### In the



# United States Court of Appeals

For the Seventh Circuit

Nos. 16

‐ 4083 & 17

‐ 1402

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

J OSE M ALDONADO AND F RANCISCO

M ASIAS

, Defendants

‐ Appellants.

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 10 CR 1068

— Rebecca R. Pallmeyer

, Judge.

A RGUED A PRIL 4, 2018

— D ECIDED J UNE 21, 2018

Before W OOD

, Chief Judge, and B AUER and S YKES

, Circuit

Judges.

B AUER

, Circuit Judge. Jose Maldonado and Francisco Masias

(together, “the Defendants”) were charged with conspiring to

distribute cocaine, amongst six other counts irrelevant to this

appeal. During trial, the district court gave a multiple conspira

‐2 Nos. 16

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cies jury instruction and refused to give a “meeting of the

minds” instruction proposed by Masias. The jury convicted the

Defendants on all counts, and they now appeal. They contend

the government lacked sufficient evidence to prove conspiracy

between them and Edwin Rodriguez, a cooperating defendant,

and Masias contends separately that the district court erred by

refusing to give a “meeting of the minds” jury instruction.

I. BACKGROUND

On December 16, 2010, a grand jury returned a seven

‐ count

indictment charging the Defendants with conspiracy to possess

more than five kilograms of cocaine, in violation of 21 U.S.C.

§ 846; possession with intent to distribute cocaine, in violation

of 21 U.S.C. § 841(a)(1); using the telephone to facilitate a

narcotics offense, in violation of 21 U.S.C. § 843(b); and

unlawful possession of firearms by a felon, in violation of 18

U.S.C. § 922(g)(1).

At trial, Rodriguez testified that beginning in spring 2009,

he and Maldonado spent a considerable amount of time

together. Maldonado taught him how to “rerock” cocaine, a

process for diluting cocaine with additives to make it into a

larger quantity for resale. This process allows a seller to turn a

single kilogram of cocaine into as many as three kilograms. The

two of them rerocked cocaine together several times with

Maldonado fronting a portion of the drugs to Rodriguez for

resale. (Fronting occurs when a seller supplies cocaine to a

buyer on credit with an understanding the buyer will pay for

the cocaine from further sales.) Maldonado stored cocaine and

firearms at Rodriguez’s residence, and on several occasions,

Rodriguez accompanied Maldonado while he deliveredNos. 16

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cocaine to his customers. Rodriguez also testified that from late

2009 through early 2010, Masias was a supplier of cocaine to

Maldonado, and often fronted this cocaine.

The government presented additional evidence of specific

drug deals involving the Defendants, largely through surveil

‐

lance and intercepted phone calls.

On January 11, 2010, the Defendants coordinated a drug

deal with Teodoro Gorostieta, Masias’ cousin and supplier.

Gorostieta delivered the cocaine to Maldonado while Masias

negotiated and coordinated the deal. After this transaction, the

Defendants agreed to check the quality of the cocaine together

and Maldonado agreed to buy a box of cocaine cutting agent

for Masias.

On January 13 and 14, 2010, Masias borrowed Maldonado’s

Cadillac, which had a “trap” compartment for drugs and drug

proceeds, to deliver cocaine to a customer. During this time

‐

frame, Masias purchased an Audi for half a kilogram of

cocaine. After the exchange, Masias phoned Maldonado to tell

him about the Audi and to ask his advice as to whether he

made a good exchange. Despite having just purchased the

Audi, Masias continued to use the Cadillac and allowed

Maldonado to use his Lexus or Audi.

On January 14, 2010, the Defendants coordinated the

delivery of two kilograms of cocaine from Gorostieta to a

customer. The Defendants argued over how they would divide

their cut of the deal. During this argument, Masias told

Maldonado to “be a good middleman

... That way we don’t

have no incidents.” Before the deal was complete, Maldonado

called Rodriguez and suggested he rob Gorostieta of the4 Nos. 16

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money from the two kilograms and an additional kilogram of

cocaine the supplier had in his car. However, after intercepting

these calls, agents conducted a traffic stop of Gorostieta and

seized the cocaine and cash to prevent Maldonado and

Rodriguez from committing the robbery. Not knowing about

the traffic stop and seizure, Maldonado and Rodriguez made

several calls about surveilling the supplier. Rodriguez waited

several hours in his car on the street where Maldonado

believed Gorostieta lived, until Masias informed him of the

arrest.

