In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 21-3221 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

ROYEL PAGE, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Eastern District of Wisconsin. 

No. 2:17-cr-00175-MYS-9 — Michael Y. Scudder, Circuit Judge.*

____________________ 

ARGUED NOVEMBER 9, 2022 — DECIDED AUGUST 4, 2023 

____________________ 

Before ROVNER, JACKSON-AKIWUMI, and LEE, Circuit 

Judges. 

JACKSON-AKIWUMI, Circuit Judge. Royel Page presents two 

challenges to his conviction for participating in a conspiracy 

to sell heroin. He contends the government presented insufficient evidence at trial to justify his conviction. He also 

* Of the United States Court of Appeals for the Seventh Circuit, sitting 

by designation.
2 No. 21-3221 

contends the district court committed plain error by failing to

instruct the jury on the difference between a buyer-seller relationship, which is how Page characterizes his connection to

the top drug dealer in his case, and a conspiracy, where two 

parties share some joint purpose in building a drug business 

together. We agree that the evidence at trial warranted a 

buyer-seller instruction to the jury, so we reverse and remand 

his conviction on that ground.

I 

In 2017, a grand jury returned a thirty-four count indictment against twelve defendants involved in selling heroin. 

Page was charged in just two of those counts, and not with 

conspiracy. Based on wiretap investigations and a search of 

Page’s apartment, among other evidence, prosecutors alleged 

Terrance Hamlin purchased heroin from Torrence Harris and 

distributed those drugs to purported mid-level distributors 

like Page. Two years later, a grand jury returned a superseding indictment against Page, Harris, Hamlin, and others, 

charging them with a drug-trafficking conspiracy involving 

over 100 grams of heroin. The superseding indictment also 

charged Page with twelve counts of attempting to distribute 

and possession with intent to distribute heroin.

In 2021, Page went to trial as the only defendant who did 

not plead guilty. During trial, the government relied on the 

wiretaps and items found during the search of Page’s apartment, including clear plastic bags, latex gloves, suspected heroin, a scale, and a bottle of lactose (sometimes used to cut heroin). The government also pointed to surveillance of Page getting into Hamlin’s car for a short time. Hamlin served as a key 

witness in the government’s case. The government presented 
No. 21-3221 3

evidence that Hamlin used to sell drugs to Page’s father—the 

family connection that introduced Page and Hamlin. Hamlin 

had known Page’s father for over 40 years, since middle 

school. Hamlin and Page’s relationship was so quasi-familial 

that Hamlin listed Page’s contact in his phone as “Neph Roy,” 

and Page was said to refer to Hamlin as “Uncle Bone.” Page 

did not present testimony or evidence at trial, as was his right. 

The instructions provided to the jury included our circuit’s pattern instruction on “Membership in Conspiracy,” 

which states, in relevant part: 

To be a member of a conspiracy, a defendant 

does not ... need to know all of the other members or all of the means by which the illegal 

goals of the conspiracy were to be accomplished. The government must prove beyond a 

reasonable doubt that the defendant was aware 

of the illegal goals of the conspiracy and knowingly joined the conspiracy. 

A defendant is not a member of a conspiracy 

just because he knew and/or associated with 

people who were involved in a conspiracy, 

knew there was a conspiracy, and/or was present during conspiratorial discussions.

[ ... ] 

In deciding whether the defendant joined the 

charged conspiracy, you must base your decision only on what the defendant did or said. To 

determine what that defendant did or said, you 

may consider the defendant’s own words or 

acts. You may also use the words or acts of other 
4 No. 21-3221 

persons to help you decide what the defendant 

did or said.

Jury Instructions at 26 (citing Fed. Crim. Jury Instr. 7th Cir. 

5.10 (2022 ed.)).

Counsel for Page did not propose a jury instruction that 

would have highlighted the difference between a drug conspiracy and a conventional buyer-seller relationship. The jury 

convicted Page on all counts and the district court imposed a 

below-guidelines sentence of 90 months in prison.

II

Page contends that the district court should have instructed the jury on the difference between a drug conspiracy 

and a conventional buyer-seller relationship. He did not object to this missing buyer-seller instruction at trial, so we review the issue for plain error. United States v. DiSantis, 565 

F.3d 354, 361 (7thCir. 2009). Plain errors are those that are “(1) 

clear and uncontroverted at the time of appeal and (2) affected 

substantial rights, which means the error affected the outcome of the district court proceedings.” United States v. Trudeau, 812 F.3d 578, 589 (7th Cir. 2016). 

To get to the heart of the matter, it helps to understand 

first what constitutes a conspiracy, and what does not. To secure a conviction for conspiracy to distribute drugs, the government “must prove beyond a reasonable doubt that the defendant knowingly agreed, perhaps implicitly, with someone 

else to distribute drugs.” United States v. Hidalgo-Sanchez, 29 

F.4th 915, 924-25 (7th Cir. 2022). We have said that liability for 

participating in a drug trafficking conspiracy involves two 

main principles: First, a defendant must “have a stake in the 
No. 21-3221 5

venture” and exhibit “informed and interested cooperation.” 

