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United States v. Espinoza-Valdez

United States Court of Appeals, Ninth Circuit

May 7, 2018

United States of America, Plaintiff-Appellee,
v.
Pragedio Espinoza-Valdez, Defendant-Appellant.

          Argued and Submitted November 17, 2017 San Francisco, California

          Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding D.C. No. 2:15-cr-01465-JJT-1

          Atmore Baggot (argued), Apache Junction, Arizona, for Defendant-Appellant.

          Brooke T. Afshari (argued), Assistant United States Attorney; Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A. Strange, First Assistant United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Plaintiff-Appellee.

          Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit Judges, and Paul L. Friedman, [*] District Judge.

         SUMMARY[**]

         Criminal Law

         The panel reversed convictions for conspiracy to import and conspiracy to distribute marijuana.

         The panel held that there was insufficient evidence for a jury to find beyond a reasonable doubt that the defendant entered into a conspiratorial agreement to import or distribute marijuana, where (1) the government's case rested almost exclusively on expert testimony regarding drug traffickers' use of scouts to facilitate the transportation of marijuana through the area in which Border Patrol agents observed the defendant and two unknown men; and (2) the government presented no evidence of (a) drugs that actually passed through or were intended to pass through that area under the defendant's watch, or (b) any specific individuals with whom the defendant allegedly conspired. The panel emphasized that the government may not rely on expert testimony of drug courier profiles alone to establish guilt.

         Dissenting, Judge Rawlinson wrote that it cannot fairly be said that no reasonable juror could have found the essential elements of conspiracy to import and distribute marijuana beyond a reasonable doubt.

          OPINION

          FRIEDMAN, DISTRICT JUDGE

         Pragedio Espinoza-Valdez appeals his convictions for conspiracy to import and conspiracy to distribute marijuana. He argues that the evidence presented at trial was insufficient to support either conviction and that the district court therefore erred in denying his motion for acquittal notwithstanding the verdict. We agree and reverse the two conspiracy convictions.[1]

         I. STANDARD OF REVIEW AND LEGAL AUTHORITY

         We review de novo whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc); accord United States v. Grovo, 826 F.3d 1207, 1213-14 (9th Cir. 2016); United States v. Egge, 223 F.3d 1128, 1131 (9th Cir. 2000). Even on this deferential standard, we conclude that the government presented insufficient evidence that Espinoza-Valdez entered into a conspiratorial agreement to distribute or import marijuana. The district court therefore erred in denying Espinoza-Valdez's motion for judgment of acquittal.

         The elements of conspiracy are "(1) an agreement to accomplish an illegal objective, and (2) the intent to commit the underlying offense." United States v. Moe, 781 F.3d 1120, 1124 (9th Cir. 2015); see also United States v. Loveland, 825 F.3d 555, 559 (9th Cir. 2016); United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir. 2001); United States v. Lennick, 18 F.3d 814, 818 (9th Cir. 1994). To be convicted of conspiracy, the defendant must have joined the agreement knowing its purpose and intending to help accomplish that purpose. See United States v. Mincoff, 574 F.3d 1186, 1192 (9th Cir. 2009). The conspiratorial agreement may be proved by direct or circumstantial evidence. See Loveland, 825 F.3d at 561-62; Mincoff, 574 F.3d at 1192. It is not necessary that the conspirators made a formal or express agreement or that they agreed on every detail of the conspiracy. See Mincoff, 574 F.3d at 1194-95; United States v. Melvin, 91 F.3d 1218, 1224 (9th Cir. 1996). Rather, the agreement may be inferred from the defendants' acts pursuant to the scheme and other circumstantial evidence. See Grovo, 826 F.3d at 1216; United States v. Lapier, 796 F.3d 1090, 1095 (9th Cir. 2015); Mincoff, 574 F.3d at 1192. The government has the burden of proving beyond a reasonable doubt the creation and existence of the conspiratorial agreement, as well as the defendant's entry into that agreement. See Loveland, 825 F.3d at 557, 561; Moe, 781 F.3d at 1124; Lennick, 18 F.3d at 818, 820. Furthermore, "[t]he government has the obligation to establish not only the opportunity but also the actual meeting of minds. Mere association and activity with a conspirator does not meet the test." Lapier, 796 F.3d at 1095; see also Lennick, 18 F.3d at 818 ("[S]imple knowledge, approval of, or acquiescence in the object or purpose of a conspiracy, without an intention and agreement to accomplish a specific illegal objective, is not sufficient.").

         II. ...


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