On January 27, 2010, Maldonado sent Rodriguez to Masias’

residence to pick up nine ounces of fronted cocaine. Masias

gave Rodriguez a full kilogram that Maldonado and Rodriguez

split for further distribution.

On February 1, 2010, Masias informed Maldonado of 16

firearms he bought. Maldonado agreed to help sell them and

drove to Masias’ to pick them up. Upon arrival, Masias placed

a large, weighted bag in Maldonado’s car. Maldonado drove to

Rodriguez’s house and took the bag into his house. Rodriguez

was subsequently seen placing a rifle bag in a U

‐ Haul. Based

on agents’ suspicion from surveillance of Rodriguez placing

what appeared to be the guns from Maldonado into the U

‐

Haul, the agents conducted a traffic stop of the truck. Rodri

‐

guez consented to a search of the truck where the agents found

a loaded rifle.

After Rodriguez’s arrest, Maldonado called Denise Aceves,

Rodriguez’s girlfriend, expressing concern over potential

charges against Rodriguez. He also coordinated with her to

get the remaining drugs and firearms out of the house.Nos. 16

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Maldonado then called Masias to inform him of the arrest.

During this call, Masias indicated that he had recently fronted

cocaine to Rodriguez. Shortly after Rodriguez’s arrest, agents

observed Aceves moving a large laundry basket and a shoebox

from their apartment into her car. The agents searched this car

and found 16 firearms and a half kilogram of cocaine.

Masias was arrested on September 15, 2010. During a

search of his residence, agents found a kilo press, used for

rerocking, and a bottle of inositol, a cutting agent for cocaine.

At trial, in his opening statement, Maldonado’s counsel told

the jury that the government intended to prove multiple

conspiracies between Maldonado, Masias, and Rodriguez.

This, the government contends, led it to propose a multiple

conspiracies jury instruction. Over defense objection, the

district court gave a modified version, with adjustments

suggested by the defense. Masias requested an additional

“meeting of the minds” jury instruction regarding the conspir

‐

acy. After careful consideration and discussion with both

parties, the district court refused this instruction, finding that

it was not an accurate statement of the law.

The jury found the Defendants guilty on all counts. Masias

moved for a new trial, arguing that the district court erred by

giving a multiple conspiracies instruction, and refusing the

“meeting of the minds” instruction.

Maldonado moved for acquittal or a new trial, arguing that

there was insufficient evidence to prove anything beyond a

mere buyer

‐ seller relationship with Masias and Rodriguez,

and that the district court erred by giving the multiple conspir

‐6 Nos. 16

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acies instruction. The district court denied all motions;

both defendants timely appealed.

II. ANALYSIS

A. Sufficiency of the Evidence for Conspiracy Convic

‐

tion

The Defendants challenge the sufficiency of the evidence

the government used to prove a conspiracy existed between

them and Rodriguez. “Any challenge to the sufficiency of the

evidence comes with a heavy, indeed, nearly insurmountable,

burden.” United States v. Dessart

, 823 F.3d 395, 403 (7th Cir.

2016) (internal quotation marks and citation omitted). Great

deference is afforded to jury verdicts, and thus, viewing the

evidence in the light most favorable to the government, we

“reverse only if no rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

United States v. Brown

, 726 F.3d 993, 1005 (7th Cir. 2013)

(quotation marks omitted).

To prove a drug

‐ distribution conspiracy, “the government

must prove that (1) two or more people agreed to commit an

unlawful act, and (2) the defendant knowingly and intention

‐ ally joined in the agreement.” United States v. Johnson

, 592 F.3d

749, 754 (7th Cir. 2010). To distinguish a buyer

‐ seller agree

‐

ment from a conspiracy, “the government must offer evidence

establishing an agreement to distribute drugs that is distinct

from evidence of the agreement to complete the underlying

drug deals.” Id. at 755.

“[S]ales of large quantities of drugs, repeated and/or

standardized transactions, and a prolonged relationshipNos. 16

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between the parties” are inherent characteristics indicative of

a conspiracy rather than a buyer

‐ seller relationship. United

States v. Villasenor

, 664 F.3d 673, 680 (7th Cir. 2011) (quoting

Johnson

, 592 F.3d at 754). Other characteristics we have found

indicative of establishing a conspiracy include “sales on credit,

an agreement to look for customers, commission payments,

evidence that one party provided advice for the other’s

business, or an agreement to warn of future threats to each

other’s business from competitors or law enforcement.” Id.