United States v. Vizcarra-Millan, 15 F.4th 473, 507 (7th Cir. 

2021). Second, there must be “evidence of an agreement to advance further distribution—beyond the initial transaction.” 

Hidalgo-Sanchez, 29 F.4th at 925. 

Characteristics that tend to distinguish a conspiracy from 

a buyer-seller relationship include: “sales on credit or consignment, an agreement to look for other customers, a payment of commission on sales, an indication that one party advised the other on the conduct of the other’s business, or an 

agreement to warn of future threats to each other’s business 

stemming from competitors or law enforcement authorities.” 

Id. An individual purchasing quantities of drugs beyond 

those for personal consumption, frequently, and on credit, 

leads to “an inference of conspiracy.” Id. But an evaluation of 

the existence of a conspiracy is done through a “totality-ofthe-circumstances approach.” Vizcarra-Millan, 15 F.4th at 507.

And under the law of this circuit—in contrast to some of our 

sister circuits1—repeated sales of distribution-level quantities 

1 Our circuit does not restrict the availability of the buyer-seller instruction in ways other circuits do. Some of our sister circuits, for example, 

have held that a defendant is not entitled to a buyer-seller instruction 

when there is any pattern of large drug sales. See, e.g., United States v. Tillman, 765 F.3d 831, 835 (8th Cir. 2014) (“Tillman’s participation in the conspiracy spanned years, with multiple drug transactions and multiple customers. Because it was not a single, isolated sale, the buyer-seller instruction was not supported by the evidence.”); United States v. Hackley, 662 

F.3d 671, 679 (4th Cir. 2011) (“[W]e have held that evidence of a continuing 

buy-sell relationship when coupled with evidence of large quantities of 

drugs, or ‘continuing relationships and repeated transactions,’ creates a 

reasonable inference of an agreement.”). At least one circuit has held that 

a buyer-seller instruction is only applicable if the evidence shows that appellee was a buyer for personal use. See United States v. Mitchell, 596 F.3d 
6 No. 21-3221 

of drugs are not enough by themselves to create conspiracy 

liability. Id. (holding “circumstantial evidence of an agreement to distribute drugs” may allow for an inference of a regular buyer-seller relationship).

In the past, we have said that the line between a buyerseller relationship and a conspiracy can be “as much an art as 

a science” and “blurry.” Vizcarra-Millan, 15 F.4th at 507; 

United States v. Askew, 403 F.3d 496, 503 (7th Cir. 2005). Still, 

two precepts are clear: One, if the evidence shows only that 

two people are in a buyer-seller relationship, that is insufficient for a conspiracy conviction. Hidalgo-Sanchez, 29 F.4th at 

925. Two, if the evidence is equally probative of a conspiracy 

or of a buyer-seller relationship, the tie goes to the defendant.

Id.

Stated another way, when the evidence shows either possibility is equally likely—a conspiracy or a buyer-seller relationship—the evidence is not enough to convict for conspiracy. United States v. Johnson, 592 F.3d 749, 755 (7th Cir. 2010)

(noting that in situations when “evidence is essentially in equipoise [and] the plausibility of each inference is about the 

same,” a jury “necessarily would have to entertain a reasonable doubt on the conspiracy charge.”). In cases where this is 

true—where the evidence is in equipoise—“we have never 

found a failure to give the buyer-seller instruction to be harmless.” United States v. Cruse, 805 F.3d 795, 816 (7th Cir. 2015) 

(stating this applies when “a reasonable jury could have 

found that the defendant was merely a buyer from the 

18, 25 (1st Cir. 2010) (“We hold that the district court did not plainly err in 

failing to give a buyer-seller instruction because the record does not support the theory that Mitchell was a mere buyer for personal use.”).
No. 21-3221 7

conspiracy” (quoting United States v. Meyer, 157 F.3d 1067, 

1075 (7th Cir. 1998) (cleaned))). 

With this background, we turn to Page’s argument and the 

government’s evidence at trial. Page argues the court should 

have used the Seventh Circuit Pattern Criminal Jury Instruction 5.10(A) on the “Buyer/Seller Relationship”:

A conspiracy requires more than just a buyerseller relationship between the defendant and 

another person. In addition, a buyer and seller 

of [name of drug] do not enter into a conspiracy 

to [distribute [name of drug]; possess [name of 

drug] with intent to distribute] simply because 

the buyer resells the [name of drug] to others, 

even if the seller knows that the buyer intends 

to resell the [name of drug]. The government 

must prove that the buyer and seller had the 

joint criminal objective of further distributing 

[name of drug] to others.

See Fed. Crim. Jury Instr. 7th Cir. 5.10(A) (2022 ed.). 

