People v. Lucero

COLORADO COURT OF APPEALS 2016COA105

Court of Appeals No. 13CA1680
Adams County District Court No. 12CR2425
Honorable John E. Popovich, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Rose Lucero,

Defendant-Appellant.

JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE NAVARRO
Furman and Miller, JJ., concur

Announced July 14, 2016

Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 If a person requests and receives a controlled substance solely

for her personal use, has she thereby entered into a conspiracy with

the person who gave it to her to distribute the substance? We

conclude that she has not because in that scenario the two people

have not agreed to distribute the substance to others.

¶2 Defendant, Rose Lucero, appeals the judgment of conviction

entered on a jury verdict finding her guilty of conspiracy to

distribute a controlled substance. Because Lucero’s acts did not

constitute such a conspiracy, we vacate the judgment of conviction

and remand for entry of a judgment of acquittal.

I. Factual and Procedural History

¶3 The prosecution charged Lucero with conspiring with her

coworker to distribute codeine (contained in Tylenol 3), a schedule

III controlled substance, as well as two counts of inducing her

coworker to distribute the same substance. See § 18-18-405(1)(a),

C.R.S. 2015. All of the charged offenses were class 4 felonies at the

time of Lucero’s acts. See Ch. 424, sec. 3, § 18-18-405(2)(a)(II)(A),

2003 Colo. Sess. Laws 2682-83. Evidence of the following was

admitted at trial.

1
¶4 Between December 1, 2010, and April 30, 2012, Lucero’s

coworker obtained various prescription medications for her health

and then shared them with others at the workplace. Several times

over this period, Lucero requested medication from the coworker for

Lucero’s personal use (to relieve pain from cramps). Lucero made

these requests in person, by phone, or by e-mail. Each time the

coworker gave Lucero medication, she gave Lucero one pill for no

reimbursement. There was no evidence that Lucero distributed the

medication to others; on the contrary, the evidence showed (and the

prosecution argued) that she took the pills herself.

¶5 Besides an e-mail with the subject line “Tylenol,” Lucero’s

requests for medication were unspecific. The women gave

inconsistent statements as to what particular medication was

exchanged. The coworker testified that she gave Lucero “Advil,” “my

prescription of my ibuprofen,” and “Midol.” Lucero said in an

interview that she received “Tylenol 3s,” “Excedrin,” and

“ibuprofen.” A detective testified that Tylenol 3 is a “codeine

narcotic, 30 milligram, which under Schedule III anything less than

90 milligrams would fall under Schedule III.”

2
¶6 The trial court granted Lucero’s motion for judgment of

acquittal on the inducement counts but denied her motion on the

conspiracy count. The jury convicted her of the conspiracy count,

and the court sentenced her to one year of probation.

II. Analysis

¶7 Lucero contends that the prosecution presented insufficient

evidence to prove that she conspired with her coworker to distribute

a controlled substance. Lucero relies on the following principle that

has been recognized by numerous federal and state courts:

Evidence of a buyer-seller relationship — without more — does not

constitute a conspiracy to distribute drugs. Of course, this case

does not present a stereotypical sale of an illegal drug. Lucero did

not purchase drugs from a retail seller; she simply asked for

painkillers (one at a time) from a coworker who agreed to provide

them for free and for her personal use. Nonetheless, Lucero argues

that the aforementioned legal principle should protect her from a

conspiracy conviction to the same extent it would shield a

stereotypical retail buyer of a controlled substance.

¶8 We agree. We conclude that this principle (i.e., a mere buyer-

seller relationship does not constitute a drug distribution

3
conspiracy) applies in Colorado because Colorado’s drug conspiracy

statute is based on the model uniform law, which in turn is based

on the federal statute. This precept also comports with Colorado’s

general conspiracy law, which punishes conspirators who have

agreed on a common illicit purpose (e.g., to distribute drugs). Such

commonality is absent where, as here, the evidence shows that the

transferor intended only to distribute the drugs and the transferee

intended only to possess them for personal use. Further, to

conclude that such evidence is sufficient to convict the transferee of

a conspiracy to distribute controlled substances would contravene

the General Assembly’s policy decision to punish simple possession

less severely than conspiracy to distribute. Accordingly, we hold

that the evidence was not sufficient to sustain Lucero’s conspiracy

conviction.

