In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3459

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DARRELL W. THOMAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 95-CR-40066-JPG--J. Phil Gilbert, Chief Judge.

ARGUED JANUARY 12, 2001--DECIDED March 25, 2002

 Before RIPPLE, ROVNER, and EVANS, Circuit

Judges. 

 ROVNER, Circuit Judge. The evidence in

this case leaves little doubt that

Darrell Thomas is a drug dealer--the

government has him on tape brokering

several crack cocaine sales to its

cooperating witness, Mable Jones. Thomas

has never been charged with distributing

narcotics, however. Twice the government

has tried him (and twice a jury has

convicted him) for conspiring to

distribute crack with Jones and her

associates. Another panel of this court

reversed Thomas’s first conviction and

remanded for a new trial based on the

district court’s failure to instruct the

jury that if the relationship between

Jones and Thomas was no more than that of

buyer and seller, Thomas was not guilty

of conspiracy. United States v. Thomas,

150 F.3d 743 (7th Cir. 1998) (per

curiam). At that time, the court

expressed doubts about the evidentiary

basis for the conspiracy charge and

hinted broadly that the government would

be on much firmer ground pursuing

substantive charges against Thomas. Id.

at 744-45; see also id. at 747

(Easterbrook, J., concurring). The

government did not take the hint. On

remand, Thomas again was tried, and

convicted, of conspiring with Jones and

her cohorts. We must now decide whether
the evidence was sufficient to permit the

jury to convict Thomas on the conspiracy

charge. We conclude that it was not.

I.

 Mable Jones ("Mrs. Jones" or "Jones")

and her husband Fred began to purvey

crack cocaine to the residents of public

housing projects in Mounds, Illinois, in

1993. At first, Mr. Jones handled the

sales end of the operation and Mrs. Jones

cut the drugs and handled the finances.

After a stroke in March of 1995 left Mr.

Jones confined to a wheelchair, Mrs.

Jones assumed a more active role in their

trafficking operation.

 Typically, the Joneses acquired crack

cocaine in quantities of one-sixteenth of

an ounce. They would then break those

quantities into "rocks" that were sold to

users for $20 each. Dennis Mallard worked

as a retail distributer for the Joneses;

he was also the boyfriend of Shirley

Smith, Mr. Jones’ daughter. For every

$100 worth of crack that Mallard sold to

their customers, the Joneses gave him $20

in cash or the equivalent in crack

cocaine. After Mr. Jones’ stroke, Mallard

and Smith moved into the Joneses’

residence.

 As May of 1995 drew to a close, the

Joneses needed to replenish their supply

of crack. Because most of the Joneses’

customers received public assistance, the

peak demand for their product occurred at

the beginning of each month, when public

aid recipients receive their checks. The

Joneses had a number of different sources

from which they purchased crack cocaine,

including individuals in Cairo, Illinois,

Detroit, Michigan, and Charleston,

Missouri. With the first of June

approaching, the Joneses, along with

Mallard and Smith, decided to drive

across the Mississippi River to

Charleston and attempt to locate a source

of Mallard’s known to them as "Snake."

 As the group drove around Charleston

looking for Snake, they chanced upon

Darrell Thomas, who flagged them down.

Thomas asked them whether they were

"looking." Tr. 92. After Thomas

ascertained that they were interested in

buying some crack, he led them to a green

house in Charleston and instructed Mrs.

Jones to park in the rear. Thomas entered
the house alone, leaving the others

waiting in the car. A short while later,

another individual arrived at the house

on a motorcycle, met with Thomas, and

then left. Thomas re-joined the others in

the car and ascertained that the Joneses

were willing to pay $600 for a half ounce

of crack cocaine. Eventually, the

motorcycle rider returned to the house

(this time in an automobile) and handed

something to Thomas. While his source

waited, Thomas delivered a half ounce of

crack cocaine to the Joneses in exchange

for $600 in cash. Thomas then met briefly

with his supplier, the supplier departed,

and Thomas re-joined the others. When

Mable Jones asked about the possibility

of future transactions, Thomas told her

to "just come over and look him up." Tr.

96.

 Mrs. Jones and her entourage

subsequently returned to the green house

and conducted a second transaction with

Thomas. After ascertaining that the

Joneses were again interested in a half

ounce of crack cocaine, Thomas left the

house, returned after an interval of ten

to fifteen minutes, and then sold them

the quantity they had requested.