Page contends that his involvement with Hamlin is an imperfect match to the conspiracy elements, necessitating the 

buyer-seller instruction, and we agree. To explain, we discuss 

the three main pieces of evidence the government alleged 

pointed to a conspiracy—all of which barely satisfy the factors 

suggesting a conspiracy and do as much to suggest the existence of a buyer-seller relationship. 

First, the government highlighted a single instance when 

Hamlin allowed Page to return tainted heroin and use the resulting credit to purchase more heroin. In the wiretapped conversations, Page expressed concern to Hamlin about the 
8 No. 21-3221 

quality of the heroin Hamlin had sold him, and the problems 

Page’s customers were having boiling it down. Page asked to 

swap it out for a different kind of heroin because one of his 

customers was too consistent a buyer to be sold substandard 

product. Hamlin testified that he agreed to take back the heroin based on these concerns. Later that day, Page bought 17.5 

grams of heroin and paid for it with a $250 credit. 

True, sales on credit or consignment are one of the factors 

we have found suggestive of a drug conspiracy. Johnson, 592 

F.3d at 755. And in the government’s view, Page and Hamlin’s tainted heroin episode shows the kind of “shared stake 

in the illegal venture” distinguishing a drug conspiracy from 

a general buyer-seller relationship. Askew, 403 F.3d at 502 (upholding a conspiracy conviction where drugs were sold between individuals “sometimes at below average prices or volume discounts” and sometimes essentially on layaway); see

also, Hidalgo-Sanchez, 29 F.4th at 926-27 (upholding a conspiracy conviction even though there was not a “consistent pattern” of sales on credit).

Equally true, however, is that this single credit-based sale 

in the context of Page and Hamlin’s long history is not enough 

to rule out the possibility that the two were in a mere buyerseller relationship. See Vizcarra-Millan, 15 F.4th at 510-11 

(holding a $100 discount or credit on one purchase was “extremely weak evidence of conspiracy”); United States v. Neal, 

907 F.3d 511, 516 (7th Cir. 2018) (“[O]ccasional sales on credit 

are consistent with an ordinary buyer-seller relationship.” 

(cleaned)). And the government’s argument that Page and 

Hamlin’s conversations demonstrate a relationship of enhanced trust and interest in the particulars of the other’s business holds as true for co-conspirators as it does for a seller 
No. 21-3221 9

(Hamlin) invested in keeping a consistent, long-time, familylike customer (Page) happy. Hamlin even testified at trial that 

he cut Page’s price over the course of their relationship because Page was “a good customer.” A reasonable jury could 

find from this evidence that Page and Hamlin were in a mere 

buyer-seller relationship.

The government’s second piece of evidence pointing to a 

conspiracy was that Page and Hamlin discussed buying and 

repackaging heroin for new customers in some northern region not identified in the record. However, these discussions 

did not continue, much less translate into reality, because 

Page was already in a separate business with buyers in that

region. These unfulfilled discussions do not demonstrate an 

agreement to look for other customers, and they certainly are 

not enough to obviate the need for a buyer-seller instruction. 

The government’s third piece of evidence pointing to a 

conspiracy was that Hamlin warned Page to be discreet about 

both the drug business and letting Page‘s cousin Deon get 

wind of their dealings. This could suggest that Hamlin was 

advising Page on how to manage his business, another factor 

we have found suggestive of a drug conspiracy. Johnson, 592 

F.3d at 755-56. But it is also similar to the kind of “self-preservation” warning that does not create a conspiracy inference. 

See Johnson, 592 F.3d at 757 (holding that a warning from a 

drug buyer to an approaching seller of police presence of the 

neighborhood was consistent with a buyer-seller relationship). Not to mention that the evidence showed Page and 

Hamlin had a relationship based on a longstanding familial 

connection, making it equally likely that the warnings were 

born of genuine solicitude, not a conspiratorial bond.
10 No. 21-3221 

Aside from the three pieces of evidence summarized 

above, there was little at trial to suggest a conspiracy beyond 

evidence showing Page purchased “distribution quantities of 

heroin”—as the government puts it—over a year and a half. 

However, that kind of purchasing history alone is not enough 

in our circuit to create an inference of a conspiracy. VizcarraMillan, 15 F.4th at 506-07. It bears repeating: When the evidence permits a reasonable jury to find the defendant “was 

merely a buyer from the conspiracy,” this court “[has] never 

found a failure to give the buyer-seller instruction to be harmless.” Cruse, 805 F.3d at 816. Because the government’s evidence was comparatively thin, we agree that a buyer-seller 

instruction was warranted, and the failure to offer one constituted plain error. We therefore remand Page’s conspiracy 

conviction (Count 1) for a new trial with a properly instructed 

jury.

III 

We agree with Page that the government did not provide 

enough evidence at trial to render a buyer-seller jury instruction unnecessary. Page also challenges the sufficiency of the 

evidence supporting his conspiracy conviction. But because 

we remand for a new trial on Count 1 with a properly instructed jury, we need not reach this question.

REVERSED AND REMANDED.