F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

M A R I A L O U R D E S M O E , Defendant-Appellant

. N o. 13-30224

D.C. No. 6:13-cr-00003- SEH-1

OPI NI ON

A ppeal from the United States District Court for the District of Montana Sam E. Haddon, District J udg e, Presiding

Arg ued and Submitted November 17, 2014—Portland, Oreg o n

F iled March 27, 2015

B efore: Richard R. Clifton, Milan D. Smith, J r., and Andrew D. Hurwitz
, Circuit J udg es.

Opinion by J udg e Clifton; Concurrence by

J udg e HurwitzU N I T E D S T A T E S V

. M O E 2

SUMMARY *

Crim inal Law

The panel a ffirmed a conviction for c onspiracy to possess with intent to distribute methamphetamine.

Rejecting the defendant’s contention t h a t the evidence presented to the jury established o n l y a buy er-seller transaction, the panel held that the evidence was sufficient to support her conviction for conspiracy
, w here the evidence indicated an o ng oing relationship of mutual trust, there was testimony that the defendant was involved in the business o f methamphetamine trafficking
, there was evidence that the defendant’s supplier knew that the defendant was eng ag ed in

r e d i s t r ibuting the methamphetamine that she was buy ing f r o m him, and the supplier h ad an interest in fo s t e r i ng those downstream sales.

The p anel h eld that the district court did n ot err by failing
to instruct the jury on how to determin e a sing le conspiracy

versus multiple c onspiracies, where the d efendant stood trial alone and the facts to do not support a multiple conspiracies defense.

The panel held that the d is t r i c t c ourt did not err in rejecting the d efendant’s proposal to instruct the j u r y o n the difference between a buy e r -seller r elationship and a conspiracy relationship, where the i n s t ructions as a whole accurately in formed the jury that a conspiracy could not be

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. M O E 3

found based only on t h e s al e s b y the supplier to the defendant.

T h e panel held that the d istrict court did not err whe n i t curtailed as irrelevant c ross-ex amination of the supplier aimed at showing that he associated with other individuals and was involved in other conspiracies, where the m u l tiple conspiracy

theory of defense did not apply

. Concurring
, J udg e Hurwitz urg ed this court to follow the Seventh Circuit, which require s district courts to g ive a buy er-seller instruction w henever a jury could co n ceivably have determined that t he buy er-seller relationship which

ex isted d i d not involve an overarching conspiratorial
ag reement.

COUNSEL

Michael Donahoe, F ederal Defenders of Montana, Helena, Montana, for Defendant-Appellant.

Paulette L

. Stewart, Assistant Uni t e d States Attorney
, Helena, Montana, for Plaintiff-Appellee.U N I T E D S T A T E S V

. M O E 4

OP INION

CL I F TON, Circuit J udg e :

Maria Moe appeals her c onvi ction for conspiracy to possess with intent to d i stribute methamphetamine in violation of 21 U.S.C. § 846. Her primary a rg uments rest on the so-called “buy er-seller r ule,” under which a conviction for conspiracy cannot be based solely on the purcha s e o f a n

un l a w ful substance, even thoug h such a transaction necessarily involves an a g reement between at l e a s t two parties, the buy er and the seller. “ Rather, conspiracy requires proof of ‘ an a gr e ement to commit a crime other than the crime that c onsists of the sale itself.’ W ere the rule otherwise,
every narcotics sale would constitute a conspiracy .” U n i t ed St ates v. Lennick
, 1 8 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— t h a t is, established only a buy er-seller transaction—not that she was eng ag ed in a c o n s piracy with the seller in connection with subsequent d istribution. She also contends that the district c ourt should have g iven an instruction to the jury reg arding the buy er-seller r ule. W e conclud e t h a t the evidence was sufficient to support the conviction

. We further conclude that althoug h a specific buy er-seller instruction may be useful and mig ht be r equired in some c ircumstances, it was n ot necessary here. W e a re not persuaded by any of Moe’s other arg u ments, and therefore affirm.U N I T E D S T A T E S V

. M O E 5

I. Background

Maria Moe was indicted in J anuary 2013 on two counts: conspiracy to possess with i n t e n t t o distribute 50 g rams o r

more of methamphetamine, 21 U.S.C. § 8 46, and distribution of 50 g rams or more of metha m p h et amine, 21 U .S.C. § 841(a)(1). She pleaded not g uilty and went to trial.

