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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-30135

v.
D.C. No.
CR-97-00103-BLW
FRANCISCO JIMENEZ RECIO,
Defendant-Appellant.

UNITED STATES OF AMERICA,
No. 99-30145
Plaintiff-Appellee,
D.C. No.
v.
CR-97-00103-BLW
ADRIAN LOPEZ-MEZA,
OPINION1
Defendant-Appellant.

Appeals from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding

Argued and Submitted
March 6, 2000--Seattle, Washington

Filed September 27, 2000

Before: James R. Browning, Betty B. Fletcher, and
Ronald M. Gould, Circuit Judges.

Opinion by Judge Browning;
Dissent by Judge Gould
_________________________________________________________________

1 Publication is pursuant to Ninth Cir. R. 36-2(g).

SUMMARY 
 
The summary, which does not constitute a part of the opinion of the court, 
is copyrighted C 2000 by West Group. 
_________________________________________________________________

Criminal Law and Procedure/Conspiracy

The court of appeals affirmed judgments of conviction in
part and reversed in part. The court held that words or conduct
revealing general guilt relating to the possession of illegal
drugs that have already been seized by the government is
insufficient to establish guilt on an underlying conspiracy to
possess a controlled substance.

On November 18, 1998, federal officers seized a truckload
of marijuana in Nevada that was headed for pickup in Nampa,
Idaho. The agents decided to continue the operation and
apprehend the persons who were to retrieve the marijuana.
They called an Arizona pager number to arrange for a drop-
off at the Karcher Mall parking lot in Nampa. This was not
the location that had been originally planned.

Neither appellants Francisco Recio nor Adrian Lopez-Meza
was among those who answered the pages. One of the callers
who returned a page said that he would send a "muchacho"
to pick up the marijuana. When Recio and Lopez-Meza
picked up the truck in Nampa, agents arrested them.

In the ensuing two prosecutions for conspiracy and posses-
sion of a controlled substance with intent to distribute, the dis-
trict court denied defense motions for judgment of acquittal.

In both the first and second trials in this case, the govern-
ment argued that the words and conduct of Recio and Lopez-
Meza after they were arrested were sufficient to link them to
the conspiracy before the government initially seized the
drugs. The prosecutor noted that they both lied to the officers
on their arrest.

In addition, the government pointed out that before the ini-
tial seizure, calls had been made by unspecified persons with
prepaid calling cards to the same number in Idaho. Other evi-
dence showed that Recio had renewed his non-owner driver's
insurance on the day before his arrest. The district court also
admitted evidence that the odor of burned marijuana was
present in the Mazda driven by Recio and Lopez-Meza.

Both Recio and Lopez-Meza were convicted as charged.

On appeal, they contended that their conspiracy convictions
could not stand because there was no evidence linking them
to a conspiracy existing before the government initially seized
the marijuana. Recio also appealed his conviction on the
ground that his attorney failed to move for acquittal on Count
Two after the first trial. The government conceded that had
Recio's lawyer moved for acquittal on Count Two, the trial
judge would have granted sua sponte the new trial as to both
counts, as he did for Lopez-Meza.

[1] No specific words or conduct provided a link between
the defendants and a pre-seizure conspiracy. The defendants'
words and conduct revealed only their general guilt, which
could have related only to their post-seizure pick-up of the
contraband. There was no proof that Recio and Lopez-Meza
used the prepaid calling cards; any person could have used
them. The numbers called were not probative of a conspiracy.
[2] The remaining evidence of an earlier conspiracy was simi-
larly insufficient.

[3] There was strong evidence that Lopez-Meza and Recio
were not involved in coordinating the conspiracy. The gov-
ernment's main witness had never met either of them before
the drugs were seized. Neither Lopez-Meza nor Recio was
among the callers who responded to the page. That one of the
callers stated that he would send a "muchacho " to get the
truck suggested that the defendants were simply drivers hired
at the last minute. Furthermore, the initial conspiracy did not
envision a drop-off at the Karcher Mall. The police initiated
the arrangement as part of their post-seizure operation.

[4] The district court did not err by allowing the evidence
of the odor of burned marijuana in the Mazda. That the car
reeked of marijuana made it likely that Recio was familiar
with the odor and knew they were in possession of marijuana.

