Missed Opportunity to Resolve Recurring "Nexus" Question

Yesterday, in United States v. Reed, the Sixth Circuit declined to resolve a “recurring” Fourth Amendment nexus question: when police officers have probable cause that a person committed a crime away from their home, when may officers obtain a search warrant to search the person’s home?

In Reed, Memphis police officers suspected Reed of distributing marijuana. A detective filed three affidavits seeking search warrants for three locations: (1) a business, for marijuana, drug paraphernalia, and drug-related records; (2) Reed’s mother’s home for the same, which Reed’s driver’s license listed as his address and where a confidential informant made a controlled buy; and (3) Reed’s home, for financial records and drug proceeds. In the affidavit for Reed's home, the detective recounted his experience investigating drug crimes, the confidential informant’s controlled buys at the other location, and merely that he’d watched Reed leave this home. A state judge found probable cause existed to search all three locations.

After indictment, Reed moved to suppress evidence obtained from the search of his home, arguing the supporting affidavit failed to identify a nexus between drug dealing and his home. A magistrate judge recommended the district court deny Reed’s motion; the district court disagreed and suppressed the evidence because the affidavit contained no allegations that Reed conducted drug activity at his home.

On appeal, the government argued the district court should have applied Leon’s good-faith exception. The panel spends a considerable amount of time writing about conflicting principles of probable cause and its own conflicting case law. It acknowledges that on one hand, probable cause to arrest does not necessarily establish probable cause to search the home, as the inquiry is different: fair probability that a crime has been committed versus fair probability that the home will contain evidence of a crime. On the other hand, it says probable cause is a “practical” standard that rests on common-sense. Ultimately, the court declined to make a finding on whether there was probable cause to search Reed’s home (although, as Judge Clay aptly points out in his dissent, the majority opinion’s “lengthy discussion” of what is necessary for a sufficient nexus to the home “all but leads to the conclusion” that the majority believes probable cause existed), and found the good-faith exception should apply in light of the Sixth’s Circuit’s own “unsettled jurisprudence.” Essentially, the Sixth Circuit says “if we don’t know, how should police officers?”

Judge Clay’s dissent is worth the read – he points out that the majority essentially dispenses of the long-standing nexus requirement by impermissibly applying the good faith exception.  

The frustrating bottom line - the Sixth Circuit had the opportunity to settle their admittedly "unsettled" and conflicting jurisprudence, but relied on the good-faith exception to justify an insufficient affidavit to search a home. 

Here is a link to the opinion: https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0078p-06.pdf

Compassionate Release and Changes in Law: A Narrow Narrowing in U.S. v. Wills

After initially deciding the case in an unpublished order, the Sixth Circuit later ordered publication of its decision in United States v. Jeffery Wills. The opinion is a disappointing one for imprisoned people petitioning for “compassionate release” under 18 USC 3582(c)(1)(A) based on intervening changes of law, but should not be read as closing the door on consideration of disparities between previous and current sentencing practice.


Mr. Wills sought a reduced sentence from the district court, seemingly on the sole basis that he was subject to enhanced penalties under 21 USC 841 and 851 that, after passage of the First Step Act in 2018, would not apply if he were sentenced today. In denying his motion, the district court noted that the First Step Act declined to make these changes retroactive. Mr. Wills, proceeding pro se, appealed to the Sixth Circuit.


The appeals court found that the district judge did not abuse his discretion in denying Mr. Wills’s motion, noting the nonretroactivity of the First Step Act’s changes to 851 penalties like the district court did. It wrote that because nonretroactivity is the “ordinary practice,” it cannot also be an “extraordinary and compelling reason”—the standard to consider granting compassionate release—to reduce a sentence. This language will no doubt be used by the government to oppose compassionate release for people who argue they would have faced lesser punishment under contemporary standards.


However, the decision should not be treated as a sweeping one. First, Mr. Wills’s petition seemed to rest on the 851 sentencing disparity alone. Denying that petition was not an abuse of discretion. Many incarcerated people, though, will raise other claims that they ask to be considered in conjunction with such a disparity argument. In addition and more fundamentally, the decision does not purport to diminish the Sixth Circuit’s holding in Jones that district courts currently “have full discretion to define ‘extraordinary and compelling’” reasons to consider granting compassionate release where an incarcerated person (rather than the Bureau of Prisons) petitions for relief.