During the two-day trial that f o llowed, the g overnment called five witnesses. These included four g overnment ag ents and one cooperating witness, Shawn Ellifritt. Ellifritt testified that he supplied methamphetamine to Moe. Moe l i ved in Helena, Montana, b ut traveled to Spokane, W ashing ton, to buy methamphetamine from Ellifritt. She ty pically purchased

a half ounce of methamphetamine one time per month. F rom December 2 009 until December 2 0 1 0
, M o e made a t least

s e ven purchases. E llifritt estimated that these transacti o n s involved approx imately 140 g rams of methamphetamine. Moe and Ellifritt communicated by phone. There were a t least 94 cell phone contacts between Ellifrit t a n d Moe, including 51 tex t messag e s. The two u sed a c o d e t o communicate
reg arding the availability of methamphetamine: for ex ample, when Ellifritt tex ted Moe that the weather was bad, t h at meant methamph etamine was n ot available or there was potential trouble with law enforcement.

Moe filed motions for acquittal a nd for a new trial on

su f ficiency of the evidence g rounds. Moe also proposed several supplemental jury instructions, including a multiple conspiracies instruction and an instru c t i o n on the difference between a buy er-seller relationship and a conspiracy relationship. The d istrict court rejected both of th ese instructions.U N I T E D S T A T E S V

. M O E 6

The jury convicte d M o e on the conspiracy count but could not reach a unanimous v erdict o n the distribution c ount, which w as subsequently dismissed. Moe was sentenced to 66 months imprisonment and four y ears supervised release.

II. Discussion

Moe presents three arg uments on appeal. F irst, she asserts there was insufficient evidence before the jury to support her conviction for conspiracy

. Second, she arg ues th e district
court erred by declining to g ive two proposed jury instructions. Third, she asserts that the district court erred b y curtailing her cr o s s

- e xa

m i n a t i on of a g overnment witness. W e consider these challeng es in turn.

A. Sufficiency of the Evidence

W e employ “a two-step i n quiry for considering a

c h a l l e n g e to a conviction based on sufficiency of the evidence.” United States v. Nevils
, 598 F .3d 1158, 1 164 (9th Cir. 2 010) (en banc). “F irst, a reviewing court must consider the evidence presented at trial in t h e l i ght most favorable to the prosecution.” I

d

. “Seco n d
, a f

ter viewing the evidence in the lig ht most favorable to the pr osecution, the reviewing
court must d etermine whether this e v idence, s o v i e wed, is adequate to allow ‘ an

y r a t i onal trier of f

act [ to find] the essential e lements of the crime bey ond a reasonable doubt.’” Id. (alteration in orig inal) ( q u oting Jackson v. V irginia
, 443 U.S. 307, 319 (1979)). Althoug h w e review a c laim o f insufficient evidence de novo , United States v. S u llivan
, 522 F .3d 967, 974 (9th Cir

. 2008) (per curiam), our evaluation remains deferential a n d accords respect t o the jury ’s role “as w eig her of the evidence,” Jackson
, 443 U.S. at 319.U N I T E D S T A T E S V

. M O E 7

The elements of conspiracy are “(1) an ag r ee ment to accomplish an illeg al objective, and (2) the intent to commit the underly

ing offense.” United States v. Herrera-Gonzales
, 263 F

. 3d 1092, 1095 (9th Cir. 2001). B ut althoug h “the essence of conspiracy

is ag reement,” United States v. Feola
, 420 U.S. 671, 692 (1975), not every ag reement to commit an illeg al objective may serv e as t he basis for a conspiracy conviction.