[5] Recio's counsel's failure to move for acquittal on Count
two after the first trial constituted ineffective assistance. But
for the ineffective assistance, Recio would have been granted
a new trial on Count Two. [6] The government's concession
made a sufficient record to find prejudice.

Judge Gould dissented, viewing the evidence as sufficient
to connect Recio and Lopez-Meza with a conspiracy existing
before the government initially seized the marijuana.

_________________________________________________________________

COUNSEL

M. Karl Shurtliff, Pike & Shurtliff, Boise, Idaho, for
defendant-appellant Recio; Thomas A. Sullivan, Wiebe &
Fouser, Caldwell, Idaho, for defendant-appellant, Lopez-
Meza.

Alan Burrow (argued), Assistant United States Attorney,
Department of Justice, Boise, Idaho; Kim R. Lindquist
(briefed), Assistant United States Attorney, Department of
Justice, Boise, Idaho, for the plaintiff-appellee.

_________________________________________________________________

OPINION

BROWNING, Circuit Judge:

Francisco Jimenez Recio and Adrian Lopez-Meza appeal
their convictions of conspiracy to possess with intent to dis-
tribute a controlled substance on the same grounds and Recio
also appeals his conviction for possession with intent to dis-
tribute based on ineffective assistance of counsel.

Both argue the district court should have granted their
motion for judgment of acquittal after both the first and sec-
ond trials under United States v. Cruz, 127 F.3d 791, 795 (9th
Cir. 1997), in which we ruled that a conspiracy to distribute
illegal drugs ends when law enforcement authorities confis-
cate the drugs.

In Cruz, two individuals on their way to Guam to deliver
methamphetamine to Cruz were arrested and their drugs were
confiscated. Id. at 794. Because Cruz was clearly not brought
into the drug scheme until after the drugs were seized, this
court held that the evidence was insufficient for any rational
jury to have found, beyond a reasonable doubt, that the con-
spiracy to distribute and to possess with intent to distribute
was in existence at the time Cruz became involved. Id. at 796.

Viewing the evidence in the light most favorable to the
government as we must, see United States v. Yossunthorn,
167 F.3d 1267, 1270 (9th Cir. 1999), we must determine
whether any rational jury could find, beyond a reasonable
doubt, that Recio and Lopez-Meza were involved in the con-
spiracy prior to the initial seizure of the drugs in Nevada,
which took place on November 18, 1998 at 1:18 A.M.

The district court held, and the government argues, that
there was some evidence tying Lopez-Meza and Recio to the
conspiracy before the drugs were initially seized. The district
court stated that "Lopez's and [Recio]'s words and conduct,
upon their picking up the truck in Nampa and subsequently
being stopped by the authorities, provided a probative link
between themselves and the specific conspiracy charge."
Moreover, before the initial seizure, both Recio and Lopez-
Meza allegedly called the same telephone number in Idaho
and different numbers in Chicago using pre-paid calling
cards.

[1] This is insufficient evidence of guilt. No specific words
or conduct provided a probative link between Defendants and
a pre-seizure conspiracy. Defendants' words and conduct only
revealed their general guilt which could be related only to
their post-seizure pick-up of the contraband. As for the pre-
paid calling cards, there is no proof that Recio and Lopez-
Meza used these cards; any person could have used the cards
by dialing the pin number code. The government produced no
evidence identifying the participants in or the contents of the
conversations. The phone numbers called are not probative of
a conspiracy: the Idaho calls were to a communal telephone
at a migrant camp and the Chicago calls were all to different
telephone numbers.

[2] The remaining evidence of an earlier conspiracy is simi-
larly insufficient. Recio renewed his "non-owner " driver's
insurance the day before his arrest, but that fact is hardly pro-
bative of earlier involvement in this conspiracy. That Recio
and Lopez-Meza lied to officers upon arrest points only to
knowledge that they were involved in illicit activity at that
time and provides no basis for concluding that they were
involved in the conspiracy before November 18, 1998.