On a last and more encouraging note, in McKinnie the Sixth Circuit recently remanded a compassionate release case to the district court where that court had refused to consider whether the changes wrought by the circuit’s Havis decision could constitute an extraordinary and compelling reason. That order came a week after Mr. Wills’s appeal had been decided in non-published form and stated that the Sixth Circuit’s decisions clarifying the compassionate release framework, including Jones, “leave some legal questions unresolved about when and whether intervening legal developments constitute ‘extraordinary and compelling reasons’ for a sentence reduction.” The case was sent back to the district court for it to consider Mr. McKinnie’s claim.

Sometimes a "Marijuana" Offense Is Not a "Marijuana" Offense

In United States v. Williams, No. 19-6410 (6th Cir. Mar. 25, 2021), a panel majority of the Sixth Circuit concluded that Tony Williams’s 2015 Tennessee conviction for possession of marijuana for resale does not qualify as a “controlled substance offense” for purposes of § 4B1.2(b) of the U.S. Sentencing Guidelines. The conviction does not qualify because when Mr. Williams was convicted in 2015 in state court, Tennessee defined “marijuana” to include hemp.  So under the categorical approach, the state conviction must be presumed to be a hemp offense.  By the time Mr. Williams was sentenced in federal court for being a felon in possession of a firearm, in November 2019, the definition of “marijuana” for federal Guidelines’ purposes had been amended to exclude hemp.  And hemp is excluded from the Guidelines’ current definition regardless whether the term “controlled substance” is defined by reference to federal or state law, as the federal schedule was amended to exclude hemp in December 2018 by the Agricultural Improvement Act of 2018, and Tennessee followed suit by amending its schedule to exclude hemp in April 2019.  

Because the Guidelines’ current definition of controlled substance excludes hemp, the majority held, the district court erred when it counted Mr. Williams’s prior hemp conviction as a Guideline “marijuana” offense. In reaching its conclusion, the majority agreed with the Ninth Circuit’s recent decision in United States v. Bautista, No. 19-10448, __ F.3d __, 2021 WL 769601 (9th Cir. 2020), as amended on denial of reh’g (Feb. 26, 2021).  

Judge Cook disagreed.  In her view, the district court properly compared Mr. Williams’s 2015 state hemp offense to the Guidelines’ definition of “controlled substance offense” in effect in 2015, which at the time included hemp.  Judge Cook argued that this approach is required by McNeill v. United States, 563 U.S. 816 (2011), in which the Supreme Court held that when determining whether a prior state offense is “punishable by ten years or more” for ACCA purposes, the court is to look to the state law in effect at the time of the offense.  

In response to Judge Cook’s points, the majority explained that its conclusion is consonant with McNeill’s approach, which itself reflects the categorical approach generally. Under the matching exercise of the categorical approach, the court determines the elements of the prior offense by looking at the state law in effect at the time of the offense.  The court then maps the elements of that prior offense onto the current relevant federal definition. In the case of McNeill, the federal definition was the ACCA’s definition of “felony drug offense” and its requirement that the offense be “punishable by ten years or more.”  Here, under 18 U.S.C. 3553(a)(4)(A) and U.S.S.G. § 1B1.11, the relevant federal definition is the current Guidelines definition of “controlled substance,” which is defined by reference to current drug schedules.  

Notably, the panel did not wade into the lingering question whether the Guidelines’ term “controlled substance” is defined by reference to the federal schedule only (as a number of other circuits hold and as the Sixth Circuit has held in some unpublished decisions), or also includes substances listed in state schedules. In Mr. Williams’s case, the categorical mismatch arises either way.  

The bottom line: This unpublished decision sends some good vibes to those who raise this issue in the district court.  But it’s a total buzz kill for Mr. Williams, who gets no relief because he did not raise the issue until appeal.  

This outcome is a hard reminder that a guideline calculation error—even one that increases the range by years and even after Molina-Martinez and Rosales-Mireles—does not mean the court of appeals will grant relief. Here, the panel said the error was not “clear or obvious,” as evidenced in part by Judge Cook’s concurrence, so does not meet the second prong of plain error review under United States v. Olano, 507 U.S. 725, 734 (1993).  This is despite that by the time of appellate review, the Ninth Circuit in Bautista had held that the same error was reversible plain error there, and multiple district courts around the country (including in Mr. Williams’s own district when the issue was raised while his appeal was pending), have reached the same conclusion.  

