Sufficient evidence of an agreement to distribute drugs; The “buyer-seller” exception to the drug-conspiracy statute (21 USC § 846); “Wharton’s Rule”; Sufficiency of the evidence for a communication-facility (§ 843(b)) conviction

The court reversed defendant-Wheat’s drug conspiracy conviction where the government did not present enough evidence of an agreement between Wheat and a drug dealer (R) to distribute heroin to third parties. But it affirmed his communication-facility conviction based on his use of his phone to facilitate a drug felony. Wheat gave R a .3-gram free “sample” of heroin and nothing else. The court reviewed the “‘buyer-seller’ rule that refuses to equate a buyer-seller agreement with a conspiratorial ‘agreement.’” It noted that it has “identified additional ‘factors’ that allow a jury to find an agreement between a buyer and seller to go beyond their own sale.” These include repeated purchases of large drug quantities or more complicated “consignment” or “credit” purchases. But the court held that the “critical element” remains that the conspiracy must “involve more than an agreement to transfer drugs from one party to another.” It concluded that even though Wheat could have been charged with distributing to R, there was insufficient evidence that he conspired with R. Their contact consisted “almost entirely of their phone call before the exchange,” and the exchange itself. There was no evidence that they ever spoke again. Additionally, there was no evidence that Wheat “knowingly agreed that [R] would transfer his sample to a third party in order to turn their two-person distribution into a conspiracy whose ‘essential object’ was this redistribution.” The court opined that the jury in this case based its finding of a conspiracy on the sample transfer alone, but that there was “insufficient evidence of any agreement between Wheat and [R] beyond their own exchange of the sample.” However, the court held that there was sufficient evidence to support Wheat’s conviction under § 843(b) for using his phone in furtherance of a drug-trafficking crime. It noted that “courts regularly hold that a phone makes a drug-distribution crime easier where, as here, the defendant uses the phone to coordinate the logistics of the distribution.”