The evidence was sufficient for a reasonable jury to find a

conspiracy existed between Masias and Maldonado, rather

than a mere buyer

‐ seller relationship. The Defendants correctly

assert that, “[r]epeat sales, without more simply do not place

the participants’ actions into the realm of conspiracy.” United

States v. Rivera

, 273 F.3d 751, 755 (7th Cir. 2001). However, “[a]

reasonable jury can infer a conspiracy from evidence of

... multiple, large

‐ quantity purchases, on credit.” United States v.

Cruse

, 805 F.3d 795, 811–12 (7th Cir. 2015) (quoting United

States v. Jones

, 763 F.3d 777, 807 (7th Cir. 2014)) (internal

quotation marks omitted).

The Defendants concede that they had a prolonged relation

‐ ship. During this relationship, Masias regularly sold large

amounts of cocaine to Maldonado, who subsequently rerocked

the cocaine for resale. Additionally, the evidence showed that

on numerous occasions Masias fronted large quantities of

cocaine to Maldonado.

The evidence also showed that the Defendants occasionally

worked cooperatively. One such occasion occurred on

January 11, 2010, when Masias negotiated and coordinated a8 Nos. 16

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deal while Maldonado received the delivery. The two agreed

to check the quality of the cocaine together. On this same day,

Maldonado agreed to buy cutting agent for Masias. Another

instance occurred when Maldonado loaned his Cadillac with

a “trap” compartment for drugs and drug proceeds to Masias.

Maldonado met with Masias to show him how the “trap”

compartment worked. Yet another instance occurred on

January 14, 2010, when they coordinated a sale of two kilo

‐

grams of cocaine from Gorostieta. Again, Masias coordinated

the deal and Maldonado picked up the cocaine. Both Defen

‐

dants took a cut from the deal.

The Defendants also argue that the suspicion and lack

of trust Maldonado and Rodriguez had towards Masias proves

a lack of conspiracy. However, despite this lack of trust and

suspicion, Maldonado continued to work closely with Masias

in furthering their common objective of distributing cocaine.

Thus, we find the government produced sufficient evidence for

a reasonable jury to find beyond a reasonable doubt that a

conspiracy existed between Masias and Maldonado.

The Defendants also argue that the government failed to

prove a conspiracy between Maldonado and Rodriguez.

Rather, they argue the relationship was a brother

‐ like relation

‐ ship. We disagree.

The government provided evidence of Masias fronting

cocaine to Rodriguez, who was introduced to Masias through

Maldonado. Maldonado provided business advice to Rodri

‐

guez by showing him how to rerock cocaine. In fact, the

brother

‐ like relationship Maldonado and Rodriguez had

could equally be viewed as a mentor

‐ like relationship betweenNos. 16

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two business people. All of the information relayed from

Maldonado to Rodriguez could be identified as business

advice. Furthermore, upon Rodriguez’s arrest, Maldonado

called Aceves to inquire about the arrest and coordinated with

her to get the remaining drugs and guns from the house. He

also called Masias to inform him of the incident. Similar to

United States v. Nunez

, Maldonado “could simply have cleared

out,” but he chose to contact Rodriguez’s girlfriend, coordinate

with her to clear the house, and call Masias to inform him of

the incident. 673 F.3d 661, 666 (7th Cir. 2012) (finding defen

‐

dant’s role in warning supplier’s family of supplier’s arrest

indicative of affirming conspiracy conviction). Finally, Rodri

‐

guez testified that Maldonado stored cocaine and firearms at

Rodriguez’s home. See United States v. Carrillo

, 435 F.3d 767,

776–76 (7th Cir. 2006) (finding that co

‐ conspirator’s storage of

drugs at defendant’s home was indicative of defendant’s

participation in conspiracy).

We find the government produced sufficient evidence for

a reasonable jury to find beyond a reasonable doubt that a

conspiracy existed between Maldonado and Rodriguez. Thus,

we affirm the conspiracy conviction.

B. Jury Instructions

The Defendants argue the district court erroneously

instructed the jury. Both Defendants argue the jury should not

have been instructed on a multiple conspiracies theory. Masias

separately argues that the district court erred in declining to

instruct the jury on a “meeting on the minds” instruction.10 Nos. 16

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i. Multiple Conspiracies Instruction

The Defendants argue that the district court gave a multiple

conspiracies instruction that did not properly apply to the facts

and charges in this case. “We review de novo whether an

instruction fairly and accurately summarizes the law, and

review a district court’s decision to give a particular instruction

for an abuse of discretion.” United States v. Carter

, 695 F.3d 690,

694 (7th Cir. 2012) (internal citations omitted). The Defendants

do not contend that the jury instruction was an inaccurate

summary of the law, thus we review the decision to give the

instruction for an abuse of discretion. On appeal, we will not

disturb jury instructions that are accurate statements of the law

and supported by the record. United States v. Fifer

, 863 F.3d 759,

769 (7th Cir. 2017).

