FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARIA LOURDES MOE,

Defendant-Appellant.

No. 13-30224

D.C. No.

6:13-cr-00003-

SEH-1

OPINION

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

November 17, 2014—Portland, Oregon

Filed March 27, 2015

Before: Richard R. Clifton, Milan D. Smith, Jr.,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Clifton;

Concurrence by Judge Hurwitz
2 UNITED STATES V. MOE

SUMMARY*

Criminal Law

The panel affirmed a conviction for conspiracy to possess

with intent to distribute methamphetamine.

Rejecting the defendant’s contention that the evidence

presented to the jury established only a buyer-seller

transaction, the panel held that the evidence was sufficient to

support her conviction for conspiracy, where the evidence

indicated an ongoing relationship of mutual trust, there was

testimony that the defendant was involved in the business of

methamphetamine trafficking, there was evidence that the

defendant’s supplier knew that the defendant was engaged in

redistributing the methamphetamine that she was buying from

him, and the supplier had an interest in fostering those

downstream sales.

The panel held that the district court did not err by failing

to instruct the jury on how to determine a single conspiracy

versus multiple conspiracies, where the defendant stood trial

alone and the facts to do not support a multiple conspiracies

defense. 

The panel held that the district court did not err in

rejecting the defendant’s proposal to instruct the jury on the

difference between a buyer-seller relationship and a

conspiracy relationship, where the instructions as a whole

accurately informed the jury that a conspiracy could not be

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. MOE 3

found based only on the sales by the supplier to the

defendant. 

The panel held that the district court did not err when it

curtailed as irrelevant cross-examination of the supplier

aimed at showing that he associated with other individuals

and was involved in other conspiracies, where the multiple

conspiracy theory of defense did not apply.

Concurring, Judge Hurwitz urged this court to follow the

Seventh Circuit, which requires district courts to give a

buyer-seller instruction whenever a jury could conceivably

have determined that the buyer-seller relationship which

existed did not involve an overarching conspiratorial

agreement.

COUNSEL

Michael Donahoe, Federal Defenders of Montana, Helena,

Montana, for Defendant-Appellant.

Paulette L. Stewart, Assistant United States Attorney, Helena,

Montana, for Plaintiff-Appellee.
4 UNITED STATES V. MOE

OPINION

CLIFTON, Circuit Judge:

Maria Moe appeals her conviction for conspiracy to

possess with intent to distribute methamphetamine in

violation of 21 U.S.C. § 846. Her primary arguments rest on

the so-called “buyer-seller rule,” under which a conviction for

conspiracy cannot be based solely on the purchase of an

unlawful substance, even though such a transaction

necessarily involves an agreement between at least two

parties, the buyer and the seller. “Rather, conspiracy requires

proof of ‘an agreement to commit a crime other than the

crime that consists of the sale itself.’ Were the rule otherwise,

every narcotics sale would constitute a conspiracy.” United

States v. Lennick, 18 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—that is, established only a buyer-seller

transaction—not that she was engaged in a conspiracy with

the seller in connection with subsequent distribution. She also

contends that the district court should have given an

instruction to the jury regarding the buyer-seller rule. We

conclude that the evidence was sufficient to support the

conviction. We further conclude that although a specific

buyer-seller instruction may be useful and might be required

in some circumstances, it was not necessary here. We are not

persuaded by any of Moe’s other arguments, and therefore

affirm.
UNITED STATES V. MOE 5

I. Background

Maria Moe was indicted in January 2013 on two counts:

conspiracy to possess with intent to distribute 50 grams or

more of methamphetamine, 21 U.S.C. § 846, and distribution

of 50 grams or more of methamphetamine, 21 U.S.C.

§ 841(a)(1). She pleaded not guilty and went to trial.

During the two-day trial that followed, the government

called five witnesses. These included four government agents

and one cooperatingwitness, Shawn Ellifritt. Ellifritt testified

that he supplied methamphetamine to Moe. Moe lived in

Helena, Montana, but traveled to Spokane, Washington, to

buymethamphetamine from Ellifritt. She typically purchased

a half ounce of methamphetamine one time per month. From

December 2009 until December 2010, Moe made at least

seven purchases. Ellifritt estimated that these transactions

involved approximately 140 grams of methamphetamine.