Under the buy er-seller rule, “mere sales to oth e r individuals do not establish a conspiracy to di s t r i bute o r possess with intent to distribute

. . . . ” Lennick
, 18 F .3d at 819 n.4. This “narrow e x ception” to conspiracy liability
, United S t a t e s v. Parker
, 554 F .3d 230, 234 (2d Cir. 2009), appli e s

even thoug h “[ a] drug sale is itself an a g reement: a buy er a nd seller come tog ether, ag ree on terms, and ex chang e money o r commodities at the settled r ate.” Un i ted States v. Brown
, 726 F .3d 993, 998 (7th Cir. 2013). I nstead, a conviction for “conspiracy requires proof of an ag reement to c o m mit a crime other than the crime that consists of the sale itself.” Lennick , 18 F .3d at 819 (quotation marks omitted).

Thus, f o r a c harg e of c onspiracy to possess a drug with intent to d istribute, “the g overnment must show that the buy er and seller h a d a n a g reement to further d istribute the drug in question.” Id

. at 819 n .4. “ E x press ag reement is n ot required; rather, ag reement may be in f er r e d f rom conduct.” United States v. H

egwood
, 977 F .2d 492, 497 (9th Cir. 1 9 9 2 ) ; see also Direct Sales Co. v. United S tates , 319 U.S. 7 0 3
, 714 (1943) (“[ I ] t ca n m a ke no d ifference the ag reement was a tacit understanding , created by a long course o f conduct a nd

ex e c uted in the same way .”).U N I T E D S T A T E S V

. M O E 8

Here, Moe asserts that the evidence b e fore the jury proved only that Ellifritt sold methamphetamine to her. The
g overnment arg ues that Moe and E l l i fritt’s relationship was more than a purely

transactional one and instead crossed the line into conspiracy

. Disting uishing be t we en a conspiracy and a buy er-seller relationship requires a fact-intensive and c ontex t-dependent in q u i r y that is not amenable to brig h t-line rules. See United States v. Hawkins
, 547 F .3d 66, 74 (2d Cir. 2008) (noting the “hig hly fact-specific” nature of the “inquiry into whether the circumstances surrounding a buy er-seller relationship establish an a greement to participate in a distribution conspiracy

”). Certain principles are established, however.

A casual sale of drug s, of a quantity consistent with personal use on the part of the b uy er, with no evidence of any subsequent (or planned) redistribution o f purchased drug s, will likely f

a ll within the ambit of the buy er-seller r ule. See Lennick
, 1 8 F .3d at 8 19; see also Unit e d S tates v. Medina
, 944 F .2d 60, 65–66 (2d Cir. 1991) (characteriz ing “the ty pical buy -sell scenario” as “involv[ ing ] a c asu al sale of small quantities of d

rug s” and contrasting that scenario to a c ase in which “there is advanced p lanning among the alleg ed co-conspirators to deal in wholesale quantities of drug s obviously not intended for personal use”), abrogated on other grounds by Bailey v. United States , 516 U.S. 137 (1995).

I n c ontrast, we will u

phold a convict i o n for conspiracy between buy er and seller where there is “‘ e v idence of a prolong ed and actively pursued course o f sales coupled with the seller’s knowledg e of and a shared stake in the buy er’s illeg al venture.’” United States v. R amirez
, 714 F

. 3d 1134,U N I T E D S T A T E S V

. M O E 9

1140 (9th Cir. 2013) (quoting United States v. Thomas
, 284 F .3d 746, 752 (7th Cir. 2002)).

A number of factors may be relevant in deciding whether there is sufficient evidence to support a conviction f o r conspiracy

. W e l ook n ot just to the characteristics o f individual transactions but to “the ‘entire course of d ealing ’” between alleg ed co-conspirators. United States v

. M i ncoff
, 574 F. 3d 1186, 1194 (9th Cir. 2009) (quoting Thomas
, 284 F

. 3d at 753). “No sing le factor is dispositive.” Hawkins
, 547 F .3d at 74. I nstead, a reviewing court should “take into

a c c o u n t all

. . . the evidence surrounding the allege d conspiracy and make a h o l i stic assessment of whether the jury reached a reasonable verdict.” United S t ates v. Long
, 748 F .3d 322, 3 26 ( 7th Cir. 2014) (quotation marks omitted).

