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US v. Herberto Pulgar,  No. 14-3503 .

Drug-distribution conspiracies hold a unique position in our legal sufficiency jurisprudence. In these special cases, we will overturn a conviction when the plausibility of a mere buyer-seller arrangement is the same as the plausibility of a drug-distribution conspiracy. See United States v. Johnson, 592 F.3d 749, 755 (7th Cir. 2010)

This standard is a function of the government’s burden of proof. For it must prove “an agreement to distribute drugs that is distinct from evidence of the agreement to complete the underlying drug deals.” Johnson, 592 F.3d at 755 (emphasis added). Evidence of an agreement to advance further distribution—beyond the initial transaction—is therefore required. United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993)

A conspiracy requires a showing that (1) two or more people entered into an agreement to distribute drugs, and (2) the defendant knowingly and intentionally joined in the agreement. Johnson, 592 F.3d at 754.

Pulgar contends that the government adduced insufficient evidence to support the conspiracy conviction. In his view, the government established nothing more than a lengthy series of spot transactions between 2002 and 2013. These transactions support a buyer-seller arrangement, but not a conspiracy to distribute cocaine. At most, Pulgar contends, the evidence stands in equipoise and demands reversal. Viewing the record in the light most favorable to the government, we agree with Pulgar.

The government introduced insufficient evidence to prove a conspiracy.

Specifically, the government did not prove Pulgar entered into an agreement with Schmidt to distribute cocaine. Pulgar, no doubt, sold large quantities of cocaine to Schmidt at wholesale prices for a period of eleven years. Pulgar admits as much on appeal. But “[r]epeat sales, without more, simply do not place the participants’ actions into the realm of conspiracy.” Rivera, 273 F.3d at 755; see also United States v. Pereira, 783 F.3d 700, 704–05 (7th Cir. 2015)

Pulgar never expressed approval or disapproval for what Schmidt eventually charged for the cocaine. Once Pulgar sold the cocaine to Schmidt, Schmidt charged whatever he alone wanted to charge.

Moreover, the government did not establish that Pulgar and Schmidt engaged in credit transactions during their business relationship. Its only example of a credit transaction occurred during a deal that Schmidt helped arrange for the DEA, and, of course, Pulgar cannot be on the hook for that. See United States v. Corson, 579 F.3d 804, 811 (7th Cir. 2009) (“[A]n agreement must exist among coconspirators, that is, those who actually intend to carry out the agreed-upon criminal plan. A defendant is not liable for conspiring solely with an undercover government agent or a government in-formant.”) (emphasis in original) (citations omitted).

In sum, the record of trial does not support the conspiracy conviction. Employing the most charitable view of the evidence, it is just as plausible that a mere buyer-seller arrangement existed as it is that a conspiracy to distribute drugs existed. Consequently, any rational jury examining this case would harbor a reasonable doubt as to Count 1–the sole count on which Pulgar was convicted.

We VACATE Pulgar’s conviction and Sentence.

By: Chicago Federal Criminal Defense Attorney Michael J. Petro