A. Standard of Review

¶9 We review the record de novo to determine whether the

evidence before the jury was sufficient both in quantity and quality

to sustain the defendant’s conviction. Clark v. People, 232 P.3d

1287, 1291 (Colo. 2010). We consider whether the relevant

evidence, when viewed as a whole and in the light most favorable to

4
the prosecution, is substantial and sufficient to support a

conclusion by a reasonable mind that the defendant is guilty of the

charge beyond a reasonable doubt. Id. We also review questions of

statutory interpretation de novo. People v. Perez, 2016 CO 12, ¶ 8.

B. Relevant Legal Principles

1. Colorado Law

¶ 10 To prove the charge at issue here, the prosecution had to show

that Lucero “knowingly . . . conspire[d] with one or more other

persons, to . . . distribute . . . a controlled substance[.]”

§ 18-18-405(1)(a). Any mixture containing “[n]ot more than 1.8

grams of codeine per 100 milliliters or not more than 90 milligrams

per dosage unit, with one or more active, nonnarcotic ingredients in

recognized therapeutic amounts” constitutes a controlled substance

listed in schedule III. § 18-18-205(2)(d)(II), C.R.S. 2015. As noted,

conspiracy to distribute a schedule III controlled substance

constituted a class 4 felony at the time of Lucero’s acts.

§ 18-18-405(2)(a)(II)(A), 2003 Colo. Sess. Laws at 2683.

¶ 11 “Distribute” is defined as “to deliver other than by

administering or dispensing a controlled substance, with or without

remuneration.” § 18-18-102(11), C.R.S. 2015. “Deliver” means “to

5
transfer or attempt to transfer a substance, actually or

constructively, from one person to another[.]” § 18-18-102(7).

¶ 12 Colorado statutes do not define “conspiracy” in the specific

context of section 18-18-405. Under the general conspiracy statute,

“[a] person commits conspiracy to commit a crime if, with the intent

to promote or facilitate its commission, he agrees with another

person or persons that they, or one or more of them, will engage in

conduct which constitutes a crime or an attempt to commit a

crime[.]” § 18-2-201(1), C.R.S. 2015; see People v Williams, 183

P.3d 577, 581 (Colo. App. 2007) (looking to general conspiracy law

to understand the offense of conspiracy to distribute a controlled

substance). Additionally, one of the conspirators must perform an

overt act “in pursuance of” the conspiracy. § 18-2-201(2).

¶ 13 Conspiracy is a specific intent crime that requires two distinct

mental states. Palmer v. People, 964 P.2d 524, 527 (Colo. 1998).

“First, it requires the specific intent to agree to commit a particular

crime. Second, it requires the specific intent — or the conscious

objective — to cause the result of the crime to which the

conspirators agreed.” Id. at 525. Therefore, “a conspiracy has legal

significance only with respect to some other crime that serves as its

6
object.” Id. at 529. Conspiracy requires proof of a “real agreement,

combination, or confederation with a common design. (Mere

passive cognizance of the crime to be committed or mere negative

acquiescence is not sufficient.)” Bates v. People, 179 Colo. 81, 85,

498 P.2d 1136, 1138 (1972).

2. Uniform Controlled Substances Act and Federal Law

¶ 14 Colorado adopted a version of the Uniform Controlled

Substances Act in 1981; Colorado’s statute was modeled on the

“Uniform Controlled Substances Act (1970).” See Ch. 128, secs.

1-2, §§ 12-22-301 to -322, 18-18-101 to -109, 1981 Colo. Sess.

