Criminal Practice – Crack Cocaine Distribution — Conspiracy – Confidential Informant – Prior Contacts

U.S. v. Edmonds (Lawyers Weekly No. 12-01-0519, 12 pp.) (Niemeyer, J.) No. 10-4895, May 8, 2012; USDC at Wilmington, N.C. (Fox, J.) 4^th Cir. Full-text opinion.

Holding: A defendant convicted of distribution of crack cocaine for sale of drugs to a confidential informant also can be convicted of conspiracy to traffic crack cocaine, based on his interactions with the confidential informant before he started working as a government agent after his arrest; the 4^th Circuit affirms defendant’s convictions and his life sentence.

If the object of the offense is the distribution through a sale of cocaine, as prohibited in 21 U.S.C. § 841,a., a conspiracy to commit the distribution offense must involve an agreement separate from the immediate distribution conduct that is the object of the conspiracy. “Distribution” under § 841 and “conspiracy” under § 846 are distinct crimes. If a transaction includes, in addition to the bare agreement inherent in the sale, an agreement that the buyer will resell the cocaine in the marketplace, the two participants to the distribution transaction have also “conspired” in the redistribution of the cocaine, a separate offense, and therefore can be guilty not only of the distribution offense but also of the conspiracy offense.

In short, the mere evidence of a simple buy-sell transaction is sufficient to prove a distribution violation under § 841, but not conspiracy under § 846, because the buy-sell agreement, while illegal in itself, is not an agreement to commit an offense; it is the offense of distribution itself. Any agreement between defendant and a government agent cannot form the basis of a conspiracy violation.

In this case, whatever “agreement” defendant and the confidential informant might have reached during the controlled purchases does not constitute evidence of conspiracy. But this does not mean that statements made or acts done by defendant during the controlled transactions could not be used as evidence of a conspiracy between defendant and the confidential informant before he was a government agent and between defendant and others at any time.

In his pretrial confession, given after his arrest, defendant described his dealings and relationship with the CI before the CI made controlled buys as a government agent, which indicated a joint enterprise between the two and which was corroborated by trial testimony. There was ample evidence, not only that defendant knew the CI intended to redistribute the drugs he purchased, but also that defendant was part of an ongoing agreement under which he would regularly act as a supplier for the CI’s distribution operation. We readily conclude a rational jury could find defendant guilty of participating in a conspiracy with the CI during the period the CI was not acting for the government.

We reject defendant’s claims that the district court inadequately considered the sentencing factors in 18 U.S.C. § 3553(a), and that his sentence was improperly enhanced under 21 U.S.C. § 841(b)(1)(A).