In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 21-3221 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

ROYEL PAGE, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:17-cr-00175-MYS-9 — Michael Y. Scudder, Circuit Judge. * ____________________

ARGUED MAY 22, 2024 — DECIDED DECEMBER 18, 2024 ____________________

Before SYKES, Chief Judge, and EASTERBROOK, ROVNER, BRENNAN, ST. EVE, KIRSCH, JACKSON-AKIWUMI, LEE, PRYOR, and KOLAR, Circuit Judges. **

* Of the United States Court of Appeals for the Seventh Circuit, sitting

by designation. ** Circuit Judges Scudder and Maldonado did not participate in the

consideration or decision of this appeal. 2 No. 21-3221

KIRSCH, Circuit Judge. Royel Page was charged with twelve counts of attempted heroin distribution and one count of drug conspiracy. At trial, the government proved that Page repeat- edly purchased distribution quantities of heroin from Ter- rance Hamlin for over a year. Further, the government pre- sented evidence of Hamlin and Page’s relationship that sub- stantially showed a heightened level of trust between them. For his part, Page denied involvement in the drug trade alto- gether, painting Hamlin as a biased witness who wholly lied about their drug transactions. The jury convicted Page on all counts. Page appealed his conspiracy conviction on two grounds. First, he argued that the government failed to present suffi- cient evidence to sustain his conspiracy conviction. Second, he urged us to find that the district court plainly erred by not sua sponte giving a buyer-seller jury instruction, even though he affirmatively approved the district court’s final instruc- tions and never argued that he and Hamlin had a mere buyer- seller relationship. A panel of our court agreed with Page’s second argument and remanded his case for a new trial. We vacated the panel’s opinion and voted to rehear the case en banc. Our conspiracy and buyer-seller jurisprudence has strayed far from the Supreme Court’s decision in Direct Sales Co. v. United States, 319 U.S. 703 (1943). Today, we fix that de- viation by holding that repeated, distribution-quantity drug transactions alone can sustain a conspiracy conviction. Fur- ther, we apply the plain error standard as established in United States v. Olano, 507 U.S. 725 (1993), something we have not always done in our recent case law. In short, because the evidence more than sufficiently supports Page’s conspiracy No. 21-3221 3

conviction, and because the district court did not err, let alone plainly err, in not sua sponte providing a buyer-seller jury in- struction, we affirm. I A grand jury charged Royel Page, Terrance Hamlin, and others with conspiracy to possess with intent to distribute 100 or more grams of heroin, fentanyl, and cocaine. 21 U.S.C. §§ 841(a)(1), 846. Page was also charged with twelve counts of attempt to distribute and possess with intent to distribute her- oin. Unlike Hamlin and the other defendants, who all pleaded guilty, Page proceeded to trial. At trial, the government presented substantial evidence of Page’s guilt. For over a year and a half, Page purchased heroin from Hamlin multiple times a week. The quantity of heroin varied with each transaction, but Hamlin testified that Page typically purchased between 5 and 56 grams, with the quan- tities steadily increasing over time. Hamlin also testified that he eventually sold heroin to Page at a lower price per gram because Page distributed his supply quickly. Though not related by blood, Page and Hamlin main- tained a close relationship that they likened to one between an uncle and a nephew. The pair met in person or over the phone hundreds of times to arrange drug deals and exchange heroin. The government introduced wiretaps of approxi- mately 133 calls between the two. Hamlin walked the jury through these calls and explained the coded language he and Page used to discuss the details of their heroin transactions. Hamlin explained that they often did not need to discuss price, however, because he had an established price per gram rate for Page’s purchases. 4 No. 21-3221

Surveillance corroborated Hamlin’s testimony. On one oc- casion, for example, Detective Nathan Pennes observed Ham- lin park his vehicle outside Page’s house shortly after the pair had a phone call discussing the sale of 45 grams of heroin. Det. Pennes watched Page exit his home, walk to Hamlin’s car, and enter the passenger side. A few minutes later, Page re- turned home, and Hamlin drove away. Based on his experi- ence and training, Det. Pennes testified that this interaction likely involved the 45-gram transaction that Page and Hamlin previously discussed. In addition to Page’s repeated, large-scale drug transac- tions with Hamlin, the government introduced evidence shedding further light on the nature of the pair’s burgeoning business relationship. For example, Hamlin expressed skepti- cism at having anyone other than Page involved, testifying that he warned Page to keep his cousin out of the “business.” And in line with this view, a recorded phone call showed that Hamlin was particularly protective of Page, with Hamlin not- ing that he could not have the same business relationship with others because Page “earned what [he was] doing.” Moreo- ver, Hamlin allowed Page to purchase heroin partially on credit, further evidencing the heightened trust between the pair. Hamlin testified that, from the beginning, he saw a poten- tial for growth in his drug-dealing venture with Page. And at one point, Page was agreeable to helping Hamlin expand his heroin dealing “up north,” emphasizing to Hamlin in a call that “we can do this” and that he could provide Hamlin with his expertise in cutting heroin. Additionally, the government introduced evidence show- ing that Page and Hamlin jointly sought to ensure the No. 21-3221 5

delivery of high-quality heroin to Page’s customers. For ex- ample, on one occasion, Page told Hamlin that the delivered supply of heroin was “no good” and asked to switch it out. Page informed Hamlin that this requested recall was for a cus- tomer that “spends good money” and whose business he could not afford to lose. Hamlin agreed to replace the heroin. The government introduced significant expert testimony on drug conspiracies and transactions. Wisconsin Depart- ment of Justice Agent Jay Novak described the general inner workings of drug conspiracies and explained how drug traf- fickers typically further each other’s efforts to distribute drugs. Moreover, Agent Novak compared personal-use quan- tities of heroin with distribution quantities. While Agent No- vak testified that heroin quantities of a gram or less typically reflect purchases made for personal use, quantities above two grams—like those purchased by Page—are exemplary of dis- tribution levels. Throughout trial, Page proceeded under the theory that he was not involved in the drug trade at all, broadly challenging the evidence that connected him to Hamlin and the inter- cepted phone calls. For example, through cross examination and closing argument, Page’s counsel spent considerable time painting Hamlin as a liar who had a lot to gain in falsely tes- tifying for the government. In doing so, Page’s counsel asked the jury to consider “who was on that telephone line.” Addi- tionally, Page’s counsel tried to cast doubt on the criminality of Page’s meetings with Hamlin. Page’s counsel highlighted that law enforcement never physically observed Page and Hamlin exchange drugs and suggested instead that their meetings were innocent encounters between family friends that involved the exchange of innocuous items. 6 No. 21-3221

At the close of evidence, the district court and the parties proceeded with a jury instruction conference. Neither party asked for a buyer-seller instruction. At the close of the confer- ence, the district court asked Page’s counsel, “[F]or the record the defense is good with the jury instructions, what’s in and what’s not in?” Page’s counsel responded, “Yes.” Ultimately, the jury convicted Page on all counts. Page proceeded to sentencing, where he faced a Sentencing Guide- lines range of 97–121 months. The district court sentenced Page to 90 months on each count to be served concurrently, and Page appealed, raising two challenges. First, he argues that there was insufficient evidence to support his conspiracy conviction. Second, he argues that the district court plainly erred by not giving a buyer-seller jury instruction sua sponte. II We turn first to Page’s sufficiency-of-the-evidence chal- lenge. For such a challenge, we view the evidence in the light most favorable to the prosecution. United States v. Garcia, 919 F.3d 489, 496 (7th Cir. 2019). To prevail, Page must show that no rational trier of fact could have found the essential ele- ments of the charged offense beyond a reasonable doubt. Id. We have time and again described a defendant’s burden un- der this standard as “nearly insurmountable.” United States v. Dessart, 823 F.3d 395, 403 (7th Cir. 2016) (quotation omitted). We begin by explaining how our conspiracy and buyer- seller jurisprudence has drifted far from the Supreme Court’s guidance. See United States v. Brown, 726 F.3d 993, 1000–01 (7th Cir. 2013) (describing the tension and inconsistency in our buyer-seller case law). After correcting course, we stress No. 21-3221 7

that Page’s conviction would stand even under our now- overruled precedent. A To sustain a conspiracy conviction, the government must prove that two or more people agreed to commit an unlawful act and that the defendant knowingly and intentionally joined in that agreement. See United States v. Wright, 85 F.4th 851, 861 (7th Cir. 2023). For a drug-distribution conspiracy, there must be sufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that the defendant knowingly agreed, at least implicitly, to distribute drugs with another. United States v. Hidalgo-Sanchez, 29 F.4th 915, 924–25 (7th Cir. 2022); see also United States v. Shabani, 513 U.S. 10, 15 (1994) (government need not prove an overt act). This inquiry often leads us to distinguish between conspiracies and mere buyer- seller relationships because “[e]vidence showing only that two people are in a buyer-seller relationship is insufficient to prove a drug-distribution conspiracy.” Hidalgo-Sanchez, 29 F.4th at 925. However, how we have articulated this distinc- tion has often been confusing and flawed. The leading authority on the buyer-seller doctrine is Direct Sales Co. v. United States, 319 U.S. 703 (1943). In that case, Dr. John Tate purchased from Direct Sales Co. large quantities of morphine sulphate, which he then illegally distributed to others. Id. at 704. Specifically, for several years, Direct Sales sold Tate thousands of morphine sulphate tablets annually, even though “the average physician in the United States [did] not require more than 400 one-quarter grain tablets annually for legitimate use.” Id. at 706. Based on these repeated, distribution-quantity transactions, Direct Sales was convicted of conspiracy to distribute narcotics. Id. at 704. Direct Sales 8 No. 21-3221

appealed, relying on the Court’s then-recent decision in United States v. Falcone, 311 U.S. 205 (1940), for the premise that mere sales to a buyer combined with knowledge that the buyer would use the sold items illegally is not enough to sustain a conspiracy conviction. See Direct Sales, 319 U.S. at 708. The Court rejected that comparison, noting that Falcone “[came] down merely to this, that one does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless he knows of the conspiracy; and the inference of such knowledge cannot be drawn merely from knowledge the buyer will use the goods illegally.” Id. at 709; see also id. at 710 (noting that the Court in Falcone was not asked to determine whether there was sufficient evidence to sustain a conspiracy between the buyer and seller). Instead, the Court distinguished the nature of the goods in Falcone (there, the defendant sold sugar and yeast to second- ary illegal distillers), which “were articles of free commerce” that “left the seller’s stock and passed to the purchaser’s hands” as unrestricted commodities capable of “further legal use.” Id. at 710. The illegality of morphine, as compared to the legality of sugar and yeast, proved critical to sustaining Direct Sales’s conspiracy conviction for two reasons: “One is for making certain that the seller knows the buyer’s intended il- legal use. The other is to show that by the sale he intends to further, promote and cooperate in it. This intent … is the gist of conspiracy.” Id. at 711; see also id. (opining that the “differ- ence between sugar, cans, and other articles of normal trade … and narcotic drugs, machine guns and such re- stricted commodities” arises from “the latters’ inherent capac- ity for harm and from the very fact they are restricted” and thereby “makes a difference in the quantity of proof required No. 21-3221 9

to show knowledge that the buyer will utilize the article un- lawfully”). The Court’s reliance on this distinction makes sense. There is an inherent and necessary trust between parties to an illegal transaction—at the least, that the other will not reveal the transaction to law enforcement—that is not shared by buyers and sellers of innocuous items. For this reason, facts such as “quantity sales” or “abnormal increases in the size of the buyer’s purchases, … which would be wholly innocuous or not more than ground for suspicion in relation to unrestricted goods, may furnish conclusive evidence, in respect to restricted articles, that the seller knows the buyer has an illegal object and enterprise.” Id. Intent “is not unrelated to” knowledge. Id. When the evidence establishes repeated, distribution-quantity transactions in an illicit market, “[t]he step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge …. There is informed and interested cooperation, stimulation, instigation.” Id. at 713. A contextual breakdown of the relationship between a buyer and seller is instructive. Consider the relationship as it proceeds in the drug distribution setting. First, a seller sells distribution quantities of a drug to a buyer. (Keep in mind the government must still prove that the quantity of drugs sold was indicative of further distribution. This is crucial as it pro- vides the circumstantial evidence of the seller’s knowledge— namely, that the buyer will sell the drugs to others rather than simply consume them himself.) At this point, the seller knows that the buyer has purchased drugs from him for further ille- gal distribution. Yet, despite this known illegality, the seller continues to sell distribution quantities of drugs to the buyer, 10 No. 21-3221

and the buyer willingly continues to purchase said quantities. In this way, the buyer and seller develop, in part, a codepend- ent business relationship wherein they have a shared stake in each other’s success. As the buyer’s distribution to down- stream clients thrives, so too does the seller, now a willing participant in the dealing through his provision of stock for the buyer’s enterprise. And if the buyer’s own customer base grows, he might need to purchase even more drugs (in fre- quency or quantity) from the seller to satisfy increased de- mand. This too enhances the stake in the pair’s relationship. Thus, far from a mere, arms-length buyer-seller relationship, such evidence of repeated, distribution-quantity transactions, given the mutually known benefits that flow from such trans- actions, shows that the buyer and seller knowingly and inten- tionally entered into an implicit agreement to distribute drugs. Of course, a single sale of a restricted good in a low quan- tity does not, by itself, support a charge of conspiracy, even if the seller knows that the good will be used for further illegal activity. Id. at 712. But this does not mean that a seller can sell contraband “in unlimited quantities.” Direct Sales, 319 U.S. at 712. Rather, as plain from the hypothetical above, when the evidence shows that a buyer and seller worked in “prolonged cooperation” for a plainly unlawful purpose—the seller sup- plying the buyer with stock for his illicit enterprise—“there is no legal obstacle to finding that the supplier not only knows and acquiesces, but joins both mind and hand with him to make its accomplishment possible.” Id. at 713. This is so even if the agreement between the buyer and seller “was a tacit un- derstanding, created by a long course of conduct and exe- cuted in the same way.” Id. at 714. After all, a conspiracy con- viction by its very nature requires proof based largely (and No. 21-3221 11

often, solely) on circumstantial evidence. Thus, when the charged conspiracy involves the distribution of illicit goods, the amount of proof needed to support the conspiracy convic- tion lessens because the illicit nature of the goods itself serves as a factor supporting an agreement between a buyer and seller. For these reasons, the Supreme Court had no trouble affirming Direct Sales’s conspiracy conviction based solely on evidence of repeated, distribution-quantity sales of morphine. All told, Direct Sales provides three principles for deter- mining which types of buyer-seller relationships are indica- tive of a conspiracy. First, repeated, distribution-quantity sales of innocuous goods between a buyer and seller do not, on their own, show a conspiratorial agreement, even when the seller knows that the buyer plans to use those innocuous goods for illicit activities. Second, a buyer and seller involved in a low-quantity exchange of illicit goods merely for the buyer’s personal use are likewise not, without more, engaged in a conspiracy. Third, a drug conspiracy conviction can be sustained if the government proves that a buyer and seller en- gaged in repeated, distribution-quantity drug transactions. See id. at 714–15 (noting that a conspiracy conviction can stand “notwithstanding the overt acts consist solely of sales, which but for their volume, frequency and prolonged repeti- tion, coupled with the seller’s unlawful intent to further the buyer’s project, would be wholly lawful transactions”). Our holding today departs from a long line of cases that have stretched the buyer-seller doctrine too far and deviated from the standard set in Direct Sales. These cases originate from our decision in United States v. Colon, 549 F.3d 565 (7th Cir. 2008). In Colon, we concluded that repeated, distribution- quantity transactions alone could not support a conspiracy 12 No. 21-3221

conviction and instead required the presence of additional ev- idence, such as sales on credit or an agreement between the buyer and seller to warn of future threats to each other’s busi- ness. Id. at 568–70. But that conclusion rested on the same ar- guments made by the defendant in Direct Sales that the Su- preme Court squarely rejected. For instance, we analogized sales of cocaine to innocent purchases made at one’s local Wal-Mart: “If you buy from Wal-Mart your transactions will be highly regular and utterly standardized, but there will be no mutual trust suggestive of a relationship other than that of buyer and seller.” Id. at 568. That analogy flies in the face of Direct Sales and the critical difference discussed above be- tween innocent purchases at one’s local store compared to re- peat, distribution-quantity transactions of illicit substances: the “mutual trust” not present in a transaction with Wal-Mart is undoubtedly found between the parties to an illicit transac- tion. Colon thus erred at the outset, resulting in a holding that has tainted our conspiracy and buyer-seller law. Colon also stressed the practical reasons for not conflating a mere sale with a conspiracy. See id. at 569 (emphasizing that there needs to be evidence of an agreement to commit a crime other than evidence of the illegal transaction itself). No doubt, a mere buyer of drugs does not, without more, engage in a drug distribution conspiracy with a seller. Our holding does not change that basic principle. But today, we refine what “more” can transform a mere buyer-seller relationship into such a conspiracy. Repeated, distribution-quantity transac- tions of illegal drugs do not reflect a mere buyer-seller rela- tionship between the parties. The buyer-seller defense was never meant for such a wholesale-level relationship. Cf. United States v. Delgado, 672 F.3d 320, 333 (5th Cir. 2012) (en banc) (“The buyer-seller exception prevents a single buy-sell No. 21-3221 13

agreement, which is necessarily reached in every commercial drug transaction, from automatically becoming a conspiracy to distribute drugs. The rule shields mere acquirers and street-level users, who would otherwise be guilty of conspir- acy to distribute, from the more severe penalties reserved for distributers.”). Colon and its progeny are now overruled to the extent that they are inconsistent with this opinion. See, e.g., United States v. Pulgar, 789 F.3d 807, 813 (7th Cir. 2015); United States v. Brown, 726 F.3d 993, 999 (7th Cir. 2013); United States v. John- son, 592 F.3d 749, 755–56 (7th Cir. 2010). This brings us in har- mony with our sister circuits. See, e.g., United States v. Mitch- ell, 596 F.3d 18, 25 (1st Cir. 2010) (rejecting the argument that a buyer-seller instruction was required because “the evidence at trial showed that Mitchell was involved in multiple trans- actions, for large, kilogram-quantities of cocaine, for large sums of money”); United States v. Siegler, 990 F.3d 331, 338 (4th Cir. 2021) (“We have repeatedly recognized that evidence of a single buy-sell transaction involving a ‘substantial quantity of drugs’ can support a ‘reasonable inference’ of knowing par- ticipation in a distribution conspiracy.”) (quotation omitted); Delgado, 672 F.3d at 333 (Fifth Circuit concluding that the buyer-seller exception prevents a “single buy-sell agree- ment,” not transactions in wholesale quantities); United States v. Mosley, 53 F.4th 947, 957 (6th Cir. 2022) (“[K]nowing entry into a drug conspiracy may reasonably be inferred when a buyer repeatedly purchases large quantities of drugs from a single seller.”) (cleaned up); United States v. Davis, 867 F.3d 1021, 1034 (8th Cir. 2017) (“Eighth Circuit law is clear: ‘[E]vi- dence of multiple sales of resale quantities of drugs is suffi- cient in and of itself to make a submissible case of a conspiracy to distribute.’”) (quotation omitted) (alteration in original); 14 No. 21-3221