Among the factors that courts have considered relevant in making this determination are the fo l l o w ing : whether the drug s were sold on credit 1 o r on c o n sig nment; 2 the frequency of sales; 3 the quantity of drug s i n v o l v ed ; 4 the level of trust

1 E.g

. , Min co

ff
, 57 4 F.3 d at 1 1 9 3 (“ [S]ellin g dru g s o n cred it is esp ecially in d icativ e o f a co n sp iracy b ecau se it g iv es th e seller a stak e in th e bu y er’ s

s uccessf u l resale o f th e d ru g s .”) (alteratio n in o rig in al) (q u o tin g Un ited S ta tes v. Ben d

er , 5 3 9 F.3 d 4 4 9 , 4 5 4 (7 th Cir. 2 0 0 8 )).

2 E.g

. , Un ited

S ta tes v. Va lla r , 6 3 5 F.3 d 2 7 1 , 2 8 7 (7 th Cir. 2 0 1 1 ).

3 E.g

. , Un ited S ta tes v. Reid
, 52 3 F .3 d 3 1 0
, 3 1 7 (4 t h C i r

. 2 0 0 8 ) (“ [E]v id en ce o f co n tin

u in g relatio n s h i p s an d rep eated tran sactio n s can

su p p o rt t h e f in din g th at th ere w as a co n sp iracy , esp ecially w h en co u pled

w ith su b stan t ial q u an tities o f

d ru g s .”).

4 In Min co ff
, t h e co u rt co n clu d ed th at “ a ratio n al trier o f f act co u ld h av e f o u n d th e bu y er- seller ru le in ap p licab l e to th e f acts o f th is case” becau se,

am o n g oth er th in g s, t

h e “ larg e q u an t ities” o f d ru g s in v o lv e d “c ou ldU N I T E D S T A T E S V

. M O E 10

demonstrated b etween buy er and seller, including the use of codes; 5 the leng th of time d uring w hich sales were ong oing ; 6

w h ether the transactions were standardiz ed; 7 whether t h e p a rties advised each other on the conduct of the o t h e r’ s business; 8 whether the b uy er assisted the seller by looking for other c ustomers; 9 and whether the parties ag reed to warn e ach

su p p o rt an in f

eren ce o f f

u rt h e r d i strib u tio n .” 5 74 F.3 d at 1 1 9 3

– 9 4

. It is
tru e th at “ ‘ [t]h e sale o f

larg e q u an tities o f

co n tro lled su

b s tan ces, w ith o u t

m o re, can n o t su stain a co n sp iracy co n v i ctio n .’ ” Ra mirez
, 7 1 4 F.3 d at 1 1 4 0 (alteratio n in o rig in al) (q u o tin g Len n i ck
, 1 8 F .3 d at 8 1 9 n .5 ). B u t w h ile th e q u an tity o f sales a lo n e can n o t su p p o r t a co n sp iracy co n v ictio n , i t

n ev erth eless is a relev an t f acto r t o b e c o n sid ered

. C f. Un ited S ta tes v. Ho wa r d
, 9 66 F.2 d 1 3 6 2, 1 3 64 (1 0 th Cir. 1 9 9 2 ) (n o tin g th at a “ h u g e q u an tity ” o f n arco tics “ p erm its an in f eren ce o f co n sp iracy ” alth o u g h i t is

n o t “ b y itself . . . en o u g h

to co n v ict d ef

en d an t”) (em

p h asis ad d ed ).

5 E.g

. , Un ited S ta tes v. Pr e ssler
, 2 5 6 F.3 d 1 4 4
, 1 5 5 (3 d Cir. 20 0 1) (co n clu d i n g th a t w

h ere bu y er an d seller “ co n d u cted th eir b u sin ess in

co d e,” th is “ d em o n strate d a co n sid erab le d eg ree of co o rd in atio n an d

su g g ested th e p resen ce o f a co o p erativ e relatio n sh ip ”); se e a lso Un ited S ta tes v. C

o n t r e r a s , 2 4 9 F.3 d 5 9 5
, 5 9 9 (7 th Cir. 2 0 0 1 ) (lo o k in g to “ th e lev el o f m u tu al tru st b etw een th e b u y er an d seller” as a relev an t f acto r).

