Last week, or rather last year, the Tenth Circuit issued a helpful (though unpublished) decision limiting conspiracies in drug cases, United States v. Bowline. The case is fact-intensive, and concludes, "an agreement between a drug transferor and a drug transferee, standing alone, can't form the basis of such a conspiracy." In Bowline, there was an established conspiracy to possess oxy; but members would sometimes distribute oxy obtained as part of the possession conspiracy. That, however, did not amount to a "shared common objective" to distribute.The "mere knowledge that Bowline sold or intended to sell at least some of his share of the Oxycodone to others is insufficient, standing alone, to establish a shared distribution objective."
Further, Bowline distinguishes a mere drug sale between two people from a conspiracy to distribute:
To establish a conspiracy to distribute Oxycodone, the government must prove that two or more people agreed to distribute—i.e., transfer—that drug. And in this case, the government undoubtedly proved that various individuals agreed with Ian Bowline to transfer to him some of the Oxycodone they obtained via the counterfeit prescriptions he created. But an agreement between two people that one will transfer drugs to the other can't form the basis of a conspiracy to distribute; otherwise, every drug sale would constitute a conspiracy.Bowline was in the game because he had to feed his habit, not just to profit. Because the common purpose shared by the participants was, in fact, to possess, not to distribute, the evidence supporting the conviction was insufficient. Bowline's convictions were vacated with instructions to dismiss.