Laws 707-34; Unif. Controlled Substances Act (1970) (amended

1973) tbl. of jurisdictions, 9 pt. 5 U.L.A. 853 (2007) (recognizing

that Colorado adopted the Uniform Controlled Substances Act of

1970 in 1981); see also People v. Abiodun, 111 P.3d 462, 466 (Colo.

2005) (“In 1981, the general assembly adopted a version of the

Uniform Controlled Substances Act, joining in a single proscription

an entire range of conduct potentially facilitating or contributing to

illicit drug traffic.”) (footnote omitted). In 1992, Colorado repealed

the earlier uniform law and enacted the “Uniform Controlled

Substances Act of 1992,” which was modeled on the “Uniform

7
Controlled Substances Act (1990).” See Ch. 71, sec. 1,

§§ 18-18-101 to -605, 1992 Colo. Sess. Laws 324-85; Unif.

Controlled Substances Act (1990), 9 pt. 5 U.L.A. 781-851 (2007).

The General Assembly expressed its intent that Colorado’s statutes

be construed consistently with the laws of other states adopting the

uniform law. See § 18-18-604, 1992 Colo. Sess. Laws at 385 (“To

the extent that this article is uniform, the judiciary may look to

decisions regarding the ‘Uniform Controlled Substances Act of 1990’

among states enacting it, subject to rights and obligations provided

under other Colorado statutes and the state Constitution.”).

¶ 15 In 2010, the General Assembly enacted section 18-18-403.5,

which punished simple possession of a controlled substance, and

removed simple possession from the offenses listed in section

18-18-405(1)(a). See Ch. 259, sec. 4, § 18-18-403.5, 2010 Colo.

Sess. Laws 1165 (effective Aug. 11, 2010). Excluding changes not

relevant here, the statutes in effect at the time of Lucero’s acts

8
(specifically, Article 18 of Title 18) were part of the Colorado

Uniform Controlled Substances Act of 1992 as amended in 2010.1

¶ 16 The Uniform Controlled Substances Act is, in turn, based on

the federal statute regulating controlled substances.

Commonwealth v. Doty, 36 N.E.3d 604, 608 n.8 (Mass. App. Ct.

2015); Unif. Controlled Substances Act (1990) prefatory note, § 401

cmt., § 407 cmt., 9 pt. 5 U.L.A. 783, 829, 833 (2007); Unif.

Controlled Substances Act (1970) (amended 1973) prefatory note, 9

pt. 5 U.L.A. 854-55 (2007); see 21 U.S.C. §§ 841, 846 (1988); see

also Abiodun, 111 P.3d at 466 n.3 (“The prefatory note [to the

Uniform Controlled Substances Act (1990)] makes clear that the

Uniform Act ‘was designed to complement the federal Controlled

Substances Act, which was enacted in 1970,’ and to ‘maintain

uniformity between the laws of the several States and those of the

federal government.’”) (citation omitted).

¶ 17 With the exception that federal law does not require proof of

an overt act in furtherance of a conspiracy to violate the narcotics

laws, federal drug conspiracy law generally reflects the same

1In 2013, the General Assembly enacted the Uniform Controlled
Substances Act of 2013, introducing the concepts of a “drug felony”
and a “drug misdemeanor.” See §§ 18-18-101 to -606, C.R.S. 2015.

9
fundamental requirements as Colorado law. See 21 U.S.C. § 846

(2012); United States v. Shabani, 513 U.S. 10, 11 (1994). Under

federal law, “[a] drug-distribution conspiracy . . . requires proof that

the defendant knowingly agreed — either implicitly or explicitly —

with someone else to distribute drugs.” United States v. Johnson,

592 F.3d 749, 754 (7th Cir. 2010).

¶ 18 Accordingly, authorities interpreting the federal statute, as

well as cases interpreting the laws of states that have adopted the

uniform act, are instructive in construing Colorado’s Uniform

Controlled Substances Act. People v. Perea, 126 P.3d 241, 245

(Colo. App. 2005); see § 18-18-604, 1992 Colo. Sess. Laws at 385.