6 E.g

. , D irect S a l es , 31 9 U.S. at 7 13 (em p h asizin g “ p ro lo n g ed

co o p eratio n ”); see a lso Un ited S ta t es v. Gib bs
, 1 90 F.3 d 18 8
, 1 9 9 (3 d Cir. 1 9 9 9 ) (n o tin g “ len g th of af f iliatio n ”); Lech u g a , 9 9 4 F.2 d at 3 5 0 (“ P ro lo n g ed co o p eratio n is n eith er th e m ean in g o f co n sp i r a c y n or an

essen tial elem en t, b u t it i s o n e ty p e o f ev id en ce o f an ag reem en t t h at g oes b ey o n d w h at is i m p licit in an y co n sen su al u n d ertak in g , s uc h a s a sp o t sale.”).

7 E.g

. , Gib b s , 1 9 0 F.3 d at 1 99

.

8 E.g

. , Bro wn , 7 2 6 F.3 d at 9 9 9.

9 Id

.U N I T E D S T A T E S V

. M O E 11

other o f potentia l threats from competitors or law enforcement. 1 0

W e now turn to the facts of this case. B etween December 2009 and December 2010, Ellifritt sold methamphetamine to Moe on at least seven o c ca s i ons. These transactions h ad a sta n d ard format. Moe was not just a casual or o ccasional buy er. She described Ell i f ritt as a reliable source o f methamphetamine, a “g old mine. ” Moe and E llifritt communicated closely tog ether and coordinated their a ctions, thereby demonstrating p rolong ed cooperation. They had their

own code for commu n i ca ting reg arding the availability o f drug s. Sig nificantly
, Ellifritt took affirmative steps t o w a r n Moe when a threat f

rom law enforcement was present: on the

same day that law enforcement searched Ellifritt’s residence, Ellifritt tex ted Moe, “B ad weather, lay low.”

These are i ndications of a n o ng oing relationship o f “mutual trust,” bey ond a simple buy er-seller transaction. See Mincoff
, 574 F .3d at 1194; Pressler
, 256 F

. 3 d at 155 (noting that the use of codes is one indication of a conspiracy rather than a buy er-seller relationship)

. The jury heard testimony that Moe was involved in the business of methamphetamine trafficking and h ad a supplier in W ashing ton. There was evidence that Ellifritt k new that Moe was eng ag e d in redistributing the me t

h a m p h e t amine that she was buy ing from him: Ellifritt was told that Moe was “the money ” in an ong oing downstream redistribut i o n e ffort. Ellifritt had an interest in fostering those downstream sales, which created the demand for his repeated sales to Moe.

10 E.g

. , Va lla r , 6 3 5 F.3 d at 2 8 7

.U N I T E D S T A T E S V

. M O E 12

W e conclude that the evidence before the jury
, viewed in the lig ht most f

avorable to the g overnment, was sufficient to support Moe’s conviction for conspiracy

.

B. Jury Instructions

Nex t, Moe asserts that the d istrict court erred in failing to g ive two supplemental jury instructions that she proposed. “A criminal defendant has a constitutional rig ht to have the jury instructed according to h[ er] theory of the case, provided that the requested instruction is supported by law a n d h a s some f o u n d a t i o n i n t h e e v i d e n c e

. ” U n i t e d S t a t e s v

. Anguiano-Morfin
, 713 F .3d 1208, 1209 (9th Cir. 20 1 3 ) (quotation marks omitted). That said, “[ w] e review the ju ry instructions as a whole and accord the trial judg e substantial latitude so long as the instructions fairly and adequately covered the issues presented.” United States v. Bauer
, 84 F .3d 1549, 1560 (9th Cir. 1996) (citation omitted)

. T h e abuse o f discretion standard g overns our review of “the lang uag e a nd formulation of a jury instruction,” United States v. Cortes
, 757 F .3d 850, 857 (9th Cir. 2013)
, and o ur review o f “whether [ an instruction] has some foundatio n i n the evidence,” Anguiano-Morfin
, 7 13 F

. 3d a t 1209. “W hether an instruction is supported by law is reviewed de novo .” United S t a t e s v. Marguet-Pillado
, 648 F .3d 1001, 1006 (9th Cir. 2011) (quotation marks omitted).