 At a later date, the Joneses, Mallard,

and Smith returned to Charleston looking

for Thomas. Upon arrival at the green

house where they made their first and

second deals with Thomas, they discovered

he had moved to a white house elsewhere

in town. They managed to catch up with

Thomas at his new residence and were

again able to arrange the purchase of a

half ounce of crack cocaine. At that

time, Thomas provided the Joneses with

his telephone and beeper numbers.

 Thomas turned out to be the Joneses’

sole source of crack cocaine from late

May through July of 1995. According to

Mable Jones, they made at least four

purchases of crack from Thomas during

that two-month period, including the

three transactions we have just

described.

 On July 26, 1995, members of a federal

public housing narcotics task force

executed a search warrant upon the

Joneses’ residence in Cairo, Illinois.

Among other signs of drug trafficking,

the agents discovered approximately seven

grams of crack. Fred and Mable Jones,
Shirley Smith, and Dennis Mallard all

were present when the search was

conducted (in addition to Freda Smith,

another of Mr. Jones’ daughters), and

they quickly agreed to cooperate with the

authorities in exchange for leniency.

Mable Jones told the agents that she had

obtained the cocaine discovered in the

search from Thomas, and she agreed to

make further purchases from Thomas under

government supervision.

 On the following day, July 27, Jones

returned to Charleston in the hope of

making her first controlled purchase from

Mr. Thomas. She was unable to locate him

on that occasion, however.

 On July 30, Mable Jones, accompanied by

her husband, Smith, and Mallard again

traveled to Charleston intending to make

a controlled buy from Thomas. Mrs. Jones

was wearing a wire transmitter so that

her conversation with Thomas could be

recorded. This time, they were able to

locate Thomas, but he had nothing to sell

them. "Ain’t nothing happening here," he

told Mrs. Jones. Gov. Ex. 5-A at 2. Mrs.

Jones reminded Thomas that the first of

the month was approaching and that she

needed to replenish her stock of cocaine.

"We can go to Kentucky to see if we can

find some," Thomas told her. Id. "[But

there] [a]in’t nothing happening over

there. Unless you buy a piece so small."

Id. Mrs. Jones continued to fret.

"[T]here’s a little bit over in

Sikeston," Thomas allowed, "but you ain’t

going to get no weight." Id. at 4. "And

see, a little bit ain’t gonna help," Mrs.

Jones replied. "I need the weight." Id.

(Mrs. Jones considered "weight" to be a

quantity of one-half ounce or more.)

Thomas assured Mrs. Jones that he would

continue to look for a source. "I’ll do

some more calling this evening then and

I’ll let you know something tonight," he

told her. "I’ll give you a call just for

the hell of it, you know." Id.

 Two days later, on August 1, Mable Jones

(again wearing a wire) and Mallard made

another attempt to purchase cocaine from

Thomas, and this time they met with

success--or so they thought. After

meeting Thomas at the white house, the

three of them drove around town looking

for a supplier. Ultimately they found

someone, from whom Thomas obtained what

appeared to be a half ounce of crack
cocaine in exchange for $600. The

substance that Thomas gave them turned

out to be shaved wax, however--a fact

that Jones and Mallard did not discover

until the government tested the material.

Thomas had urged Mrs. Jones not to pay

for the cocaine without testing it first,

but by the time the deal was consummated,

Jones had been in a hurry to leave. When

Mrs. Jones subsequently had a monitored

telephone conversation with Thomas to

complain about the fraud that had been

perpetrated on her, Thomas chastised her

for having ignored his advice to test the

drugs before parting with her money.

Thomas promised to check into the matter

and assured her that he would try to get

her money back or the genuine article.

 On August 2, the Joneses and Mallard

drove over to Charleston, picked up

Thomas, and cruised about town looking

for the people that had supplied Jones

with the shaved wax. The search was

unsuccessful, and the Joneses and Mallard

returned to Cairo. When Mable Jones

arrived back at home, she found a message

from Thomas on her answering machine

informing her that he had located "some

dope" for the Joneses. Tr. 172. Late that

evening, the Joneses and Mallard drove

back to Charleston and met with Thomas.

Thomas subsequently took them to a

housing project in Charleston, where the

Joneses were able to acquire a quantity

of crack for $300. This transaction was

both recorded and monitored by government

agents.

 On August 7, Mable Jones placed a

monitored telephone call to Thomas.

Thomas asked her "[h]ow that other thing

worked out," evidently referring to the

August 2 cocaine purchase he had

brokered. Tr. 178. Mrs. Jones indicated

that she was satisfied with the product,

and in an apparent reference to the

people who had sold her the crack, Thomas

remarked "[T]hese, these my boys." Id.