3. The Buyer-Seller Rule

¶ 19 Twelve circuits of the United States Courts of Appeal have

addressed the sufficiency of the evidence in alleged drug

distribution conspiracies. State v. Allan, 83 A.3d 326, 335 (Conn.

2014) (collecting cases). “All have held that evidence of a

buyer-seller relationship, without more, does not constitute a

conspiracy to distribute a controlled substance.” Doty, 36 N.E.3d at

10
608 (same); see Allan, 83 A.3d at 335.2 Similarly, in states that

have adopted the Uniform Controlled Substances Act, many state

courts have held (relying mostly on federal cases) that evidence of a

buyer-seller relationship, without more, is insufficient to support a

conviction for conspiracy to distribute controlled substances.3 We

have discovered no cases to the contrary.

2 See, e.g., United States v. Delgado, 672 F.3d 320, 333 (5th Cir.
2012); United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010);
United States v. Donnell, 596 F.3d 913, 924-25 (8th Cir. 2010);
United States v. Bacon, 598 F.3d 772, 776 (11th Cir. 2010); United
States v. Deitz, 577 F.3d 672, 680 (6th Cir. 2009); United States v.
Boidi, 568 F.3d 24, 30 (1st Cir. 2009); United States v. Parker, 554
F.3d 230, 234-36 (2d Cir. 2009); United States v. Baugham, 449
F.3d 167, 171-72 (D.C. Cir. 2006); United States v. Gibbs, 190 F.3d
188, 197 (3d Cir. 1999); United States v. Ivy, 83 F.3d 1266, 1285-86
(10th Cir. 1996); United States v. Lennick, 18 F.3d 814, 819 (9th
Cir. 1994); United States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993).

3 See, e.g., State v. Allan, 83 A.3d 326, 339 (Conn. 2014);
Hernandez v. State, 357 S.E.2d 131, 134 (Ga. Ct. App. 1987);
McBride v. State, 440 N.E.2d 1135, 1137 (Ind. Ct. App. 1982);
Heckstall v. State, 707 A.2d 953, 956 (Md. Ct. Spec. App. 1998);
Commonwealth v. Doty, 36 N.E.3d 604, 608 (Mass. App. Ct. 2015);
State v. Pinkerton, 628 N.W.2d 159, 163 (Minn. Ct. App. 2001);
State v. Serr, 575 N.W.2d 896, 899 (N.D. 1998); State v. Gunn, 437
S.E.2d 75, 81 (S.C. 1993); McCandless v. Equitable Life Ins. Co. of
Iowa, 721 S.W.2d 809, 812 (Tenn. Ct. App. 1986); Zuniga v.
Commonwealth, 375 S.E.2d 381, 385 (Va. Ct. App. 1988); State v.
Smith, 525 N.W.2d 264, 266-67 (Wis. 1995); see also Unif.
Controlled Substances Act (1994) tbl. of jurisdictions, 9 pt. 2 U.L.A.
1-2 (2007) (every state except New Hampshire and Vermont has
adopted a version of the Uniform Controlled Substances Act); People

11
¶ 20 This principle has attracted various labels, including the

“‘buyer-seller’ rule,” United States v. Ivy, 83 F.3d 1266, 1285 (10th

Cir. 1996) (citation omitted), the “buyer-seller exception,” United

States v. Parker, 554 F.3d 230, 235 (2d Cir. 2009), the “retail buyer

rule,” United States v. Flores, 149 F.3d 1272, 1277 (10th Cir. 1998),

and the “personal consumption” rule, United States v. Mancari, 875

F.2d 103, 105 (7th Cir. 1989). The upshot is: “A sale for the buyer’s

personal consumption, as distinct from a sale for resale, does not a

conspiracy make.” Id.