1. Multiple Conspiracies

Moe asserts that the d istrict court erred b y f ailing to instruct the jury o n how to determine a sing le versus multiple conspiracies. W e are not persuaded.U N I T E D S T A T E S V

. M O E 13

“A multiple conspiracies instruction is g enerally r equired where the indictment charg es several defenda n ts with o ne overall conspiracy
, but the proof a t tr i a l indicates that a jury could reasonably conclude that some of the defendants were only involved in separate conspiracies unrelated to the overall conspiracy charg ed in the indict m ent.” United States v

. Anguiano
, 873 F .2d 1314, 1317 ( 9th Cir. 1989). The instruction is needed in o r d e r to mitig ate the problem o f “transference or ‘spillover’ of g uilt” f rom one c o-defendant
to another. Id

. at 1318. I n contrast, “[ a ] multiple conspiracy instruction is not required w hen a defendant stands trial alone beca u s e t h ere is no problem of spillover.” U nited States v

. Liu
, 631 F .3d 993, 10 00 (9th Cir. 2011) (quotation marks omitted). Here, Moe stood trial alone a nd th e f a c t s do not support a multiple conspiracies defense.

2. B u y er-Seller Rule

Nex t, Moe sug g ests that the district court erred in rejecting her proposal to instruct the jury on the difference between a buy er-seller relationship and a conspiracy relationship.

“A defendant is not entitled to have the jury instructed in the particular lang uag e of h[ e r] c h o i c e .” United States v

. Montgomery , 150 F

. 3d 983, 1002 (9th Cir. 1998) (quotation marks o m i t t ed). Nevertheless, a “district court’s failure to g ive a defendant’s requested instruction that is supported by law and has some foundation in the evidence warrants p er se reversal, unless other instructions, in th e i r entirety
, adequately cover that defense theory

. ” Marguet- Pi llado
, 648 F .3d at 1006 (cita t i o n a nd q uotation marks omitted). Thus, our r eview of a trial court’s decision to deny a requested jury instruction requires that we answer threeU N I T E D S T A T E S V

. M O E 14

questions. F irst, was the proposed in s t ruction supported b y law? Second, did the p r oposed instruction have some foundation in the evid e n c e ? Third, did other instructions
g iven to the jury
, considered in their entirety
, fail to cover the defense theory ? W h ere the a nswer to all three questions is “y es,” we must reverse and remand for a new trial.

F irst, was a buy er-selle r d e f e n se supported by law? W e

c onclude that it was. Our court has made it clear a b u y e r

seller relationship alone c a nnot, as a matter of law, support a conviction for conspiracy

. See Lennick , 18 F .3d at 819 n.4.

Second, was there some evidentiary support for a buy erseller instruction in this case? T here was. As we conclude above, the evidence b e f

ore the jury was capable of supporting the conclusion that Moe and Ellifritt were co-consp i rators. Bu t t h ere w as at least some e vidence that cut the other w a y , including evidence that Ellifritt did not sell to Moe on credit

or consig nment, and that Ellifritt had no direc t i n v olvement in any reselling of the methamphetamine by Moe. A jury could h a v e c oncluded that E llifritt was not party to a conspiracy that encompassed downstream resales a nd that the relationship between Moe and Ellifritt was limited to that of a buy e r and a seller.

Third, did the o ther instructions g iven to the jury fail to fully convey the distinct ion between a buy er-seller relationship and a co-conspiracy relationship? Here, we conclude the answer is n o. The district court instructed t he jury on the g eneral elements of c onspiracy

. This ins t r u c t ion informed the jury that “[ a] c onspiracy is a kin d o f criminal partnership ” (emphasis added), and that, in order to convict, the jury had to “find that there was a plan to commit at least

one of the crimes charg ed in the indictment as an object o f theU N I T E D S T A T E S V

. M O E 15

conspiracy .” ( emphasis added). The o nly other crime charg ed in the indictment con cerned Moe’s alleg ed distribution in Montana to other purchaser s d ownstream, not Moe’s purchases from Ellifritt. W e presume the jury followed these instructions. See Zafiro v. United States
, 506 U.S. 534, 540 (1993). The instructio n s a s a whole accurately informed the jury that a conspir a c y c o u l d not be found based only on the sales by Ellifritt to Moe. See Bauer , 84 F .3d at 1560–61.