United States v. Ivy, 83 F.3d 1266, 1285–86 (10th Cir. 1996) (“[T]he purpose of the buyer-seller rule is to separate consum- ers, who do not plan to redistribute drugs for profit, from street-level, mid-level, and other distributors, who do intend to redistribute drugs for profit, thereby furthering the objec- tive of the conspiracy.”); United States v. Brown, 587 F.3d 1082, 1090 (11th Cir. 2009) (“[D]ue to the repeated nature of the transactions and the large quantities involved, a rational trier of fact could infer a corresponding conspiracy to distribute the cocaine.”); United States v. McGill, 815 F.3d 846, 929 (D.C. Cir. 2016) (“Evidence that Simmons facilitated multiple trans- actions of wholesale drug quantities ‘permits an inference that [he] had knowledge of the conspiracy and intended to join.’”) (quotation omitted) (alteration in original). In sum, evidence of repeated, distribution-quantity trans- actions of illegal drugs between two parties, on its own, can sufficiently sustain a drug conspiracy conviction, consistent with the holding in Direct Sales. Though additional evidence is no longer required to defeat a sufficiency-of-the-evidence challenge in this context, see Johnson, 592 F.3d at 755–56 (citing Colon and listing examples of additional evidentiary factors needed to sustain a conspiracy conviction despite the pres- ence of repeated, distribution-quantity drug transactions), our holding does not affect the government’s ability to offer such additional evidence (which, as discussed below, it did here) to prove a conspiracy. Further, this additional evidence may be required in other conspiracy cases where evidence of repeated, distribution-quantity drug transactions is lacking. In this case, the government proved that Page met with Hamlin hundreds of times over the course of a year (at a clip of approximately three times a week) to purchase distribution No. 21-3221 15

quantities of heroin. That evidence alone supports a rational jury’s finding that Page and Hamlin entered into an agree- ment, at least implicitly, to distribute drugs. Therefore, Page’s conspiracy conviction must stand. B Though Page’s challenge to his conviction fails under the proper conspiracy standard outlined above, we would sustain his conviction even under our now-overruled cases where we improperly held that repeated, distribution- quantity drug sales could not alone support a conspiracy. In those cases, we often turned to our list of additional, nonexhaustive evidentiary factors referenced above to help distinguish buyer-seller relationships from conspiracies: “sales on credit or consignment, an agreement to look for other customers, a payment of commission on sales, an indication that one party advised the other on the conduct of the other’s business, or an agreement to warn of future threats to each other’s business stemming from competitors or law- enforcement authorities.” Johnson, 592 F.3d at 755–56. And evidence showing a level of heightened trust likewise favors a conspiracy finding. United States v. Vizcarra-Millan, 15 F.4th 473, 507 (7th Cir. 2021). While these additional factors are instructive, our ultimate inquiry was always a holistic assessment of whether the jury reached a reasonable verdict. Hidalgo-Sanchez, 29 F.4th at 925. Stated differently, we ask whether a conspiracy existed under the totality of the circumstances. Id. The evidence of conspiracy in this case consisted of much more than just repeated, distribution-quantity drug transac- tions. First, Page and Hamlin maintained a relationship akin to that of an uncle and a nephew, and they had a general trust 16 No. 21-3221

in one another. Second, as evidenced by several phone calls, Hamlin advised Page on his drug distribution, in part by rec- ommending that Page not work with specific individuals, and acknowledged an especially cooperative business relation- ship with Page. In particular, because Page distributed heroin at such a fast pace, Hamlin gave him the benefit of a lower price per gram. Such a benefit reflects Hamlin and Page’s un- derstanding that Hamlin’s short-term revenue losses would ultimately be usurped by larger profits stemming from Page’s stable, high-volume drug distribution. Third, Page and Ham- lin consistently notified each other about the status of their drug supply and their clientele. Fourth, Page and Hamlin con- templated expanding their business relationship “up north,” and Page, at least at first, enthusiastically supported the idea. Though they ultimately did not agree to expand the business, a rational jury could certainly rely on this evidence to infer that Page and Hamlin had an underlying, implicit agreement to distribute drugs together—otherwise, there would be no business relationship to expand “up north.” Fifth, Page and Hamlin exhibited a shared interest in delivering high-quality heroin to Page’s customers, with Hamlin allowing Page to swap out a bad batch of heroin intended for a valuable, high- paying customer. And finally, on at least one occasion, Page purchased heroin partially on credit, which coupled with the other evidence above, is strong evidence of a conspiracy. This evidence is overwhelming and indicative of an implied agreement between Page and Hamlin to distribute heroin together. A rational trier of fact could have easily convicted Page of conspiracy based on this record, which included much more than just evidence of repeated, distribution-quantity drug sales. No. 21-3221 17

III Page also argues that the district court erred by not sua sponte giving a buyer-seller instruction to the jury. Page did not request a buyer-seller instruction at trial, and when the district court asked Page’s counsel if the proposed final jury instructions were sufficient, counsel responded affirmatively. While Page possibly waived all challenges to the jury instruc- tions, thus precluding our appellate review, we assume with- out deciding that Page merely forfeited his request for the buyer-seller instruction. United States v. Leal, 72 F.4th 262, 266 (7th Cir. 2023) (noting that a response of “no objection” dur- ing a jury instruction conference results in forfeiture but de- scribing tension in our case law on the issue). We review Page’s forfeited jury instruction request for plain error under Federal Rule of Criminal Procedure 52(b). See Greer v. United States, 593 U.S. 503, 507–08 (2021). As discussed above, Page’s case did not warrant a buyer-seller instruction. Nevertheless, we take this opportunity to clarify what is required for us to find plain error. The Supreme Court laid out the test for plain error in United States v. Olano, 507 U.S. 725 (1993), which it has reaf- firmed time and again, most recently in Greer. “To establish eligibility for plain-error relief, a defendant must satisfy three threshold requirements”: (1) “there must be an error”; (2) “the error must be plain”; and (3) “the error must affect ‘substan- tial rights,’ which generally means that there must be ‘a rea- sonable probability that, but for the error, the outcome of the proceeding would have been different.’” Greer, 593 U.S. at 507–08 (quotation omitted). If those three elements are met, an appellate court must consider a fourth discretionary ele- ment: the court may grant plain error relief only if it concludes 18 No. 21-3221

that “the error had a serious effect on ‘the fairness, integrity or public reputation of judicial proceedings.’” Id. at 508 (quo- tation omitted). The defendant faces a “difficult” burden in seeking to establish all four elements needed for plain error. Id. Under this test, Page’s claim of error fails. A For plain error to lie, there must first be an error. A devia- tion from a legal rule is error unless the rule has been affirm- atively waived. See Olano, 507 U.S. at 732–33. Page faces sev- eral obstacles in trying to meet this element. First, for the reasons outlined in the previous section, the evidence in this case, even under our now-overruled prece- dent, supported a conspiracy rather than a buyer-seller rela- tionship. Therefore, a buyer-seller instruction was not appro- priate. Second, a buyer-seller instruction would have contra- vened Page’s theory of defense. Throughout the trial, Page painted Hamlin, the government’s chief witness, as a liar to undermine any testimony that identified him as the individ- ual on the other side of Hamlin’s wiretapped phone calls. Page also suggested that his meetings with Hamlin were in- nocent encounters between family friends. In doing so, Page wisely tried to show that he was not involved in the drug trade at all so that the jury would acquit him of all charges (and not just the conspiracy charge). A buyer-seller defense would have done Page no good on 12 of his 13 counts (the attempt to distribute counts) and would have contradicted his position on those counts. Moreover, Page conceded at oral ar- gument that he did not present a buyer-seller defense at trial. Oral Argument at 3:13 (“He did not present a buyer-seller No. 21-3221 19

theory. That—I fully admit to that. We concede that.”). Thus, because “we have repeatedly held that a buyer-seller instruc- tion is unnecessary where the instruction would contradict the defendant’s theory of the case,” United States v. Love, 706 F.3d 832, 839 (7th Cir. 2013), Page’s claim of error fails for this reason too. Third, Page’s case presents an odd procedural question: whether there is ever error when a district court does not sua sponte give an instruction on a defense theory that a defend- ant did not request. We conclude there is not. “In our adver- sarial system of adjudication, we follow the principle of party presentation,” and “in both civil and criminal cases, … we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties pre- sent.” United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020) (quotation omitted); see also id. at 375–76 (“[A]s a general rule, our system is designed around the premise that parties represented by competent counsel know what is best for them, and are responsible for advancing the facts and argu- ment entitling them to relief.”) (cleaned up). Courts therefore “do not, or should not, sally forth each day looking for wrongs to right. They wait for cases to come to them, and when cases arise, courts normally decide only questions pre- sented by the parties.” Id. at 376 (cleaned up). In the criminal context, departures from the party presentation principle are more common, albeit marginally, most often to protect a pro se litigant’s rights. See id. at 375. A district court does not err, let alone plainly err, by not sua sponte instructing the jury on a potential defense, partic- ularly when the defendant is represented by counsel. The onus is not on the district court to devise and proffer such 20 No. 21-3221

defense theories. And as was the case with Page, there are of- ten strategic reasons for defense counsel’s decision to avoid presenting a particular theory. A theory of defense, like the buyer-seller defense, see, e.g., United States v. Douglas, 818 F.2d 1317, 1322–23 (7th Cir. 1987) (discussing defendant’s pro- posed instruction on the “buyer-seller theory of defense”), is only injected into a criminal proceeding through the defend- ant’s case presentation, unlike, for instance, the elements of an offense, which are injected via an indictment. Thus, it is the defendant’s obligation to seek an instruction on said defense, and a district court does not err by not giving such an instruc- tion on its own initiative. Our sister circuits agree with this view. See, e.g., United States v. Sago, 74 F.4th 1152, 1160 n.6 (10th Cir. 2023) (“We are not alone in requiring this of defendants. Of the circuits to have considered a claim regarding an unrequested affirmative-defense instruction, most hold there is no error.”) (collecting cases); United States v. Tyson, 653 F.3d 192, 212 (3d Cir. 2011) (finding no error in failing to give instruction on defense to firearms charge when defendant did not request it, even though “evidence arguably would have supported a[n] ... instruction [on the defense],” because this may have been part of the defendant’s strategy, and “[i]t is not for the district court to sua sponte determine which defenses are appropriate under the circumstances”); see also 1 Paul H. Robinson & Catherine Palo, Criminal Law Defenses § 68.50 (1984 ed. & Supp. 2023) (“[T]rial courts should not interfere with a defendant’s chosen defense theory by giving an instruction which neither party requested and which may undermine defendant’s chosen theory. Moreover, trial courts are not required to provide instructions for every possible theory of defense just because some supporting evidence may be No. 21-3221 21

produced at trial, if the defendant has not relied on the particular defense theory.”). Because Page conceded that he did not seek a buyer-seller instruction at conference, the district court did not err by not inserting that instruction. And even if Page had requested the instruction at conference, the district court would not have erred in declining to give it. Page conceded that he did not present a buyer-seller defense during trial, and no evidence supported the instruction. To the extent Page suggests that he injected the buyer-seller defense into the case when he al- luded to it during his closing argument, we are not convinced in light of Federal Rule of Criminal Procedure 30. Under Rule 30, a party seeking an instruction “must” make its request “at the close of evidence or at any earlier time,” and the court “must inform the parties before closing arguments how it in- tends to rule on the requested instructions.” Fed. R. Crim. P. 30(a)–(b). Thus, a party does not properly inject a defense into a criminal proceeding solely by introducing it during closing argument. For all these reasons, the district court committed no error. B Even assuming error, the second element of the plain error inquiry requires that the error be “plain.” The Supreme Court has described this prong as “synonymous with ‘clear’ or, equivalently, ‘obvious.’” Olano, 507 U.S. at 734 (quotation omitted); see also United States v. Frady, 456 U.S. 152, 163 (1982) (noting that relief under Federal Rule of Criminal Pro- cedure 52 requires “error so ‘plain’ the trial judge and prose- cutor were derelict in countenancing it, even absent the de- fendant’s timely assistance in detecting it”). An error that is 22 No. 21-3221

“subject to reasonable dispute” is not “plain.” Puckett v. United States, 556 U.S. 129, 135 (2009). An error (had it existed) in not sua sponte instructing the jury on the buyer-seller defense would not have been plain. Page did not present this defense theory, and the evidence of conspiracy was very strong. Nothing about this record would have made it obvious to the district court that such an instruc- tion was needed. We need not belabor these points again here. Instead, we take this opportunity to emphasize the need to ensure that an error is indeed plain before reversing a district court’s judgment. In doing so, we clarify that some of our opinions have not placed sufficient emphasis on the rigorous- ness of the plain error standard of review. Consider our recent opinion in United States v. Anderson, 99 F.4th 1106 (7th Cir. 2024). That case turned on whether the defendant’s 2001 conviction for assault in Florida qualified as a predicate offense under the Armed Career Criminal Act (ACCA). Id. at 1110. Specifically, the issue was whether as- sault under Florida law criminalized reckless conduct—if it did, it would not qualify as an ACCA predicate. The Eleventh Circuit was presented with this identical question. It certified the question to the Florida Supreme Court, and we likewise held our appeal in abeyance pending that decision. See Somers v. United States, 355 So. 3d 887, 888 (Fla. 2022). The Florida Su- preme Court concluded that assault under Florida law did not criminalize reckless conduct, see id. at 892–93, and the Elev- enth Circuit, upon receiving answers to its certified questions, held that an assault conviction in Florida qualifies as an ACCA predicate, Somers v. United States, 66 F.4th 890, 892 (11th Cir. 2023). No. 21-3221 23

In Anderson, we endeavored to review the district court’s ACCA enhancement based on a Florida assault conviction for plain error because “Anderson did not contest his ACCA des- ignation in the district court.” 99 F.4th at 1110. Yet, our review effectively addressed the issue de novo in reversing the dis- trict court. We pointed to intermediate appellate decisions from Florida, concluded that the Florida Supreme Court’s de- cision in Somers did not apply retroactively, and applied the reasonable probability test to hold that Anderson’s assault conviction did not qualify as an ACCA predicate. We found that the district court erred in applying ACCA’s 15 year min- imum floor to Anderson’s sentence, id. at 1114, but we did not explain how this error was clear or obvious. Anderson instead acknowledged that “[t]he breadth of the Florida aggravated assault statute at the time of Anderson’s conviction is not eas- ily discerned” and that the case was a “close” one. Id. at 1111– 12. Any error was “subject to reasonable dispute,” Puckett, 556 U.S. at 135, as our majority opinion needed to distinguish a Florida Supreme Court decision on point and created a split with the Eleventh Circuit on an identical question. Therefore, any error in Anderson was not plain. A standard of review is not to be invoked in name only and then disregarded. It is a limiting principle on our scope of review that properly gives deference to a district court and the arguments the parties made before it. Simply, it keeps an appeal from turning into a full retrial. For there to be plain error, a court must give due weight to all four prongs set out in Olano. Anderson, and opinions like it, would turn out differ- ently under a proper application of this standard. 24 No. 21-3221