¶ 21 The reference to “buyer-seller” does not mean that a transfer

for payment is required. A fuller description would be

“transferor-transferee” because the rule “applies to an unpaid

transfer in the same manner as to a paid sale, as all the reasons for

the exception are equally applicable regardless of whether the

transferee pays for the drugs.” Parker, 554 F.3d at 235 n.3. For

convenience, however, we often use the “buyer-seller” label in this

opinion even though our discussion applies with equal force to a

transfer of drugs without remuneration (as in the facts of this case).

v. Perea, 126 P.3d 241, 245 (Colo. App. 2005) (“[F]orty-eight states
have adopted some version of the Uniform Act.”).

12
¶ 22 Courts have set forth two rationales for applying the

buyer-seller rule to examine whether sufficient evidence exists of a

conspiracy to distribute drugs. Some courts have reasoned that, in

a simple buyer-seller relationship, there is “no singularity of

purpose” that the parties will distribute drugs and “thus no meeting

of the minds.” Allan, 83 A.3d at 335 (collecting cases). As a result,

these courts find lacking the agreement that is the essence of a

conspiracy. Other courts have concluded that, even if an

agreement sufficient to constitute a conspiracy exists, the

legislature did not intend to subject buyers who purchase drugs for

personal use to the severe penalties intended for distributors or

those who conspire to distribute. See id. (collecting cases). We will

address each rationale in turn.

a. The Conspiratorial Agreement

¶ 23 The first line of reasoning stems from an important tenet of

criminal law: conspiracy is a separate offense from the underlying

crime. United States v. Brown, 726 F.3d 993, 997 (7th Cir. 2013)

(“Conspiracy is the extra act of agreeing to commit a crime.”).

“[C]onspiracy is treated as a separate crime because of the jointness

of the endeavor. A multiplicity of actors united to accomplish the

13
same crime is deemed to present a special set of dangers.” United

States v. Moran, 984 F.2d 1299, 1302-03 (1st Cir. 1993) (emphasis

added); see Brown, 726 F.3d at 997 (“That agreement is a ‘distinct

evil.’”) (citation omitted). Courts have explained, therefore, that

mere proof of a buyer-seller agreement does not support a

conspiracy conviction “because there is no common illegal purpose:

In such circumstances, the buyer’s purpose is to buy; the seller’s

purpose is to sell.” United States v. Donnell, 596 F.3d 913, 924-25

(8th Cir. 2010) (citations omitted); Allan, 83 A.3d at 335; Doty, 36

N.E.3d at 609.

¶ 24 In other words, because an agreement to “the same joint

criminal objective” is the core of a conspiracy, the absence of such

an agreement dooms a conspiracy conviction:

What distinguishes a conspiracy from its
substantive predicate offense is not just the
presence of any agreement, but an agreement
with the same joint criminal objective — here
the joint objective of distributing drugs. This
joint objective is missing where the conspiracy
is based simply on an agreement between a
buyer and a seller for the sale of drugs.
Although the parties to the sales agreement
may both agree to commit a crime, they do not
have the joint criminal objective of distributing
drugs.

14
United States v. Dekle, 165 F.3d 826, 829 (11th Cir. 1999); see

United States v. Colon, 549 F.3d 565, 569-70 (7th Cir. 2008); see

also Brown, 726 F.3d at 1001 (“People in a buyer-seller relationship

have not agreed to advance further distribution of drugs; people in

conspiracies have. That agreement is the key.”). Consequently,

these courts have held that, to prove a conspiracy to distribute

drugs, “the government must offer evidence establishing an

agreement to distribute drugs that is distinct from evidence of the

agreement to complete the underlying drug deals.” Johnson, 592

F.3d at 755; Colon, 549 F.3d at 569 (“What is necessary and

sufficient is proof of an agreement to commit a crime other than the

crime that consists of the sale itself.”) (citation omitted); Allan, 83

A.3d at 340.

¶ 25 The above reasoning is consistent with Colorado law. As

Colorado courts have explained, conspiracy is “a separate and

distinct offense from that which is the object of the conspiracy, and

as such may be punishable by a consecutive sentence.” People v.