District courts may decide to provide a jury instruction in drug conspiracy cases that focuses specifical l y on the difference b etween a buy er-seller relationship and a coconspirator relationship. Such an instruction mig h t a ssist a jury in w o r k i ng throug h the subtle and fact-intensive determinations that must be m a d e, and in some cases they mig ht b e essential. 1 1 B u t in lig h t of the “substantial latitude”

11 W e em p h asize th at w e d o n o t h o ld as a m atter o f la w t ha t a sp ecif ic b u y er- seller in stru ctio n is n ev er req u ired w h en a j u ry is p ro p erly in stru cted

o n th e elem en ts o f

co n sp iracy

. Sev eral circu its h av e ad o p ted su ch a ru le. S ee, e.g

. , Rig

g s v. Un ited S t a t e s , 20 9 F.3 d 8 28
, 8 3 2 –3 3 (6 th Cir. 2 0 0 0 ),

a b ro g a ted o n o th er gro u n d s by Mo ss v. Un ited S ta tes , 3 2 3 F.3 d 4 45 (6 th Cir. 2 0 03 ); Un ited S ta tes v. Asib or , 1 0 9 F.3 d 1 0 2 3
, 1 0 3 5 (5 th Cir. 19 9 7 ); b u t see Un ite d S ta tes v. Mims
, 92 F.3 d 46 1
, 4 6 4 (co n clu d in g th at a b u y er- seller in stru ctio n

is alw ay s req u ired if t

h e j u ry “ co u ld co n ceiv ab ly h a v e determ in ed th at th e b u y er- seller relatio n sh ip w h ich ex isted did n o t in v o lv e an o v erarch in g co n sp i rato rial ag r e e m e n t”), o n reh ’g
, 1 0 1 F.3 d 4 9 4 (7 th Cir. 1 9 9 6 ). W e h o ld o n ly th at, u n d er th e circu m stan ces o f th is case, it w as n o t erro r to f ail to g iv e th e in stru ctio n

Mo e req u ested

.

In o th er circu m stan ces, an in stru ctio n o n th e b u y er- seller ru le m ig h t

w ell b e req u i red

. Fo r in stan ce, su p p ose th at an o t h er co u n t in Mo e’ s in d ictm en t h ad been s i m p l e p o ssessio n based o n h er p u rch ases f ro m Ellif ritt. Or, su

p p o se th at Ellif

ritt h a d b e e n n am ed as a d ef en d an t an d ch arg ed b o th w i th th e s ale (d i strib u tio n ) to Mo e an d w ith co n s p i r a c y to d istrib u te d o w

n s tream

. Su ch cases m ig h t p resen t m o re su b stan tial risk of

a j u ry m istak in g a sale as a b asis o n w h ich t o fi n d a co n sp iracy b etw eenU N I T E D S T A T E S V

. M O E 16

we accord trial courts in formulating jury instructions, Bauer
, 84 F .3d a t 1560, we are not prepared to hold that the district
court e rred in th i s c as e when it denied Moe’s requested buy er-seller instruction.

C. Cross-Examination

F inally
, Moe asserts that the trial court e r r ed when it curtailed cross-ex amination o f Ellifritt aimed at showing that he associate d w i th other individuals and was involved in
ot h e r conspiracies. Specifically
, Moe sug g ests that h ad defense counsel been allowed to c o n d u ct the cross

ex a mination he prepared, there is no doubt that the jury would have realiz ed t h at there was no sing le conspiracy involving many but at m o s t a random collection o f named drug users and sellers. She asserts that this resulted in a denial of her F ifth and Six th A mendment rig hts t o d e f end the case broug ht a g ainst her. The district court, for its part, concluded that the testimony

was not relevant.