At trial, the government proposed the multiple conspiracies

instruction. The district court gave the Seventh Circuit Pattern

Instruction 5.10(B) on multiple conspiracies, slightly modified

at the Defendants’ request. The district court instructed the

jury:

If you find there was one overall conspiracy as

alleged in Count One and that a particular

defendant was a member of that conspiracy, you

should find that defendant guilty of Count One.

If you find that there was more than one con

‐ spiracy and that the defendant was a member of

one or more of those conspiracies, then you may

find the defendant guilty on Count One only if

the conspiracy of which he was a member was

a part of the conspiracy charged in Count One.Nos. 16

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If, on the other hand, the proven conspiracy is

not included within the conspiracy alleged in

Count One, you should find that defendant not

guilty of Count One.

The Defendants heavily rely on a “hub and spokes”

argument, asserting that this case does not involve a situation

where the “spokes” in a conspiracy are connected by an

overarching wheel, citing to United States v. Kotteakos

, 328 U.S.

750, 755 (1946). Thus, they argue, without an overarching

wheel connecting these two alleged conspiracies, the two

relationships are separate and not made in furtherance of the

charged conspiracy. Specifically, the Defendants argue that if

the jury failed to find Masias and Rodriguez conspired

together, then no conspiracy between the three Defendants

could have been found. We disagree.

As the district court noted, the jury could have found

Masias and Maldonado conspired together while Maldonado

and Rodriguez conspired together. This finding would allow

the jury to conclude that the three Defendants “shared a

common objective or purpose, the defining characteristic of a

conspiracy.” United States v. Campos

, 541 F.3d 735, 742 (7th Cir.

2008) (internal quotation marks and citation omitted).

Maldonado’s counsel introduced the idea of multiple

conspiracies in his opening statement. This opened the door to

a multiple conspiracies theory, thus making the instruction

appropriate. United States v. Mims

, 92 F.3d 461, 467 (7th Cir.

1996) (“A multiple conspiracy instruction is appropriate when

the evidence presented at trial could tend to prove the exis

‐

tence of several distinct conspiracies.”). We find no reversible12 Nos. 16

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error in the district court’s decision to give the multiple

conspiracies jury instruction.

ii. Meeting of the Minds Instruction

Finally, Masias argues separately that the district court

erred in refusing to instruct the jury on a “meeting of the

minds” instruction he proposed to the district court. We

review de novo a refusal to give a requested jury instruction.

United States v. Choiniere

, 517 F.3d 967, 970 (7th Cir. 2008).

“Although a defendant may have the jury consider any theory

of defense that is supported by law and fact, a defendant is not

automatically entitled to a particular jury instruction.” Id.

( citing United States v. James

, 464 F.3d 699, 707 (7th Cir. 2006)).

To warrant specific jury instructions, the defendant must

demonstrate: “1) the instruction is a correct statement of law,

2) the evidence in the case supports the theory of defense, 3)

that theory is not already part of the charge, and 4) a failure to

provide the instruction would deny a fair trial.” Id. ( citing

United States v. Fiedeke

, 384 F.3d 407, 410 (7th Cir. 2004)).

Masias proposed the following instruction:

A conspiratorial agreement can only exist if

there is a sincere meeting of the minds between

at least two parties. If one party misleads an

‐

other about his intentions such that there is no

common objective or purpose shared between

them, then there can be no conspiracy between

these parties. If one of the parties mistakenly

believes or is led to mistakenly believe that he

shares a common illegal purpose or objective

with the other, then no conspiracy exists.Nos. 16

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Masias argues that the evidence at trial indicated that

Maldonado consistently lied to and misled Masias about his

intentions and actions and thus, there was no true “meeting of

the minds.” We disagree.

Deceit or dishonesty amongst the Defendants does not

negate their shared common objective of distributing cocaine.

See Campos

, 541 F.3d at 742 (noting that the defining character

‐

istic of a conspiracy is “a common objective or purpose.”). Any

relationship outside of the Defendants’ well

‐ established core

agreement to distribute cocaine is irrelevant. Thus, we affirm

the district court’s refusal to instruct the jury on a “meeting of

the minds” instruction.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

findings.