 On the following day, Mrs. Jones and

Mallard returned to Charleston to make a

final controlled buy from Thomas. After

they met up with Thomas, he directed them

to a house in the country. Before going

inside to obtain the cocaine, he assured

Mrs. Jones that he would try to make the

deal on favorable terms. When he emerged

from the house, Thomas indicated to Jones

that he had urged the supplier to give
her a more favorable quantity than the

supplier first proposed. "He was going to

sell you those fifties, but I told him

look, come on." Def. Ex. 16 at 19; see

also id. at 21. Ultimately, Mrs. Jones

purchased $250 worth of crack. Mallard

smoked some of the cocaine in order to

make sure that it was genuine. Before

Jones and Thomas parted ways, Thomas

indicated to her that he could obtain

additional quantities of crack cocaine

for her from "a[n] old boy down in

Arkansas" at a price of $800 or $900 per

ounce. Id. at 22.

 Judith Riley, who lived with Thomas

during this time period, confirmed that

Thomas had a number of dealings with

Mable Jones. She testified that Mrs.

Jones came to the green house on two or

three occasions and to the white house on

three or four occasions.

 Finally, pursuant to Federal Rule of

Evidence 404(b), several of Thomas’s

other customers testified that they

obtained crack from Thomas on one or more

occasions. So far as the record

discloses, none of these individuals had

any connection to the alleged conspiracy

between Thomas and the Jones contingent.

 In September 1995, a grand jury returned

an eight-count indictment against Thomas,

Fred and Mable Jones, and Dennis Mallard,

along with Nathaniel Gause--apparently

one of the Joneses’ customers. R. 1.

Count One, the sole count of the

indictment naming Thomas, charged him and

the other defendants with conspiring to

distribute, and to possess with the

intent to distribute, crack cocaine. Id.

at 1; see 21 U.S.C. sec.sec. 841(a)(1),

846. In May 1996, a jury convicted Thomas

on the conspiracy charge. Thomas appealed

the conviction, arguing that the district

court had erroneously refused his request

for a buyer-seller jury instruction. See

Seventh Circuit Criminal Pattern

Instruction No. 6.12 (1999). Because the

evidence readily supported the notion

that Thomas sold crack to Mable Jones

without an agreement to commit a crime

other than the sale itself, see United

States v. Lechuga, 994 F.2d 346, 347 (7th

Cir.) (en banc) (plurality), cert.

denied, 510 U.S. 982, 114 S. Ct. 482

(1993), we agreed that the district court

was obliged to give the buyer-seller

instruction to the jury:
None of the evidence suggests that Thomas

had any stake in Jones’s profits from the

Cairo market; all deals were cash on the

barrelhead. None of the evidence

necessarily establishes that Thomas and

Jones agreed to "commit any crime other

than the crime that consists of the sale

itself." Their transactions were

episodic. A frequent customer at

McDonald’s does not agree to eat his next

burger there, rather than at Burger King,

and although an enduring commercial

relationship may support an inference

that agreement has been reached, see

Direct Sales Co. v. United States, 319

U.S. 703, 713, 63 S. Ct. 1265, 87 L.Ed.

1674 (1943); Lechuga, 994 F.2d at 350,

the jury should be told that agreement--

the crime of conspiracy--cannot be

equated with repeated transactions. This

is the office of the buyer-seller

instruction. It reminds juries that

distribution of drugs is not itself

conspiracy, although a history of

transactions may be evidence of

conspiracy. A jury readily could have

concluded that Thomas and Jones dealt

without any express or implied

undertaking to commit any future crime

cooperatively, making them substantive

offenders but not conspirators. The

district court therefore erred in

declining to give a buyer-seller

instruction. . . .

150 F.3d at 745. We pointed out that any

debate as to whether Mrs. Jones and

Thomas were simply buyer and seller,

rather than co-conspirators, could have

been avoided had the government chosen to

pursue substantive charges against Thomas

rather than the conspiracy charge. Id. at

744-45. "But it is not our task to decide

whether prosecutorial and judicial

resources have been squandered by poor

charging decisions; we must resolve the

questions presented in consequence of

those decisions." Id. at 745. Based on

the instructional error, we returned the

case to the district court for re-trial.

 On remand, the government elected to

prosecute Thomas a second time on the

conspiracy charge. In advance of the

second trial, the government re-filed a

notice pursuant to 21 U.S.C. sec. 851

indicating that in the event of his

conviction, Thomas would be eligible for

enhanced punishment based on two prior
convictions for felony drug offenses. R.