Criminal defendants h ave a constitutional r ig ht to “a meaning ful opp o r tunity to present a complete d efense.” H olmes v

. South Carolina
, 547 U.S. 319, 324 (20 0 6 ) (quotation marks omitted). W ith respect to crossex a minati o n , “trial judg es retain wide latitude insofar as the Confrontation Clause is concerned to impos e r easonable limits on such cross-ex amination based on conc e r ns a bout,
among o ther thi n gs , harassment, p rejudice, confusion of the issues.” Delaware v. Van Arsdall
, 4 75 U.S. 673, 679 (1986). And “[ a ] limitation on cross ex amination does not violate the

a bu y er a n d seller in th e ab sen ce o f a m o re ex p licit in stru ctio n d etailin g th e d istin ctio n

. In th ese an d o t h er circu m stan ces, a b u y er- seller in stru ctio n

m ig h t b e n ecessary . In th is case, h o w ev er, it w as n o t.U N I T E D S T A T E S V

. M O E 17

C o n f rontation Clause unless it limits r elevant testimony

. ” United States v. Holler
, 4 11 F .3d 1061, 1 066 (9th Cir. 2 005) (quotation marks omitted). Here, the testim o ny was not relevant because the multiple conspiracy theory of def e nse did not a pply

. That Ellifritt mig ht have had dealing s w i t h

o thers did not tend to disprove the possibility of the a l l e g e d conspiracy between Moe and Ellifritt. Thus, the district court did not err by limiting the cross-ex a mination of Ellifritt to the conspiracy

that was charg ed.

III. Conclusion

W e affirm Moe’s conviction for conspiracy under 2 1 U.S.C. § 846.

AF F IRMED.

HURW I TZ , Circuit J udg e, concurring :

I ag ree that the instructions in this case, as a whole, “accurately informed the jury that a consp i r acy c ould not be f o u n d b a s e d only on the sales

. . . to Moe,” and that Moe demonstrated no prejudice f rom t h e court’s failure to g ive a separate buy er-seller instruction. I therefore join the panel opinion.

Even when the instructions a ccurately inform the jury

of what is r e q u i red to find a conspiracy
, however, “the line between a conspiracy and a mere buy er-seller relationship is difficult to discern.” United States v. G ee , 226 F .3d 8 85, 895 (7th Cir. 2000). Recog niz ing this, the Seventh Circuit sensibly requires district courts to g ive a b u y er-sellerU N I T E D S T A T E S V

. M O E 18

instruction whenever a jury “could conceivably have determined that the buy er-seller r e lationship which e x isted did not involve an ove r a r ching conspiratorial ag reement.” United S tates v. Mims
, 9 2 F .3d 461, 464 (7th Cir. 1996); Gee
, 226 F .3d at 895. To det er m i n e if a case “ presents one o f those situations,” that court evaluates criteria such a s whether ( 1 ) “[ t] h e proffered e v idence of a conspiracy w a s circumstantial and not over wh elming ,” (2) “[ t] he evidence

was a s c onsistent with a buy er-seller r e lationship as it was with a c on spiracy ,” a

nd (3) “[ t] he instructions allowed the jury to make a g uilty finding without d etermining whether the
g overnment had proved the e x istence o f a conspiracy

. ” Gee
, 226 F .3d at 895.

I urg e our court to follow the Seventh Circuit. Althoug h

a f ederal judg e or e x perienced c r i m inal practitioner can discern that a buy er-seller relationship cannot alone establish

a conspiracy
, this concept is far from intuitive for j u r o r s , p articularly when, a s here, “the ex istence of a conspiratorial
ag reement w as closely c ontested and confli c t i ng evidence

was p resented.” I

d. at 8 9 6 (internal quotation marks omitted). The b uy er-seller instruction serv e s “ t o e nsure a jury finding

on this essential element” of conspiracy

. I d. (int e r n al quotation marks omitted).

District courts, of c ourse, have “ substantial latitude” in formulating instructions. Unit e d States v. Bauer
, 84 F .3d 1549, 1560 ( 9 t h Cir. 1996). B ut properly disting u ishing between a buy er-seller r elationship and a conspiracy reg ularly
g oes to the heart of “the essential fairness and integ r ity of the trial.” Gee
, 226 F .3d a t 896 (internal quotation marks omitted). A buy e r -seller instruction faci litates the jury ’s resolution of this recurrent issue, a nd thus well serves the interests of justice.