Moe and Ellifritt communicated by phone. There were at least

94 cell phone contacts between Ellifritt and Moe, including

51 text messages. The two used a code to communicate

regarding the availability of methamphetamine: for example,

when Ellifritt texted Moe that the weather was bad, that

meant methamphetamine was not available or there was

potential trouble with law enforcement.

Moe filed motions for acquittal and for a new trial on

sufficiency of the evidence grounds. Moe also proposed

several supplemental jury instructions, including a multiple

conspiracies instruction and an instruction on the difference

between a buyer-seller relationship and a conspiracy

relationship. The district court rejected both of these

instructions.
6 UNITED STATES V. MOE

The jury convicted Moe on the conspiracy count but

could not reach a unanimous verdict on the distribution count,

which was subsequently dismissed. Moe was sentenced to 66

months imprisonment and four years supervised release.

II. Discussion

Moe presents three arguments on appeal. First, she asserts

there was insufficient evidence before the jury to support her

conviction for conspiracy. Second, she argues the district

court erred by declining to give two proposed jury

instructions. Third, she asserts that the district court erred by

curtailing her cross-examination of a government witness. We

consider these challenges in turn.

A. Sufficiency of the Evidence

We employ “a two-step inquiry for considering a

challenge to a conviction based on sufficiency of the

evidence.” United States v. Nevils, 598 F.3d 1158, 1164 (9th

Cir. 2010) (en banc). “First, a reviewing court must consider

the evidence presented at trial in the light most favorable to

the prosecution.” Id. “Second, after viewing the evidence in

the light most favorable to the prosecution, the reviewing

court must determine whether this evidence, so viewed, is

adequate to allow ‘any rational trier of fact [to find] the

essential elements of the crime beyond a reasonable doubt.’”

Id. (alteration in original) (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)). Although we review a claim of

insufficient evidence de novo, United States v. Sullivan,

522 F.3d 967, 974 (9th Cir. 2008) (per curiam), our

evaluation remains deferential and accords respect to the

jury’s role “as weigher of the evidence,” Jackson, 443 U.S. at

319.
UNITED STATES V. MOE 7

The elements of conspiracy are “(1) an agreement to

accomplish an illegal objective, and (2) the intent to commit

the underlying offense.” United States v. Herrera-Gonzales,

263 F.3d 1092, 1095 (9th Cir. 2001). But although “the

essence of conspiracy is agreement,” United States v. Feola,

420 U.S. 671, 692 (1975), not every agreement to commit an

illegal objective may serve as the basis for a conspiracy

conviction.

Under the buyer-seller rule, “mere sales to other

individuals do not establish a conspiracy to distribute or

possess with intent to distribute . . . .” Lennick, 18 F.3d at 819

n.4. This “narrow exception” to conspiracy liability, United

States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009), applies

even though “[a] drug sale is itself an agreement: a buyer and

seller come together, agree on terms, and exchange money or

commodities at the settled rate.” United States v. Brown,

726 F.3d 993, 998 (7th Cir. 2013). Instead, a conviction for

“conspiracy requires proof of an agreement to commit a

crime other than the crime that consists of the sale itself.”

Lennick, 18 F.3d at 819 (quotation marks omitted).

Thus, for a charge of conspiracy to possess a drug with

intent to distribute, “the government must show that the buyer

and seller had an agreement to further distribute the drug in

question.” Id. at 819 n.4. “Express agreement is not required;

rather, agreement may be inferred from conduct.” United

States v. Hegwood, 977 F.2d 492, 497 (9th Cir. 1992); see

also Direct Sales Co. v. United States, 319 U.S. 703, 714

(1943) (“[I]t can make no difference the agreement was a

tacit understanding, created by a long course of conduct and

executed in the same way.”).
8 UNITED STATES V. MOE

Here, Moe asserts that the evidence before the jury proved

only that Ellifritt sold methamphetamine to her. The

government argues that Moe and Ellifritt’s relationship was

more than a purely transactional one and instead crossed the

line into conspiracy.

