In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1592

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PRINCE T. BEY,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 1:08-cr-0046-1—Sharon Johnson Coleman, Judge.

ARGUED APRIL 3, 2013—DECIDED JULY 9, 2013

Before POSNER, WOOD, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Prince Bey appeals his conviction for conspiring to possess heroin with intent to

distribute and for aiding and abetting the distribution

of heroin in violation of 21 U.S.C. § 841(a)(1) and § 846.

Bey alleges three errors on appeal: first, that the district court erred by not instructing the jury on an entrapment defense; second, that there was insufficient evidence of conspiracy to allow the admission into evidence
2 No. 12-1592

of out-of-court statements made by his alleged co-conspirator under the co-conspirator exclusion from the rule

against hearsay; and third, that there was insufficient

evidence to support his conviction for the conspiracy

offense. We are not persuaded by any of these arguments.

I. Entrapment Defense

We can dispense with the entrapment issue quickly

before turning to the facts of the case. Bey was charged

for his involvement in a heroin transaction in which

the buyer was a government informant. Before trial,

Bey suggested that he planned to raise an entrapment

defense and submitted two proposed jury instructions on

the defense. Entrapment occurs when the government

induces a person to commit an offense and he lacked the

predisposition to do so without the inducement. See

United States v. Plowman, 700 F.3d 1052, 1057 (7th Cir.

2012); see also Mathews v. United States, 485 U.S. 58, 62-63

(1988). During trial, however, Bey abandoned the entrapment defense. At several points during the government’s presentation of its case, the district judge

prohibited the government from presenting evidence of

Bey’s predisposition to involvement in the transaction

because Bey had not yet put on an entrapment defense.

After the government rested its case, Bey chose to rest

without raising an entrapment defense: Bey did not

testify, he called no witnesses, and his counsel withdrew his proposed entrapment instructions. Accordingly,

the district judge followed Bey’s decision and never

instructed the jury on the entrapment defense.
No. 12-1592 3

This is about as clear a record of waiver as one can

imagine. Bey waived the entrapment defense and cannot

argue on appeal that the judge should have given

the entrapment instruction. See United States v. Walton,

255 F.3d 437, 441 (7th Cir. 2001) (“a waived issue is

unreviewable because a valid waiver leaves no error to

correct and extinguishes all appellate review of the

issue”). In the context of appellate challenges to jury

instructions, we have held that a defendant waives an

objection to jury instructions when he “approved of the

instructions at issue.” See United States v. DiSantis, 565

F.3d 354, 361 (7th Cir. 2009), citing United States v. Pree,

408 F.3d 855, 872 (7th Cir. 2005). The same logic applies

when a party approves not giving an instruction. E.g.,

United States v. Ewings, 936 F.2d 903, 908-09 (7th Cir. 1991)

(finding waiver of objection to jury instructions because defense asked judge not to give instruction). Here,

Bey considered an entrapment defense, laid some of

the groundwork for it outside the hearing of the jury,

and then withdrew his own proposed entrapment instruction. He waived the issue for appellate review. We

now turn to the conspiracy issues.

II. The Conspiracy Issues

A. Factual and Procedural Background

1. The Heroin Transaction

In the fall of 2006, the FBI became interested in a drug

dealer named Vernell Hemphill. The FBI wanted to use a

confidential informant who went by the name “Chub” to

bust Hemphill for selling drugs, but there was a prob-
4 No. 12-1592

lem. Though Chub was familiar with Hemphill, he did

not know him well enough to arrange a deal. This is

where Bey came in. Bey was friends with Chub, and Chub

knew that Bey had previously bought cocaine from

Hemphill. Over several weeks, Chub used Bey to arrange

the purchase of 100 grams of heroin from Hemphill.

(Because the conspiracy offense requires proof of an

agreement to commit a crime with someone other than

a government informant, like Chub, the focus is on

whether the evidence shows that Bey conspired with

Hemphill to sell drugs to Chub.)