Opinion linked here: 




In United States v. Tomes, the Sixth Circuit affirmed a district court’s denial of compassionate release. While the district court erred in concluding its finding of extraordinary and compelling reasons was constrained by U.S.S.G. § 1B1.13, the district court also denied Tomes’ motion based on the § 3553(a) factors. Relying on this alternative basis, the Sixth Circuit found no abuse of discretion and affirmed.

The Circuit went on to address other arguments raised by Mr. Tomes. Specifically, he argued he has chronic asthma, the BOP was ill-equipped to handle COVID-19 outbreaks, and if he were sentenced today he would not have received the same amount of prison time. The Circuit quickly disposed of Mr. Tomes’ first two arguments – finding he did not provide records to establish his chronic asthma and it was not an abuse of discretion for the court to find the condition of the BOP speculative.

The Sixth Circuit addressed the last argument in more detail. Mr. Tomes’ argued that after the First Step Act the mandatory minimum was reduced and it now only applies when the prior offense was a “serious drug felony.” Mr. Tomes further argued his prior convictions did not meet the definition of “serious drug felony” and therefore if he were sentenced today, he would not have been facing the same prison time.

The Circuit rejected Mr. Tomes’ argument because Congress was explicit in § 401 of the First Step Act (the section which made the relevant modifications) that the amendments were not retroactive.  While there is an argument this last section of the opinion is dicta, it raises interesting questions. Would a district court abuse its discretion if it found extraordinary and compelling reasons based upon a non-retroactive change in a statute? Would the Circuit reach a different conclusion if the extraordinary and compelling reason was based on a similar sentencing disparity argument but relying on a changed interpretation of the guidelines, instead of a non-retractive amendment? Stay tuned.

Monday, March 8, 2021


        On Monday, the Sixth Circuit issued a opinions in United States v. White and United States v. Mathews.

        In White, the Court reversed the granting of a suppression motion. The district court had found the search warrant affidavit lacked probable cause because there was little evidence contraband would be found inside the home. The facts are simple. And sparse. An undercover agent twice approached Jared Conkle, a suspected drug dealer, and requested to purchase cocaine. On both occasions the undercover agent observed Conkle, after the request to purchase cocaine was made, enter White’s home, and return to the agent to complete the drug transaction. The Sixth Circuit found “Conkle’s visit to White’s house between the offer and sale raised a ‘common-sense’ inference and a ‘fair probability’ that he obtained drugs from White’s house.” No further evidence was needed to find probable cause that drugs would be found inside White's home.

        White also attempted to challenge the no-knock entry portion of the warrant under the Fourth Amendment. The Sixth Circuit concluded that even if “the police violated the knock-and-announce rule, suppression is not the appropriate remedy.” Instead, the remedy lies in an action under § 1983.

        In Mathews, the Sixth Circuit affirmed a denial of a motion for compassionate release, finding the district court did not abuse its discretion in concluding the 3553(a) factors did not support relief. While the holding in this case is not particularly noteworthy, other parts of the opinion are. Judge Moore, in portion of the opinion not joined by Judges Rodgers or Readler, provides background and statistical data of COVID-19. Judge Readler, in a concurring opinion, questions her reliance on such statistics. Judge Moore responds in a nearly page-long footnote. This footnote is worth a read. See also https://lawandcrime.com/awkward/absolutely-savage-clinton-appointed-circuit-calls-out-judge-trump-appointed-colleague-in-near-full-page-footnote/

A Commentary to the Sentencing Guidelines that expands or adds

to a guideline rather than interprets it is not entitled to deference.

        In United States v. Riccardi, --- F.3d  --- (6th Cir. 2021), https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0054p-06.pdf an investigation of a postal employee, Jennifer Riccardi, revealed that she had stolen $42,102 in cash, and 1505 gift cards from the mail. Of those gift cards, 1,322 had face values totaling about $47,000 which averaged about $35 per card. The value of the remaining gift cards was not identified by the government. Ms. Riccardi pleaded guilty to several charges including possessing 15 or more unauthorized access devices. She admitted in her plea agreement that the stolen gift cards were unauthorized access devices. (18 U.S.C. §1029(a)(3)).  