276. Thomas represented himself at the

second trial with the aid of stand-by

counsel. After hearing the evidence, and

after being properly instructed as to the

distinction between a conspiracy and a

simple buyer-seller relationship, the

jury again convicted Thomas of

conspiracy. R. 327. Thomas contended by

way of a post-trial motion that the

evidence was insufficient to convict him

of conspiracy, but the district court

rejected this argument. "In presenting

its case, the government introduced tape

recorded conversations of controlled

purchase[s] made between defendant and

his co-conspirators. These tape

recordings clearly indicate [that] Mr.

Thomas actively participated in the

conspiracy with which he was charged." R.

341 at 5. Based on Thomas’ criminal

history, the district judge sentenced

Thomas to a mandatory term of life

imprisonment. R. 373.

II.

 Thomas’ second appeal requires us to

revisit the distinction between a

narcotics conspiracy and a simple buyerseller relationship. This time around,

however, the question is not whether the

jury was properly instructed on the

distinction, but whether the evidence was

sufficient to support the jury’s verdict.

In making that assessment, we must

examine the evidence in the light most

favorable to the prosecution and ask

whether "any rational trier of fact could

have found the essential elements of the

crime beyond a reasonable doubt." Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979) (emphasis in original).

 The essence of conspiracy is, of course,

an agreement to commit a crime. United

States v. Shabani, 513 U.S. 10, 16, 115

S. Ct. 382, 386 (1994); Iannelli v.

United States, 420 U.S. 770, 777, 95 S.

Ct. 1284, 1289 (1975); United States v.

Lechuga, supra, 994 F.2d at 349

(plurality). In this case, the alleged

agreement was one to distribute crack

cocaine and to possess crack cocaine with

the intent to distribute. As we noted at

the outset, the government’s evidence, if

believed, leaves little doubt that Thomas

was a purveyor of crack. Proof that

Thomas sold a distribution quantity of

crack cocaine to Jones on one or more
occasions does not by itself establish

that Thomas conspired with Jones and her

associates, however. As we explained in

Lechuga:

A conspiracy is not merely an agreement.

It is an agreement with a particular kind

of object--an agreement to commit a

crime. When the sale of some commodity,

such as illegal drugs, is the substantive

crime, the sale agreement itself cannot

be the conspiracy, for it has no separate

criminal object. What is required in such

a case is an agreement to commit some

other crime beyond the crime constituted

by the [sale] agreementitself.

994 F.2d at 349 (plurality); see also

United States v. Torres-Ramirez, 213 F.3d

978, 981 (7th Cir. 2000).

 The crime that Thomas allegedly agreed

to commit separate and apart from the

sales to Jones was the distribution of

crack cocaine to Jones’ customers. E.g.,

Gov’t Br. 16; Tr. 75-76, 661, 669. The

government’s theory, in other words, was

that Thomas did not simply make a series

of spot sales to Mrs. Jones, but that he

"join[ed] both mind and hand" with Jones

and her retinue to facilitate the

distribution of crack cocaine to Jones’

customers. See Lechuga, 994 F.2d at 350

(plurality), quoting Direct Sales Co. v.

United States, 319 U.S. 703, 713, 63 S.

Ct. 1265, 1270 (1943). Our cases have

cited a number of factors that shed light

on whether the parties to a sale of

narcotics are merely buyer and seller or

instead are co-conspirators who share an

interest in the redistribution of those

narcotics. These include the period of

time over which the buyer and seller

transact business, the method by which

the buyer pays for the narcotics, the

quantities of drugs involved, whether the

transactions were standardized in some

way, and whether or not there was a

mutual trust between the buyer and

seller. E.g., United States v. Sanchez,

251 F.3d 598, 602 (7th Cir.), cert.

denied, 122 S. Ct. 300 (2001); United

States v. Contreras, 249 F.3d 595, 599

(7th Cir.), cert. denied, 122 S. Ct. 258

(2001). None of these factors is

dispositive, nor is the listing

exhaustive. In the end, what we are

looking for is "evidence of ’a prolonged

and actively pursued course of sales

coupled with the seller’s knowledge of
and a shared stake in the buyer’s illegal

venture.’" United States v. Pearson, 113

F.3d 758, 761 (7th Cir.), cert. denied,

522 U.S. 1035, 118 S. Ct. 641 (1997),

quoting United States v. Clay, 37 F.3d

338, 341 (7th Cir. 1994).