Distinguishing between a conspiracy and a buyer-seller

relationship requires a fact-intensive and context-dependent

inquiry that is not amenable to bright-line rules. See United

States v. Hawkins, 547 F.3d 66, 74 (2d Cir. 2008) (noting the

“highly fact-specific” nature of the “inquiry into whether the

circumstances surrounding a buyer-seller relationship

establish an agreement to participate in a distribution

conspiracy”). Certain principles are established, however.

A casual sale of drugs, of a quantity consistent with

personal use on the part of the buyer, with no evidence of any

subsequent (or planned) redistribution of purchased drugs,

will likely fall within the ambit of the buyer-seller rule. See

Lennick, 18 F.3d at 819; see also United States v. Medina,

944 F.2d 60, 65–66 (2d Cir. 1991) (characterizing “the typical

buy-sell scenario” as “involv[ing] a casual sale of small

quantities of drugs” and contrasting that scenario to a case in

which “there is advanced planning among the alleged

co-conspirators to deal in wholesale quantities of drugs

obviously not intended for personal use”), abrogated on other

grounds by Bailey v. United States, 516 U.S. 137 (1995).

In contrast, we will uphold a conviction for conspiracy

between buyer and seller where there 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. Ramirez, 714 F.3d 1134,
UNITED STATES V. MOE 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 for

conspiracy. We look not just to the characteristics of

individual transactions but to “the ‘entire course of dealing’”

between alleged co-conspirators. United States v. Mincoff,

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

284 F.3d at 753). “No single factor is dispositive.” Hawkins,

547 F.3d at 74. Instead, a reviewing court should “take into

account all . . . the evidence surrounding the alleged

conspiracy and make a holistic assessment of whether the

jury reached a reasonable verdict.” United States v. Long,

748 F.3d 322, 326 (7th Cir. 2014) (quotation marks omitted).

Among the factors that courts have considered relevant in

making this determination are the following: whether the

drugs were sold on credit1or on consignment;2the frequency

of sales;3the quantity of drugs involved;

4

the level of trust

1 E.g., Mincoff, 574 F.3d at 1193 (“[S]elling drugs on credit is especially

indicative of a conspiracy because it gives the seller a stake in the buyer’s

successful resale of the drugs.”) (alteration in original) (quoting United

States v. Bender, 539 F.3d 449, 454 (7th Cir. 2008)).

 

2 E.g., United States v. Vallar, 635 F.3d 271, 287 (7th Cir. 2011).

3 E.g., United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008)

(“[E]vidence of continuing relationships and repeated transactions can

support the finding that there was a conspiracy, especially when coupled

with substantial quantities of drugs.”).

4

In Mincoff, the court concluded that “a rational trier of fact could have

found the buyer-seller rule inapplicable to the facts of this case” because,

among other things, the “large quantities” of drugs involved “could
10 UNITED STATES V. MOE

demonstrated between buyer and seller, including the use of

codes;5the length of time during which sales were ongoing;

6

whether the transactions were standardized;7 whether the

parties advised each other on the conduct of the other’s

business;8 whether the buyer assisted the seller by looking for

other customers;9and whether the parties agreed to warn each

support an inference of further distribution.” 574 F.3d at 1193–94. It is

true that “‘[t]he sale of large quantities of controlled substances, without

more, cannot sustain a conspiracy conviction.’” Ramirez, 714 F.3d at 1140

(alteration in original) (quoting Lennick, 18 F.3d at 819 n.5). But while the

quantity of sales alone cannot support a conspiracy conviction, it

nevertheless is a relevant factor to be considered. Cf. United States v.

Howard, 966 F.2d 1362, 1364 (10th Cir. 1992) (noting that a “huge

quantity” of narcotics “permits an inference of conspiracy” although it is

not “by itself . . . enough to convict defendant”) (emphasis added).

5 E.g., United States v. Pressler, 256 F.3d 144, 155 (3d Cir. 2001)

(concluding that where buyer and seller “conducted their business in

code,” this “demonstrated a considerable degree of coordination and

suggested the presence of a cooperative relationship”); see also United

States v. Contreras, 249 F.3d 595, 599 (7th Cir. 2001) (looking to “the

level of mutual trust between the buyer and seller” as a relevant factor).