C If a defendant establishes the existence of a plain error, he must still show that the error affected his substantial rights— that a reasonable probability exists that, but for the error, the outcome of the proceedings would have been different. Un- der this prong, “[i]t is the defendant rather than the Govern- ment who bears the burden of persuasion with respect to prej- udice.” Olano, 507 U.S. at 734. In other words, a defendant claiming that a plain error affected his substantial rights must “make such an argument or representation on appeal.” Greer, 593 U.S. at 509. Page did not and could not have met this burden. Even if the district court’s failure to sua sponte instruct the jury on the buyer-seller relationship constituted plain error, nothing in this record suggests that the outcome of the trial would have differed. As discussed above, this was not a close case; the evidence did not support a buyer-seller relationship. Moreover, the district court did more than simply instruct the jury on the elements of conspiracy. It also provided other instructions on when a defendant qualifies—and does not qualify—as a member of a conspiracy. In short, a jury would have convicted Page even with a buyer-seller instruction in hand. D “Rule 52(b) is permissive, not mandatory.” Olano, 507 U.S. at 735. Thus, even if a defendant meets the first three thresh- old elements of plain error, we may grant relief, in our discre- tion, only if the error had a serious effect on the fairness, in- tegrity, or public reputation of judicial proceedings. This re- quirement is distinct from the substantial rights prong: “a No. 21-3221 25

plain error affecting substantial rights does not, without more,” satisfy the fourth prong of plain error, “for otherwise the discretion afforded by Rule 52(b) would be illusory.” Id. at 737. The fourth prong of Olano “inherently requires ‘a case- specific and fact-intensive’ inquiry.” Rosales-Mireles v. United States, 585 U.S. 129, 142 (2018) (quotation omitted). In cases where a finding of plain error would result in additional jury proceedings on remand, the Supreme Court has suggested that an appellate court’s discretion under the fourth prong of Olano should be exercised “sparingly” and “reserved for ‘ex- ceptional circumstances.’” See id. at 142–43 (quotations omit- ted). We would decline to exercise our discretion under the fourth Olano prong. A finding of plain error here would re- quire a wholly new jury trial based on an omitted jury instruc- tion, cf. Jones v. United States, 527 U.S. 373, 389–94 (1999) (find- ing no plain error for purportedly erroneous jury instruc- tions), even though Page never asked for the instruction, did not present a defense consistent with the instruction, and af- firmatively approved the final jury instructions as written. Such an error would not affect the fairness, integrity, or repu- tation of our judicial system. AFFIRMED 26 No. 21-3221

EASTERBROOK, Circuit Judge, concurring. I join the major- ity’s opinion and add a few words about the relation between the party-presentation principle, see United States v. Sineneng- Smith, 590 U.S. 371 (2020), and plain-error review under Fed. R. Crim. P. 52(b). Sineneng-Smith tells us that courts generally should not, and often must not, inject issues into litigation. Judges should instead respect the choices made by litigants and their law- yers about which issues to pursue and which to avoid. If law- yers for criminal defendants handle this task poorly, and prej- udice ensues, a court might find that the defendant suffered from ineffective assistance of counsel. But that possibility is for collateral review rather than direct appeal. Massaro v. United States, 538 U.S. 500 (2003). Subjects within the discretion of counsel in criminal cases include selection of a theory of defense and the decision whether to assert an affirmative defense, such as duress, self- defense, entrapment, or advice of counsel. Many defenses open the accused to some kind of risk, and counsel must eval- uate whether the potential reward justifies that risk. Consider entrapment. “[I]f the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and search- ing inquiry into his own conduct and predisposition as bear- ing upon that issue. If in consequence he suffers a disad- vantage, he has brought it upon himself by reason of the na- ture of the defense.” Sorrells v. United States, 287 U.S. 435, 451– 52 (1932). Many lawyers view “I didn’t do it” and “I was en- trapped into doing it” as so incompatible that making both contentions amounts to a confession of culpability. A defend- ant is free to take that risk, see Mathews v. United States, 485 No. 21-3221 27 U.S. 58 (1988), but it is not one that a judge may thrust upon him. The same is true when the tactic is in the nature of avoid- ance or mitigation. See Keeble v. United States, 412 U.S. 205, 212–13 (1973) (observing that a lesser-included-offense in- struction can reduce the chance of acquittal). A buyer-seller argument poses risks to any defendant charged with both conspiracy and substantive crimes. Arguing that “I didn’t do it” yet “I was just a buyer of illegal drugs” makes the defense position inconsistent and creates a risk that jurors may be- come skeptical about both halves of the either/or proposition. That sort of risk is apparent in Page’s case, as he denied that he had anything to do with heroin and depicted Hamlin as a liar. Arguing that he just bought heroin in spot transactions with Hamlin could have helped Page against the conspiracy charge but would have increased the chance of conviction on the substantive charges. Because the Sentencing Guidelines link their recommendations to the quantity of drugs included as relevant conduct under U.S.S.G. §1B1.3, without adding levels for a conspiracy conviction, see U.S.S.G. §2D1.1 and Ap- plication Note 5; §2X1.1(a), trying to avert a conspiracy con- viction while increasing the chance of substantive convictions would have incurred a substantial risk for little if any reward. An accused is free to take that risk, see United States v. Cruse, 805 F.3d 795, 815 (7th Cir. 2015), but the choice is one for the defense rather than the judge. As far as I can tell, the Supreme Court has never held that a district judge must, should, or even may raise a contention such as a buyer-seller argument (or any other matter in de- fense, avoidance, or mitigation) when the accused does not request an instruction on that subject. That is the party- 28 No. 21-3221

presentation principle in action. Applied to this case, it means that the district judge did not err in omitting a buyer-seller instruction—indeed, that the judge would have erred by in- cluding one. What, then, is the role of plain-error review under Rule 52(b)? It is to permit appellate review of errors affecting sub- jects that the parties did present, even if no one called a blun- der to the court’s attention. When a party proffers evidence, the judge must decide whether it is admissible; a plain error can be reviewed under Fed. R. Evid. 103(e). And the indict- ment in a criminal case necessarily requires the judge to craft an accurate charge on the elements of the offense. A bad ele- ments instruction may be called plain error, consistent with the party-presentation principle, because the prosecutor made the elements of the crime an issue. But Page does not contend that the judge misinstructed the jury on the elements of conspiracy under 21 U.S.C. §846. All a prosecutor need prove is agreement to engage in unlawful drug transactions, with intent to advance the agreement’s ob- ject. See United States v. Shabani, 513 U.S. 10 (1994). The judge told the jury exactly that, following Instruction 5.08(B) of the William J. Bauer Pattern Criminal Jury Instructions of the Seventh Circuit (2023 ed.). A buyer-seller instruction just restates the elements instruction from the defense’s perspective. See In- struction 5.10(A). (This is why it is a theory of defense rather than an affirmative defense.) Page did not request any altera- tion of the elements instruction and, to the contrary, told the judge that all of the instructions were correct. That left no work for Rule 52(b) to do on the subjects that the prosecutor brought to the case, and no work at all to do on other subjects that the defense did not bring to the case. No. 21-3221 29

Once convicted on the substantive counts, a defendant’s risk/reward calculus for a buyer-seller instruction looks favor- able, but the decision whether to request such an instruction must be made at trial rather than with the benefit of hindsight. Raising a buyer-seller issue for the first time after conviction is too late, because there is no error to address. 30 No. 21-3221

JACKSON-AKIWUMI, Circuit Judge, joined by ROVNER and LEE, Circuit Judges, dissenting. Today we revisit two well- worn questions under our conspiracy law. First, what evi- dence is sufficient to distinguish between a buyer-seller rela- tionship and a conspiracy to distribute drugs? Second, can a district court plainly err by failing to give a buyer-seller in- struction when a defendant doesn’t request one? On the first question, my colleagues in the majority con- clude that evidence of repeat, distribution-sized drug transac- tions alone can prove conspiracy. They claim to restore our law to the rule articulated by the Supreme Court in Direct Sales Co. v. United States 1 because, they contend, a shift in in- terpretation ushered in by United States v. Colon 2 threw our circuit offtrack. I do not see restoration but reinvention. Direct Sales—and every decision on the matter our circuit has issued since then—holds that repeat drug deals, even in significant quantities, may establish knowledge of a conspiracy, but they aren’t enough by themselves to sustain a conspiracy conviction. The law has always required more— specifically, proof of intent to join the conspiracy. The majority’s approach erases the critical element of intent, effectively collapsing the lines between drug distribution, aiding and abetting a drug distribution conspiracy, and conspiracy to distribute drugs. Worse still are the silences today’s decision offers. There is silence about the complete consistency of our pre- and post- Colon precedent, including our 30-year-old en banc decision

1 319 U.S. 703 (1943).

2 549 F.3d 565 (7th Cir. 2008). No. 21-3221 31

squarely addressing today’s issue, United States v. Lechuga. 3 These prior decisions all hold that large, repeat drug transac- tions are not enough to sustain a conspiracy conviction. The majority does not cite—nor have I found—a single decision by a panel of this circuit holding that repeat, distribution- quantity drug transactions alone can sustain a conspiracy conviction. There is silence on any justification (much less a compelling one) for not only explicitly overturning Colon and its progeny, but also implicitly overturning Lechuga. And there is silence on the significant due process concerns today’s decision introduces. On the second question before our court, I cannot agree with the majority. The law is clear: a district court can plainly err by failing to give a buyer-seller instruction, even when a defendant doesn’t request one. Below, I address these two questions in Parts I and II, re- spectively. In Part III, compelled by the majority’s unusual de- tour, I pause to address an unrelated case. I conclude in Part IV. In short, because this new order of the day upends our circuit’s conspiracy jurisprudence, I dissent. I Page’s Sufficiency-of-the-Evidence Challenge A jury convicted Royel Page of twelve counts of attempt- ing to distribute and to possess with intent to distribute her- oin, plus one count of conspiracy to distribute heroin. On ap- peal, Page seeks to overturn only the conspiracy conviction. My colleagues in the majority affirm the conspiracy convic- tion, concluding that evidence of repeat, distribution-sized

3 994 F.2d 346 (7th Cir. 1993) (en banc), cert. denied, 510 U.S. 982 (1993). 32 No. 21-3221

drug transactions are a sufficient basis for that conviction. I see things differently. In Part A, I walk through our circuit’s jurisprudence on drug distribution conspiracies—at least as it stood before to- day’s ruling. In this section, I first outline the actus reus and mens rea elements of a drug distribution conspiracy crime. I then discuss the mens rea element’s distinct knowledge and intent requirements—the latter of which transforms a buyer- seller relationship into a conspiratorial one. From there, I ad- dress how our circuit law has always conformed with the holding of Direct Sales that the illicit nature of goods, paired with repeat and large-quantity transactions, may suffice to es- tablish knowledge of a drug distribution conspiracy. And our circuit law has always conformed with the instruction in Di- rect Sales that “informed and interested cooperation, stimula- tion, [or] instigation” must exist to establish intent to join the conspiracy. 319 U.S. at 713. Even in Colon, I explain, our ad- herence to Direct Sales remained beyond question. In Part B, I detail how the majority veers off course with its holding today. In this section, I begin by addressing the majority’s alarmist portrayal of our circuit’s drug distribution conspiracy jurisprudence. Yes, we have sometimes struggled in articulating the precise factors that demonstrate the informed and interested cooperation, stimulation, or instigation needed to elevate a defendant’s mens rea from mere knowledge to intent; but we have never—not once— abandoned Direct Sales’ clear rule that the sale of illicit goods, even in repeat and large quantities, cannot by itself establish intent. I then turn to the majority’s misreading of Direct Sales and Colon, showing how its analysis diverges from those precedents and, in doing so, effectively erases the intent No. 21-3221 33

requirement and converts one crime—drug distribution and/or aiding and abetting a drug distribution conspiracy— into another: conspiracy to distribute drugs. Finally, I discuss important considerations the majority does not, including our strong presumption against overturning precedent without compelling justification; the majority’s effective overturning of Lechuga, our 30-year-old en banc decision addressing the issue we opine on today; and the due process concerns that today’s decision raises. In Part C, I apply the law to the facts of this case, demon- strating that under the correct legal framework as it stood be- fore today, Page is entitled to a buyer-seller instruction. The majority’s claim otherwise does not hold together. A Our Drug Distribution Conspiracy Law—Before Today To understand why the majority’s decision charts a con- cerning new course, we must first understand our circuit’s drug distribution conspiracy law before today. The crime of engaging in a drug distribution conspiracy sits at the intersection of two distinct crimes: conspiracy and drug distribution. To prove conspiracy, the government must establish three elements: (1) that two or more individuals agreed to commit an unlawful act; (2) that the defendant was aware of the agreement; and (3) that the defendant intended to join that agreement. 4 See 21 U.S.C. § 846. To prove drug

4 See United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir. 1991) (“To

join a conspiracy, then, is to join an agreement, rather than a group. It fol- lows that to be a conspirator you must know of the agreement, and must intend to join it.” (emphasis added) (internal citations omitted)). 34 No. 21-3221

distribution, the government must establish two elements: (1) that the defendant knowingly or intentionally distributed a controlled substance; and (2) that the substance distributed was, in fact, a controlled substance. See 21 U.S.C. § 841(a). These two crimes—conspiracy and drug distribution— address distinct wrongs, but when combined, they form the crime of drug distribution conspiracy. Importantly, as I explain in Section A.1 below, both crimes involve agreements. Drug distribution typically involves buyer-seller agreements—agreements to exchange drugs for money (or something else of value). Conspiracy, by contrast, hinges on conspiratorial agreements—agreements to further distribute drugs. With agreements at issue in both crimes, and the crimes combining to form a third crime (drug distribution conspiracy), the line between the offenses can grow thin. The challenge lies in ensuring that buyer-seller relationships are not miscast as conspiracies. Direct Sales, which I examine in depth in Section A.2 be- low, draws the necessary line. It ensures conspiracy charges remain distinct from other criminal charges by identifying in- tent as the defining feature of conspiracy. Direct Sales requires the government to prove that the defendant intended to join the conspiracy, not merely that he engaged in conduct con- sistent with the conspiracy’s goals—like buying and selling drugs (drug distribution) or otherwise helping the drug dis- tribution conspiracy succeed (aiding and abetting a drug dis- tribution conspiracy). By demanding proof of intent to join, Direct Sales prevents individuals from being swept into con- spiracy charges without the collective agreement that the crime of conspiracy requires. No. 21-3221 35

Our circuit’s drug distribution conspiracy jurisprudence, shaped by Direct Sales, reflects these distinctions. It requires proof of three elements: actus reus (two or more people agree to commit an unlawful act, namely further distributing drugs), knowledge of the conspiracy (often inferred from re- peat purchases of drugs in large quantities), and intent to join the conspiracy (demonstrated by informed and interested co- operation). The latter two elements form the mens rea for drug distribution conspiracy. I explain this in detail in Section A.2 below. With this foundation laid, I turn to a closer examination of actus reus and mens rea in drug distribution conspiracy cases. My goal, again, is to provide the framework for understand- ing precisely how the majority’s change to our circuit law is unwarranted, inconsistent with Direct Sales, and much more. 1 Actus Reus When the government charges a drug seller or buyer with conspiracy to distribute drugs (instead of or in addition to a charge of drug distribution), we need to ask: what agreement does the government contend forms the basis of the conspir- acy’s actus reus? Remember: a drug sale is already an agree- ment to commit an unlawful act—specifically, drug distribu- tion. The buyer and seller come together, negotiate terms, and exchange money or goods for drugs. United States v. Rock, 370 F.3d 712, 714 (7th Cir. 2004). This is drug distribution—a straightforward buyer-seller transaction. But while this kind of transaction involves an agreement to distribute drugs, it cannot by itself also serve as the conspiratorial agreement nec- essary to support a drug distribution conspiracy conviction. 36 No. 21-3221

Id. (“[T]he government must prove that the defendant con- spired to commit some crime beyond that agreement.”). To say otherwise would conflate a simple buyer-seller transac- tion with a broader drug distribution conspiracy. See Lechuga, 994 F.2d at 349 (requiring “proof of an agreement to commit a crime other than the crime that consists of the sale itself”). 5 For this reason, we have consistently held that a conspiracy to distribute drugs demands something more at the actus reus stage—specifically, an agreement to further distribute drugs beyond the initial sale. United States v. Smallwood, 188 F.3d 905, 912 (7th Cir. 1999) (citing Lechuga, 994 F.2d at 349); see also United States v. Shabani, 513 U.S. 10, 16 (1994) (explaining that “the criminal agreement itself is the actus reus” in a conspiracy case). Although conspiratorial agreements can be inferred from circumstantial evidence, reliance on such evidence should not “obscure the basic fact that the agreement is the essential evil at which the crime of conspiracy is directed.” See Iannelli v. United States, 420 U.S. 770, 777 n.10 (1975) (citing Di- rect Sales, 319 U.S. at 711–13). 2 Mens Rea As with actus reus, the government almost always turns to circumstantial evidence to establish the two separate mens rea