Madonna, 651 P.2d 378, 388 (Colo. 1982) (citation omitted); People

v. Osborne, 973 P.2d 666, 673 (Colo. App. 1998). And the offense of

conspiracy requires the defendant to “possess the specific intent to

15
agree to commit a particular crime,” not merely to agree to commit

crime in general. Palmer, 964 P.2d at 527, 529 (“The crime of

conspiracy to commit reckless manslaughter would require that the

defendant have the specific intent to commit reckless

manslaughter,” which is legally and logically impossible.). Hence,

the conspirators must have agreed to commit the same particular

crime (e.g., distributing drugs). However, “when a buyer intends

only to purchase drugs from a seller, both parties do not unite in

the same mental objective because they have different intentions:

one has the intention to buy and the other has the intention to

sell.” Allan, 83 A.3d at 340; see United States v. Evans, 970 F.2d

663, 669 (10th Cir. 1992) (“[A] consumer generally does not share

the distribution objective and thus would not be part of a

conspiracy to distribute crack cocaine.”).

¶ 26 Accordingly, in line with the extensive authority from other

jurisdictions, we hold that a mere buyer-seller relationship, without

more, does not constitute a conspiracy to distribute a controlled

substance. Because “the focus of conspiracy is not on the unlawful

object of the conspiracy, but on the process of agreeing to pursue

that object,” the prosecution must present evidence of “an

16
agreement in addition to the purchase and sale agreement between

the two parties.” Allan, 83 A.3d at 340; see Johnson, 592 F.3d at

755; Colon, 549 F.3d at 569. To prove the requisite conspiratorial

agreement to distribute drugs, the prosecution must proffer

evidence of an agreement to advance further distribution of the

drugs to others beyond the alleged conspirators. Brown, 726 F.3d

at 998; see Allan, 83 A.3d at 334, 340 (holding that, to prove a

conspiracy to distribute drugs, the state must prove that the

conspirators specifically agreed and intended to distribute drugs “to

another person”); Doty, 36 N.E.3d at 610 (concluding that the state

failed to prove a drug distribution conspiracy because of the

absence of evidence that the defendant and his alleged

co-conspirator agreed to distribute “to others”).

b. Legislative Distinction Between Possession and Distribution

¶ 27 What if we were to assume, as an alternative to our preceding

analysis, that a buyer-seller relationship satisfies the definition of a

conspiracy? We would still conclude that evidence of a buyer-seller

relationship, without more, is insufficient to convict the buyer of a

conspiracy to distribute drugs. We are persuaded by those courts

that have held that the legislature did not intend to subject buyers

17
who purchase drugs for personal use to the severe penalties

intended for distributors or those who conspire to distribute.

¶ 28 For instance, the Second Circuit has determined that, “[a]s a

literal matter,” a buyer-seller relationship satisfies the “customary

definition” of a conspiracy, with the objective of an illegal transfer of

drugs. Parker, 554 F.3d at 234. Nonetheless, the Second Circuit

“has carved out a narrow exception to the general conspiracy rule

for such transactions.” Id. Under this exception, “the objective to

transfer the drugs from the seller to the buyer cannot serve as the

basis for a charge of conspiracy to transfer drugs.” Id.

¶ 29 This exception “preserves important priorities and distinctions

of the federal narcotics laws, which would otherwise be obliterated.”

Id. The federal approach to controlled substances “distinguishes

importantly between, on the one hand, distribution of a controlled

substance, which is heavily punished, and, on the other, possession

or acquisition of a controlled substance, which is punished far less

severely, if at all.” Id.4 And conspiracy to distribute is punished in

4As the Second Circuit explained, “[n]o doubt, considerations
underlying this distinction include a policy judgment that persons
who acquire or possess illegal drugs for their own consumption
because they are addicted are less reprehensible and should not be

18
the same manner as distribution. Id. (citing 21 U.S.C. § 846).

Therefore,

if an addicted purchaser, who acquired drugs
for his own use and without intent to
distribute it to others, were deemed to have
joined in a conspiracy with his seller for the
illegal transfer of the drugs from the seller to
himself, the purchaser would be guilty of
substantially the same crime, and liable for the
same punishment, as the seller.