6 E.g., Direct Sales, 319 U.S. at 713 (emphasizing “prolonged

cooperation”); see also United States v. Gibbs, 190 F.3d 188, 199 (3d Cir.

1999) (noting “length of affiliation”); Lechuga, 994 F.2d at 350

(“Prolonged cooperation is neither the meaning of conspiracy nor an

essential element, but it is one type of evidence of an agreement that goes

beyond what is implicit in any consensual undertaking, such as a spot

sale.”).

 

7 E.g., Gibbs, 190 F.3d at 199.

 

8 E.g., Brown, 726 F.3d at 999.

 

9

Id.
UNITED STATES V. MOE 11

other of potential threats from competitors or law

enforcement.10

We now turn to the facts of this case. Between December

2009 and December 2010, Ellifritt sold methamphetamine to

Moe on at least seven occasions. These transactions had a

standard format. Moe was not just a casual or occasional

buyer. She described Ellifritt as a reliable source of

methamphetamine, a “gold mine.” Moe and Ellifritt

communicated closely together and coordinated their actions,

thereby demonstrating prolonged cooperation. They had their

own code for communicating regarding the availability of

drugs. Significantly, Ellifritt took affirmative steps to warn

Moe when a threat from law enforcement was present: on the

same day that law enforcement searched Ellifritt’s residence,

Ellifritt texted Moe, “Bad weather, lay low.”

These are indications of an ongoing relationship of

“mutual trust,” beyond a simple buyer-seller transaction. See

Mincoff, 574 F.3d at 1194; Pressler, 256 F.3d at 155 (noting

that the use of codes is one indication of a conspiracy rather

than a buyer-seller relationship). The jury heard testimony

that Moe was involved in the business of methamphetamine

trafficking and had a supplier in Washington. There was

evidence that Ellifritt knew that Moe was engaged in

redistributing the methamphetamine that she was buying from

him: Ellifritt was told that Moe was “the money” in an

ongoing downstream redistribution effort. Ellifritt had an

interest in fostering those downstream sales, which created

the demand for his repeated sales to Moe.

 

10 E.g., Vallar, 635 F.3d at 287.
12 UNITED STATES V. MOE

We conclude that the evidence before the jury, viewed in

the light most favorable to the government, was sufficient to

support Moe’s conviction for conspiracy.

B. Jury Instructions

Next, Moe asserts that the district court erred in failing to

give two supplemental jury instructions that she proposed. “A

criminal defendant has a constitutional right to have the jury

instructed according to h[er] theory of the case, provided that

the requested instruction is supported by law and has some

foundation in the evidence.” United States v.

Anguiano-Morfin, 713 F.3d 1208, 1209 (9th Cir. 2013)

(quotation marks omitted). That said, “[w]e review the jury

instructions as a whole and accord the trial judge 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). The abuse of

discretion standard governs our review of “the language and

formulation of a jury instruction,” United States v. Cortes,

757 F.3d 850, 857 (9th Cir. 2013), and our review of

“whether [an instruction] has some foundation in the

evidence,” Anguiano-Morfin, 713 F.3d at 1209. “Whether an

instruction is supported by law is reviewed de novo.” United

States v. Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir.

2011) (quotation marks omitted).

1. Multiple Conspiracies

Moe asserts that the district court erred by failing to

instruct the jury on how to determine a single versus multiple

conspiracies. We are not persuaded.
UNITED STATES V. MOE 13

“A multiple conspiracies instruction is generally required

where the indictment charges several defendants with one

overall conspiracy, but the proof at trial indicates that a jury

could reasonably conclude that some of the defendants were

only involved in separate conspiracies unrelated to the overall

conspiracy charged in the indictment.” United States v.

Anguiano, 873 F.2d 1314, 1317 (9th Cir. 1989). The

instruction is needed in order to mitigate the problem of

“transference or ‘spillover’ of guilt” from one co-defendant

to another. Id. at 1318. In contrast, “[a] multiple conspiracy

instruction is not required when a defendant stands trial alone

because there is no problem of spillover.” United States v.

Liu, 631 F.3d 993, 1000 (9th Cir. 2011) (quotation marks

omitted). Here, Moe stood trial alone and the facts do not

support a multiple conspiracies defense.

