# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued October 2, 2012

Decided October 10, 2012

Before

FRANK H. EASTERBROOK, Chief Judge

RICHARD A. POSNER, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 12

‐ 1760

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

BYRON CATHEY,

Defendant–Appellant

. Appeal from the United States District Court

for the Northern District of Illinois, Eastern

Division.

No. 09 CR 696

‐ 2

Charles R. Norgle,

Judge

.

O R D E R

Byron Cathey was convicted after a jury trial of participating in a drug conspiracy

and distributing cocaine. On appeal he argues that the evidence is insufficient to show he

engaged in a conspiracy or, as the government theorized, aided and abetted a drug sale.

Because the evidence is sufficient to sustain both convictions, we affirm the judgment.

A grand jury charged Cathey and Douglas Greer with one count of conspiracy to

possess and distribute cocaine, 21 U.S.C. §§ 846, 841(a)(1), and one count of distribution of

cocaine, id. § 841(a)(1). Greer pleaded guilty to the conspiracy and did not testify for either

side at Cathey’s trial. At that trial the government presented recordings of phone calls and

meetings showing that Cathey had brokered a drug deal. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 12

‐ 1760 Page 2

The DEA wanted to target Greer. Their informant, Tommie Jones, had lost contact

with Greer years earlier but knew that Cathey, a longtime friend of Jones, was acquainted

with Greer and would have his phone number. Cathey agreed to assist and called Greer to

discuss the quantity, price, and location for the exchange of money and cocaine. Cathey and

Jones exchanged phone calls in which Jones asked Cathey to negotiate a lower price from

Greer. During one call Cathey told Jones that Greer was unhappy about lowering his price;

Cathey then handed his phone to Greer, who spoke directly to Jones and agreed to meet in

person. The three men later met to work out the details, including a fee to be paid to Cathey,

and agreed to make the exchange that same night. At the appointed time, Jones met Cathey

and got into Cathey’s car while they waited for Greer. Cathey tried to keep an agitated Jones

calm by assuring him that Greer would arrive soon. When Greer arrived Jones left Cathey’s

car and gave Greer a bag containing money in exchange for approximately 7 kilograms of

cocaine. Agents arrested Greer immediately; Cathey already had departed and was arrested

later.

At the close of the evidence, Cathey moved orally for a judgment of acquittal.

See F ED

. R. C RIM

. P. 29(a). Cathey’s motion, defense counsel told the district court, “really

only goes to the conspiracy count, Count 1.” According to counsel, the government had

proved that “Jones was going to pay Cathey’s broker’s fee,” and thus, counsel reasoned,

Cathey’s agreement had to be with Jones, not Greer. The district court denied the motion,

saying only that the evidence on both counts is sufficient. After the jury verdicts, Cathey

renewed his motion in writing. See F ED

. R. C RIM

. P. 29(c). This time Cathey challenged both

counts but on the same basis as before: Cathey was working Jones’s side of the transaction

and thus could not have conspired with, or aided and abetted, Greer.

On appeal Cathey challenges the sufficiency of the evidence for both of his

convictions. More precisely, he contends that the district court erred in denying his Rule 29

motions, but that is the same as saying that the evidence fails to support his convictions.

See United States v. Johns

, 686 F.3d 438, 446 (7th Cir. 2012)

. Cathey argues that the evidence

linked him only to Jones in the drug deal, and thus he insists that he could not be convicted

on either count because Jones as a government informant lacked the requisite criminal

intent. We will uphold Cathey’s convictions if any rational trier of fact could have found the

essential elements of the crimes beyond a reasonable doubt. Jackson v. Virginia

, 443 U.S. 307,

318–19 (1979).

To convict Cathey of conspiracy under § 846, the government needed to prove that

he knowingly and intentionally joined in an agreement with one or more other persons to

violate the drug laws. See United States v. Avila

, 557 F.3d 809, 814 (7th Cir. 2009); United

States v. Corson

, 579 F.3d 804, 810 (7th Cir. 2009). The government was not required to prove,

however, that Cathey performed any overt act in furtherance of the conspiracy. See UnitedNo. 12

‐ 1760 Page 3

States v. Garcia

, 45 F.3d 196, 198 (7th Cir. 1995). An agreement between a set of defendants to

sell drugs on one occasion can be a conspiracy by itself. United States v. Herrera

, 54 F.3d 348,

354 (7th Cir. 1995); United States v. Baskin

‐ Bey

, 45 F.3d 200, 205 (7th Cir. 1995).

An accused can be found guilty of an unlawful act under an aiding

‐ and

‐ abetting

theory if he associates with, participates in, and contributes towards the success of that act.

United States v. George

, 658 F.3d 706, 708 (7th Cir. 2011). The government may support this

theory through a defendant’s oral communication with the seller, id.

, his non

‐ criminal

conduct that facilitates the crime, United States v. Hatchett

, 245 F.3d 625, 641 (7th Cir. 2001),

by using the same evidence that supports the existence of a conspiracy, George

, 658 F.3d at

708 n.5; Garcia

, 45 F.3d at 199, or by attributing to the defendant liability for the reasonably

foreseeable acts of his coconspirators committed during and in furtherance of the

conspiracy, Pinkerton v. United States

, 328 U.S. 640, 647–48 (1946).

Cathey asserts that his role in the drug exchange was only as a broker; apparently he

assumes that a broker cannot be guilty of conspiracy or a substantive crime such as

distribution. But we and our sister circuits have affirmed the convictions of brokers (also

called “steerers” or “middlemen”) several times, both for conspiracy, see United States v.

Gilmer

, 534 F.3d 696, 702 (7th Cir. 2008); United States v. Payton

, 328 F.3d 910, 911–12 (7th Cir.