 The jury reasonably could have found

that Thomas was aware of the reason why

Jones was purchasing crack cocaine from

him. Thomas was repeatedly selling her

distribution-sized quantities of crack

cocaine--larger quantities, in fact, than

Mr. and Mrs. Jones had historically

purchased before they met Thomas. Indeed,

Thomas’ acknowledgment to Mable Jones in

late July that he knew the first of the

month was approaching arguably reflects

an appreciation of the time at which she

faced peak demand from her own customers.

So it is a fair inference that Thomas

knew Jones was purchasing the crack for

re-sale. It is also a fair inference that

Thomas knew Jones was not distributing

the cocaine by herself: whenever she

traveled to Charleston to transact

business with Thomas, she was always

accompanied by her husband, Smith and/or

Mallard. In short, it would have been

reasonable for the jury to conclude that

Thomas knew that she was conspiring with

others to distribute the crack cocaine

with which he was supplying her.

 That Thomas was aware of the conspiracy

to distribute narcotics does not

establish his membership in the

conspiracy, however. As we observed in

Torres-Ramirez, "Knowing of a conspiracy

differs from joining a conspiracy." 213

F.3d at 982 (emphasis in original). One

who deals in larger quantities of

narcotics will invariably realize that

his buyer intends to resell, and that in

all likelihood he will have help from

others in doing so. Id. That knowledge

alone does not render the seller liable

as a co-conspirator. Id., citing Lechuga,

994 F.2d at 347-50; see also United

States v. Rivera, 273 F.3d 751, 755 (7th

Cir. 2001). The evidence must in some way

show that the seller agreed to become a

member of the conspiracy. See, e.g.,

United States v. Larkins, 83 F.3d 162,

166 (7th Cir. 1996).

 If one looks at the entire course of

dealing between Thomas and Jones, as the

jury was invited to do, one can see some

signs that Thomas was attempting to
accommodate Jones (or at least give her

the impression that he was), and so to

retain her as a customer. Ultimately,

however, we can find no evidence that

Thomas ever shared with Jones a stake in

the success of the retail sales to Jones’

customers of the cocaine with which he

supplied her.

 First, Jones and Thomas conducted a

modest number of transactions (seven)

over a relatively brief period of time

(about ten weeks). It would be an

exaggeration to describe their dealings

as prolonged either in a numeric or a

temporal sense. On the contrary, "[t]heir

transactions were episodic." Thomas I,

150 F.3d at 745. Our point here is not

that it is either impossible or unlikely

for a buyer and seller to become coconspirators over the course of a few

transactions or a few weeks. It is simply

that the limited extent of the

affiliation between Thomas and Jones on

its face gives us no clue as to the

existence of any criminal agreement

between them. See Lechuga, 994 F.2d at

349-50; see also Rivera, 273 F.3d at 755.

 Second, as we pointed out in Thomas I,

Mrs. Jones paid for all of her purchases

from Thomas in cash. Thus, in contrast to

the scenario in which the seller "fronts"

the drug to his buyer, Thomas had no

direct stake in the resales to Jones’s

customers. See Rivera, 273 F.3d at 755-

56. True, Thomas profited from his sales

to Mrs. Jones. But Thomas made his money

at the point of sale; his profit did not

depend on the Joneses’ subsequent success

in distributing the cocaine to their

customers. Cf. United States v. Adkins,

274 F.3d 444, 450-51 (7th Cir. 2001).

 Third, although one could say that the

transactions between Jones and Thomas

followed a pattern, there was nothing

standardized about them. When Jones

needed to replenish her supply, she would

locate Thomas and he, in turn, would

attempt to find a source of crack for

her. The source was not always the same

(as revealed by the wax incident), nor

was the amount of cocaine that

Thomasmanaged to locate (as evidenced by

the last two transactions, which involved

smaller quantities). In short, there was

nothing in the way that the transactions

were arranged that revealed any degree of

commitment between Jones and Thomas. So
far as the record reveals, this was a

series of spot transactions that Thomas

brokered on an as-needed, as-able basis.

When Jones came calling, Thomas

wentlooking; that was it. See Rivera, 273

F.3d at 756.

 Fourth, nothing in the evidence bespeaks

a mutual trust between Jones and Thomas.

Practically speaking, the final sale that

Thomas negotiated on Mrs. Jones’ behalf

was little different from the first, when

Thomas flagged the Joneses down in the

streets of Charleston. Thomas negotiated

a purchase price with Jones, then left

her waiting outside in the car while he

negotiated separately with a supplier,

from whom he presumably earned his

commission. So far as the record reveals,

Jones and Thomas had no commitments to

one another: Jones was free to patronize

other suppliers (or brokers), and Thomas

was under no obligation to meet Jones’

needs (which he did with varying degrees

of success). From the first transaction

to the last, Jones always paid for the

cocaine in cash. And, as the incident

with the phony cocaine reveals, Thomas

bore no responsibility for the quality of

the crack that he located for Jones.