5 While Lechuga generated six separate opinions, seven of the eleven

judges agreed with Judge Posner’s formulation of the distinction between a conspiratorial relationship and a buyer-seller relationship. See United States v. Torres-Ramirez, 213 F.3d 978, 982 (7th Cir. 2000) (“The lead opin- ion, which was joined by three judges, Judge Rovner’s concurring opinion, id. at 357, and the dissenting opinion, id. at 357–64, also joined by three judges, agreed on this point. The lead opinion therefore establishes the holding of the case.”). No. 21-3221 37

requirements of knowledge and intent. See id. at 714. Two key Supreme Court cases—United States v. Falcone, 311 U.S. 205 (1940), and Direct Sales, 319 U.S. at 712–13—have long made clear that, even when the government relies on circumstantial evidence, knowledge of the conspiracy and intent to join the conspiracy remain essential elements of the drug distribution conspiracy crime. In Falcone, the Supreme Court held that mere knowledge by the seller that the buyer intended to use the commodity unlawfully, without more, is not enough to support a conspir- acy conviction. 311 U.S. at 210–11. In that case, wholesalers that regularly sold large quantities of sugar and yeast to boot- leggers were not considered conspirators, despite knowing the illegal uses to which the products would be put. Id. at 210. The Court explained that knowledge of the unlawful end-use was insufficient; proof of intent to join the conspiracy was still required. Id. In short, Falcone insisted that the government go further—showing not only that the defendants knew about the illegal activity, but that they intentionally joined the agree- ment to further the illegal activity. 6 Id. Three years later, in Direct Sales, the Supreme Court clari- fied what more is needed to transform knowledge into intent. Direct Sales was a drug manufacturer and wholesaler. Direct Sales, 319 U.S. at 704. The company sold morphine sulphate to a doctor in such large quantities, so frequently, and over such

6 Of course, knowledge of the conspiracy, combined with the fact that a

seller provides a buyer with the means to commit a further illegal act, might turn the seller into an aider and abettor of the buyer’s future crime. See Lechuga, 994 F.2d at 349. But that knowledge is not enough to turn the seller into a co-conspirator. Id. More on aiding and abetting liability in a bit. 38 No. 21-3221

a long period that it must have known the doctor could not lawfully dispense the amounts received and was thus distrib- uting the drug illegally. Id. at 705. The company also “actively stimulated” these purchases by employing a cost-saving mail order system that allowed it to offer lower prices than its com- petitors. Id. The Court reaffirmed Falcone’s principle that mere knowledge of illegal use, without more, cannot establish con- spiracy. Id. at 709. It then examined whether, considering the facts, the seller had both knowledge of the conspiracy and in- tent to join it. Id. at 711–14. The first factor the Direct Sales Court considered was the nature of the merchandise. In Falcone, the commodities sold— sugar and yeast—were innocent in themselves, while in Direct Sales, the commodity was the restricted drug morphine. Direct Sales, 319 U.S. at 711–12. The Court considered the difference in the types of goods “important for two purposes.” Id. at 711 “One is for making certain that the seller knows the buyer’s intended illegal use. The other is to show that by the sale he intends to further, promote and cooperate in it.” Id. (emphasis added). How does the nature of the merchandise inform the knowledge requirement, according to Direct Sales? The re- stricted nature of a commodity “makes a difference in the quantity of proof required to show knowledge that the buyer will utilize the article unlawfully,” Direct Sales explained. Id. at 712 (emphasis added). The Court added that “additional facts, such as quantity sales, high-pressure sales methods, abnor- mal increases in the size of the buyer’s purchases, etc., which would be wholly innocuous or merely suspicious in relation to unrestricted goods, may furnish conclusive evidence, in No. 21-3221 39

respect to restricted articles, that the seller knows the buyer has an illegal object and enterprise.” Id. (emphasis added). And how does the character of the merchandise inform the separate intent requirement? According to Direct Sales, the re- stricted nature of a commodity “has a further bearing upon the existence and the proof of intent.” Id. (emphasis added). As Direct Sales explained, “[k]nowledge, equivocal and uncertain as to [unrestricted goods], becomes sure as to the other,” and “[s]o far as knowledge is the foundation of intent, the latter thereby also becomes the more secure.” Id. at 711–12 (emphasis added). “More secure,” though, does not mean fully secure; so the mens rea analysis in Direct Sales did not end. As the Court acknowledged, “[n]ot every instance of sale of re- stricted goods, harmful as are opiates, in which the seller knows the buyer intends to use them unlawfully, will support a charge of conspiracy.” Id. at 712. This means sometimes, even where the evidence clearly establishes knowledge, it still falls short of proving intent. Id. Direct Sales took pains to distinguish the analysis of knowledge from that of intent. Id. at 711 (“While [intent] is not identical with mere knowledge that another purposes unlaw- ful action, it is not unrelated to such knowledge.”). First, no evidence of knowledge means no intent, the Court said. Id. at 711–12 (stating that “knowledge is the foundation of intent” and “without the knowledge, the intent cannot exist” (citing Falcone, 311 U.S. 205)). Second, equivocal evidence of knowledge also means no intent. This is because “charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning what, in [Falcone], was called a dragnet to draw in all substantive crimes.” Id. (internal cita- tions omitted). And third, definite evidence of knowledge can 40 No. 21-3221

still mean no intent. “There may be circumstances in which the evidence of knowledge [of unlawful activity] is clear,” Di- rect Sales concluded, “yet the further step of finding the re- quired intent [to join the unlawful activity] cannot be taken.” Id. at 712. So, Direct Sales moved past the character of the merchan- dise to examine a second factor: quantity and regularity. The Court concluded that sales of restricted goods occurring in significant “volume, frequency, and prolonged repetition,” may suffice to establish knowledge, but that knowledge must still be “coupled” with the distinct and separate requirement of intent. Direct Sales, 319 U.S. at 714–15 (explaining the sales “would be wholly lawful transactions” “but for their volume, frequency and prolonged repetition, coupled with the seller’s unlawful intent to further the buyer’s project”) (emphasis added); see also id. at 712 n.8, 712–13. That brings me to the third factor Direct Sales considered: whether the evidence shows “informed and interested coop- eration, stimulation, instigation.” Id. at 713. The Court held that a conspiracy conviction may not lie even against a de- fendant engaged in “a more continuous course of sales, made either with strong suspicion of the buyer’s wrongful use or with knowledge, but without stimulation or active incitement to purchase.” Id. at 712 n.8. Unlike in Falcone, where the evi- dence fell short, the evidence in Direct Sales revealed the nec- essary stimulation or active incitement to purchase: there was evidence that the wholesaler tried to “stimulate” sales through quantity discounts, “high-pressure” mail solicita- tions, and changes to its order forms that encouraged more frequent purchases. Id. at 705–07, 712. With this evidence, the jury could conclude that the wholesaler intended by its efforts No. 21-3221 41

to informedly and interestedly cooperate, stimulate, and in- stigate the drug distribution conspiracy. See id. at 712. Absent such actions, the evidence could not show intent—just “sus- picion, knowledge, acquiescence, carelessness, indifference, [or] lack of concern.” 7 Id.; see also United States v. Gabriel, 810 F.2d 627, 634 (7th Cir. 1987) (“The intent necessary to support a conviction for conspiracy … is ‘more than knowledge, ac- quiescence, carelessness, indifference, lack of concern,’ but ra- ther is ‘informed and interested cooperation, stimulation, in- stigation.’” (quoting Direct Sales, 319 U.S. at 713 (1943))). Boiled down, Direct Sales and Falcone tell us that a jury may conclude that a defendant knowingly and intentionally joined a drug distribution conspiracy when three elements are pre- sent: the defendant (1) dealt in restricted goods, (2) in “high volume, frequency, and over a prolonged period,” and (3) ex- hibited “informed and interested cooperation, stimulation, in- stigation.” Direct Sales, 319 U.S. at 712–13. If the evidence shows only the first two things, knowledge may exist, but not necessarily intent. And without intent, there can be no con- spiracy conviction. Our ruling in United States v. Menting sums up well how this circuit applies Direct Sales:

7 See also Direct Sales, 319 U.S. at 712–13 (“But this is not to say that a

seller of harmful restricted goods has license to sell in unlimited quanti- ties, to stimulate such sales by all the high-pressure methods .… When the evidence discloses such a system, working in prolonged cooperation with a physician’s unlawful purpose to supply him with his stock in trade for his illicit enterprise, there is no legal obstacle to finding that the supplier not only knows and acquiesces, but joins both mind and hand with him to make its accomplishment possible. The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifference, lack of concern. There is informed and interested cooperation, stimulation, instigation.”). 42 No. 21-3221

More than 55 years ago, the Supreme Court up- held a conspiracy conviction in which the overt acts consisted solely of “sales, which but for their volume, frequency and prolonged repeti- tion, coupled with the seller’s unlawful intent to further the buyer’s project, would be wholly lawful transactions.” Direct Sales Co. v. United States, 319 U.S. 703, 714–15, 63 S. Ct. 1265, 87 L.Ed. 1674 (1943). Following that guidance, this court has looked for 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” in order to distinguish a conspiracy from a simple buyer-seller rela- tionship. United States v. Pearson, 113 F.3d 758, 761 (7th Cir. 1997) (citation omitted). Other im- portant indicia of conspiracy include “the length of affiliation, the established method of payment[,] … the extent to which the transactions are standard- ized, and the demonstrated level of mutual trust.” Id. 8

8 Another useful summary comes from our decision in United States v. Clay, in which we reasoned:

Although the nub of a conspiracy is an agreement, a sim- ple agreement between a buyer and seller to exchange something of value for cocaine cannot alone constitute a conspiracy because such an agreement is itself the sub- stantive crime. See United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993) (en banc); see also United States v. Kozinski, 16 F.3d 795, 808 (7th Cir. 1994). The ‘something No. 21-3221 43

more’ that is necessary for the existence of a true drug dis- tribution conspiracy is a further understanding between the buyer and seller, often implicit, that usually relates to the subsequent distribution of the narcotics …. Just how implicit that understanding can be to sustain a conspir- acy, and how circumstantial the proof of it will typically be, was demonstrated in Direct Sales Co. v. United States, 319 U.S. 703 (1943).…

The Court noted that the knowledge alone that one is sup- plying inputs to another’s illicit business cannot support a finding of conspiracy. But knowledge is sometimes ac- companied by an intent to further or cooperate in the sec- ondary endeavor .…

What sort of evidence will allow … a trier of fact to make the inference that buyer and seller are dealing not just with disinterested eyes narrowly focused on the purchase at hand but with a mutual understanding about subse- quent distribution? Direct Sales indicates that 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 is sufficient to sustain a finding of conspir- acy.… Many things will inform this question of degree; for example the length of the affiliation, the established method of payment, the available supplying or marketing alternatives, the extent to which the transactions are standardized, and the demonstrated level of mutual trust.…. No one of these, or other, circumstantial factors will typically be dispositive because each is only an im- perfect indicant of whether a true conspiracy existed. If enough point in the direction of a concrete, interlocked interest beyond the consummation of the individual buy- sell deals themselves, we will not disturb the conclusion reached by the finder of fact that at some point the asso- ciation blossomed into a cooperative venture.” 44 No. 21-3221

166 F.3d 923, 928 (7th Cir. 1999) (emphasis added). In the 90 years since Direct Sales, our caselaw has built a framework for determining when a buyer-seller relationship crosses the line into a conspiracy. That framework focuses on whether the relationship involves “a prolonged and actively pursued course of sales,” Pearson, 113 F.3d at 761—or, as Di- rect Sales put it, “informed and interested cooperation, stimu- lation, instigation,” 319 U.S. at 712—which can be “coupled with the seller’s knowledge of and shared stake in the buyer’s illegal venture,” Pearson, 113 F.3d at 761, to establish a drug distribution conspiracy. The “[f]actors that bear on that as- sessment,” United States v. Contreras, 249 F.3d 595, 599 (7th Cir. 2001), have repeatedly surfaced in our decisions: • United States v. Sergio, 934 F.2d 875, 877, 879 (7th Cir. 1991) (affirming drug conspiracy conviction based on “large quantities,” “regular shipments,” and “fronting,” among other things); • United States v. Thompson, 944 F.2d 1331, 1342–43 (7th Cir. 1991) (affirming based on “large quantities,” “number of transactions,” and fact that buyers “picked up [] cash from [] couriers and in turn arranged to have other couriers drive co- caine to Milwaukee where [the seller] would receive it”); • United States v. Severson, 3 F.3d 1005, 1010 (7th Cir. 1993) (affirming based on “several” purchases of “marijuana packaged in Ziploc bags” and “fronting”); • United States v. Dortch, 5 F.3d 1056, 1065 (7th Cir. 1993) (affirming based on “three sales” of “distributable amounts,”

37 F.3d 338, 341–42 (7th Cir. 1994). No. 21-3221 45

“one of which included ‘fronted’ cocaine,” and discussing fac- tors); • United States v. Cabello, 16 F.3d 179, 182 (7th Cir. 1994) (affirming based on “prolonged cooperation” and “fronting” on a “highly regular basis”); • United States v. Zarnes, 33 F.3d 1454, 1465–68 (7th Cir. 1994) (affirming based on transaction frequency, standard- ized dealings, and “fronting,” among other things, and dis- cussing factors); • United States v. Ferguson, 35 F.3d 327, 331 (7th Cir. 1994) (affirming based on transaction frequency, transaction size, and “fronting”); • United States v. Clay, 37 F.3d 338, 342–43 (7th Cir. 1994) (affirming based on “regular purchases,” transaction size, and “fronting,” among other things); • United States v. Penny, 60 F.3d 1257, 1259, 1263 (7th Cir. 1995) (affirming based on “numerous transactions,” “large quantities,” and “fronting”); • United States v. Larkins, 83 F.3d 162, 166 (7th Cir. 1996) (affirming based on “kilogram quantities” and credit sales); • United States v. Pearson, 113 F.3d 758, 761 (7th Cir. 1997) (discussing the Seventh Circuit “refin[ing] [its] calcu- lus” “[o]ver the years” on “identify[ing] a few factors more relevant than others in determining whether a conspiracy ex- isted” and affirming conspiracy conviction based on large, monthly, and standardized drug transactions, and the fact that “[the buyers] paid many thousands of dollars for the drugs and then went shopping before actually receiving the cocaine”); 46 No. 21-3221

• United States v. Berry, 133 F.3d 1020, 1023 (7th Cir. 1998) (affirming because “buying and selling of crack occurred be- tween Berry and Vinson” and “Vinson provided security ser- vices, made runs, and packaged Berry’s crack,” as well as dis- cussing factors); • United States v. Meyer, 157 F.3d 1067, 1074–75 (7th Cir. 1998) (affirming based on “numerous drug transactions over a span of more than four years,” “large quantities,” and “con- sult[ing] his father [the co-conspirator] regarding drug buys”); • United States v. Hach, 162 F.3d 937, 943–44 (7th Cir. 1998) (affirming based on “frequent and repeated transac- tions,” “amounts fit for more than personal consumption,” standardized transactions, and credit sales, among other things, and discussing factors); • United States v. Smallwood, 188 F.3d 905, 913 (7th Cir. 1999) (affirming based on frequent transactions, credit sales, discounted sales, and advice, among other things, and dis- cussing factors); • United States v. Sanchez, 251 F.3d 598, 602 (7th Cir. 2001) (affirming “[b]ased on th[e] evidence of repeat sales, the promise of future sales, standardized dealings, [] the level of trust between the parties,” and “the quantity of drugs,” and discussing factors); • United States v. Adkins, 274 F.3d 444, 450–51 (7th Cir. 2001) (affirming based on “large quantities,” standardized transactions, and credit sales, and discussing factors); • United States v. Haywood, 324 F.3d 514, 517 (7th Cir. 2003) (affirming based on “larger quantities,” transaction No. 21-3221 47

frequency, and standardized transactions, and discussing fac- tors); • United States v. Hicks, 368 F.3d 801, 805–06 (7th Cir. 2004) (affirming based on “quantity of drugs,” transaction fre- quency, standardized transactions, paying of “consult” fee, and “fronting,” and discussing factors); • United States v. Suggs, 374 F.3d 508, 518–19 (7th Cir. 2004) (affirming based on “large quantities,” “long-term pat- tern of distribution,” and “monitor[ing] the presence of po- lice,” and discussing factors); • United States v. Askew, 403 F.3d 496, 502, 504 (7th Cir. 2005) (affirming based on “weekly sales of large quantities of PCP” and “fronting,” and discussing factors); • United States v. Carrillo, 435 F.3d 767, 776 (7th Cir. 2006) (affirming based on large quantities; repeat transactions; “fronting”; the buyer took cash from seller to pay rent on home where drugs were stored; the seller was listed on the lease; and, after a car stuffed with heroin had been seized by the DEA, the seller, through an attorney, attempted to claim the car, among other things, and discussing factors); • United States v. Eberhart, 467 F.3d 659, 669 (7th Cir. 2006) (affirming based on “ample evidence that Eberhart dealt in large quantities of drugs, bought and sold drugs on credit, and cooperated with Bolden over a significant period of time,” and discussing factors); • United States v. Fuller, 532 F.3d 656, 662–63 (7th Cir. 2008) (affirming based on transactions “on a steady basis,” “distribution amounts,” standardized transactions, and “fronting,” among other things, and discussing factors); and 48 No. 21-3221