2003) (collecting cases); Garcia

, 45 F.3d at 197–99; United States v. Cea

, 914 F.2d 881, 886–87

(7th Cir. 1990) (distinguishing broker who aids drug deal from one who only directs buyer

to seller); United States v. Sostre

, 967 F.2d 728, 732 (1st Cir. 1992); United States v. Tarantino

,

846 F.2d 1384, 1394–95 (D.C. Cir. 1988); United States v. Rodriguez

, 765 F.2d 1546, 1552–53

(11th Cir. 1985), and for substantive offenses, see Gilmer

, 534 F.3d at 702 (possession of

heroin); Garcia

, 45 F.3d at 199–200 (delivery of narcotics); United States v. Ashley, 606 F.3d

135, 137, 141 (4th Cir. 2010) (firearms offense); United States v. Dworken

, 855 F.2d 12, 23 (1st

Cir. 1988) (attempted possession of drugs); United States v. Brunty

, 701 F.2d 1375, 1381 (11th

Cir. 1983) (collecting cases of distribution convictions based on defendant’s acting as broker,

deliverer, or price negotiator).

Both Gilmer and Garcia

, cited above, have facts very similar to this case. In Gilmer

, an

informant posing as a buyer contacted a drug dealer, who carried the offer up the supply

chain to Gilmer. 534 F.3d at 699. Gilmer agreed to contact his supplier and to broker the

deal. Id. at 699–700. Gilmer, like Cathey, acquainted the buyer and supplier in person and

through phone calls and appeared at the scene of the sale. Id. at 702. We decided that the

evidence sufficiently proved Gilmer’s involvement in a drug conspiracy and affirmed his

conviction. Id. Similarly, Garcia unwittingly accepted a broker’s fee from an informant after

making phone calls and arranging an in

‐ person meeting to facilitate the informant’s

purchase of drugs from a friend who dealt drugs. 45 F.3d at 197–98. We affirmed his

convictions for conspiracy and for distribution under an aiding

‐ and

‐ abetting theory becauseNo. 12

‐ 1760 Page 4

of his role as a broker, finding sufficient evidentiary support in the informant’s testimony.

Id. at 198–200. Garcia’s broker’s fee and conversations with the informant and the supplier

also corroborated the testimony. Id. at 199.

Cathey tries to distinguish Gilmer by arguing that Gilmer was on the opposite side of

the deal from the informant whereas he and Jones, the informant, were on the same side.

Cathey also distinguishes his situation from Herrera

, another decision on which the

government relies, because Herrera agreed to purchase cocaine from an informant and

“broker” it to his buyers, whom he gathered at a home with the informant to discuss the

transaction. 54 F.3d at 352–53. Although Cathey may be right that the situation in Herrera

was different than his, he is incorrect when he describes himself as solely aligned with

Jones.

Some facts support Cathey’s contention that he and Jones were on the same side of

the transaction: Jones arguably agreed to pay Cathey’s broker’s fee, Jones contacted Cathey

to reach Greer and not the other way around, and Cathey tried to keep Jones calm while

they waited together for Greer before the exchange (although this fact also supports the

view that Cathey aided Greer by trying to prevent Jones from abandoning the deal). In

contrast, the evidence of Cathey’s efforts on behalf of Greer might seem more limited, but of

course Cathey was not recording his conversations with Greer, nor did Greer testify. Still, in

one call to Jones, Cathey was apparently present with Greer, and Greer took the phone and

spoke directly with Jones. Moreover, Cathey attended both meetings between Jones and

Greer, made the exchange possible, and saw it through to the end: Greer delivered the

cocaine and accepted payment.

We have concluded in cases where a broker or middleman worked only for one

party to a drug deal that he could not be guilty of conspiring with a party on the other side.

See United States v. Thomas

, 284 F.3d 746, 754 (7th Cir. 2002); United States v. Rivera

, 273 F.3d

751, 754–56 (7th Cir. 2001); United States v. Contreras

, 249 F.3d 595, 599 (7th Cir. 2001)

. Nor

can a broker be guilty of conspiring with an informant, regardless of the side for which the

informant worked. See Contreras

, 249 F.3d at 599; Corson

, 579 F.3d at 811. But when a broker

aids the culpable parties on both sides of the transaction, his collaboration with either side is

punishable as a conspiracy. See Payton, 328 F.3d at 912; see, e.g.

, Gilmer

, 534 F.3d at 702;

Garcia

, 45 F.3d at 197–200; United States v. Crowder

, 36 F.3d 691, 695–96 (7th Cir. 1994);

Rodriguez

, 765 F.2d at 1550. Here, Cathey could have declined to help Jones or given him

Greer’s phone number and ended the call. Instead he agreed to negotiate a price for Jones,

thus delivering a customer to Greer. Cathey then helped Greer secure the sale by arranging

the first meeting and later waiting with Jones before the exchange, providing him moral

support but also assuring that he would stay to buy the cocaine from Greer. Viewing theNo. 12

‐ 1760 Page 5

evidence in the light most favorable to the government, Cathey’s involvement is best

described as collaborative with both sides and not as one

‐ sided.

Cathey also adds other, small points to contest his convictions. But these arguments

are all without merit. Cathey cannot escape liability simply because he did not buy or sell

the cocaine himself, see Hatchett

, 245 F.3d at 641, or because he had left the scene before the

exchange took place, see George

, 658 F.3d at 709; Garcia

, 45 F.3d at 199. And whether or not

this was Cathey’s first time working with Jones is irrelevant: This single agreement with

Greer and Jones is enough to support his convictions. See Corson

, 579 F.3d at 810.

AFFIRMED

.