Many of the communications between Chub and Bey

were recorded, and those recordings provide a fairly

clear chronology of events. On October 25, 2006 Chub

called Bey to tell him that he was “thinkin’ about openin’

up . . . a line” and asked Chub if he knew of anyone

selling good heroin. Bey responded “well let’s do it” and

told Chub that he knew Hemphill sold high quality

heroin. Chub then asked Bey if he knew how much

Hemphill charged. Bey responded, “I don’t know, but

I could find out, I can, I can find all that out for you

immediately.” 

Bey then went to talk with Hemphill. According

to Bey’s signed written statement made after his

arrest — the admission of which has not been challenged — Bey next went to a store where Hemphill

worked and told Hemphill that Chub was interested

in buying heroin. At this meeting Hemphill expressed

reservations about dealing with Chub because he had

heard that Chub worked for the government. Bey
No. 12-1592 5

assured Hemphill that Chub was not a government

informant, and his reassurance appears to have

satisfied Hemphill, who then quoted a price of $7,500 for

100 grams of heroin. Bey relayed this information to

Chub on November 3, 2006.

On November 8, 2006, Chub called Bey to tell him that

he was getting ready to do the deal and that he needed

Bey “to take care of everything.” On the same call, Chub

told Bey that he would give him “a stack” ($1,000)

for helping to arrange the deal.

The deal occurred on November 17, 2006. That afternoon Bey called Chub and told him that Hemphill was

ready to do the deal. After picking up another man

for some muscle, Chub picked up Bey and they drove

to the clothing store where Hemphill worked. Bey introduced Chub to Hemphill, and Chub and Hemphill

went into a back room to count the money. The money

added up, and Hemphill gave Chub the heroin in return

for the money. Hemphill testified at trial that he then

paid Bey a $200 or $300 finder’s fee for his work in setting

up the transaction. Bey, Chub, and the muscle then left

the store and returned to their respective homes. On

their way home, Bey asked Chub to “Gimme five,” meaning $500 dollars, and Chub responded that he would pay

him later. At trial, Hemphill also testified that he would

not have done the deal if Bey had not vouched for Chub.

2. The Trial 

Before trial, the government made a Santiago proffer

to admit statements of Bey’s alleged co-conspirator
6 No. 12-1592

Hemphill. Under Santiago, a district judge may decide

before trial to admit co-conspirator testimony based on

the government’s proffer that it has sufficient evidence to prove the existence of a conspiracy by a preponderance of the evidence at trial. See United States v. Santiago, 582 F.2d 1128, 1130-31 (7th Cir. 1978), overruled on

other grounds by Bourjaily v. United States, 483 U.S. 171

(1987). This procedure helps streamline trials by permitting the government to introduce co-conspirator testimony at any point during the trial rather than waiting

until after it has provided sufficient independent proof

of conspiracy.

Hemphill’s out-of-court statements included conversations between Hemphill and Bey about the price of the

heroin and conversations that Hemphill had with Chub

during the deal. To establish the existence of a conspiracy between Bey and Hemphill, at trial the government relied on Bey’s written statement, the recorded

conversations, and Hemphill’s trial testimony. This

evidence showed that Bey recommended Hemphill to

Chub as a heroin supplier, that Bey vouched for Chub,

that Bey relayed the price between Hemphill and Chub,

and that Hemphill paid Bey a finder’s fee.

Following the presentation of the government’s case,

Bey moved for a directed verdict under Rule 29, arguing

that the government failed to prove the existence of an

agreement between Hemphill and Bey — a necessary

element of the conspiracy offense. The judge denied the

motion and allowed the case to go to the jury. The jury

convicted Bey of conspiring to distribute heroin and
No. 12-1592 7

aiding and abetting the distribution of heroin, and the

judge sentenced him to 110 months in prison.

B. Analysis

Bey argues first that the district judge erred in allowing

the government to introduce Hemphill’s out-of-court

statements because the government failed to provide

sufficient evidence of a conspiracy between Hemphill

and Bey. Second, Bey argues that even with these statements there was insufficient evidence to support his

conspiracy conviction. We take each argument in turn.