[3] On the other hand, there is strong evidence that Lopez-
Meza and Recio were not involved in coordinating the con-
spiracy. The government's main witness, Arce, had never met
either Lopez-Meza or Recio before the drugs were seized.
Once the police agreed to continue the drug operation, the
police called an Arizona pager number to arrange for a drop-
off, but neither Lopez-Meza nor Recio were among the three
callers who responded to the page. In fact, one of the callers
returning the page stated that he would send a "muchacho"
("boy" in Spanish) to get the truck, strongly suggesting that
Defendants were simply drivers hired at the last minute. Fur-
thermore, the initial conspiracy did not envision a drop-off in
the Karcher Mall parking lot in Nampa, Idaho, where Lopez-
Meza and Recio retrieved the truck -- the police initiated the
arrangement to meet there as part of their post-seizure "sting"
operation.

Since the evidence at the first trial was insufficient, it was
error to conduct a second trial. Accordingly, we decline to
address Lopez-Meza and Recio's challenge to the sufficiency
of the evidence and the jury instructions in the second trial.
We need now only address those claims relevant to Recio's
conviction at the first trial of possession with intent to distrib-
ute a controlled substance.

[4] The district court did not err by allowing evidence of
the odor of burned marijuana in Lopez-Meza and Recio's blue
Mazda. The evidence was relevant to the charge that Recio
possessed marijuana with intent to distribute. See United
States v. Mayans, 17 F.3d 1174, 1181 (9th Cir. 1994). One of
the primary issues was whether Recio knew there were nar-
cotics in the flatbed truck when he and Lopez-Meza retrieved
it. The fact that their own car reeked of marijuana makes it
more likely that Recio was familiar with the odor and knew
they were in possession of marijuana.

The district court did not err by denying Defendants'
motion for a mistrial based on the prosecutor's reference to a
"stash house." Since the government had referred to the Nu
Acres residence as the ultimate destination of the drugs with-
out objection, it was not particularly prejudicial for the prose-
cutor to refer to that residence as a "stash house." Although
the prosecutor violated the court's instruction not to use the
term, the prosecutor's misconduct does not require reversal
since nothing in the record suggests the jury's verdict was
affected by its use.

The district court did not abuse its discretion in admitting
the expert testimony of Special Agent Hinton. It did not
exceed the boundaries set by the district court or by Federal
Rules of Evidence Rule 702.

[5] Recio's counsel's failure to move for acquittal on Count
Two after the first trial constituted ineffective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668, 687
(1984). But for the ineffective assistance of Recio's counsel,
Recio would have been granted a new trial on Count Two.

Ordinarily, we do not reach claims of ineffective assistance
of counsel on direct appeal, and only do so in habeas corpus
proceedings. See United States v. Ross, 206 F.3d 896, 900
(9th Cir. 2000). However, we review ineffective assistance
claims where the record is " `sufficiently developed to permit
review and determination of the issue' " or where " `the legal
representation is so inadequate that it obviously denies a
defendant his Sixth Amendment right to counsel.' " Id. (quot-
ing United States v. Robinson, 967 F.2d 287, 290 (9th Cir.
1992).

[6] The government's concession in its brief regarding the
motion for judgment of acquittal provides such a record: "The
Government agrees with the first premise, namely, that had
Appellant's trial counsel made the motion for judgment of
acquittal as to Count Two, the trial judge would have granted
sua sponte the new trial as to both counts, as he did for co-
defendant Lopez." This concession makes a sufficient record
to find prejudice since all parties agree that Recio would have
been granted a new trial but for the actions of his counsel.
Although the government may not have dismissed the posses-
sion with intent to distribute count against Recio before the
second trial,2 the fact that Recio was denied a new trial consti-
tutes prejudice in its own right.

The conspiracy convictions are reversed and dismissed
with prejudice because of insufficient evidence.