Id. at 235. In that event, “[t]he policy to distinguish between

transfer of an illegal drug and the acquisition or possession of the

drug would be frustrated. The buyer-seller exception thus protects

a buyer or transferee from the severe liabilities intended only for

transferors.” Id.

¶ 30 Other courts have adopted similar reasoning. See, e.g., United

States v. Delgado, 672 F.3d 320, 333 (5th Cir. 2012) (“The

[buyer-seller] rule shields mere acquirers and street-level users,

who would otherwise be guilty of conspiracy to distribute, from the

more severe penalties reserved for distributers.”); Ivy, 83 F.3d at

1285-86 (“[T]he purpose of the buyer-seller rule is to separate

consumers, who do not plan to redistribute drugs for profit, from

punished with the severity directed against those who distribute
drugs.” Parker, 554 F.3d at 234-35.

19
street-level, mid-level, and other distributors, who do intend to

redistribute drugs for profit, thereby furthering the objective of the

conspiracy.”); Doty, 36 N.E.3d at 610 (punishing a “street-level”

buyer the same as a seller “is clearly contrary to the intent of the

statute, which contains graduated penalties based on the

fundamental distinction between possession and distribution”);

State v. Pinkerton, 628 N.W.2d 159, 163 (Minn. Ct. App. 2001)

(“[T]he legislature would not intend that a seller and a buyer of

controlled substances could be subject to the same penalty,” as

would be the case “[i]f an agreement solely between a seller and a

buyer of controlled substances can constitute conspiracy.”).

¶ 31 An analogous graduated penalty structure exists in Colorado.

At the time of Lucero’s acts, Colorado law punished distribution of a

controlled substance more severely than simple possession.

Compare § 18-18-403.5, 2010 Colo. Sess. Laws at 1165

(possession), with § 18-18-405, 2003 Colo. Sess. Laws at 2682-83

(distribution).5 And conspiracy to distribute was punished the

same as distribution. See § 18-18-405, 2003 Colo. Sess. Laws at

5 The same is generally true under current law. See
§ 18-18-403.5(2), C.R.S. 2015; § 18-18-405(2), C.R.S. 2015.

20
2682-83. As pertinent here, conspiracy to distribute a schedule III

controlled substance was a class 4 felony while possession of that

same substance was a class 1 misdemeanor. See

§ 18-18-403.5(2)(c), 2010 Colo. Sess. Laws at 1165;

§ 18-18-405(2)(a)(II)(A), 2003 Colo. Sess. Laws at 2682-83.

¶ 32 As a consequence, we join those courts that have recognized

that a mere buyer-seller agreement does not constitute a conspiracy

to distribute because such conspiracy liability would frustrate the

legislative policy to distinguish between distribution of an illegal

drug and the acquisition or possession of the drug. Cf.

§ 2-4-201(1), C.R.S. 2015 (“In enacting a statute, it is presumed

that: . . . (b) The entire statute is intended to be effective; [and] (c) A

just and reasonable result is intended.”); Williams v. Crop Prod.

Servs., Inc., 2015 COA 64, ¶ 5 (When interpreting a statute, we

consider “the dual contexts of the statute as a whole and the

comprehensive statutory scheme, giving consistent, harmonious,

and sensible effect to the statute’s language.”). Of course, this

conclusion does not protect either the seller or buyer from a charge

that they conspired together to distribute drugs if the evidence

supports a finding that they shared a conspiratorial purpose to

21
advance other transfers, whether by the seller or by the buyer.

Parker, 554 F.3d at 235.

