain cocaine for resale, and used the cell phone number that Luna had given him. There was also a level of mutual trust – Hawkins indicated that he preferred Luna over other local dealers and Luna agreed, at least in principle, to extend credit to Hawkins. This conduct established sufficiently that Hawkins was more than a mere “go-between.”