United States v. Vizcara-Millan (7th Cir. September 2021)

The Federal Docket

October 20, 2021

Drug Conspiracy – A defendant cannot be convicted of drug conspiracy where the evidence equally supports that the defendant was in a buyer-seller relationship, and evidence of a wholesaler encouraging a defendant, giving a defendant a discount, and selling increasingly larger quantities to the defendant do not establish a conspiracy.

Drug Offenses/Constructive Possession – There was insufficient evidence of a defendant’s constructive possession of meth found at his acquaintance’s house where the admissible evidence showed that he purchased a quantity of meth and that a similar quantity of meth was found at his acquaintance’s home later, and there was no admissible evidence the defendant had a possessory interest in the house or that the defendant put the meth there or knew it was there.

James Beasley was one of many defendants convicted in a multi-defendant trial, and several of the defendants appealed. Regarding Beasley, he was convicted on one count of conspiring with “the Grundy gang” to distribute drugs, one count of possession of methamphetamine found on his person, and one count of possession of methamphetamine found at the home of a woman he was staying with.

On appeal, Beasley challenged his convictions on the first and third count. Regarding the first count, the Court held that there was insufficient evidence that he had knowingly joined in a conspiracy with the other defendants, who were part of a large drug trafficking organization.

Beasley had purchased drugs from the DTO on several occasions and increasingly greater quantities, he had received a $100 discount or credit on one occasion, and a member of the DTO praised him “for being a good drug salesman.” While this evidence was consistent with an inference that Beasley joined the conspiracy, the Court held it “was at least equally consistent with an inference that Beasley and Carroll had only a buyer-seller relationship, with Carroll’s one-time discount and encouragement showing only the work of a good wholesale salesman trying to develop a profitable relationship with a new retailer-customer.” The Court distinguished the case from others were evidence such as encouragement and increasingly large purchases is sufficient to show a conspiracy and concluded that “the evidence against Beasley did not allow a finding beyond a reasonable doubt of more than a buyer-seller relationship.”

The Court also reversed Beasley’s conviction for possession of three ounces of meth found at the home of Susan Koch, a woman he was seeing. The Government had convicted Beasley on this count based on a theory of constructive possession, since Koch has told law enforcement that Beasley had stayed with her the night before and left something at her house, leading them to a shoebox in her closet containing three ounces of meth. Other evidence showed Beasley had just purchased two ounces of meth and that Koch told another person that Beasley stored meth at her house.

Koch did not testify at trial. As a result, the Court held that there was insufficient evidence of Beasley’s constructive possession of the meth. The Court noted that Koch’s hearsay statements were not admissible to show Beasley’s possession or control over the drugs (and the court was critical of the Government’s introduction of this hearsay as “course of investigation” testimony, Beasley lacked any possessory interest in the house, and the the fact that Beasley was not part of the conspiracy, as explained above, meant that the hearsay exception for co-conspirators did not apply. Based on only the admissible evidence, the Government’s evidence “showed only that Beasley bought drugs in front of a clothing store and that a different quantity of drugs was later found in the house of someone he knew next to a bag from that clothing store.”

Appeal from the Southern District of Indiana
Opinion by Hamilton, joined by Flaum and Brennan

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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