AFFIRMED IN PART, REVERSED IN PART.
GOULD, Circuit Judge, dissenting:

I. PROCEDURAL BACKGROUND

Recio and Lopez proceeded to trial ("first trial") on counts
of (1) conspiracy to distribute cocaine and/or marijuana, and
(2) possession with intent to distribute cocaine and/or mari-
juana. The jury returned guilty verdicts on both counts. Lopez
moved for judgment of acquittal on both the conspiracy count
and the possession count under Federal Rule of Criminal Pro-
cedure 29(c). Recio moved for judgment of acquittal on the
conspiracy count also pursuant to Rule 29(c). Both defendants
argued that the evidence presented at trial was insufficient for
a reasonable jury to reach a finding of guilt beyond a reason-
able doubt. The district court denied the motions, but found
sufficient error in the proceedings sua sponte  to convert the
Rule 29(c) motions into motions for a new trial pursuant to
Federal Rule of Criminal Procedure 33. The district court then
granted the motions for a new trial, vacated the convictions
from the first trial, and ordered a second trial on the conspir-
acy count for both Recio and Lopez, a second trial on the pos-
session count for Lopez, and sentencing on the possession
count for Recio.

The case proceeded to trial again ("second trial"). Recio
and Lopez were re-tried on the conspiracy count. The govern-
ment dropped the possession count against Lopez. The jury
returned guilty verdicts, and Recio and Lopez again moved
for judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29(c), contending that the evidence presented in the
second trial was insufficient for a reasonable jury to reach a
finding of guilt. The district court denied the motions.

The court today reverses the convictions from the second
trial, holding that the government in the first trial presented
insufficient evidence to permit a second trial. I respectfully
dissent because I take a different view of the evidence, under
the proper legal standards. This case poses an important issue
concerning the scope of reasonable inferences that may be
drawn by a jury from evidence of criminal conspiracy. I
respectfully dissent because I would hold that there was
unmistakably more than sufficient evidence in the first trial to
warrant a second trial. The majority today errs on this crucial
issue, and then does not reach the issues presented by the par-
ties regarding the second trial. Having also reviewed the
issues regarding the second trial, I would affirm the district
court's decision to deny the defendants' motions for a judg-
ment of acquittal after the second trial, and let the jury verdict
stand.

II. FACTUAL BACKGROUND

On November 18, 1997, a Nevada police officer stopped a
white flatbed truck occupied by Manuel Sotelo ("Sotelo") and
Ramiro Arce ("Arce"). After a consent search the police
found 369 pounds of marijuana and 14.8 pounds of cocaine.
When questioned, Sotelo and Arce indicated that they did not
know about the drugs and were merely driving the truck to
Idaho where they had been instructed to leave it parked at the
Karcher Mall.

The government's law enforcement agents then permissibly
set up a sting. On November 19, 1997, the government placed
the truck, still containing most of the drugs, at the Karcher
Mall. Arce used a cellular phone to call a pager number that
he had previously used to make arrangements for the pickup
of the truck. When someone called back, Arce described the
truck's location to the unknown caller. The unknown caller
stated that "he was going to call a muchacho to come and get
the truck."

About three hours later, a blue car driven by Lopez pulled
up to the truck and stopped. Recio left the car and entered the
truck. Both vehicles proceeded to drive west on different back
roads. The police then stopped each vehicle, whereupon each
occupant told the police a different and fabulously incredible
story. The police smelled marijuana in the car that Lopez had
been driving. The police also found phone cards and pagers
on both defendants. The police then arrested Recio and
Lopez.

Subsequently, Arce pled guilty and testified against Recio
and Lopez at trial.

III. DISCUSSION

A. The First Trial

We must review the evidence that was presented at the first
trial against Recio and Lopez in the light most favorable to
the government to determine whether any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt. See United States v. Yossunthorn, 167
F.3d 1267, 1270 (9th Cir. 1999). "Once a conspiracy exists,
evidence establishing beyond a reasonable doubt defendant's
connection with the conspiracy, even though the connection
is slight, is sufficient to convict defendant of knowing partici-
pation in the conspiracy." United States v. Bautista-Avila, 6
F.3d 1360, 1362 (9th Cir. 1993) (citations and quotation
marks omitted).

When we view the evidence here in the light most favor-
able to the government, a reasonable jury could have found
sufficient evidence linking Recio and Lopez to the conspiracy
before 1:18 a.m. on November, 18, 1997.1  This issue is impor-
tant because, absent sufficient evidence to convict Recio and
Lopez in the first trial, retrial would be barred by double jeop-
ardy. See United States v. Coleman, 208 F.3d 786, 794 (9th
Cir. 2000); United States v. Cote, 51 F.3d 178, 182 (9th Cir.
1995) (double jeopardy bars a retrial on the same charge when
a defendant's conviction is reversed on the sole ground that
the evidence was insufficient to sustain the jury's verdict). If
sufficient evidence was presented, then the district judge did
not err in holding defendants Recio and Lopez subject to
retrial. For both Recio and Lopez, retrial was correct.