• United States v. Zaragoza, 543 F.3d 943, 947–48 (7th Cir. 2008) (affirming based on “regular[]” purchases, standard- ized transactions, and “fronting,” among other things, and discussing factors). We decided United States v. Colon in due course, tweaking our existing list of factors. An earlier Seventh Circuit pattern jury instruction on buyer-seller relationships had outlined a set of factors drawn from our cases up to that point. 549 F.3d at 570–71. Those factors included: (1) whether the parties de- veloped a standardized way of doing business over time; (2) the level of mutual trust between the buyer and seller; (3) whether the parties had a continuing relationship; (4) whether the seller had a financial stake in the buyer’s resale; (5) whether there was an understanding that the goods would be resold; and (6) whether sales were made on credit or consign- ment. Id. at 570. Colon flagged a critical issue, however: only the last factor really distinguished conspiracies from buyer- seller relationships while the others were in fact consistent with both scenarios. Id. To address that problem, Colon set aside the previous list in favor of a new one designed to more accurately distinguish between a conspiracy and a simple buyer-seller relationship. This updated, non-exhaustive list included: (1) sales made on credit or consignment; (2) an agreement to help find other customers; (3) payment of commissions on sales; (4) evidence that one party advised the other on how to conduct their busi- ness; and (5) an agreement to warn each other about threats to the business, whether from competitors or law enforce- ment. Id. at 570–71. As it turns out, all of these “new” factors had already made appearances in our pre-Colon caselaw. No. 21-3221 49

And, since then, we have applied the factors as listed in Co- lon. 9 Until today, our precedent—while perhaps not always polished at the edges when it comes to the “factors”—has nonetheless maintained a clear and consistent standard: repeat drug transactions, even those involving large quantities, do not establish the necessary intent to conspire. The government must do more than point to repeat, distribution-quantity sales; it must show “informed and interested cooperation, stimulation, instigation” in or of the broader drug distribution conspiracy. Direct Sales, 319 U.S. at 712. Without this showing of intent, there is no conspiracy. B Our Drug Distribution Conspiracy Law—After Today The majority tells us that our long-held rule—requiring more than repeat, distribution-quantity drug transactions to sustain a drug conspiracy conviction—is yesterday’s news.

9 See, e.g., United States v. Kincannon, 567 F.3d 893, 897 (7th Cir. 2009);

United States v. Avila, 557 F.3d 809, 816 (7th Cir. 2009); United States v. John- son, 592 F.3d 749, 756 n.5 (7th Cir. 2010); United States v. Rea, 621 F.3d 595, 608 (7th Cir. 2010); United States v. Villasenor, 664 F.3d 673, 680 (7th Cir. 2011); United States v. Vallar, 635 F.3d 271, 286–87 (7th Cir. 2011); United States v. Nunez, 673 F.3d 661 (7th Cir. 2012); United States v. Pulgar, 789 F.3d 807, 812–13 (7th Cir. 2015); United States v. Musgraves, 831 F.3d 454, 462–63 (7th Cir. 2016); United States v. Moreland, 703 F.3d 976, 985 (7th Cir. 2012), holding modified by United States v. Jett, 908 F.3d 252 (7th Cir. 2018); United States v. Maldonado, 893 F.3d 480, 485 (7th Cir. 2018); United States v. Neal, 907 F.3d 511, 516 (7th Cir. 2018); United States v. Brown, 726 F.3d 993,1000 (7th Cir. 2013); United States v. Vizcarra-Millan, 15 F.4th 473, 510–11 (7th Cir. 2021). 50 No. 21-3221

In so declaring, the majority opinion begins by catastro- phizing the state of our drug distribution conspiracy law, painting a picture that distorts reality. It then misquotes and misinterprets Direct Sales and Colon, effectively sidestepping the specific intent requirement and transforming drug distri- bution and/or liability for aiding and abetting a drug distri- bution conspiracy into conspiring to distribute drugs. After that, it falls silent, offering no salve for the serious due process issues its holding creates; no comment on the lack of a com- pelling reason to abandon our strong presumption against overturning precedent; and no explanation for implicitly overturning Lechuga, a longstanding en banc decision ad- dressing the very same issue. 1 The Majority Opinion Invents Inconsistency Where None Exists The majority opinion opens with what might seem like a small misstep. But that misstep, in truth, sets a foundation for the great error to come—that is, eliminating the longstanding intent requirement in drug distribution conspiracy cases. The majority opinion begins with a sweeping critique of our existing law, asserting that “[o]ur conspiracy and buyer- seller jurisprudence has strayed far from the Supreme Court’s decision in Direct Sales ….” Ante, at 2. To support this claim, the majority cites United States v. Brown, 726 F.3d 993, 1000–01 (7th Cir. 2013), with a parenthetical stating that Brown “de- scribe[d] the tension and inconsistency in our buyer-seller case law.” Ante, at 6. But Brown doesn’t do what the majority suggests. In fact, Brown mentions Direct Sales three times, and none of those No. 21-3221 51

mentions critique our precedent or suggest that we’ve devi- ated from the Supreme Court’s guidance. Brown, 726 F.3d at 998–99. Rather than fault our jurisprudence for straying from Direct Sales, Brown acknowledges that our precedent has been internally inconsistent—but only in a narrow respect: in artic- ulating the precise factors needed to establish informed and interested cooperation, stimulation, or instigation. Id. at 1001 (“Admittedly, much of the confusion stems from our own im- precision.”). Put differently, in Brown, our court recognized the need to provide a clearer statement about the factors we consider when deciding whether knowledge has become intent. 726 F.3d at 1001. Agreements come in infinite shapes and sizes, Brown observes, and our list-of-factors approach to conspira- cies must—and does—account for this variety. Id. at 1001–02. The previous version of our pattern instruction on buyer- seller relationships provided a list of factors, which Colon simply updated, Brown explains. Id. at 998–99. Even though “many of our cases do not state the legal standard in precisely the same way,” Brown notes that “most of them would have reached the same outcome under each other’s jurisprudence.” Id. at 1001–02. The key insight in Brown was that the con- sistency of results across our cases, despite occasional differ- ences in wording, suggested that we had been employing a “totality of the circumstances” approach all along. Id. Thus, the majority is wrong to frame Brown as a sweeping critique of our drug distribution conspiracy precedent rather than a case clarifying how the factors articulated in Colon were to be applied. 52 No. 21-3221

The majority’s framing lays the groundwork for the major shift its decision occasions: the quiet excision of the intent re- quirement from our drug distribution conspiracy law. 2 The Majority Opinion Reinterprets Direct Sales and Colon The majority next turns its attention to Direct Sales and Co- lon, distorting the reasoning in the two cases, and—in the end—effectively eliminating the intent requirement from our drug distribution conspiracy framework. i. I start with Direct Sales. The majority’s treatment suffers from three flaws. First, the majority misrepresents Direct Sales by suggesting that—where there’s repeat, distribution-quantity transactions of goods—the illicit nature of the goods ends the analysis. Ac- cording to the majority, “[t]he illegality of morphine [in Direct Sales], as compared to the legality of sugar and yeast [in Fal- cone], proved critical to sustaining Direct Sales’s conspiracy conviction for two reasons:” ensuring “the seller knows” and showing “[the seller] intends.” Ante, at 8. But Direct Sales never elevated the illegality of goods to a decisive factor in determining whether a defendant took part in a drug distribution conspiracy—even where there’s large, repeat transactions. Direct Sales, in fact, explicitly rejected that rule. The Direct Sales Court described the restricted nature of morphine as “important for two purposes”: providing some proof of knowledge and, separately, providing some proof of intent. 319 U.S. at 711. Specifically, Direct Sales explains that the legality of a good makes “a difference in the quantity of No. 21-3221 53

proof required to show knowledge that the buyer will use the article unlawfully” and “[t]he difference in the commodities has a further bearing upon the existence and the proof of in- tent.” Id. (emphasis added). Direct Sales goes on to explain that, though the illicit nature of goods can amount to conclu- sive proof of knowledge when sold in large quantities, 10 it does not constitute conclusive proof of intent. Id. at 712–13. Far from making the illicit character of the goods disposi- tive, the Supreme Court treated it as just one consideration in assessing whether repeat, large-scale transactions can demon- strate the separate and distinct elements of knowledge and in- tent to conspire. By allowing the illicit nature of goods to shoulder more weight than Direct Sales permits, the majority opinion downplays, if not outright erases, Direct Sales’s clear line between knowledge and intent. *** Second, the majority errs in its treatment of the second consideration in Direct Sales: quantity and frequency of trans- actions. To start, the majority correctly observes that “facts such as ‘quantity sales’ or ‘abnormal increases in the size of the buyer’s purchases, … which would be wholly innocuous or not more than ground for suspicion in relation to unrestricted goods, may furnish conclusive evidence, in respect to

10 See Direct Sales, 319 U.S. at 712 (holding that “additional facts, such

as quantity sales, high-pressure sales methods, abnormal increases in the size of the buyer’s purchases, etc., which would be wholly innocuous or merely suspicious in relation to unrestricted goods, may furnish conclu- sive evidence, in respect to restricted articles, that the seller knows the buyer has an illegal object and enterprise” (emphasis added)). 54 No. 21-3221

restricted articles, that the seller knows the buyer has an illegal object and enterprise.’” Ante, at 9 (emphasis added). But what comes next is perplexing. The majority doubles back and as- serts that repeat, distribution-sized transactions prove intent. This conclusion flatly contradicts its observation above. Id. Worse, it squarely conflicts with Direct Sales, which makes clear that even conclusive evidence of knowledge—like that inferred from sales in large quantities—does not, on its own, establish intent. See Direct Sales, 319 U.S. at 711–12. Two, in an attempt to support its conclusion that drugs, repeat transactions, and large quantities suffice, the majority offers what it calls an “instructive” breakdown of the buyer- seller relationship in cases involving repeat, distribution-level drug sales. In doing so, however, the majority collapses two distinct legal concepts—conspiracy and aiding and abetting liability—into one. The majority asserts that when a seller repeatedly supplies distribution-quantities of drugs, the seller inevitably realizes the buyer is reselling the drugs illegally. Ante, at 9. As the buyer’s illegal distribution network expands, so does the seller’s stake, creating what the majority calls a “codependent business relationship” where both parties have “shared stake in each other’s success.” Id. at 10. The more the buyer’s cus- tomer base grows, the more the seller profits, which according to the majority solidifies the implicit agreement between the two to further distribute drugs. Id. at 9–10. Not only does the conclusion that intent can be inferred from a combination of drugs, repeat transactions, and large quantities run headlong into Direct Sales, this very argument—conjuring a “codependent business relationship” and “shared stake in each other’s success” based on repeat, No. 21-3221 55

distribution-quantity drug transactions alone—was squarely rejected by this court in Townsend, more than a decade before Colon. In Townsend, the government contended that a seller who repeatedly engages in distribution-quantity drug deals with a known dealer must be aware that the buyer is connected to a broader drug distribution conspiracy. 924 F.2d at 1391–92. The government’s logic in that case was that because both the buyer and seller benefited from these transactions, they each knowingly and intentionally joined the larger conspiracy. Id. We rejected that reasoning, explaining: “Taken to its ex- treme, the government’s logic suggests that anyone selling or buying drugs from any [] of these defendants could also have been convicted as a coconspirator.” Id. at 1390. Here was our rejection in full: We think the government’s argument stretches the boundaries of conspiracy law to the break- ing point. We recognize that, by their very na- ture, drug conspiracies are loosely-knit ensem- bles.… [But] mere knowledge of the hub’s activ- ities, or those of the other spokes, is not enough to tie the conspiracy together.… Neither of these paradigms suffices … to show mutual support or interest among the component parts of the or- ganizational construct. They don’t eliminate the need to inquire directly into whether the de- fendants had a mutual interest in achieving the goal of the conspiracy .… “[I]t is … hard[] to tell just what agreement can reasonably be inferred from the purchase, even the repeated purchase, of contraband ….” Borelli, 336 F.2d at 384. By 56 No. 21-3221

definition, market transactions—whether in le- gal or illegal markets—benefit both parties, but we do not assume, ab initio, that they carry with them the excess baggage of conspiracy.… 11 Id. at 1391–92. Indeed, as we further explained in Townsend, “we cannot say that every act of distribution taken by [the buyer], once [the seller] became involved with [the buyer], was in the fur- therance of their conspiracy.” Id. (quoting United States v. North, 900 F.2d 131, 134 (8th Cir. 1990)). Even if a seller admits that he knew the buyer resold drugs to others, one possibility is that those additional sales formed part of the buyer’s own distribution operation—not the conspiracy’s. Id. at 1393. An- other possibility is that the buyer and seller may face liability

11 Of course, “[w]e cannot [] reasonably assume that everyone with

whom a drug dealer does business benefits, directly or indirectly, from his other drug deals. In fact, any inference should probably run in the other direction. There is—hard though it may be to believe—a finite supply of drugs. Those in the market to sell or buy large quantities (for distribution) are just as likely, if not more, to be competitors as collaborators.” Town- send, 924 F.2d at 1393; see also United States v. Thornton, 972 F.2d 764, 769– 70 (7th Cir. 1992) (“[A] conspiracy is essentially a business enterprise with illegal purposes that like a legal business enterprise is characterized by cooperative relationships between its members. And, … just like other commodities, there is a limited supply of drugs, meaning that if the gov- ernment could pool all levels of a distribution chain into one conspiracy without providing some evidence that the members intended to join in a cooperative association with a common goal, it would be just as likely, if not more likely, that the persons pooled together would be competitors rather than persons working in concert to achieve a common objective.” (internal citations omitted)). No. 21-3221 57

for aiding and abetting a drug distribution conspiracy. Id. at 1393–94. Conspiracy and aiding and abetting liability—though close cousins—are distinct legal concepts: in the drug context, conspiring to distribute drugs involves knowing of and inten- tionally joining the conspiracy, see Direct Sales, 319 U.S. at 712; aiding and abetting a drug distribution conspiracy involves knowingly helping the conspiracy succeed, see Nye & Nissen v. United States, 336 U.S. 613, 619–20 (1949) (citing United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (Hand, J.)). “[W]e do not subject [buyers and sellers] to additional liability as con- spirators simply because they aided the conspiracy and de- rived a benefit from doing so.” Townsend, 924 F.2d at 1393 (cit- ing Nye, 336 U.S. at 620; Pereira v. United States, 347 U.S. 1, 11 (1954)). This is because we cannot infer intent to join the con- spiracy based on aid to the conspiracy. Id. (“[W]e cannot infer that both parties agreed to work together to achieve that re- sult from the fact that they engaged together in some other crime.”) (citing Falcone, 311 U.S. 205)). For these reasons, though a buyer-seller relationship involving repeat, large- scale drug transactions may be enough to sustain a conviction for aiding and abetting a drug distribution conspiracy, it is not enough to establish intent to join the conspiracy and, therefore, cannot sustain a drug distribution conspiracy con- viction. Three, in addressing cases involving a single sale of a re- stricted good in a small quantity, the majority opinion again misquotes—and in doing so, misstates—the Supreme Court’s reasoning in Direct Sales. The majority states: “Of course, a single sale of a restricted good in a low quantity does not, by itself, support a charge of conspiracy, even if the seller knows 58 No. 21-3221

that the good will be used for further illegal activity. [Direct Sales, 319 U.S.] at 712. But this does not mean that a seller can sell contraband ‘in unlimited quantities.’” Ante, at 10. While the majority’s citation may seem at first blush to support its position, it decidedly does not. The Direct Sales Court indeed observed that a seller cannot sell restricted goods “in unlimited quantities.” Id. at 712–13. But the majority opinion leaves out critical context: the Supreme Court did not make this “unlimited quantities” observation to suggest that any sale beyond a small, single transaction satisfies the elements of a drug distribution conspiracy charge. Id. Quite the opposite. The Direct Sales Court made that reference to underscore that, even where “unlimited quantities” of drugs are at issue, the analysis is not done. Rather, the defendant’s intent—not his knowledge—remains central to the drug distribution conspiracy inquiry: The difference in the commodities has a further bear- ing upon the existence and the proof of intent. There may be circumstances in which the evidence of knowledge is clear, yet the further step of find- ing the required intent cannot be taken. Conced- edly, not every instance of sale of restricted goods, harmful as are opiates, in which the seller knows the buyer intends to use them un- lawfully, will support a charge of conspiracy. But this is not to say that a seller of harmful re- stricted goods has license to sell in unlimited quantities, to stimulate such sales by all the high- pressure methods, legal if not always appropri- ate, in the sale of free commodities .… Id. (emphasis added). No. 21-3221 59