Although Thomas promised Jones that the

wax shavings would be replaced either

with genuine crack or her money back,

that promise was never fulfilled. Thomas

went looking for the supplier who

defrauded her, but when the search proved

in vain, it was Jones who bore the loss

(or rather the government, since by this

time she was a cooperating witness), not

Thomas.

 As we have acknowledged, the evidence

does suggest that Thomas made some effort

to please and keep Jones as a customer.

At the conclusion of the second

transaction, Thomas gave Jones his

telephone and beeper numbers. When, in

late July, he was unsuccessful in finding

a supplier to consummate a transaction

with Jones, he assured her that he would

keep trying to find her one by the

beginning of the month, when he knew she

would need the supply. When the supplier

he subsequently found turned out to have

supplied Jones with shaved wax, he

promised Jones that the matter would be

corrected and went looking with her for

the wayward supplier. After an

unsuccessful search, Thomas eventually

located another supplier and telephoned
Jones to let her know. During the August

8 transaction, Thomas twice assured Jones

that he was pushing the seller to make

the deal on terms more beneficial to her

(although this may simply have been

puffing on his part). And, at the

conclusion of that last transaction,

Thomas told Jones that he had a source in

Arkansas who could offer her crack in

larger quantities and at a more favorable

price.

 These efforts certainly reflect an

ongoing effort to cultivate Jones as a

customer; what they do not reflect is a

shared stake in the success of Jones’

distribution enterprise. Thomas did what

any good haberdasher might do--he got to

know his customer’s needs and aimed to

meet them. See Rivera, 273 F.3d at 756.

("The government showed only that [the

defendant] wanted [his customer’s]

business--that is indicative of a buyerseller relationship, not a conspiracy.")

What he did not do was offer cocaine to

Jones on terms--sale on credit, for

example, or volume discounts-- that gave

him an interest in the re-sale of the

cocaine to Jones’ customers. Thomas may

have been Jones’ sole supplier in the

eight weeks prior to her arrest, but

nothing in the manner or terms of the

sales supports the inference that this

was the result of an agreement between

them. Indeed, the record does not even

tell us whether Jones was Thomas’s sole

customer at that time or one of a

hundred. Chance brought the two of them

together, and so far as the evidence

reveals, their subsequent course of

dealing amounted to no more than a series

of mutually-satisfactory, spot

transactions.

 Even if the ongoing efforts that Thomas

made to serve Jones as a customer can be

construed as a sign that the relationship

between them was developing into

something more than a simple buyer-seller

arrangement, it bears emphasis that most

of these efforts occurred after Jones and

her collaborators began to cooperate with

the government. On July 26, when the

search warrant was executed on the Jones

household, the conspiracy was at an end.

After that point, every putative member

of the conspiracy but Thomas was

cooperating with the government. As their

goal was not to commit a crime but to

expose one, there could be no genuine
agreement between any of them and Thomas.

See Contreras, 249 F.3d at 599, citing

United States v. Mahkimetas, 991 F.2d

379, 383 (7th Cir. 1993). The evidence

must therefore support a finding that

Thomas entered into an agreement with

Jones and/or one of her associates prior

to the point at which they began to

cooperate with the government on July

26./1

 The transactions between Jones and

Thomas that occurred prior to July 26 do

not themselves demonstrate the existence

of a collaborative relationship between

them. We know that (1) in late May,

Thomas flagged Jones down as she and the

others were driving about Charleston,

brokered the sale of a half ounce of

crack, and told Jones to look him up when

she inquired about the possibility of

future sales; (2) Thomas brokered at

least three more sales to Mrs. Jones

prior to the July 26 search of the Jones

residence, for a total of at least four

sales; (3) at the conclusion of the third

sale, Thomas gave Jones his telephone and

beeper numbers; (4) Thomas was Jones’

exclusive source of crack cocaine between

late May and late July. These facts do

not alone evidence an agreement between

Thomas and Jones. At most, they establish

a series of four, spot-market, cash

transactions. The terms of these

transactions were apparently satisfactory

enough to Jones that she continued to

seek Thomas when she needed more crack

cocaine, and sufficiently advantageous

for Thomas that he supplied his contact

information to Jones and continued to do

business with her. But there is nothing

in the facts that suggests even a

commitment to future sales, let alone

some interest in the success of Jones’s

re-distribution of the cocaine to her

customers. See Rivera, 273 F.3d at 755-56

(multiple sales alone do not establish

conspiracy); Contreras, 249 F.3d at 600

(same); Torres-Ramirez, 213 F.3d at 982

(supplying narcotics purchaser with pager

number does not prove a conspiratorial

agreement). Indeed, when Jones was asked

whether there was a reason why Thomas was

her one and only source between May and

July of 1995, she responded, "Not

really." Tr. 108.