Recio:

Recio told a totally fanciful and incredible story upon his
arrest, from which a reasonable jury could draw an inference
of guilt. Although police watched Lopez drop Recio off at the
mall where he picked up the truck, Recio denied ever being
dropped off at the mall. When asked what he had been doing
at the mall, Recio said that he was shopping, and that he ran
into a man who asked him to drive the truck to Recio's house
for $250, and the man would pick it up later. Although
Recio's house was a five-minute drive from the mall on the
interstate, Recio's explanation for taking back roads was that
"he liked to drive in the country." This story is so unbeliev-
able that a reasonable jury would almost certainly view it as
an implied admission of guilt. Although the majority may
assume that this implied admission related only to Recio's
post-seizure crimes, the government presented evidence from
which a reasonable jury might infer that Recio was involved
in the conspiracy before the seizure.

The government presented evidence that Recio was
arrested driving a truckload of marijuana and cocaine worth
more than $1.2 million. A jury might reasonably infer that co-
conspirators would not entrust such a large value of drugs to
a person not integrally involved in the conspiracy. It is
unlikely that the unidentified conspirator on the phone who
stated that he would send a "muchacho" would send an out-
sider to transport such valuable cargo. While there may be
other theoretical possibilities, a jury reasonably could infer
that the conspirators would send someone highly trusted,
familiar with the conspiracy's scope and involved in the plan
of illicit drug distribution.

Moreover, Recio carried a pager when he was arrested driv-
ing the truck, and Arce and Sotelo, co-conspirators arrested
on November 18, 1997 at 1:18 a.m., also were found carrying
pagers. A government expert witness testified that pagers are
the most common item found when the government arrests
people involved in drug deals. When viewed in the light most
favorable to the government, a jury reasonably might con-
clude that, when Recio was found in possession of more than
$1.2 million worth of marijuana and cocaine, Recio's pager is
some evidence that he was involved in a drug conspiracy
where other evidence demonstrated that the mode of commu-
nication among the conspirators was via pagers and telephone
calls.

It is one thing to say that ubiquitous pagers used by mes-
sengers, executives, workers, and professionals are not in
themselves evidence of participation in a drug conspiracy
when found in usual settings, but it is quite another thing to
say that multiple pagers in the hands of persons found astride
a truckload of marijuana and cocaine are irrelevant, particu-
larly where coconspirators Arce and Sotelo were also found
with pagers. A key point ignored by the majority is the expert
testimony linking pagers to drug conspiracies, testimony that
a jury could have properly given weight. To disparage the
pager testimony from an appellate distance is merely to argue
about the weight of the evidence. This we cannot do because
we must view the evidence in the light most favorable to the
government.

Perhaps most importantly, Recio carried a non-owned
named operator insurance policy when he was arrested. Such
a policy insures vehicle operation by a non-owner of that
vehicle. An agent testified that during his entire career in law
enforcement, he had never encountered a policy like the one
Recio owned. The government presented evidence demon-
strating that Recio renewed the policy on November 17, 1997,
the very day before the drugs were seized, and the day before
he was arrested driving a truck he did not own loaded with
more than $1.2 million of marijuana and cocaine. In the light
most favorable to the government, a reasonable jury might
infer that this was not "coincidence," and, instead, that Recio
purchased the insurance policy the day before the seizure
because he knew then that his job in the conspiracy was to
drive a truck that he did not own carrying the marijuana and
cocaine. Even drug-trafficking conspirators, it seems, want
insurance.

The evidence of the non-owner operator insurance policy
combined with probative evidence of Recio's incredible story
upon arrest, the use of pagers and the very high value of the
drugs in the truck, is solid evidence when viewed in the light
most favorable to the government; it is clearly sufficient for
a reasonable jury to have found beyond a reasonable doubt
that Recio was involved in the conspiracy before the seizure
of the drugs.

