United States 7th Circuit Court of Appeals Reports

U.S. v. RADOMSKI, 05-3792 (7th Cir. 1-9-2007) UNITED STATES
OF AMERICA, Plaintiff-Appellee, v. MAREK S. RADOMSKI,
Defendant-Appellant. No. 05-3792. United States Court of
Appeals, Seventh Circuit. Argued December 13, 2006.
Decided January 9, 2007.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division. No. 03 CR
22 2 — Joan B. Gottschall, Judge.

Before POSNER, MANION, and EVANS, Circuit Judges.

POSNER, Circuit Judge.

Marek Radomski was convicted by a jury of conspiring to
sell the illegal drug Ecstasy, and the judge sentenced him
to 78 months in prison. He argues that there was
insufficient evidence to convict him. The government
emphasizes that the jury was correctly instructed and that
(of course) its verdict was unanimous — and comes
close to suggesting that the guilty verdict of a correctly
instructed jury is sacrosanct.

The defendant’s coconspirator, Zawistowski, was in all
likelihood an Ecstasy dealer, and unlike Radomski he
pleaded guilty (and received a slightly longer sentence
than Radomski — 80 months). But there is no evidence
that the defendant agreed with Zawistowski to sell Ecstasy.
Now if Radomski didn’t agree with Zawistowski to sell
Ecstasy, neither did Zawistowski agree with Radomski to
sell Ecstasy. But Zawistowski’s case is not before us.
Anyway he pleaded guilty, and his presentence investigation
report suggests that there may have been another
conspirator, though there is no hint of that in the record
of the present case.

An FBI informant named Zujko approached Zawistow-ski
— from whom the informant had previously bought a
stolen car — and believing, probably correctly as we
said, that Zawistowski was a dealer in Ecstasy, told him he
wanted to buy some of the drug from him. Zawistowski agreed
to sell Zujko 1,000 Ecstasy pills for $8,000 and promised
that a friend, the supplier from whom he would get the
pills, would “seal [the package containing the pills]
hermetically” so that “dogs can’t sniff it.”

Zawistowski and Zujko met in a restaurant to consummate the
deal. There Zawistowski made a cellphone call to his friend
(who was in fact Radomski), and Zujko heard Zawistowski ask
the friend whether he had “packed it nicely” —
presumably a reference to the dog-proof packaging that
Zawistowski had promised. Zawistowski and Zujko repaired to
the latter’s car, where Zujko handed him $8,000.
Zawistowski said that his friend’s vehicle was in a nearby
parking lot and that he would get the Ecstasy from the
vehicle and be back with it in a few minutes. Zawistowski
walked to the parking lot with the money and into a truck
driven by Radomski, and off they went. Officers who had
staked out the restaurant, waiting for the sale of the
Ecstasy to take place, recorded the license number of the
truck, traced it to Radomski, and arrested both him and
Zawistowski in Radomski’s apartment the next day. They
searched the men, the apartment, and the truck and found
some of the marked money that the informant had given
Zawistowski but no Ecstasy, drug paraphernalia, proceeds
from other sales, sales records, or other evidence of drug
dealing.

There is no doubt that Radomski conspired with Zawistowski,
but conspired to do what? To sell Ecstasy to the informant?
If so, Radomski is guilty of the crime that he was charged
with even if the pair later changed their minds and decided
to defraud the informant instead. E.g., United States v.
Howard, 179 F.3d 539, 542 (7th Cir. 1999). But on the basis
of the evidence presented to the jury, that is no more
likely than that they conspired from the get-go to defraud
him. Although a conspiracy to sell a counterfeit drug is a
federal crime, 21 U.S.C. §§ 841(a)(2), 846, a
conspiracy to pretend to be offering to sell an illegal
drug is not.

Yet since cellphone to cellphone conversations involve
communications over wires at some point in the
transmission, In re Application of United States for Order
Authorizing Roving Interception of Oral Communications, 349
F.3d 1132, 1138 n. 12 (9th Cir. 2003); Shubert v.
Metrophone, Inc., 898 F.2d 401, 402 n. 5 (3d Cir. 1990), the
conspiracy that Radomski unquestionably joined could have
been charged as a scheme to defraud in violation of the
wire-fraud statute, 18 U.S.C. § 1343, as in United
States v. Dazey, 403 F.3d 1147, 1163 (10th Cir. 2005). But
it was not so charged. Given the feebleness of the
prosecution’s case that Radomski had conspired to sell
drugs, the government’s decision not to charge him in the
alternative with wire fraud, and thus give the jury a
choice, is inexplicable. The government’s reckless gamble
succeeded in the district court, but fails in this court.