       In calculating the loss for the 1505 gift cards, the district court applied the $500  minimum loss amount from U.S.S.G. §2B1.1’s Application Note 3(F)(i), which resulted in a total loss of $752,500 and bumped the offense level by 14. Ms. Riccardi was sentenced near the top of the guideline range. On appeal, she argued that the district court’s application of the $500 minimum conflicts with §2B1.1. The Sixth Circuit agreed, reversed her sentence, and remanded for resentencing without the use of the automatic $500 minimum loss amount for every gift card.

        The second paragraph of the court’s opinion provides a helpful summary of its ruling and is paraphrased here:

          Ms. Riccardi challenged the use of this $500 minimum loss amount, which is found in U.S.S.G. §2B1.1’s Application Note 3(F)(i). The commentary instructs that the loss ‘shall be not less than $500 ‘for each unauthorized access device,’ a phrase that Ms. Riccardi concedes covers stolen gift cards. U.S.S.G. §2B1.1 cmt. n.3(F)(i). But guidelines commentary may only interpret, not add to, the guidelines themselves. United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019). And even if there is some ambiguity in §2B1.1’s use of the word ‘loss,’ the commentary’s bright-line rule requiring a $500 loss amount for every gift card does not fall ‘within the zone of ambiguity’ that exists. Kisor v. Wilkie, 139 S.Ct. 2400, 2416 (2019). So this bright-line rule cannot be considered a reasonable interpretation of - as opposed to an improper expansion beyond - §2B1.1’s text.

Slip Op. at 2.

       The Sixth Circuit noted that amendments to the guidelines are subject to Congress’s review and notice-and-comment rulemaking and amendments to the commentary are not. 28 U.S.C. §§ 994 (p) and (x). Moreover, it was held in Stinson v. United States, 508 U.S. 36, 45 (1993) that the commentary’s interpretation of a guideline “must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the guideline.’” Slip Op. at 9. Thus, under Stinson, the commentary “deserved the deference given to an agency’s interpretation of its regulations.” Id. at 9 citing Stinson, 508 U.S. at 45.

       The Sixth Circuit, however, determined that its approach to resolving the issue in Ms. Riccardi’s case was affected by the later decision in Kisor v. Wilkie, 139 S.Ct. at 2414–18, which “cautioned that a court should not reflexively defer to an agency’s interpretation.” Slip Op. at 10. “Before doing so, a court must find that the regulation is ‘genuinely ambiguous even after [the] court has resorted to all the standard tools of interpretation’ to eliminate that ambiguity.” Id. quoting Kisor at 2414. The judicial oversight that Kisor intended would ensure that the Sentencing Commission could not amend the guidelines by simply amending the commentary and thereby avoid the notice-and-comment requirements. Consequently, the Sixth Circuit did not immediately defer to Application Note 3(F)(i).

       The court started by considering whether §2B1.1 is “genuinely ambiguous.” Since the word “loss” is not defined in §2B1.1(b)(1), the court looked to its ordinary meaning and found that it could mean “different things in different contexts.” Rather than latch on to one meaning, the court cut to the chase and found that “[n]o reasonable person would define the ‘loss’ from a stolen gift card as an automatic $500.” Slip Op. at 12. As the court previously noted, the average value of each gift card was about $35 and there was no evidence to suggest that the total damage approached the $752,500 calculated with the $500 minimum.

       The court found that the “bright-line” $500 minimum loss amount could not be derived from §2B1.1 “by a process reasonably described as interpretation.” Slip Op. at 13.  The court viewed the Sentencing Commission’s decision to adopt the $500 minimum loss amount as “a substantive policy choice.” Id. (Emphasis added) As such, if longer prison sentences are to be based on that “fictional” loss amount, then “this substantive policy decision belongs in the guidelines, not in the commentary.” Id.

       A caveat – The Sixth Circuit observed that nothing prevents the Commission from placing the $500 minimum loss amount in the guideline itself. The court cautioned that it was only holding that “the Commission may not make this kind of substantive policy choice in the commentary and claim that its choice represents nothing more than an ‘interpretation’ of the guideline.” Slip Op. at 15.          

          Judge Nalbandian concurred in part and concurred in the judgment. He agreed that “application note 3(F) is not a permissible interpretation of ‘loss’” in §2B1.1(b)(1) but in his view that conclusion was dictated by Stinson rather than Kisor and he “would continue to apply Stinson deference to guideline commentary cases.” Slip Op. at 18.