Lopez:

The situation with Lopez is much the same as with Recio.
Lopez told a different but equally bizarre and incredible story
upon arrest. He told the police that he lived with his girl-
friend, but he did not remember her last name. When asked
what he was doing that night, Lopez denied that he had been
to the mall, and said he was "out driving around " and that he
was going to see his girlfriend. When asked where she lived,
however, Lopez stated that he did not even know the city
where his girlfriend lived. Again, the majority apparently con-
cludes that this implied admission of guilt merely evidences
post-seizure guilt, but the government presented sufficient
evidence that Lopez, like Recio, was involved in the conspir-
acy before the seizure. Lopez was arrested carrying two pag-
ers, and with Recio was involved transporting an
exceptionally high value of marijuana and cocaine. Again,
given this value, it seems almost certain, and at least a jury
reasonably could infer, that the conspirators sent Lopez
because he was trusted and involved.

Most strikingly, the government put forth powerful evi-
dence closely connecting Lopez to a man named Raoul, the
owner of the cocaine. Co-defendant Arce, who had turned on
the conspiracy by cooperating in the government sting, testi-
fied that the cocaine in the truck was for Raoul. Arce also tes-
tified to a telling and candid conversation that he had with
Lopez in a Boise, Idaho jail after his arrest and before trial:2

       Q: [prosecutor] What did Mr. Lopez tell you?

       A: [Arce] Well, he just asked me how they had
       arrested me, but I didn't really know [Lopez] or
       he didn't really know me.

       Q: What else did he tell you?

       A: That he had asked me how they had got me,
       because he was in the truck and -- how they
       had gotten him because he was arrested in that
       truck also.

       Q: Was something said about Raoul?
       A: Yes.

       Q: What did Mr. Lopez say about Raoul?

       A: He was the one that helped his Uncle Raoul.

       Q: What else was said about Raoul?

       A: That he was the owner of the cocaine.

       Q: Was something said about Flaco? [the name
       that Arce gave after the seizure, when assisting
       the government, to an unknown person who
       later said that he would send a "muchacho" to
       pick up the drugs].

       A: Yes.

       Q: What was said about Flaco?

       A: They said that I was helping the police
       because his Uncle Raoul had recognized my
       voice.

TR 776-777 (emphasis added).

When this conversation is viewed in the light most favor-
able to the government, a reasonable jury certainly could con-
nect Lopez to the conspiracy before the seizure of the drugs.
This jailhouse conversation demonstrates that when meeting
a member of the conspiracy, Lopez identified himself gener-
ally and broadly as "the one that helped his Uncle Raoul," the
man who owned the cocaine. He did not say he "helped him
once." He did not say he "helped him out that day." He did
not say he merely "drove the truck." Recio's meaning by this
statement that "he was the one" who "helped his Uncle
Raoul" is doubtless ambiguous, but we must now interpret the
meaning in the light most favorable to the government. Given
this standard, a jury reasonably might infer that Lopez was
Raoul's general helper, a trusted nephew, a confidant, a right
hand man. A jury reasonably might also infer that Lopez
served his uncle in these ways because he was privy to sensi-
tive inside information: that his Uncle, during the sting, rec-
ognized Arce's voice as "Flaco." It follows that the jury
reasonably could infer that Lopez knew details of the drug
shipment and that he intended to assist the conspiracy before
the drugs were seized.

Finally, although the tone of this conversation cannot be
discerned from the cold record, an impartial jury reasonably
might have inferred from Arce's tone, or the words them-
selves, that this jailhouse conversation was in fact a jailhouse
confrontation where Lopez aggressively confronted Arce for
turning against the conspirators, including Lopez, by helping
the police. This, too, reasonably ties Lopez to a pre-seizure
conspiracy.

This jailhouse confrontation, the evidence of Lopez's
implausible story, his two pagers, and his participation in the
transportation of more than $1.2 million of marijuana and
cocaine, together demonstrate that a reasonable jury could
determine Lopez's participation in the pre-seizure conspiracy
beyond a reasonable doubt, and in my view this evidence is
more than sufficient to permit a jury verdict of conviction in
the first trial had the jury been correctly instructed.3 There-
fore, the court should address alleged errors in the second trial
that also yielded a jury verdict of conviction.

