Page 39 - TPA Journal July-August 2025

answer “based upon [his] knowledge of the mutual agreement with common purpose, design,
investigation.” and understanding will suffice.” The jury may
Although McCombs did not “repeatedly explain[] “infer[]” that such an agreement existed based on
how this investigation led him to deduce the mean- “testimony and [] other circumstantial evidence.”
ing of drug code words,” our cases since Akins Moreover, “[c]oncert of action can indicate agree-
have not emphasized this as a requirement. ment and voluntary participation” in the conspira-
McCombs did explain at least once how he cy.
deduced the meaning of drug code words, and he
repeatedly based his testimony on his involvement Though “[i]t is well settled that evidence of a
in the investigation. Orlando argues otherwise, buyer-seller relationship is not, by itself, sufficient
asserting that McCombs “did not testify primarily to support a conviction for conspiracy,” “the
based on the underlying conspiracy investigation.” buyer-seller exception is meant to ‘prevent[] a sin-
To be sure, at one point during cross-examination gle buy-sell agreement, which is necessarily
when asked, “If we’re looking for this book that reached in every commercial drug transaction,
defines what’s code for drug language, where do from automatically becoming a conspiracy to dis-
we buy that?,” McCombs answered, “Go to work tribute drugs.’” The exception “shields mere
at the police department in 1998.” This answer acquirers and street-level users, who would other-
suggests that McCombs was relying in part on his wise be guilty of conspiracy to distribute, from the
professional experience prior to this investigation more severe penalties reserved for distributers.”
to understand these coded conversations. “Thus, ‘[w]hile it is true that a buyer-seller rela-
However, in the next exchange, when asked, tionship, without more, will not prove a conspira-
“When you’re saying these [interpretations] are cy, . . . [o]ne becomes a member of a drug con-
how [the words are] used, these are based on what spiracy if he knowingly participates in a plan to
you believe; is that correct?,” McCombs respond- distribute drugs, whether by buying, selling or oth-
ed, “What I learned through the investigation, yes, erwise.’” “Evidence of ‘a strong level of trust and
sir.” Considering these exchanges together, it was an ongoing, mutually dependent relationship’”
reasonable for the district court to determine that also “changes the relationship to a conspiracy to
some of McCombs’s background in drug codes distribute drugs.”
came from his career experience, but when inter-
preting words in this case, he based these specific Count one charged both Donovan and Orlando
interpretations on “what [he] learned through the with conspiring “to possess with intent to distrib-
investigation.” Therefore, the district court did not ute methamphetamine” during a period “beginning
abuse its discretion in admitting this testimony. in May 2020, and continuing to on or about May
29, 2020, in Kemper County . . . and elsewhere.”
Donovan and Orlando both argue that the Orlando argues that the Government failed to
Government presented insufficient evidence to prove that he agreed to possess and distribute con-
prove beyond a reasonable doubt that they con- trolled substances with his codefendants, while
spired to possess methamphetamine with the intent Donovan argues that the Government failed to
to distribute it. Proving “[a] drug-trafficking con- prove that he voluntarily participated in any agree-
spiracy requires” showing “(1) the existence of an ment and that all the Government showed was a
agreement between two or more persons to violate buyer-seller relationship. Taken together and
narcotics laws, (2) knowledge of the conspiracy viewed in the light most favorable to the jury ver-
and intent to join it, and (3) voluntary participation dict, the evidence presented at trial was sufficient
in the conspiracy.” for the jury to infer that Donovan and Orlando
agreed to possess methamphetamine with the
The “agreement to engage in the conspiracy intent to distribute it and that they voluntarily par-
alleged” need not have been express; “[a] tacit, ticipated in this agreement. From the cousins’ May

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