Four, the majority further muddles the “quantity and fre- quency” consideration by conflating two distinct factors: number of sales (that is, frequency), and “prolonged cooper- ation.” The majority says: Of course, a single sale of a restricted good in a low quantity does not, by itself, support a charge of conspiracy, even if the seller knows that the good will be used for further illegal activity. Id. at 712. But this does not mean that a seller can sell contraband “in unlimited quantities.” [Id.] Rather, as plain from the hypothetical above, when the evidence shows that a buyer and seller worked in “prolonged cooperation” for a plainly unlawful purpose— the seller supplying the buyer with stock for his illicit enterprise—“there is no legal obstacle to finding that the supplier not only knows and acquiesces, but joins both mind and hand with him to make its accomplishment possible.” Id. at 713. Ante, at 10 (citing Direct Sales, 319 U.S. at 712–13). To the extent the majority believes that repeat transactions necessarily imply “prolonged cooperation,” I must disagree. Repeat transactions may serve as evidence of the prolonged cooperation, but the two factors remain distinct. The number of sales is “significant only insofar as it cast[s] light on the ex- istence of a continuing relation”—that is, “prolonged cooper- ation”—which could imply an agreement beyond a simple purchase and sale. Lechuga, 994 F.2d at 349–50. Direct Sales says so: 60 No. 21-3221

What made “prolonged cooperation” a factor in inferring conspiracy in Direct Sales Co. v. United States, 319 U.S. 703, 713 (1943), was that it showed that the defendant not only knew that it was selling drugs to someone for use in an il- licit enterprise but had “join [ed] both mind and hand with him to make its accomplishment pos- sible.” See also id. at 712 n. 8. Prolonged cooper- ation is neither the meaning of conspiracy nor an essential element, but it is one type of evi- dence of an agreement that goes beyond what is implicit in any consensual undertaking, such as a spot sale. Lechuga, 994 F.2d at 350; see also United States v. Brack, 188 F.3d 748, 761 (7th Cir. 1999) (citing Lechuga, 994 F.2d at 349–50; United States v. Thomas, 150 F.3d 743, 745 (7th Cir. 1998) (per curiam)); see also United States v. Mims, 92 F.3d 461, 463 (7th Cir.), on reh'g, 101 F.3d 494 (7th Cir. 1996). *** Third, the majority’s reading of Direct Sales misquotes the Supreme Court regarding the “informed and interested coop- eration, stimulation, instigation” necessary to establish intent. See 319 U.S. at 713. The majority opinion misconstrues the cen- tral holding in Direct Sales not once, ante, at 11 (“For these rea- sons, the Supreme Court had no trouble affirming Direct Sales’s conspiracy conviction based solely on evidence of re- peated, distribution-quantity sales of morphine.”); not twice, ante, at 11 (“All told, Direct Sales provides three principles for determining which types of buyer-seller relationships are in- dicative of a conspiracy.… [and the] [t]hird, [is] a drug con- spiracy conviction can be sustained if the government proves No. 21-3221 61

that a buyer and seller engaged in repeated, distribution- quantity drug transactions.”); but three times, ante, at 7 (“Based on these repeated, distribution-quantity transactions, Direct Sales was convicted of conspiracy to distribute narcot- ics.”). No portion of the majority opinion accurately acknowl- edges, much less grapples with, the Supreme Court’s careful consideration of the “informed and interested cooperation, stimulation, instigation” necessary to prove intent. The only sentence in the majority opinion that cites this language once again misquotes Direct Sales. The majority would have the reader believe that repeat, distribution-quantity transactions involving illicit goods bridge the gap between knowledge and intent—that these types of transactions by themselves show “informed and interested cooperation, stimulation, [and] in- stigation.” See ante, at 9. But, as I explained above, Direct Sales says the opposite: Alone, such transactions do not establish the stimulation or active incitement necessary to transform knowledge into intent. See ante, at 38–42, 53–62. ii. I turn now to the majority’s Colon analysis. This analysis suffers from two flaws. First, the majority opinion claims that Colon is the “origin[]” of “a long line of cases that have stretched the buyer-seller doctrine too far and deviated from the standard set in Direct Sales.” Ante, at 11. According to the majority, Co- lon introduced a requirement for “additional evidence,” like sales on credit or warnings about future threats, to support conspiracy convictions. See ante, at 12. But the majority’s at- tempt to pin these factors on Colon doesn’t hold up. As shown above, the additional evidence discussed in Colon wasn’t an invention of the Colon panel; it was a straightforward 62 No. 21-3221

application of the rule set forth in Direct Sales—a rule our cir- cuit has faithfully adhered to ever since, at least until today. See ante, at 49–50. Second, in discussing Colon, the majority states that “[r]epeated, distribution-quantity transactions of illegal drugs do not reflect a mere buyer-seller relationship between the parties.” Ante, at 12. Again, this assertion directly contra- dicts Direct Sales. As discussed, Direct Sales establishes that quantity and frequency at best create certainty as to knowledge, leaving intent outstanding. 319 U.S. at 714–15. And where there is no intent, there is no conspiracy—instead, a mere buyer-seller relationship exists. Id. at 712. 3 The Majority Opinion’s Other Omissions The majority opinion reaches its conclusion but says noth- ing about three critical considerations and consequences: the absence of any compelling reason for overturning Colon and its progeny; the silent undoing of Lechuga, our decades-old en banc decision on the same issue; and the serious due process concerns today’s ruling introduces. i. We’ve long held that panel decisions should be over- turned by the en banc court only when compelling reasons demand it. See United States v. Carpenter, 104 F.4th 655, 658 (7th Cir. 2024); see also Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (explaining that the doctrine of stare decisis “carries such per- suasive force” that departing from it has “always required” “special justification”). What reason does the majority give? None. No. 21-3221 63

Colon and its progeny correctly interpret and apply Direct Sales. Ante, 49–50. To the extent that the majority thinks oth- erwise, I note our rule that “[m]ere disagreement with the law or a desire to see the law change is not enough.” Carpenter, 104 F.4th at 658 (citing Tate v. Showboat Marina Casino P’ship, 431 F.3d 580, 582 (7th Cir. 2005) (“[I]f the fact that a court consid- ers one of its previous decisions to be incorrect is a sufficient ground for overruling it, then stare decisis is out the window, because no doctrine of deference to precedent is needed to in- duce a court to follow the precedents that it agrees with.”)). No intervening Supreme Court decision compels us to re- consider our settled view. Nor is there a circuit split of the kind that would justify breaking with our prior rulings. Rather, today’s decision shifts us from one side of an inter-circuit divide to the other. See United States v. Lamon, 893 F.3d 369, 371 (7th Cir. 2018) (ex- plaining that “the mere existence of a circuit split does not jus- tify overturning precedent”); Buchmeier v. United States, 581 F.3d 561, 566 (7th Cir. 2009) (counseling against “one circuit’s restless movement from one side of a conflict to another”). No intra-circuit conflict exists either. See Buchmeier, 581 F.3d at 566. We’ve done nothing new in this circuit since Di- rect Sales. Since then, we have held clearly and consistently that quantity and frequency of drug transactions alone are in- sufficient to sustain a drug distribution conspiracy conviction. We said “no”—repeat, distribution-quantity drug sales are not enough—in Townsend, a 1991 case decided almost two decades before Colon. It’s hard to tell “just what agreement can reasonably be inferred from the purchase, even the re- peated purchase, of contraband,” we explained. Townsend, 64 No. 21-3221

924 F.2d at 1392 (quoting United States v. Borelli, 336 F.2d 376, 383 (2d Cir.) (Friendly, J.), cert. denied, 379 U.S. 960 (1964)). And “[t]he mere purchase or sale of drugs (even in large quantities) does not demonstrate an agreement to join a drug distribution conspiracy .…” Id. at 1394. We said “no”—repeat, distribution-quantity drug sales are not enough—in Contreras, a 2001 case decided well before Colon. There, we held that “[t]he multiple purchases [of ‘one- kilogram quantities’] by themselves,” “without any addi- tional evidence of the kind we have mentioned”—such as “fronting” or “favorable pric[ing] on the cocaine on the expec- tation of future purchase”—“do not permit the inference that the [] supplier conspired with [the buyer].” Contreras, 249 F.3d at 599. We again said “no”—repeat, distribution-quantity drug sales are not enough—in Rivera, another pre-Colon case from 2001. There, we held that the buyer’s repeated large quantity purchases and seller’s “knowledge of the buyer’s illegal activ- ities or resale objectives,” did not transform a “mere buyer- seller arrangement” into a conspiracy. 273 F.3d at 755–56 (in- ternal citations omitted). We concluded that the evidence “show[ed] none of the plus factors necessary to infer … a con- spiracy.” Id. at 755–56. We said “no” once again—repeat, distribution-quantity drug sales are not enough—in Thomas, a pre-Colon case from 2002. There, we concluded, “[p]roof that Thomas sold a dis- tribution quantity of crack cocaine to Jones on one or more occasions does not by itself establish that Thomas conspired with Jones and her associates.” 284 F.3d at 751. “That Thomas was aware of the conspiracy to distribute narcotics does not establish his membership in the conspiracy” as “[k]nowing of No. 21-3221 65

a conspiracy differs from joining a conspiracy.” Id. at 752 (first emphasis added) (quoting Torres-Ramirez, 213 F.3d at 982). “One who deals in larger quantities of narcotics will invaria- bly realize that his buyer intends to resell,” we said, “and that in all likelihood he will have help from others in doing so. That knowledge alone does not render the seller liable as a co- conspirator.” Id. (citing Torres-Ramirez, 213 F.3d at 982). And we said “no” once again in Askew—yet another pre- Colon case decided in 2005. “[I]n the case of a drug conspiracy, evidence of repeated sales alone is not enough to support a conviction. Rather … in conspiracy cases the jury must assess a host of factors—including repeated sales—to determine whether an agreement beyond the simple purchase of drugs exists.” Askew, 403 F.3d at 503 (citing Mims, 92 F.3d at 466); see also Mims, 92 F.3d at 463 (explaining that, “while purchase of narcotics for resale is evidence of a conspiratorial agreement (especially when the purchases are repeated as they were here), a buyer-seller relationship alone is insufficient to prove a conspiracy”). Most critically, we said “no” in Lechuga—our en banc de- cision from 1991 addressing the very issue the full court de- cides today. The lead opinion concluded that “large quantities of controlled substances, without more, cannot sustain a con- spiracy conviction.” Lechuga, 994 F.2d at 347. “What is neces- sary and sufficient is proof of an agreement to commit a crime other than the crime that consists of the sale itself.” Id.; see also United States v. Baker, 1 F.3d 596, 597 (7th Cir.), cert. denied, 510 U.S. 956 (1993) (“[T]here must be facts in evidence in addition to a sale for resale from which proof of a conspiracy to distrib- ute can be inferred.”). Lechuga treated frequency no different: “the number of sales” was “significant only insofar as it cast 66 No. 21-3221

light on the existence of a continuing relation, implying an agreement with an objective beyond a simple purchase and sale—the latter being an agreement, all right, but not a con- spiracy.” Id. at 349–50. The fact that we decided Lechuga en banc cannot be swept aside. The case demands our attention—far more than the si- lence the majority affords it. In my review of our circuit law, I found no instance where our en banc court overturned a prior en banc decision absent an intervening change in the law by the Supreme Court. See, e.g., Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 852 (7th Cir. 2012) (en banc) (over- turning a prior en banc decision based on the “recent string of decisions” issued by the Supreme Court “undermin[ing] the holding” in the prior en banc decision). That makes sense. If we require a compelling reason to overturn a three-judge panel decision, how much more when considering whether to overturn an en banc decision—a ruling that is supposed to represent the collective wisdom of the full court? 12 But today, for the first time in our court’s history, the majority says “yes”: quantity and frequency alone can sustain a drug distribution conspiracy conviction. In saying “yes,” the

12 We consider several other factors in deciding whether to overturn

precedent, including (1) whether the rule is supported by a single, isolated case or a series of cases (as this dissent has noted, the rule that repeat, dis- tribution-quantity drug transactions cannot sustain a drug conspiracy was approved and followed in more than three dozen panel decisions and one en banc decision), see Tate, 431 F.3d at 583; and (2) whether reliance inter- ests have built up around the decision (here, the reliance interests at stake are obvious, where a rule that repeat, distribution-quantity drug transac- tions cannot sustain a drug conspiracy conviction has stood unchallenged in this circuit for over 80 years), see id. at 583; see, e.g., United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924). No. 21-3221 67

majority opinion does not cite—nor have I found—a single decision by a panel of this circuit holding that repeat, distribution-quantity drug transactions alone can sustain a drug distribution conspiracy conviction. That is not surprising. The rule the majority announces today has never been the law of this circuit. What we are gaining from this jurisprudential disruption is unclear, but what we risk losing—respect as a court com- mitted to making decisions grounded in the rule of law no matter the case—is all too evident. 13 ii. The majority’s decision to effectively eliminate the intent requirement from our drug distribution conspiracy law raises serious due process concerns. The Due Process Clause of the Fifth Amendment guaran- tees that no person shall be deprived of life, liberty, or prop- erty without due process of law. U.S. CONST. amend. V. Due

13 The consequences of today’s decision will be felt beyond sufficiency

of the evidence challenges. Take plea bargains for example. We have based our drug conspiracy plea bargaining jurisprudence on the bedrock principle that repeat, distribution-quantity transactions, by themselves, are insufficient to support a conspiracy conviction. United States v. Goliday, 41 F.4th 778, 783 (7th Cir. 2022) (“Time and again we have underscored that proof of an ordinary buyer-seller relationship alone is insufficient to support a conviction under § 846.” (citing United States v. Neal, 907 F.3d 511, 515 (7th Cir. 2018); United States v. Long, 748 F.3d 322, 325 (7th Cir. 2014))); Long, 748 F.3d at 326 (“The government may … not rely solely on purchases and sales, which after all are present in both buyer-seller and conspiracy arrangements.… Standing alone, []large-quantity sales … can[not] sufficiently distinguish a conspiracy from an ordinary buyer- seller relationship.”). What now? 68 No. 21-3221

process requires that the government prove each element of a crime beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). Criminal conspiracy, in particular, has always required that the government prove the defendant knowingly and intentionally entered into an agreement to commit a crime. See Direct Sales, 319 U.S. at 712. By effectively excising the intent requirement from the drug distribution conspiracy law of our circuit, my colleagues relieve the government of its burden to prove all elements of a conspiracy, striking at the heart of due process. 14 The Due Process Clause also protects against vague laws that fail to provide adequate notice of prohibited conduct or encourage arbitrary enforcement. See Kolender v. Lawson, 461 U.S. 352, 357 (1983). Without the requirement of intent, the line between a buyer-seller relationship and a conspiracy is blurred, expanding prosecutorial discretion and inviting arbi- trary enforcement. Plainly, our rules for overturning precedent and our duty to uphold the Constitution both counsel against the majority’s decision.