 Although any conspiracy terminated as of

July 26, one might still look to later

events for clues about what the nature of
the relationship between Thomas and Mable

Jones, et al., was prior to that date.

See generally United States v. Betts, 16

F.3d 748, 757-58 (7th Cir. 1994),

abrogated on other grounds by United

States v. Mills, 122 F.3d 346 (7th Cir.),

cert. denied, 522 U.S. 1033, 118 S. Ct.

637 (1997). But if Thomas did not come to

an agreement with Jones and the others

until after July 26 (when everyone except

he became an agent of the government),

then the jury could not lawfully convict

him of conspiracy. That presents a

problem. The jury in this case was never

asked to decide whether Thomas had become

a conspirator as of July 26, nor was it

instructed that it could consider later

events only insofar as they shed light on

what Thomas’s intent (for example) was

prior to that date. See, e.g., Tr. 649-50

(final jury instructions) ("The

indictment charges that the offense was

committed on or about January 1994 to

August 1995. The government must prove

that the offense happened reasonably

close to that date, but is not required

to prove that the alleged offense

happened on that exact date.") Neither

party alerted the court to the

evidentiary significance of July 26 as

the end date of the conspiracy. Instead,

the jury was invited to consider the

entire course of dealing between Thomas

and Jones--from late May through early

August--as substantive evidence that

Thomas conspired with Jones and the

others. See, e.g., Tr. 78-81

(government’s opening statement); Tr.

660-69 (government’s closing argument).

The strongest (which is not to say

strong) evidence of Thomas’s

participation in the conspiracy--his

efforts to deal with the shaved wax, his

August 2 telephone call advising her that

he had located another source of cocaine,

his August 7 remark vouching for the bona

fides of that source, his avowed efforts

on August 8 to sweeten the terms of the

deal for her, and his reference to a

source in Arkansas from which she might

purchase crack at a better price--all

post-dates the July 26 termination of the

conspiracy. Consequently, the jury may

have convicted Thomas of conspiracy based

on what he did on July 30, or August 2,

7, or 8, without considering whether he

actually entered into an agreement with

anyone before the conspiracy ended on

July 26. Given the obvious and

inescapable importance of July 26, the
failure to appropriately instruct the

jury amounts to plain error, see Thomas

I, 150 F.3d at 745; and that error would,

at the very least, require a new trial.

 Based on the evidence before us,

however, we do not believe that a third

trial on the conspiracy charge is

warranted. A jury properly instructed as

to the end date of the conspiracy and the

limited relevance of the acts that took

place after that date could not

reasonably find that Thomas joined the

conspiracy before the search of the Jones

residence brought it to an abrupt

conclusion. Before July 26, Thomas had

brokered four spot sales of crack to

Jones for cash. The most he had done by

way of an arrangement with Jones vis a

vis future transactions was to give her

his telephone and beeper numbers. What

Thomas did with and for Jones after July

26 may have signaled an increasing level

of cooperation between the two, but even

assuming for the sake of argument that

his later efforts were the acts of a coconspirator rather than a mere seller,

those efforts do not show that Thomas

entered into an unlawful agreement before

the key date of July 26. In other words,

whatever later events may reveal about

Thomas’ status at the time they occurred,

they shed no light on his status prior to

July 26: they do not, for example, reveal

a prior understanding with Jones or a

pre-existing stake in the success of her

sales. See generally Betts, 16 F.3d at

758 (noting the difficulty of inferring

prior intent from subsequent acts).

III.

 No doubt the evidence would support a

charge against Thomas for distributing

narcotics. He was not indicted for that

offense in this Circuit, however, because

venue for that charge would properly lie

only in the Eastern District of Missouri,

where the sales to the Jones group took

place. Fed. R. Crim. P. 18; United States

v. Rodriguez-Moreno, 526 U.S. 275, 278-

79, 119 S. Ct. 1239, 1242-43 (1999);

Rivera, 273 F.3d at 756; Torres-Ramirez,

213 F.3d at 981. Because the trial

evidence was insufficient to support

Thomas’ conviction on the conspiracy

charge, we REVERSE his conviction.