1. Admissibility of Co-conspirator Statements

Bey argues that the district judge erred in allowing the

government to introduce out-of-court statements made

by his alleged co-conspirator, Vernell Hemphill, because

there was insufficient evidence to establish the existence of a conspiracy between Hemphill and Bey. Ordinarily out-of-court statements introduced into evidence

to prove the truth of their contents are barred by the

prohibition against hearsay. See Fed. R. Evid. 802. Out-ofcourt statements made by a co-conspirator, however,

are not hearsay if the statements were “made by the

party’s co-conspirator during and in furtherance of the

conspiracy.” Fed. R. Evid. 801(d)(2)(E). To establish admissibility, the government must show by a preponderance of the evidence that a conspiracy existed between

the defendant and the declarant and that the statements

were made in furtherance of the conspiracy. See United
8 No. 12-1592

We say arguably because much of what Hemphill said as 1

the drug transaction was happening would not have been

statements offered for their truth, and those that were would

probably fit under the present sense impression exception to

the rule against hearsay. See Fed. R. Evid. 803(1); United

States v. Ruiz, 249 F.3d 643, 646 (7th Cir. 2001).

States v. Cruz-Rea, 626 F.3d 929, 937 (7th Cir. 2010). An

unlawful conspiracy exists when two or more people

agree to commit an unlawful act, and the defendant

“knowingly and intentionally” joins in the agreement.

See United States v. Johnson, 592 F.3d 749, 754 (7th Cir.

2010). We ultimately find there was sufficient evidence

of conspiracy to admit the statements.

Bey does not direct us to specific statements that he

contends were improperly admitted, an omission that

we might treat as a waiver of the issue. To be on the safe

side, though, we have done an independent review of the

record that reveals only one conversation that could

arguably be hearsay. The majority of Hemphill’s statements were not hearsay: Any accounts provided by

Bey of conversations he had with Hemphill were admissible under the party admission exclusion, see Fed. R.

Evid. 801(d)(2)(A), and Hemphill’s in-court testimony

was not hearsay because it was provided in open court.

The only statements made by Hemphill that were

arguably hearsay occurred in a recorded conversation

between Chub and Hemphill describing the deal as it

was happening. This recording included a descrip- 1

tion of Hemphill counting the money and Hemphill and

Chub discussing doing business again in the future, but
No. 12-1592 9

the conversation itself did not implicate Bey in a conspiracy. Hemphill made no direct or indirect reference

to Bey or Bey’s role in the transaction during the conversation.

Because this admitted conversation did not implicate

Bey in the alleged conspiracy, we see no possibility

that there was any error, let alone prejudicial error, in

admitting any evidence under the co-conspirator exclusion to the hearsay rule. Moreover, as discussed in the

next section, there was sufficient evidence of conspiracy

to permit the evidence to be admitted under the co-conspirator exclusion.

2. Sufficiency of the Evidence

We turn now to whether there was sufficient evidence

to support Bey’s conspiracy conviction. We review challenges to the sufficiency of the evidence deferentially.

We will overturn a conviction for insufficient evidence

only if, after viewing all of the evidence in the light most

favorable to the prosecution, no rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.

307, 319 (1977); United States v. Khattab, 536 F.3d 765, 769

(7th Cir. 2008). When a government agent — like Chub —

is involved in the transaction, a conspiracy conviction

requires proof that the defendant conspired with

someone other than the government agent. See United

States v. Corson, 579 F.3d 804, 811 (7th Cir. 2009). This

means that Bey cannot have conspired with Chub as a

matter of law, so the issue here is whether there was
10 No. 12-1592

sufficient evidence to find that Bey conspired with

Hemphill to sell the heroin to Chub.

The government’s evidence of a conspiracy between

Bey and Hemphill was not overwhelming, but it was

enough. The clearest evidence was Hemphill’s testimony

that he paid Bey a share of his take for bringing Chub

to the deal. This evidence of payment by Hemphill,

combined with the evidence that showed Bey had purchased drugs from Hemphill in the past, relayed price

and quantity information between Hemphill and Chub,

attended the transaction, and reassured Hemphill that

Chub was trustworthy, was enough to allow a reasonable trier of fact to find not only that Bey agreed

to help Chub buy the heroin, for which he could not be

convicted, but also that he knowingly and intentionally agreed with Hemphill to help him sell the heroin.