14 To illustrate the due process stakes involved in eliminating the in-

tent requirement, consider the line between conspiracy and aiding and abetting liability—theories that we keep distinct for good reason. “True, aiding and abetting presupposes the existence of more than one actor, but aiders and abettors are already punished as principals.” Townsend, 924 F.2d at 1393 (emphasis added); see also Nye, 336 U.S. at 620. “To justify impos- ing additional criminal liability, there must be some additional evidence that their actions are intended to bring about the object of the conspiracy.” Id. (citing Iannelli, 420 U.S. at 777–78). Notably in this case, the conspiracy charge carried a mandatory minimum five years’ imprisonment that an aiding and abetting charge would not have. No. 21-3221 69

C Under Our Old Law, a Buyer-Seller Instruction Is Appropriate Now, I turn to the facts of this case, applying the correct legal framework as it existed before today’s decision. Under that framework, Page is entitled to a buyer-seller instruction. The majority’s claim otherwise falls flat. As evidence that Page joined a conspiracy with drug sup- plier Terrance Hamlin, the majority first points to the personal relationship between the men. See ante, at 3. The majority con- siders that relationship, described at trial as akin to that of an uncle (Hamlin) and nephew (Page), as evidence of mutual trust. Yet, trust between a buyer and seller, even if rooted in a longstanding personal relationship, does not necessarily transform routine drug transactions into a conspiracy. When that trust arises from a familial connection, as it did here, it is also likely that any warnings exchanged between the two men were the product of genuine solicitude as opposed to a shared criminal enterprise. Cf. United States v. de Soto, 885 F.2d 354, 367 (7th Cir. 1989) (explaining that “[c]ourts must be espe- cially watchful to uphold this principle”—that “[t]he govern- ment must prove that the defendant took some step beyond ‘mere association with, knowledge of, approval of, or pres- ence at a conspiracy’”—“when a conspiracy is alleged to be composed of family members”). Second, the majority claims that Hamlin’s advice to Page about avoiding certain individuals—coupled with Hamlin’s description of a “cooperative” business relationship with Page—suggests a conspiracy. See ante, at 16. This is a leap. For one, it wasn’t “individuals” (plural) that Hamlin advised 70 No. 21-3221

Page to be circumspect around, but a single person: Page’s cousin. Furthermore, a jury could find that a seller who pro- vides guidance to ensure the buyer’s continued satisfaction is acting in self-interest to protect future sales, not necessarily to advance a joint conspiracy. Even where the facts suggest that “[the seller] made some effort to please and keep [the buyer] as a customer,” or reflects “an ongoing effort to cultivate [the buyer] as a customer,” “what they do not reflect is a shared stake in the success of [the buyer’s] distribution enterprise.” Thomas, 284 F.3d at 754. The seller may have done “what any good haberdasher might do—[the seller] got to know his cus- tomer’s needs and aimed to meet them.” Id. (citing Rivera, 273 F.3d at 756 (“The government showed only that [the defend- ant] wanted [his customer’s] business—that is indicative of a buyer-seller relationship, not a conspiracy.”)). Third, the majority highlights as evidence of a conspiracy Hamlin’s decision to give Page a lower price per gram be- cause Page could move drugs quickly. See ante, at 16. But of- fering a discount to a high-volume customer is a standard business practice in both legitimate and illicit marketplaces. See Pulgar, 789 F.3d at 813 (holding evidence was insufficient to sustain conspiracy conviction, even though “Pulgar, no doubt, sold large quantities of cocaine to Schmidt at whole- sale prices for a period of eleven years”); Vizcarra-Millan, 15 F.4th at 510–11 (“We do not need to determine whether the $100 is better described as a front or a discount. Either way it was extremely weak evidence of conspiracy.”). Fourth, the majority states that Page and Hamlin “consist- ently notified each other about the status of their drug supply and their clientele.” Ante, at 16. But the majority does not sup- port this claim with facts from the record, nor does it explain No. 21-3221 71

how “consistently notifying” each other on the “status” of drug supply—whatever these terms may mean—helps us dis- tinguish between a buyer-seller and a conspirator. Fifth, the majority emphasizes a conversation between Page and Hamlin about expanding their separate businesses “up north” as evidence of a conspiracy. See ante, at 16. But this discussion didn’t lead to anything, perhaps because Page was pursuing his own, separate venture with buyers in that re- gion. In short, a buyer’s rejection of a seller’s proposal to merge their businesses may not be evidence of an agreement to further distribute, but evidence militating against such an agreement. Lastly, the majority points to a single instance in which Hamlin allowed Page to return a tainted bag of heroin, calling this a “sale on credit” and evidence that Page and Hamlin shared an interest in delivering high-quality heroin to Page’s customers. See ante, at 4, 16. The facts tell a different story. A sale on credit in the context of drug transactions involves sup- plying drugs without immediate payment, with the expecta- tion of future payment after resale. Askew, 403 F.3d at 502, 504. That didn’t happen here. Page had already paid for the heroin and was merely exchanging a defective product. This was no more a “sale on credit” than a consumer returning an item for a refund that must be used at the same store. The store already has the buyer’s money; it is willing to take back the product, but instead of supplying a refund in cash, it gives the buyer the chance to purchase something else. Crucially, this kind of transaction doesn’t necessarily indi- cate mutual trust or a shared interest in each other’s success the way that sales on credit might. There is no trust on the part of the seller who holds the buyer’s money in hand and 72 No. 21-3221

there is only negligible trust on the part of the buyer who, un- less the seller goes out of business, will hold the product in hand too. No mutual trust is necessary—everyone comes out even. Indeed here, neither party needed to trust the other at all: Page cashed in his refund immediately, exchanging the bad batch of heroin for a better batch. So Hamlin never risked lost profits, and Page did not risk Hamlin shutting down shop. That is unlike a seller who allows a customer to obtain drugs on the promise of payment at a later date. See Torres- Ramirez, 213 F.3d at 982 (“Payment before delivery differs from delivery before payment, the ‘fronting’ transaction from which an inference of agreement may be drawn.” (emphasis added) (internal citations omitted)). Ultimately, the evidence the majority relies on falls short of what we have required to rule out a buyer-seller instruc- tion. Until today. II Page’s Buyer-Seller Instruction Challenge I now turn to the issue of the missing buyer-seller instruc- tion. Page contends that the district court should have in- structed the jury on the difference between a drug distribu- tion conspiracy and a conventional buyer-seller relationship. Page did not, however, object to this omission at trial. That leaves us to review the issue for plain error. See United States v. Olano, 507 U.S. 725, 734 (1993). We reverse a conviction un- der the plain error standard when (1) an error occurred; (2) it was plain; (3) it affected the defendant’s substantial rights; and (4) it seriously affected the fairness, integrity, or public reputation of the judicial proceedings. See id. at 732. The No. 21-3221 73

majority concludes that no plain error occurred. I disagree. In the sections that follow, I address each part of the plain error test. A There Was Error First, there was error. A defendant is entitled to an instruc- tion if: (1) “the instruction represents an accurate statement of the law;” (2) “the instruction reflects a theory that is sup- ported by the evidence;” (3) “the instruction reflects a theory which is not already part of the charge;” and (4) “the failure to include the instruction would deny the defendant a fair trial.” United States v. Walker, 746 F.3d 300, 307 (7th Cir. 2014) (cleaned); see also United States v. Douglas, 818 F.2d 1317, 1320– 21 (7th Cir. 1987). The first and third criteria are not in dispute. Page’s proposed instruction is faithful to the law and was not already part of the charge. The remaining criteria—the second and fourth—are whether the evidence at trial supported such an instruction and whether its absence compromised the fair- ness of the trial. The second question asks whether the proposed buyer- seller instruction reflects a buyer-seller theory that is sup- ported by the evidence or, as Grimes also puts it, has “some foundation in the evidence, however tenuous.” United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir. 1969) (citing United States v. Phillips, 217 F.2d 435, 442–43 (7th Cir. 1954)); see also United States v. Buchmeier, 255 F.3d 415, 427 (7th Cir. 2001) (holding that “[a] defendant’s theory of defense need only have ‘some foundation in the evidence, however tenuous,’” to require an instruction). “[W]here there is proof,” “[i]t is not the province … of the trial court[] to appraise the 74 No. 21-3221

reasonableness or unreasonableness of the evidence.” Phillips, 217 F.2d at 442. “That is unnecessary, for in criminal cases the defendant is entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence, even though the evidence may be weak, insuffi- cient, inconsistent, or of doubtful credibility.” Id. at 443. Having examined the trial transcripts, I agree with Page that the theory that his involvement with Hamlin constituted a mere buyer-seller relationship, rather than that of co- conspirators in a drug distribution conspiracy, has “some foundation in the evidence.” As discussed above in addressing Page’s sufficiency of the evidence challenge, when we accurately assess what the government and the majority insist are indicia of conspiracy, we see that not much at trial suggested a conspiracy beyond evidence showing Page repeatedly purchased distribution-sized quantities of heroin. And, again, that’s not enough. As for the fourth question—whether the failure to include the instruction would deny the defendant a fair trial—we have answered “yes” where the evidence of the conspiracy was “far from overwhelming” and “the evidence could have been interpreted by the jury as indicating that the defendants were merely purchasers from the conspiracy.” Douglas, 818 F.2d at 1322. For these reasons, the district court’s failure to give a buyer-seller instruction was error. The majority’s contrary conclusion rests on a faulty foundation. I make three observa- tions about this below, the first being the longest. See post, at 50–60 (discussing Page’s theories of defense), 60–61 (reprising discussion of repeat, distribution-quantity transactions), 61– 62 (discussing sua sponte instructions). No. 21-3221 75

One, the majority contends that Page was not entitled to a buyer-seller instruction because it would have contravened Page’s theory of defense. This is because, the majority says, Page painted Hamlin as a liar and suggested that his meetings with Hamlin were innocent encounters between family friends. Page’s goal, the majority thinks, was to show that he was not involved in the drug trade at all, so that the jury would acquit him of both the drug distribution charges and the conspiracy charge—not just the latter. And because “we have repeatedly held that a buyer-seller instruction is unnec- essary where the instruction would contradict the defendant’s theory of the case,” ante, at 19 (quoting United States v. Love, 706 F.3d 832, 839 (7th Cir. 2013)), the majority opinion ex- plains, Page’s claim of error fails. The majority opinion misreads the facts and the law in two ways. One, Page did advance the theory that he engaged in a buyer-seller relationship; so, a buyer-seller instruction would not have conflicted with Page’s defense theory. Two, while our consideration of whether a defendant put forth a buyer- seller theory is relevant, it is not dispositive. Our inquiry into whether a buyer-seller theory has some foundation in the ev- idence extends beyond the defendant’s arguments to a holis- tic review of the record. I take each of these in turn. Page did assert at trial that he engaged in a buyer-seller relationship. Recall that Page did not testify, so his defense 76 No. 21-3221

theories would come through his counsel’s opening state- ment, cross-examinations, and closing argument. 15

15 The majority states that “a party does not properly inject a defense

into a criminal proceeding solely by introducing it during closing argu- ment.” Ante, at 21. This analysis falters for three reasons.

One, it is irrelevant. Page did not raise the buyer-seller theory for the first time in closing argument; he introduced and developed the theory during cross-examination. See, e.g., Trial Tr. at 734:5–14.

Two, even if Page had introduced the buyer-seller theory for the first time during closing argument, the Supreme Court has made it clear that closing argument is counsel’s opportunity to synthesize the evidence and articulate the defense theory. See Herring v. New York, 422 U.S. 853, 861–62 (1975). “It is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony .…” Id. at 862 (describing “the opportunity finally to marshal the evidence for each side before submission of the case to judgment”). Far from being a procedural afterthought, closing argument is the moment when counsel “make[s] a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem.” Id. at 860. Surely, the majority can appreciate the importance of closing argument, given its emphasis on the fact that, “through cross examination and closing argument, Page’s counsel spent considerable time painting Hamlin as a liar.” Ante, at 5.

Three, the majority’s invocation of Rule 30 fares no better. The major- ity asserts that defendants cannot raise a theory for the first time during closing argument because, “[u]nder Rule 30, a party seeking an instruction ‘must’ make its request ‘at the close of evidence or at any earlier time,’ and the court ‘must inform the parties before closing arguments how it intends to rule on the requested instructions.’” Ante, at 21 (citing Fed. R. Crim. P. 30(a)–(b)). But the reliance on Rules 30(a) and (b) is misplaced. These rules No. 21-3221 77

During closing, defense counsel argued that Page pur- chased controlled substances for personal use, although the evidence was contradictory, arguing “a [distribution] amount is whatever … the government … wants a [distribution] amount to be”—whether it be a quarter gram, a half gram, one gram, two grams, three grams, or more. Trial Tr. at 815:4– 17. And if “some heroin user” has two baggies in his pocket, defense counsel argued, the government will say even that is a distribution amount. Trial Tr. at 815:17–19. And if the heroin user says it is not (“that is my personal use amount”) the gov- ernment will say “there was a lot found.” Trial Tr. at 815:17– 22. Defense counsel did not stop there, stating:

apply to “requested instructions” made pursuant to Rule 30(a) and neither party requested a buyer-seller instruction here.

Rule 30(d), however, governs objections to jury instructions, including objections to a court’s failure to give an instruction. Rule 30(d) expressly permits objections to be raised before the jury retires to deliberate: “A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate.” Fed. R. Crim. P. 30(d). This rule makes clear that omissions can—and should—be addressed even late in the trial process.

Rule 30(c) reinforces this point. As the Advisory Committee notes ex- plain, Rule 30(c) allows the court to “instruct both before and after argu- ments, which assures that the court retains power to remedy omissions in pre-argument instructions or to add instructions necessitated by the argu- ments.” Fed. R. Crim. P. 30, advisory committee notes to 1987 amendments (emphasis added). This flexibility exists precisely to address situations like this one, where an omitted instruction becomes necessary in light of the evidence and closing arguments. 78 No. 21-3221

And I would counter that with there [are] indi- viduals, and maybe somebody in our families, who like[] to go to Costco or Sam’s Club. And why is that? Because you can buy a large bulk material allegedly at a lower price.… [Y]ou go and buy in larger bulk, one, because it means you’re not going back and forth. You have what you want. And you can use it over time for what you want. And do you know what else it provides for per- sonal use people? Safety. Because every time you have to go out and purchase a drug from somebody, you’re putting yourself at risk. No matter the level of trust that you may have, you’re putting yourself at risk. And some ad- dicts and personal use people don’t want to put themselves in that kind of risk where they have to go out every day or every other day or once a week, because that is the big risk you’re taking. Trial Tr. at 815:23–816:13. A jury can interpret these argu- ments only one way: Page purchased controlled substances in bulk for personal use—not to distribute. It is clear that Page did assert a buyer-seller defense theory, making the buyer- seller instruction fully consistent with his defense—not at odds with it, as the majority concludes. 16

16 The majority contends that appellate counsel conceded at oral argu-

ment that trial counsel did not present a buyer-seller theory. I disagree. See Oral Argument at 22:15. And even if reasonable jurists could read counsel’s various remarks differently, any seeming concession was far from deliberate, clear, and unambiguous. See Robinson v. McNeil Consumer No. 21-3221 79

Perhaps the majority’s real concern is not that the buyer- seller instruction would have contradicted Page’s defense the- ory, but rather that Page presented two defense theories that seem, at first glance, to be at odds. On one hand, Page claimed innocence, arguing that he did not buy or sell drugs and was thus not guilty of drug distribution. On the other, he claimed to be a mere buyer-seller, arguing that if he did buy drugs, it was solely for personal use or to sustain his own separate op- eration, not as part of a larger conspiracy and he therefore was not guilty of drug distribution conspiracy. I have two re- sponses. First, these two theories are not inconsistent. Second, even if they were inconsistent, that would not nullify the need for a buyer-seller instruction. Here’s why Page’s two defense theories were not incon- sistent. By charging both drug distribution and drug distribu- tion conspiracy, the government itself invited the jury to con- sider multiple possibilities. The government’s case-in-chief, through its witnesses and arguments, suggested that Page distributed drugs. Those same witnesses and arguments also suggested that Page conspired to do the same. When a de- fendant, as here, declines to testify and otherwise remains si- lent regarding the charges, he neither admits nor denies any specific crime. At the close of such a case, the jury must assess guilt or innocence on each charge after considering the distinct defenses applicable to each. In this context, trial counsel can argue that (1) the government failed to prove beyond a rea- sonable doubt that Page committed drug distribution; and (2)

Healthcare, 615 F.3d 861, 872 (7th Cir. 2010) (explaining that, “in order to qualify as judicial admissions, an attorney’s statements must be deliber- ate, clear and unambiguous”). 80 No. 21-3221

even if the government proved Page bought drugs that Ham- lin sold, the government did not prove beyond a reasonable doubt that Page joined a conspiracy to further distribute the drugs he purchased from Hamlin. It then would fall to the jury to determine whether Page bought drugs that Hamlin sold and, if so, whether Page’s actions amount to mere drug purchases within a buyer-seller relationship or the intentional joining of a broader conspiratorial agreement. So, Page’s two defense theories are not inconsistent; they are merely garden- variety alternative contentions and framing these alternative defenses is one way a defendant can respond to the govern- ment’s multi-faceted charges. Here’s why, even if Page’s two defense theories were in- consistent, that inconsistency would not preclude a buyer- seller instruction. The law does not require a defendant to concede guilt on a drug distribution charge to receive a buyer- seller instruction on a related drug distribution conspiracy charge. Criminal defendants are entitled to assert inconsistent defenses at trial. See Mathews v. United States, 485 U.S. 58, 65– 66 (1988) (permitting the inconsistent defenses of denial and entrapment). This principle reflects a core tenet of modern criminal jurisprudence: a defendant is entitled to the full measure of constitutional protections when mounting a de- fense against prosecution. It underscores a commitment to limiting governmental overreach in criminal trials, ensuring that the burden of proof remains firmly on the government as to all charges. Winship, 397 U.S. 358 (1970) (holding that the Due Process Clause requires the government to prove every element of every crime beyond a reasonable doubt); Taylor v. Kentucky, 436 U.S. 478 (1978) (emphasizing the presumption of innocence as a bedrock principle of American criminal law, No. 21-3221 81

and requiring explicit instructions to the jury to prevent im- plicit shifting of the burden of proof). Even when two defenses appear inconsistent as to each other, an instruction on both theories is required if, as here, the law supports both theories and some foundation in the evidence provides a basis for their application—even if that evidence is “weak, insufficient, inconsistent, or of doubtful credibility.” Phillips, 217 F.2d at 443. 17 This principle is espe- cially important in drug cases, as the government often charges defendants with drug distribution and drug distribu- tion conspiracy. In these cases, the government’s own evi- dence blurs the line between distribution and conspiracy, of- ten presenting the same facts as equally suggestive of both. Yet, under the majority’s rule, any defendant who dares to defend himself against the drug distribution charge by claim- ing innocence when he is also charged with drug distribution conspiracy, must—as a matter of law—forfeit the opportunity to instruct the jury on his alternative buyer-seller defense.