The government latches on to the informant’s testimony that
he heard Zawistowski ask Radomski whether he had “packed it
[the Ecstasy] nicely,” and argues that this is evidence
that Radomski had the Ecstasy with him in his truck. But
had that been true, traces probably would have been found
there. And since the pair obviously did not intend, when
Zawistowski met the informant in the restaurant, to deliver
any Ecstasy to him, why would Radomski have nicely packed
(or for that matter badly packed) a quantity of Ecstasy? It
is far more likely that Zawistowski said what he did to
Radomski in the informant’s presence in order to reassure
the informant that the deal would go through. Zawistowski
of course did not know that Zujko was an informant, so he
had to allay any concerns that a genuine prospective buyer
of Ecstasy would have that the seller would take his money
and decamp. Also, Zawistowski had to fear that unless he
appeared to have an accomplice, Zujko might try some rough
stuff: when they left the restaurant to get the money from
Zujko’s car, Zujko (had he not been an informant) might
have pulled a gun on Zawistowski, intending to steal the
Ecstasy. He would be less likely to do that if he thought
that Zawistowski had an accomplice lurking nearby.

The government asks: if it was a rip off, why didn’t
Zawistowski pretend to sell Zujko a stolen used car, for
which he might have charged more than $8,000 in which event
Zawistowski and Radomski would make more money than they
did by pretending to sell him Ecstasy? But the fact that
Zujko had bought one stolen car from Zawistowski didn’t mean
he wanted another one; and it was Ecstasy that he was
asking Zawistowski for, not a car.

We acknowledge the legitimacy of the government’s concern
lest facile invocations of a “rip-off defense” prevent the
conviction of drug dealers arrested before a sale is
consummated. The dealer can always argue that he never
intended to sell drugs to the prospective buyer, but merely
to defraud the buyer. But the argument will fall flat if
the circumstances indicate that an agreement to sell drugs
was made or if the defendant is found to have drugs in sale
quantity or there is other evidence that he is a drug
dealer. United States v. Berchiolly, 67 F.3d 634, 638 (7th
Cir. 1995); United States v. Badger, 983 F.2d 1443, 1447,
1449 (7th Cir. 1993); United States v. Mattos, 74 F.3d 1197,
1200 (11th Cir. 1996). But this case is unusual. Neither
Radomski nor Zawistowski was found with drugs or drug
paraphernalia or any other evidence that might indicate
that they had intended to deliver drugs to Zujko. Moreover,
they in fact ripped off Zujko — they absconded with
his money, without supplying him with any drugs, and not
because their attempt to sell him drugs was disrupted by an
arrest or otherwise interrupted.

There was no evidentiary basis for a finding of guilt
beyond a reasonable doubt. Zawistowski’s guilty plea is not
and could not be evidence in Radomski’s case, United States
v. Johnson, 26 F.3d 669, 677 (7th Cir. 1994); United States
v. Jones, 468 F.3d 704, 709 (10th Cir. 2006); United States
v. Modena, 302 F.3d 626, 631 (6th Cir. 2002), because to
allow a coconspirator’s guilty plea in evidence might make
the jury think the trial a formality, since if one
coconspirator is guilty, so must the others be. There is at
least a bare possibility, moreover, that there was a third
conspirator, who may have conspired with Zawistowski to
sell Ecstasy; but there is no evidence that Radomski was a
party to such a conspiracy.

There is no great mystery about why the jury nevertheless
voted to convict Radomski. He did conspire with Zawistowski
to commit a criminal act, as well as trying to kick one of
the policemen who arrested him. (Radomski is a former
trainer of the Polish boxer Andrew Golota — the
world’s most colorful boxer. See
http://en.wikipedia.org/wiki/Andrew_Golota.) And his
accomplice was in all likelihood a drug dealer. But not
having been charged with the crime he actually committed,
Radomski is entitled to an acquittal.

REVERSED.