To prove the existence of a conspiracy, the government must show that Bey “knowingly and intentionally”

joined in an agreement with another person to commit an

unlawful act. Johnson, 592 F.3d at 754; United States v.

Rollins, 544 F.3d 820, 835 (7th Cir. 2008). Depending on

the specific circumstances, a person who acts as a middleman or broker for a drug deal between a buyer and a

seller can conspire with the buyer, the seller, or both. E.g.,

United States v. Gilmer, 534 F.3d 696, 702-03 (7th Cir. 2008)

(middleman conspired with seller); United States Lechuga,

994 F.2d 346, 350 (7th Cir. 1993) (en banc) (plurality

opinion) (middleman conspired with seller to distribute

drugs). But not all middlemen conspire with both the

buyer and the seller. See United States v. Thomas, 284
No. 12-1592 11

F.3d 746, 753, 756 (7th Cir. 2002) (finding insufficient

evidence that defendant who brokered four spot sales

of crack between buyer and sellers conspired with

buyer); United States v. Contreras, 249 F.3d 595, 599-600

(7th Cir. 2001) (insufficient evidence of conspiracy

between defendant and middleman because record did

not reveal middleman had “stake in the success” of the

operation).

In a case, like this one, in which a government

informant brings a middleman to the deal, we must make

sure that there is an evidentiary basis for the jury to

conclude beyond a reasonable doubt that the middleman had an agreement with the seller to distribute drugs

in addition to the agreement to help the informant buy

drugs. It is important to pay attention to the role played

by each participant in the transaction so as not to turn

the conspiracy offense into “a simple substitute for a

drug distribution conviction.” United States v. Rivera, 273

F.3d 751, 756 (7th Cir. 2001).

Evidence that the middleman had a clear stake in the

seller’s sales is typically sufficient to permit the jury to

infer the existence of an agreement with the seller. See

United States v. Colon, 549 F.3d 565, 568-70 (7th Cir.

2008) (recognizing the following as evidence that distinguishes a conspiracy from a buyer-seller relationship:

sales on credit, agreement to look for customers, payment

of commission, provision of significant business advice); cf.

Contreras, 249 F.3d at 600 (insufficient evidence of conspiracy between a drug seller and a middleman where

there was no evidence that the middleman “had a stake”
12 No. 12-1592

in the seller’s sales). In the absence of evidence of an

explicit agreement, such evidence provides the jury with

a basis for choosing the inference that the middleman

had an additional agreement with the seller over the

competing inference that the middleman was working

with only the informant buyer. Cf. United States v.

Williams, 592 F.3d 749, 755 (7th Cir. 2010) (“In this situation, the evidence is essentially in equipoise; the plausibility of each inference is about the same, so the jury

necessarily would have to entertain a reasonable doubt

on the conspiracy charge.”). Because the jury was presented with such evidence here, it had an adequate basis

to conclude that Bey had an agreement with Hemphill.

Hemphill testified that he paid Bey a finder’s fee for

his help in arranging the sale. This testimony, when

paired with the extensive evidence that Bey was acting

as a middleman between Hemphill and Chub, provided

the necessary support for the inference that Bey agreed

to help Hemphill sell heroin. The fact of payment provided probative evidence that Bey had a shared stake

in Hemphill’s sale and allowed the other evidence presented by the government to be read in a reasonable

manner consistent with a conspiracy between Bey

and Hemphill. With the evidence of payment, it was

reasonable for the jury to infer that Bey recommended

Hemphill to Chub and helped organize the deal not just

because Chub asked him to but because he also had a

separate agreement with Hemphill to help promote

Hemphill’s drug distribution enterprise. In other words,

Bey was a broker working for both sides.
No. 12-1592 13

This evidence of agreement to commit the unlawful

act of heroin distribution is sufficient to support Bey’s

conspiracy conviction. Although Bey suggests that his

role in the transaction was too minimal to support a

conspiracy conviction because he did not decide the

price, quantity, or other terms of the transaction, the

conspiracy offense does not require such high-level

participation. See United States v. Garcia, 45 F.3d 196, 198-99

(7th Cir. 1995) (affirming conviction of middleman who

did not set the price, quantity, or terms of transaction).

The judgment of the district court is AFFIRMED.

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