2. Buyer-Seller Rule

Next, Moe suggests that the district court erred in

rejecting her proposal to instruct the jury on the difference

between a buyer-seller relationship and a conspiracy

relationship.

“A defendant is not entitled to have the jury instructed in

the particular language of h[er] choice.” United States v.

Montgomery, 150 F.3d 983, 1002 (9th Cir. 1998) (quotation

marks omitted). Nevertheless, a “district court’s failure to

give a defendant’s requested instruction that is supported by

law and has some foundation in the evidence warrants per se

reversal, unless other instructions, in their entirety,

adequately cover that defense theory.” Marguet-Pillado,

648 F.3d at 1006 (citation and quotation marks omitted).

Thus, our review of a trial court’s decision to deny a

requested jury instruction requires that we answer three
14 UNITED STATES V. MOE

questions. First, was the proposed instruction supported by

law? Second, did the proposed instruction have some

foundation in the evidence? Third, did other instructions

given to the jury, considered in their entirety, fail to cover the

defense theory? Where the answer to all three questions is

“yes,” we must reverse and remand for a new trial.

First, was a buyer-seller defense supported by law? We

conclude that it was. Our court has made it clear a buyerseller relationship alone cannot, 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 buyerseller instruction in this case? There was. As we conclude

above, the evidence before the jurywas capable of supporting

the conclusion that Moe and Ellifritt were co-conspirators.

But there was at least some evidence that cut the other way,

including evidence that Ellifritt did not sell to Moe on credit

or consignment, and that Ellifritt had no direct involvement

in any reselling of the methamphetamine by Moe. A jury

could have concluded that Ellifritt was not party to a

conspiracythat encompassed downstream resales and that the

relationship between Moe and Ellifritt was limited to that of

a buyer and a seller.

Third, did the other instructions given to the jury fail to

fully convey the distinction between a buyer-seller

relationship and a co-conspiracy relationship? Here, we

conclude the answer is no. The district court instructed the

jury on the general elements of conspiracy. This instruction

informed the jury that “[a] conspiracy is a kind of 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 charged in the indictment as an object of the
UNITED STATES V. MOE 15

conspiracy.” (emphasis added). The only other crime charged

in the indictment concerned Moe’s alleged distribution in

Montana to other purchasers downstream, not Moe’s

purchases from Ellifritt. We presume the jury followed these

instructions. See Zafiro v. United States, 506 U.S. 534, 540

(1993). The instructions as a whole accurately informed the

jury that a conspiracy could 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 specifically on the

difference between a buyer-seller relationship and a coconspirator relationship. Such an instruction might assist a

jury in working through the subtle and fact-intensive

determinations that must be made, and in some cases they

might be essential.11 But in light of the “substantial latitude”

11 We emphasize that we do not hold as a matter of law that a specific

buyer-seller instruction is never required when a jury is properly instructed

on the elements of conspiracy. Several circuits have adopted such a rule.

See, e.g., Riggs v. United States, 209 F.3d 828, 832–33 (6th Cir. 2000),

abrogated on other grounds by Moss v. United States, 323 F.3d 445 (6th

Cir. 2003); United States v. Asibor, 109 F.3d 1023, 1035 (5th Cir. 1997);

but see United States v. Mims, 92 F.3d 461, 464 (concluding that a

buyer-seller instruction is always required if the jury “could conceivably

have determined that the buyer-seller relationship which existed did not

involve an overarching conspiratorial agreement”), on reh’g, 101 F.3d 494

(7th Cir. 1996). We hold only that, under the circumstances of this case,

it was not error to fail to give the instruction Moe requested.

In other circumstances, an instruction on the buyer-seller rule might

well be required. For instance, suppose that another count in Moe’s

indictment had been simple possession based on her purchases from

Ellifritt. Or, suppose that Ellifritt had been named as a defendant and

charged both with the sale (distribution) to Moe and with conspiracy to

distribute downstream. Such cases might present more substantial risk of

a jury mistaking a sale as a basis on which to find a conspiracy between
16 UNITED STATES V. MOE

we accord trial courts in formulating jury instructions, Bauer,

84 F.3d at 1560, we are not prepared to hold that the district

court erred in this case when it denied Moe’s requested

buyer-seller instruction.

