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USA v. Anthony Gilmer and Jamar Bailey,06-3201 & 06- 3250.  Anthony Gilmer and Jamar Bailey were indicted on two counts of conspiracy and drug possession charges in March 2005. Following a bench trial, the district court found Gilmer and Bailey guilty and sentenced them to 57 months’ and 100 months’ imprisonment respectively.

The court credited the testimony of the DEA agents, as well as the testimony of the cooperating co-conspirators.  In finding that Bailey and Gilmer were guilty of the conspiracy charge, the court specifically held that Gilmer’s conduct was inconsistent with mere presence at the scene of the conspiracy, finding that his actions and his admissions established him as a co-conspirator.

A defining characteristic of a conspiracy is a common agreement “to further a single design or purpose.” United States v. Thomas, 520 F.3d 729, 733 (7th Cir. 2008). “The agreement need not be formal, and the government may establish that agreement, as it may other elements of the charge, through circumstantial evidence.” United States v. Taylor, 116 F.3d 269, 271 (7th Cir. 1997). The government must prove an understanding-explicit or implicit-among co-conspirators to work together to commit the offense. United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003).

While it is true that presence alone is not enough to convict, a single act will suffice if the circumstances permit the inference that the presence or act was intended to advance the ends of the conspiracy. United States v. Macedo, 406 F.3d 778, 792 (7th Cir. 2005). “[O]ne need not be at the heart of the conspiracy to be part of its web.” Curtis, 324 F.3d at 506 (citation omitted).

A conspiracy may be shown by evidence which shows that the co-conspirators embraced the criminal objective of the conspiracy, that the conspiracy continued towards its common goal, and that there were co-operative relationships. United States v. Messino, 382 F.3d 704, 709 (7th Cir. 2004) (“[T]he critical inquiry for judges is whether the factfinder can reasonably conclude from the proof that the accused likely had some appreciable ability to guide the destiny of the drug.”).

Bailey cites our holding in United States v. Baker, 499 F.2d 845, 848 (7th Cir. 1974) to support his proposition that Bailey was simply “along for the ride,” but his argument misses the mark. Baker held that criminal participation cannot be drawn merely from presence; a culpable purpose is essential. In Baker, testimony revealed that one co-defendant drove a car that one conspirator rode in, engaged only in “small talk” at the location where the drug transactions took place, and did not participate in any conversations about drug dealing. In reversing the co-defendant’s conspiracy conviction, we held that where a single act of driving a car that a conspirator rode in, without more, was insufficient evidence to infer intent to participate or associate with a conspiracy. See 499 F.2d at 847-49.

Plenty of evidence linked Bailey to the conspiracy. Bailey was more than simply a driver of the car or an observer at the site of the transaction. The government’s evidence demonstrated that Bailey served as an intermediary in the conspiracy, bridging the divide between a willing buyer and seller by recruiting Gilmer to perform the critical function of obtaining the heroin. See United States v. Rock, 370 F.3d 712, 714 (7th Cir. 2004) (reasoning that when defendants are on the same side of a sale of drugs to a third party, there is sufficient evidence of a conspiracy).

We decline to find that Bailey was simply “along for the ride,” for common sense dictates that drug dealers want to minimize contacts throughout a conspiracy, therefore it is unlikely for innocent parties to be present at drug deals. See United States v. Garcia, 439 F.3d 363, 367 (7th Cir. 2006)(holding that the factfinder may infer that it runs counter to human experience to suppose that criminal conspirators would welcome innocent nonparticipants as witnesses to their crimes). We believe that there was sufficient evidence, beyond a reasonable doubt, that Gilmer and Bailey conspired with each other and with their fellow co-conspirators to distribute heroin.

For the foregoing reasons, the convictions of Anthony Gilmer and Jamar Bailey are AFFIRMED.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

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