B. The Second Trial

Recio and Lopez make several arguments to support their
contention that the district court erred by denying their
motions for judgment of acquittal after they were convicted in
a second trial by jury. These arguments are not persuasive.

First, Recio and Lopez admit that the evidence in the sec-
ond trial was largely the same as the evidence presented in the
second trial, yet they argue that the evidence was insufficient
at the second trial to sustain the conspiracy convictions.
Because the evidence was sufficient in the first trial to sustain
a guilty verdict upon proper instruction, the same evidence
was sufficient in the second trial where the correct instruction
was given. Recio and Lopez also challenge the sufficiency of
evidence of a larger conspiracy, a conspiracy theory offered
by the government in the first trial on its own, and in the sec-
ond trial as an alternative ground upon which to convict.
Because the evidence was sufficient to sustain a verdict per-
taining to a pre-seizure conspiracy, I need not reach the issue
whether the evidence was sufficient to sustain a larger con-
spiracy.

Second, Recio and Lopez assert three grounds of error
regarding jury instructions. The first ground is that the district
court gave alternative jury instructions, the first for the pre-
seizure conspiracy, the second for an alternative larger con-
spiracy. Lopez and Recio argue that the district court erred by
giving two separate conspiracy instructions because, while it
gave the jury a general unanimity instruction, it did not
instruct the jury that it must unanimously agree on one of the
two conspiracy theories.

We review a district court's formulation of jury instructions
for abuse of discretion. See United States v. Beltran-Garcia,
179 F.3d 1200, 1204 (9th Cir. 1999). In reviewing jury
instructions, the relevant inquiry is whether the instructions as
a whole are misleading or inadequate to guide the jury's
deliberation. See id. at 1205. The trial court has substantial
latitude so long as its instructions fairly and adequately cover
the issues presented. See United States v. Abushi, 682 F.2d
1289, 1299 (9th Cir. 1982). Jury instructions, even if imper-
fect, are not a basis for overturning a conviction absent a
showing that the district court abused its discretion. See
United States v. de Cruz, 82 F.3d 856, 864-65 (9th Cir. 1996).
In de Cruz, where the defendant failed to demonstrate preju-
dice from an imperfect instruction, we held that the district
court did not abuse its discretion. Id. Further, "the jury must
be presumed to have followed [a] unanimity instruction and
all agreed to at least one of several possible conspiracies even
though no specific instruction was given to that effect."
United States v. Echeverry, 719 F.2d 974, 975 (9th Cir. 1983)
(citing United States v. Friedman, 445 F.2d 1076, 1084-85
(9th Cir. 1971)). Only when there appears to be a genuine
possibility that the jury was confused or that a conviction
resulted from different jurors concluding that a defendant
committed different acts, general unanimity instructions do
not suffice. See Echeverry, 719 F.2d at 975 (concluding that
potential for such confusion exists when the jury presents
questions indicating their confusion concerning multiple con-
spiracies).

Here, Recio and Lopez assert nothing more than the exis-
tence of alternative conspiracy instructions to demonstrate the
possibility of genuine jury confusion. The presumption that
jurors have followed a general unanimity instruction when
several possible conspiracies were proffered holds absent evi-
dence that there is a "a genuine possibility of jury confusion
or that a conviction may occur as the result of different jurors
concluding that the defendant committed different acts, the
general unanimity instruction does not suffice." Echeverry,
719 F.2d at 975. Here, Recio and Lopez have not with any
specificity shown true potential for juror confusion. Specula-
tion is inadequate to defeat a presumption that a jury verdict
is based on jurors following instructions. Further, Recio and
Lopez have not demonstrated prejudice from the lack of a
more particularized jury instruction. The district court did not
abuse its discretion by failing to give a more particularized
jury instruction.

Recio and Lopez also claim that, while the superceding
indictment in this case alleges that they conspired to violate
the narcotics law "from on or about a date uncertain, but by
November 19, 1997," the district court's jury instruction indi-
cated that the jurors could find Recio and Lopez guilty of the
larger conspiracy, "whether [they joined] before or after
November 19, 1997." Recio and Lopez argue that because the
indictment limits proof to pre seizure evidence, the alternative
larger conspiracy theory was never brought before the grand
jury, thus they contend that to instruct on the larger theory
constituted an impermissible variance.