17 See also Eberhart, 467 F.3d at 666 (“A jury instruction [] does not have

to completely track the defense presented; it need only represent ‘a theory that is supported by the evidence.’” (quoting Buchmeier, 255 F.3d at 426)); Douglas, 818 F.2d at 1318, 1321 (concluding that the defendant’s buyer- seller theory was supported by the record despite “confusing and contra- dictory” evidence about the relationship between the co-conspirators and defendants, and about whether the drug amounts were distribution quan- tities or personal use quantities); United States v. Cruse, 805 F.3d 795, 815 (7th Cir. 2015) (explaining that “the government’s understanding of [Love, Johnson, Askew, and Fort]” as holding that defendants who deny buying and selling drugs are barred from receiving a buyer-seller instruction as a categorical matter “is in tension with Mathews v. United States, 485 U.S. 58, 63–64 (1988), which holds that inconsistent defense theories are permissi- ble”). 82 No. 21-3221

This imposes an untenable burden on defendants and risks significant constitutional harm. To be sure, a defendant who denies distributing drugs while simultaneously asserting a buyer-seller defense takes on significant strategic risks. But strategic calculations are for the defendant and jury to navigate; our responsibility is to en- sure the jury is properly instructed on the law. And still, our analysis of whether the buyer-seller theory has some foundation in the evidence does not end there. We have explained that whether a defendant brings forth a buyer- seller theory is only one consideration. We also conduct a ho- listic review of the evidence, including the facts and argu- ments presented by the government, to make this determina- tion. See Phillips, 217 F.2d at 440–41 (rejecting as clearly erro- neous the argument that the government’s evidence can never entitle the defendant to a jury instruction). 18

18 In Phillips, this court considered whether a defendant could rely

“upon favorable testimony given by government’s witnesses” in present- ing this defense or if “there must be testimony coming from his side of the case” “as a prerequisite to his right to such an instruction.” On this, we said:

We think this was clearly an erroneous idea, the effect of which was to shift the burden of proof.…

We think the government’s contention, apparently em- braced by the trial court, that a defendant is not entitled to an instruction embodying a theory merely because it is predicated upon proof adduced by the government, is not the law.… No. 21-3221 83

Here, the government layered protracted testimony dis- tinguishing personal use quantities from distribution quanti- ties upon weak conspiratorial evidence, thereby carving out space for the jury to confuse conspiracy with a buyer-seller relationship. The government opened its case by telling the jury that Page purchased “distribution quantities” of heroin, ranging from over twelve grams up to fifty-six grams at a time, juxtaposing this amount against “user quantit[ies]” of heroin, ranging from 0.1 grams for beginners up to 0.5 grams for heavy users. Trial Tr. at 153:13–24. One government wit- ness testified that forty-five grams (one of the amounts Page received from Hamlin) is “a larger quantity” of heroin: “It

[T]he vital question from the time a plea of not guilty is entered until the return of the verdict, is whether upon all the evidence, by whatever side adduced, guilt is estab- lished beyond reasonable doubt.…

[The government] then cites United States v. Phelps, 8 Cir., 160 F.2d 858, 874, and Meyer v. United States, 7 Cir., 258 F. 212, 216, for the proposition that a court will not instruct on ‘a defense not made by the defendant.’ These cases fur- nish no support for the contention. They hold nothing more than that the court will not instruct upon a theory unsupported by evidence. Certainly they do not indicate, even by inference, that the evidence must come from the defendant’s side of the case.

217 F.2d at 440–41 (citations omitted); see also Askew, 403 F.3d at 504 (“[W]e must still review the evidence presented by the government to determine whether it was such that a jury could confuse a buyer-seller relationship with a conspiratorial one.”); Douglas, 818 F.2d at 1321 (explaining that, when determining whether a defendant’s theory of defense is supported by the evidence, the court “must [] analyze[] [the conspiracy case] accord- ing to its specific facts” and “consider whether the defendant has put forth the defense during trial”). 84 No. 21-3221

would not be for personal use. I believe 45 grams of heroin would be an amount that someone would purchase to sell to other people.” Trial Tr. at 408:7–12. And a different govern- ment witness took care to explain that a distribution quantity of heroin is sold in larger chunks held in sandwich, quart, or gallon-sized bags, while user quantities are sold in small bag corners called bindles. Trial Tr. at 724:23–726:6. The government also pushed back against the suggestion that Page purchased controlled substances for personal use. The government elicited testimony about things personal us- ers commonly possess (e.g., straws, spoons, bindles, needles and other things “like that indicating ingestion”) in contrast to items distributors commonly possess (e.g., larger packag- ing materials, smaller packaging materials, scales, grinders, blenders, and adulterants). Trial Tr. at 726:7–22. Another gov- ernment witness answered “no” again and again when asked during direct examination if he saw any needles, syringes, straws, rolled-up dollar bills, or burned aluminum foil in Page’s home. Trial Tr. at 349:16–350:1. He also found signifi- cant that Page never showed signs of being sick or told au- thorities he was going to be sick when taken into custody be- cause, in “[the witness’s] experience in dealing with both her- oin users and heroin distributors, … heroin users will … at some time say [] they’re going to be sick because they’re going to start withdrawing .…” Trial Tr. at 350:2–14. In short, the government repeatedly emphasized the vol- ume of drugs Page purchased from Hamlin and indicators that Page did not personally use drugs. The government did this to counter trial counsel’s argument that, to the extent Page was buying drugs from Hamlin, it was merely as a buyer rather than a partner in a distribution conspiracy. No. 21-3221 85

For these reasons, I conclude that the buyer-seller theory did have some foundation in the evidence. Two, the majority contends that Page was not entitled to a buyer-seller instruction because, under our new law as estab- lished by today’s decision, evidence of repeat, distribution- quantity transactions is sufficient to sustain a conspiracy con- viction. Ante, at 14–15. This conclusion cannot stand for the reasons I outlined earlier in this dissent. See ante, at 51. Further, we have repeatedly held the opposite: “Our find- ing [] that [a] jury had sufficient evidence to convict [a defend- ant] on the conspiracy count does not automatically negate his claim that the judge committed plain error in failing to provide the jury with a buyer-seller instruction.” Askew, 403 F.3d at 503; see also United States v. Gee, 226 F.3d 885, 894–96 (7th Cir. 2000) (finding that the jury had sufficient evidence to convict on the conspiracy charge, but reversing for failure to give a buyer-seller instruction); Mims, 92 F.3d at 466 (finding ample evidence to support the conspiracy conviction, but re- versing because the judge gave a flawed buyer-seller instruc- tion). “‘[B]ecause the line between a conspiracy and a mere buyer-seller relationship is difficult to discern, district judges should instruct juries in appropriate situations on the distinc- tion’ and ‘inform juries that repeated transactions do not con- stitute a conspiracy.’” Askew, 403 F.3d at 503 (quoting Gee, 226 F.3d at 895); id. (citing Thomas, 150 F.3d at 745 (“[T]he jury should be told that agreement—the crime of conspiracy—can- not be equated with repeated transactions. This is the office of the buyer-seller instruction. It reminds juries that distribution of drugs is not itself conspiracy, although a history of transac- tions may be evidence of conspiracy.”)). 86 No. 21-3221

Three, the majority posits that a district court can never err “by not sua sponte instructing the jury on a potential defense, particularly when the defendant is represented by counsel,” framing the question as an “odd procedural” one. Ante, at 19. But this cannot be: it turns the plain error standard on its head. The plain error standard exists precisely to address trial- level errors—whether by the court or counsel—that under- mine a defendant’s constitutional rights in a way that war- rants correction, even absent preservation. See Olano, 507 U.S. at 732–34. While appellate courts generally defer to counsel’s strategic decisions, the plain error doctrine acknowledges the reality that representation by counsel does not guarantee per- fect safeguarding of a defendant’s rights. Trial counsel may fail to request a necessary instruction for a variety of rea- sons—mistake, inexperience, or even misguided strategy. The plain error standard ensures that, when an obvious legal error affects a defendant’s fundamental rights, courts may act to preserve the fairness and integrity of the judicial process. 19 The majority’s rule that a district court never errs in failing to provide a sua sponte instruction when the defendant is rep- resented categorically absolves the district court of responsi- bility for ensuring the jury is properly instructed and effec- tively eliminates appellate review for all unpreserved

19 The concurrence “add[s] a few words about the relation between

the party-presentation principle … and plain-error review.” Ante, at 26 (internal citation omitted). Yet it nowhere acknowledges that plain error review is “an exception to the norm of party presentation.” Barrados-Zarate v. Barr, 981 F.3d 603, 605 (7th Cir. 2020). No. 21-3221 87

instructional errors, no matter how apparent or prejudicial the omission. 20 This cannot be the law. For these reasons, the district court’s failure to provide the buyer-seller instruction in this case was error. I now turn to the remaining steps of the plain error analysis. B The Remainder of the Plain Error Test is Met The error was plain. The majority opinion explains that “[a]n error (had it existed) in not sua sponte instructing the jury on the buyer-seller defense would not have been plain. Page did not present this defense theory, and the evidence of conspiracy was very strong. Nothing about this record would have made it obvious to the district court that such an instruc- tion was needed.” Ante, at 22. On all three fronts, the majority is wrong.

20 See Douglas, 818 F.2d at 1321 (holding that the district court plainly

erred by not giving a buyer-seller instruction sua sponte, where the theory had “some foundation in the evidence,” and that without the instruction, the jury might have mistakenly believed that mere drug sales alone suf- ficed to establish a conspiracy); Gee, 226 F.3d at 895 (holding that the dis- trict court plainly erred and “should have sua sponte included a buyer- seller instruction because it knew that the conspiracy evidence was weak”); id. (“[B]ecause the line between a conspiracy and a mere buyer- seller relationship is difficult to discern, district judges should instruct ju- ries in appropriate situations on the distinction.… The proffered evidence of a conspiracy was circumstantial and not overwhelming. The evidence was as consistent with a buyer-seller relationship as it was with a conspir- acy. The instructions allowed the jury to make a guilty finding without determining whether the government had proved the existence of a con- spiracy.…”). 88 No. 21-3221

As I explained previously, a buyer-seller theory had some foundation in the evidence, and the evidence of conspiracy was weak. Moreover, it should have been obvious to the dis- trict court. The district court’s comments at Page’s sentencing hearing make this point. The court emphasized the reach of Page’s drug distribution and the harm it caused. But even the court remarked that it did not believe—based on “[its] im- pression from the trial evidence”—that Page had accepted Hamlin’s offer to expand their businesses individually or col- lectively. Sent. Tr. at 40–41. For these reasons, I conclude that the district court’s error in not providing the buyer-seller in- struction was plain. The error affected Page’s substantial rights because “the failure of the jury to be initially instructed on the defend- ant[’s] theory of defense, where the evidence tying [him] to the larger conspiracy was tenuous, denie[s] [him] a fair trial.” Douglas, 818 F.2d at 1322. And the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Indeed, failure to provide the buyer-seller instruction allowed the jury to convict Page of conspiracy to distribute drugs based on evi- dence that pointed no more to conspiracy than to mere drug distribution. See Olano, 507 U.S. at 736. III On United States v. Anderson Before I conclude, I address United States v. Anderson, 99 F.4th 1106 (7th Cir. 2024). The majority has taken the unusual step of criticizing a duly issued recent opinion of our court, rather than following the normal course of seeking to rehear en banc a case it believes a panel of our court wrongly No. 21-3221 89

decided. See ante, 22–23. I do not know why the majority spends so much of its time in an opinion about Royel Page’s case discussing Denny Anderson’s case. In any event, con- trary to the majority’s complaints, Anderson properly applied the plain error standard. I now detour—as the majority has done—to explain why. The issue in Anderson was whether Anderson’s 2001 con- viction for aggravated assault could have been based on reck- less conduct. At the time of his conviction, Florida appellate courts were split on whether aggravated assault included reckless conduct. The majority here suggests that this split precludes plain error, see ante, at 22–23, but the opposite is true. The Supreme Court requires a defendant like Anderson to present only one case showing that the statute applied to reckless conduct. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (outlining the realistic-probability test). Anderson did so—indeed, he pointed to two such cases. See LaValley v. Florida, 633 So. 2d 1126, 1127–28 (Fla. Dist. Ct. App. 1994); Kelly v. Florida, 552 So. 2d 206, 208 (Fla. Dist. Ct. App. 1989). It was thus plain error to rule that the statute never criminalized reckless conduct at the time of Anderson’s conviction when courts twice upheld convictions for aggravated assault based on reckless conduct. The majority also says that no plain error could have oc- curred in Anderson because, in its view, the Florida Supreme Court and Eleventh Circuit ruled differently on the question presented in Anderson. See ante, at 23. This is wrong for two reasons. First, courts have found plain error even in the face of a circuit split. See In re Sealed Case, 573 F.3d 844, 851–52 (D.C. Cir. 2009) (finding plain error despite circuit split be- cause statute was clear); United States v. Salas, 889 F.3d 681, 90 No. 21-3221

687 (10th Cir. 2018) (finding plain error despite circuit split because law was settled within the circuit). Second, neither the Florida Supreme Court nor the Eleventh Circuit ruled on the narrow state-law question presented in Anderson. In 2022, the Florida Supreme Court held that aggravated assault could not be based on reckless conduct. Somers v. United States, 355 So. 3d 887, 888 (Fla. 2022). But that ruling said nothing about what Florida’s law meant before 2022. Then, relying on federal rules of statutory construction, the Eleventh Circuit held that Somers applied retroactively. Somers v. United States, 66 F.4th 890 (11th Cir. 2023). But we must use Florida’s state law, not federal law, to interpret Florida’s statutes. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Lexington Ins. Co. v. Rugg & Knopp, Inc., 165 F.3d 1087, 1093 (7th Cir. 1999). And as Anderson explained, under Florida law, the Florida Supreme Court’s interpretation of its aggravated-assault law was plainly not retroactive. See Florida v. Barnum, 921 So. 2d 513, 528 (Fla. 2005); see also Anderson, 99 F.4th at 1111–12 (discuss- ing Florida statutory interpretation). Finally, the majority appears to suggest that, because An- derson’s analysis involved several steps, its finding of plain er- ror was wrong. But this court has not shied away from finding plain error when an analysis is complex, including when, as in Anderson, the court must use the categorical approach. See, e.g., United States v. Turner, 55 F.4th 1135, 1142–43 (7th Cir. 2022) (determining on plain-error review that Illinois cocaine conviction was not a felony drug offense); United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) (same); United States v. Gar- cia, 948 F.3d 789, 792–94 (7th Cir. 2020) (determining on plain- error review that Indiana marijuana conviction was not a fel- ony drug offense); United States v. De La Torre, 940 F.3d 938, 950–52 (7th Cir. 2019) (determining, on what the defendants No. 21-3221 91

there acknowledged was plain-error review, that Indiana methamphetamine conviction was not a felony drug offense); see also United States v. Hagen, 911 F.3d 891, 895–97 (finding plain error after complex five-part analysis). For these rea- sons, I disagree with the majority’s criticism of Anderson. IV Conclusion The majority’s decision—not Colon, as the majority tells it—directly contravenes the Supreme Court’s holding in Di- rect Sales. Direct Sales does not stand for the proposition that repeat, large-quantity drug transactions alone suffice to sus- tain a drug distribution conspiracy conviction. Before Colon, after Colon, and even in our en banc decision in Lechuga, our precedent has faithfully adhered to Direct Sales’s clear call for intent to join the conspiracy as evidenced by informed and interested cooperation, stimulation, or instigation, even where a buyer and seller repeatedly transact in distribution- quantities of drugs. The majority, unable to point to a single case from this court endorsing its interpretation or any com- pelling justification for overturning our precedent, neverthe- less forges ahead with a new rule. Likewise, the district court plainly erred by failing to pro- vide sua sponte the buyer-seller instruction. The majority’s holding, that a district court cannot plainly err by failing to sua sponte give a buyer-seller instruction when a defendant does not request one, as well as the various other justifications offered by the majority to excuse the district court’s error, compound the problem and raise significant constitutional concerns. 92 No. 21-3221

Today’s decision departs from decades of precedent, and I cannot join it. A better course of action would be to suggest (not require) that district judges, when they hear evidence in or near equipoise, simply ask the parties: “If any party thinks a buyer-seller instruction would be appropriate, would you please let me know?” If the parties ask for the instruction, ap- peals like this one are unnecessary. If the parties decline the instruction, appeals like this one are waived. I respectfully dissent.