      One other point is worth noting. Ms. Riccardi also challenged the restitution order of $89,102 ($42,102 in cash plus $47,000 for the value of the gift cards). She maintained that the amount of restitution had to be offset with the cash and gift cards that she forfeited to the government. The Sixth Circuit, however, did not consider the issue because the plea agreement specified that she waived the right to appeal her conviction and sentence and “restitution is part of a defendant’s sentence.” Slip Op. at 16. 





            The Sixth Circuit has long interpreted the drug-conspiracy statute, 21 U.S.C. §846, to prohibit two individuals from knowingly reaching an agreement to distribute drugs. Crimes charged under this statute have long been the bane of any federal criminal defense attorney’s existence due to the extremely broad range of conduct the statute has been deemed to cover. More often than not, the conspiracy reaches out with its long arms to give the drug kingpin at the top of the indictment and the person who was once paid 50 bucks to drive said kingpin to a meeting the same jurisdictional embrace. For this reason, attacking what actions actually constitute participation in the conspiracy has long felt like tilting at windmills. Indeed, the 6th Circuit has opined that its traditional broad reading of the statute could be read to cover literally every drug transaction between a willing seller and a willing buyer, even those for the buyer’s personal use.

               Yet every federal appellate court including the 6th Circuit has carved out a narrow exception to the broadly read statute. These courts have all held that a “buyer-seller agreement” alone will not establish the elements of a conspiracy under §846. Putting it another way, the simple sale (or transfer) of drugs from one person to another with nothing more will not be deemed to be a conspiracy to distribute drugs. Even so, arguing that a drug transaction between two parties who are clearly not end users is a buyer-seller agreement has often felt like an uphill battle. Rather, if the allegations suggest that the buyer had any inkling to do something with the drugs other than immediately begin consuming them, that transaction alone has often been treated as de facto evidence of a drug conspiracy against both the buyer and the seller.

That’s what makes the reversal in United States vs. William Wheat, Jr., 19-4172, all the more remarkable. In overturning Wheat's conspiracy conviction, the 6th Circuit found that the transfer of drugs from one of the parties to the other without any further evidence of an agreement to distribute drugs did not constitute a conspiracy. Rather, this evidence only sufficed to establish the buyer-seller agreement. This was the case even though the evidence did establish that both parties were active participants in the drug trade. 

               Let’s start with the facts of the case. William Wheat was charged with six other codefendants in an 18-count indictment. Wheat himself was named in two of the counts, one of which was a conspiracy to possess with intent to distribute and to distribute 100 grams of heroin and 40 grams of fentanyl. Wheat was not the operator of this drug-distribution scheme, however. That distinction fell to one Aaron Reels. As noted by the Court, Reels operated a substantial drug-trafficking ring that sold cocaine, heroin and fentanyl in Cleveland. His operations involved multiple suppliers and multiple kilos of drugs. Wheat, on the other hand, appeared to be what can be charitably called an independent entrepreneur. Wheat and Reels were barely acquaintances when these allegations unfolded.

               On a phone call, Wheat briefly indicated to Reels that he had gotten hold of some heroin that Reels may have been interested in purchasing. The next day, Wheat met with and gave a .3 gram sample of heroin to Reels. After they parted, Reels gave the sample to his “royal taster”, Carl Mileca, in order to determine its quality. Reels ultimately decided that he had enough heroin in stock and did not need to purchase any product from Wheat. That was the extent of the interaction Reels and Wheat had with one another.

               Meanwhile, Reels had already been the target of an investigation by the DEA. Through wiretaps, the DEA learned that Wheat offered the .3 grams of heroin to Reels to do with as he saw fit in the hopes that Reels would be interested in purchasing more. The DEA further understood that Reels gave the sample to his tester to try out but opted not to purchase from Wheat.

               While all the other defendants pleaded guilty, Wheat went to trial. The jury found him guilty on both counts, and Wheat was sentenced to an above-guidelines 27-month term of imprisonment. As it pertained to the conspiracy count, the question that ultimately came before the 6th Circuit appeared to be a simple one: did Wheat’s decision to give a heroin sample to a known drug dealer show that he entered into an agreement to distribute drugs with the dealer under 21 U.S.C. §846? Despite this simplicity, the Court took the opportunity to take a nuanced deep-dive into the rationale of the buyer-seller agreement exception.