FOOTNOTE
/1 The government raises the possibility that although Fred and Mable Jones, Smith, and Mallard

were no longer participants in the conspiracy

after July 26, the conspiracy may nonetheless

have continued among its other members. Gov’t Br.

at 20. Yet the government cites no other individuals who might have carried on the conspiracy

with Thomas, and we can find no evidence of such

individuals in the record. Consequently, there

can be no doubt that the conspiracy ended on July

26.

 

 EVANS, Circuit Judge, dissenting. Darrell Thomas

dodged a bullet in 1998 when we reversed his

conviction for conspiracy to distribute cocaine.

United States v. Thomas, 150 F.3d 743 (7th Cir.

1998). We reversed because the district court

declined to give a "buyer-seller" jury instruction as Thomas had requested. Noting that the

evidence presented against Thomas "was as consistent with intermittent sales as it was with

criminal conspiracy," we concluded that Thomas

was prejudiced by the failure to give the "buyerseller" instruction./1 We ordered a new trial.

 Upon remand, the case was retried, a buyerseller instruction was given (it was Seventh

Circuit Pattern Instruction 6.12), and Thomas was

again convicted. Today’s majority opinion reverses the new conviction, so Thomas has dodged

another bullet. Because I think the majority has

usurped the province of the jury, I respectfully

dissent.

 The line separating conspiracy from a mere

buyer-seller relationship is not very bright. In

a case like this, under our system of criminal

procedure, it is a properly instructed jury that

decides on which side of the fuzzy line a defendant’s conduct falls. That seems to me to be the

message we sent the first time we saw this case

when we found the evidence, as I have previously

quoted, to be "as consistent with intermittent

sales as it was with criminal conspiracy."

 The fatal flaw in the majority’s approach to

this case is that it strains to infer what the

evidence does not tell us, rather than follow our

usual course and review the evidence in the light

most favorable to the verdict. Thomas’ challenge

today is nothing more than a challenge to the

sufficiency of the evidence, and we have often

held that we will set aside a verdict on this

ground "only when the record contains no evidence, regardless of how it is weighed, from

which the jury could find guilt beyond a reasonable doubt." United States v. Brack, 188 F.3d

748, 760 (7th Cir. 1999).
 The evidence in this case does not show that a

sophisticated Tony Soprano-Paulie Walnuts-Uncle

Junior type criminal conspiracy was at work here.

But we have observed that the "loosely-knit

ensemble" of a drug conspiracy "can consist of an

implicit understanding between the parties regarding the subsequent resale of drugs." United

States v. Smallwood, 188 F.3d 905, 912. A conspiracy agreement, we have also observed, can be

established by circumstantial evidence. United

States v. Brisk, 171 F.3d 514, 516 (7th Cir.

1999). And that, I think, is what we have here.

 The jury could have believed (and apparently

did believe) that Thomas and the Joneses (primarily Mable) conspired to distribute crack for a 3-

month period ending when the Joneses were busted

by officers from the federal public housing

narcotics task force on July 26, 1995.

 If the only thing the evidence showed was that

the Joneses bought personal-use-size quantities

of crack from Thomas, nothing more than a simple

buyer-seller arrangement would have been shown.

But that’s not what we have here. The evidence,

viewed favorably to the jury’s verdict, is sufficient to shove this case over the fuzzy line into

conspiracy territory. It showed that Thomas sold

resale-size quantities of crack to the Joneses on

four occasions and that the Joneses resold the

crack with Thomas’s knowledge. Apparently hopeful

of providing even more crack for resale, Thomas

gave the Joneses his phone and pager numbers so

they could get in touch with him more easily.

Plus, Thomas had an obvious stake in the Joneses’

success--every time he sold them crack for their

resale purposes he made money. The more they

would sell in the future, the better it would be

for Thomas.

 To set aside a verdict of a jury--especially

after a hard-fought trial--is a drastic step. To

do it twice, when the second trial proceeded

exactly as we instructed with a proper buyerseller instruction, is, in my opinion, a grave

error. Had we thought the evidence insufficient

to support a conspiracy conviction the first time

around, the relief we would have ordered would

have been a reversal with instructions to enter

a judgment of acquittal. It would not have been

to order a new trial. The majority’s opinion

today means the time of 12 jurors, and that of

Judge Gilbert, has been squandered while retrying

this case.

FOOTNOTE

/1 Although Thomas requested a buyer-seller instruction, he did not object to the failure of the
judge to give one.