United States v. Maria Moe

Maria Moe appeals her conviction for conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846 . Her primary arguments rest on the so-called “buyer-seller rule,” under which a conviction- for conspiracy cannot be based solely on the purchase of an unlawful substance, even though such a transaction necessarily involves an agreement between at least two parties, the buyer and the seller. “Rather, conspiracy requires proof of ‘an agreement to commit a crime other than the crime that consists of the sale itself.’ Were the rule otherwise, every narcotics sale would constitute a conspiracy.” United States v. Lennick, 18 F.3d 814, 819 (9th Cir.1994) (quoting United States v. Lechuga, 994 F.2d 346, 347 (7th Cir.1993) (en banc)).

Moe contends that the evidence presented to the jury established only that she purchased methamphetamine from a supplier — that is, established only a buyer-seller transaction — not that she was engaged in a conspiracy with the seller in connection with subsequent distribution. She also contends that the district court should have given an instruction to the jury regarding the buyer-seller rule. We conclude that the…

concurring:

I agree that the instructions in this case, as a whole, “accurately informed the jury that a conspiracy could not be found based only on the sales ... to Moe,” and that Moe demonstrated no prejudice from the court’s failure to give a separate buyer-seller instruction. I therefore join the panel opinion.

Even when the instructions accurately inform the jury of what is required to find a conspiracy, however, “the line between a conspiracy and a mere buyer-seller relationship is difficult to discern.” United States v. Gee, 226 F.3d 885, 895 (7th Cir.2000). Recognizing this, the Seventh Circuit sensibly requires district courts to give a buyer-seller instruction whenever a jury “could conceivably have determined that the buyer-seller relationship which existed did not involve an overarching conspiratorial agreement.” United States v. Mims, 92 F.3d 461, 464 (7th Cir.1996); Gee, 226 F.3d at 895 . To determine if a case “presents one of those situations,” that court evaluates criteria such as *1130 whether (1) “[t]he proffered evidence of a conspiracy was circumstantial and not overwhelming,” (2) “[t]he evidence was as consistent with a buyer-seller relationship as it was…

I. Background

Maria Moe was indicted in January 2013 on two counts: conspiracy to possess with intent to distribute 50 grams or more of methamphetamine, 21 U.S.C. § 846, and distribution of 50 grams or more of methamphetamine, 21 U.S.C. § 841(a)(1). She pleaded not guilty and went to trial.

During the two-day trial that followed, the government called five witnesses. These included four government agents and one cooperating witness, Shawn Ellifritt. Ellifritt testified that he supplied methamphetamine to Moe. Moe lived in Helena, Montana, but traveled to Spokane, Washington, to buy methamphetamine from Ellifritt. She typically purchased a half ounce of methamphetamine one time per month. From December 2009 until December 2010, Moe made at least seven purchases. Ellifritt estimated that these transactions involved approximately 140 grams of methamphetamine. Moe and Ellifritt communicated by phone. There were at least 94 cell phone contacts between Ellifritt and Moe, including 51 text messages. The two used a code to communicate regarding the availability of methamphetamine: for example, when Ellifritt texted Moe that the weather was bad, that meant methamphetamine was not…