               First, the Court examined the basic requirements of the conspiracy statute as it applies to §846. Boiling it down to the basics, the Court reaffirmed that the government must show that two or more individuals have agreed to violate a drug law and that the defendant knowingly and voluntarily entered into the agreement. After remarking that conspiracy is an inchoate offense (that is, the underlying offense need not have been completed), the Court then spent some time examining the theory barring this type of agreement. The Court cited the traditional theory that “the banding together of two or more persons and a pooling of their talents and resources” increases the risk that the conspirators will commit other crimes. Importantly, the Court reemphasized that the crime is the agreement itself, and not the illegal act for which the agreement was made. The agreement need not be recorded or even spoken aloud, but it must exist, and the government must show that the defendant knew of the agreement’s “essential object” and agreed to carry out that object.

               Next, after rehashing the general tenets of the conspiracy statute, the 6th Circuit then took its own closer look at the buyer-seller agreement exception. The Court found justification for the buyer-seller exception within the text of §846 itself. That particular statute actually uses the common-law word, “conspire”. A common-law conspiracy, in turn, cannot exist if the agreed upon crime requires two people to complete it (thanks, Wharton’s Rule). In the case of a drug transaction, there are necessarily two (or more) parties, the giver of said drugs and the taker of said drugs. The Court thus found the buyer-seller exception to fall squarely within this construction, and a conspiracy could not exist solely based on a transfer of drugs from one party to another.

The Court did explain, however, that the exception was very narrow, and it further went on to name a number of scenarios which would constitute a conspiracy. The Court also identified several additional factors that the Government could establish with direct or circumstantial evidence which would allow a jury to find a conspiracy had been established. For instance, a buyer’s repeated purchase of a large quantity of drugs from a seller could be used to infer a broader agreement. A particular method of payment such as “fronting” drugs could potentially establish the conspiracy. An established level of trust coming from an “enduring arrangement” over time could also perhaps show the existence of an agreement beyond a simple transfer. These were just several of the factors the Court pointed to in its opinion.

               Applying this exhaustive analysis here, the Court found that Wheat’s conspiracy conviction could not stand. Had the government charged Wheat with a distribution charge under §841, it would have had a sure-fire conviction on its hand, but alas, Wheat was never charged for the actual transfer of the .3 grams.

               The government argued that Wheat’s actions constituted an agreement to sell heroin to Reels in the future. The Court disagreed, finding that while Wheat’s actions may have constituted a negotiation for future drug business, it did not constitute an agreement to do business. In doing so the Court offered what will now forever be dubbed the Great Costco Taquito Axiom:

“It is not all that unlike Costco offering customers, say, a free taquito sample. Would anyone infer (beyond a reasonable doubt, no less) that a customer has agreed to buy a bulk package of taquitos merely from the decision to try the sample?”

The Court also took note that the Government offered no evidence that an agreement to sell to Reels was conditioned on the quality of Wheat’s sample.

               The Government further argued that Wheat and Reels agreed to redistribute the sample to Reels’s tester, Mileca. This argument would allow the Government to steer clear of the buyer-seller exception because in this scenario, Wheat and Reels would have agreed to a crime separate from their own illegal transfer. The Court rejected this theory as well because the Government offered no evidence that Wheat and Reels expressly agreed that the sample would be tested by a third party nor that the two had a tacit understanding that this would happen.

               The Court then checked for other tell-tale signs of a conspiracy. Had Reels made repeated purchases of large quantities of drugs from Wheat? No. Did the method of payment for the .3 grams of heroin suggest a level of trust between the two? No dice. Was there any kind of long-term arrangement the two had with one another? That’s a negative, Ghost Rider.  

               Why then did this conviction happen? The Court speculated that based on the jury instructions provided to them, the jury perhaps thought the conspiracy proven if it found that Wheat and Reels knowingly agreed to transfer the sample from one to the other. That is, while the jury received the basic definition of a conspiratorial agreement, it received no instruction that the exchange of the sample did not itself suffice to prove the conspiracy. Presumably, defense practitioners should be asking for an instruction of the sort in the future if they are not already doing so.

               The Court concluded its analysis of the conspiracy charge by citing the decades-long concern about the “elastic, sprawling” nature of the crime of conspiracy and “the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself[.}" In reinvigorating the buyer-seller agreement exception, the 6th Circuit has reaffirmed that the Government must prove that two parties must agree to a crime beyond their own exchange of drugs in order to distinguish an illegal conspiracy from an illegal distribution to ensure that the jury will not infer a conspiracy based on guilt of distribution alone.

Soma Dutta

Assistant Federal Public Defender

Southern District of Ohio