C. Cross-Examination

Finally, Moe asserts that the trial court erred when it

curtailed cross-examination of Ellifritt aimed at showing that

he associated with other individuals and was involved in

other conspiracies. Specifically, Moe suggests that had

defense counsel been allowed to conduct the cross

examination he prepared, there is no doubt that the jury

would have realized that there was no single conspiracy

involving many but at most a random collection of named

drug users and sellers. She asserts that this resulted in a denial

of her Fifth and Sixth Amendment rights to defend the case

brought against her. The district court, for its part, concluded

that the testimony was not relevant.

Criminal defendants have a constitutional right to “a

meaningful opportunity to present a complete defense.”

Holmes v. South Carolina, 547 U.S. 319, 324 (2006)

(quotation marks omitted). With respect to crossexamination, “trial judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable

limits on such cross-examination based on concerns about,

among other things, harassment, prejudice, confusion of the

issues.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

And “[a] limitation on cross examination does not violate the

a buyer and seller in the absence of a more explicit instruction detailing

the distinction. In these and other circumstances, a buyer-seller instruction

might be necessary. In this case, however, it was not.
UNITED STATES V. MOE 17

Confrontation Clause unless it limits relevant testimony.”

United States v. Holler, 411 F.3d 1061, 1066 (9th Cir. 2005)

(quotation marks omitted). Here, the testimony was not

relevant because the multiple conspiracy theory of defense

did not apply. That Ellifritt might have had dealings with

others did not tend to disprove the possibility of the alleged

conspiracy between Moe and Ellifritt. Thus, the district court

did not err by limiting the cross-examination of Ellifritt to the

conspiracy that was charged.

III. Conclusion

We affirm Moe’s conviction for conspiracy under 21

U.S.C. § 846.

AFFIRMED.

HURWITZ, Circuit Judge, concurring:

I agree that the instructions in this case, as a whole,

“accurately informed the jury that a conspiracy could not be

found based only on the sales . . . to Moe,” and that Moe

demonstrated no prejudice from the court’s failure to give a

separate buyer-seller instruction. I therefore join the panel

opinion.

Even when the instructions accurately inform the jury of

what is required to find a conspiracy, however, “the line

between a conspiracy and a mere buyer-seller relationship is

difficult to discern.” United States v. Gee, 226 F.3d 885, 895

(7th Cir. 2000). Recognizing this, the Seventh Circuit

sensibly requires district courts to give a buyer-seller
18 UNITED STATES V. MOE

instruction whenever a jury “could conceivably have

determined that the buyer-seller relationship which existed

did not involve an overarching conspiratorial agreement.” 

United States v. Mims, 92 F.3d 461, 464 (7th Cir. 1996); Gee,

226 F.3d at 895. To determine if a case “presents one of

those situations,” that court evaluates criteria such as whether

(1) “[t]he proffered evidence of a conspiracy was

circumstantial and not overwhelming,” (2) “[t]he evidence

was as consistent with a buyer-seller relationship as it was

with a conspiracy,” and (3) “[t]he instructions allowed the

jury to make a guilty finding without determining whether the

government had proved the existence of a conspiracy.” Gee,

226 F.3d at 895.

I urge our court to follow the Seventh Circuit. Although

a federal judge or experienced criminal practitioner can

discern that a buyer-seller relationship cannot alone establish

a conspiracy, this concept is far from intuitive for jurors,

particularly when, as here, “the existence of a conspiratorial

agreement was closely contested and conflicting evidence

was presented.” Id. at 896 (internal quotation marks omitted). 

The buyer-seller instruction serves “to ensure a jury finding

on this essential element” of conspiracy. Id. (internal

quotation marks omitted).

District courts, of course, have “substantial latitude” in

formulating instructions. United States v. Bauer, 84 F.3d

1549, 1560 (9th Cir. 1996). But properly distinguishing

between a buyer-seller relationship and a conspiracyregularly

goes to the heart of “the essential fairness and integrity of the

trial.” Gee, 226 F.3d at 896 (internal quotation marks

omitted). A buyer-seller instruction facilitates the jury’s

resolution of this recurrent issue, and thus well serves the

interests of justice.