C. Application

¶ 33 Nothing in the record suggests that Lucero and her coworker

agreed and intended that Lucero would distribute the pills to

others. For example, the record does not show — and the

prosecution did not argue — that the amount of the controlled

substance transferred each time was significant enough to permit

the inference of further distribution. Instead, Lucero received only

one pill every time. Cf. Parker, 554 F.3d at 238-39 (holding that

buyer-seller exception did not apply where the defendants

“purchased with such frequency and in such quantity” from sellers

to support a finding that “sellers and buyers had joined in a

cooperative venture, in which both . . . had a stake in additional

transfers of drugs beyond the transfers from the original seller to

the original buyer”); Flores, 149 F.3d at 1277 (holding that

buyer-seller rule did not apply where the defendant “was not a

street[-]level retail drug purchaser, he was a wholesale seller who

knowingly helped supply large quantities of methamphetamine to a

distribution organization”).

22
¶ 34 In addition, Lucero indicated, without contradiction, that she

consumed the pills to relieve her ailments. She described the

typical exchange: “I [would] just go up and [the coworker] handed

me a pill and I [would] just go back down to work and be able to

stay at work the rest of the day.” In fact, the prosecutor in closing

argument acknowledged that Lucero intended to take the pills

herself: “She illegally conspires with [her coworker] to get the

Tylenol 3. Why? Because the Tylenol 3 makes her feel good.”

¶ 35 As discussed, “[w]hen two parties are charged with agreeing to

distribute drugs, evidence that the parties understood their

transactions to do no more than support the buyer’s personal drug

habit is antithetical to a finding of conspiracy.” Dekle, 165 F.3d at

829-30 (explaining that multiple transactions which “revealed

nothing more than isolated purchases for personal consumption” do

not support a conspiracy conviction); see United States v. McIntyre,

836 F.2d 467, 471-72 (10th Cir. 1987) (recognizing that the

defendant’s multiple purchases of cocaine did not sufficiently prove

that he “had a common purpose with his coconspirators to possess

and distribute cocaine”). Accordingly, we conclude that the

prosecution presented insufficient evidence to sustain Lucero’s

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conspiracy conviction and that a judgment of acquittal must be

entered on remand. See People v. Sprouse, 983 P.2d 771, 776

(Colo. 1999).

¶ 36 Finally, we need not resolve the parties’ dispute over whether

the Wharton rule applies here. The Wharton rule provides that

“[a]n agreement by two persons to commit a particular crime cannot

be prosecuted as a conspiracy when the crime is of such a nature

as to necessarily require the participation of two persons for its

commission.” People v. Bloom, 195 Colo. 246, 249, 577 P.2d 288,

290 (1978) (citation omitted). This rule “has current vitality only as

a judicial presumption, to be applied in the absence of legislative

intent to the contrary.” Iannelli v. United States, 420 U.S. 770, 782

(1975). But the narrower buyer-seller rule that we have discussed

at length is sufficient to resolve this appeal. Although “[s]ome have

thought [the buyer-seller rule] to follow from the so-called Wharton

rule,” Moran, 984 F.2d at 1302, the numerous cases that we have

cited in support of the buyer-seller rule do not rely on the Wharton

rule or suggest that the two principles are necessarily intertwined.

Indeed, the justification for the Wharton rule (“a crime legally

requiring a plurality of actors . . . should not have a conspiracy

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charge superimposed upon it,” id.) differs from the chief rationale

underlying the buyer-seller rule (a mere buyer-seller relationship

lacks the conspiratorial agreement to commit the same crime).6

¶ 37 In light of our disposition, we do not address Lucero’s other

challenges to her conviction.

III. Conclusion

¶ 38 The judgment is vacated, and the case is remanded for entry of

a judgment of acquittal.

JUDGE FURMAN and JUDGE MILLER concur

6In any event, this case is distinguishable from People v. Bloom,
195 Colo. 246, 577 P.2d 288 (1978), which held that the Wharton
rule did not preclude the defendant’s conviction for conspiracy to
sell illegal drugs. The defendant there was a seller not a mere
acquirer, and he conspired with three other people to sell the drugs.
See id. at 248-50, 577 P.2d at 290-91. Further, Bloom predated
Colorado’s adoption of the Uniform Controlled Substances Act as
well as the many cases discussing the buyer-seller rule.

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