Although it appears that Recio and Lopez objected to the
jury instruction for the larger conspiracy, they failed to make
a variance argument to the district court. We review only for
plain error. See United States v. Olano, 507 U.S. 725, 736
(1993). We may exercise our discretion to correct such an
error only when (1) the error is obvious; (2) the error affects
substantial rights; and (3) a miscarriage of justice would oth-
erwise result. See United States v. Sayetsitty , 107 F.3d 1405,
1411-12 (9th Cir. 1997) (quoting United States v. Olano, 507
U.S. 725, 734-736 (1993)). An error is "clear " or "obvious"
only if "a competent district judge should be able to avoid it
without benefit of objection." United States v. Turman, 122
F.3d 1167, 1170 (9th Cir. 1997).

The Fifth Amendment grants a defendant the right to be
tried only on the grand jury's indictment. See United States v.
Olson, 925 F.2d 1170, 1175 (9th Cir. 1991). Sometimes diver-
gence of trial proof from an indictment is harmless error;
other times such divergence constitutes an amendment that
broadens the indictment, requiring per se reversal. See id.
When time is not a material element of an offense, however,
the court may constructively amend the indictment without
violating the Fifth Amendment at all. See United States v.
Laykin, 886 F.2d 1534, 1544 (9th Cir. 1989) (requiring only
that the defendants had adequate notice of the charges against
them); United States v. Echeverry, 698 F.2d 375, 377 (9th Cir.
1983) (dictum) (conspiracy conviction could be affirmed if
the jury agreed upon a conspiracy of some duration even if
not the time frame as charged in the indictment).

This variance issue might have presented a close question
if Recio and Lopez had properly objected. However, they did
not do so. In review for plain error it is significant that even
if the indictment time frame differed from the jury instruction
time frame in the second trial, the end date of the conspiracy
was not an element of the crime charged against Recio and
Lopez. See Laykin, 886 F.2d at 1455. Furthermore, because
Recio and Lopez were tried on the larger conspiracy theory in
the first trial, they cannot claim that they lacked notice of the
larger conspiracy theory in the second trial. Under such cir-
cumstances, any variance did not rise to the level of plain
error.

Recio and Lopez also make a cumbersome and complex
argument that the wording of the jury instruction concerning
the larger conspiracy impermissibly placed the burden on
them affirmatively to prove the termination of the smaller
conspiracy by demonstrating that no other loads of drugs
existed. Again, because Recio and Lopez did not raise this
argument before the district court, we review only for plain
error.

There was no plain error from burden shifting. Every para-
graph of Instruction No. 24 places the burden on the govern-
ment to prove the defendants' involvement in the conspiracy,
whether the small or the large, "beyond a reasonable doubt."
Any lack of clarity in the instructions does not rise to the level
of plain error because a competent district judge cannot be
expected to avoid this alleged complex burden shifting error
without benefit of objection.

Fourth, Recio and Lopez argue that the district court erred
by allowing the jury to hear evidence over objection regarding
the odor of burned marijuana in the car that Lopez was driv-
ing when he was arrested. Recio and Lopez rely on United
States v. Vizcarra-Martinez, 66 F.3d 1006, 1012, 1013 (9th
Cir. 1995), to argue that the odor evidence should not have
been admitted as an exception to Federal Rule of Evidence
404(b), and in any event, should have been excluded pursuant
to Federal Rule of Evidence 403. Their argument lacks merit.

A trial court's decision to admit or exclude evidence is
reviewed for abuse of discretion. See United States v. Her-
nandez, 109 F.3d 1450, 1452 (9th Cir. 1997). An appellate
court will only reverse for abuse of discretion if an evidenti-
ary error more likely than not affected the verdict. See United
States v. Karterman, 60 F.3d 576, 579 (9th Cir. 1995). "Other
act" evidence can be admitted as an exception to Rule 404(b)
if (1) the evidence is "inextricably intertwined " with the
charged crime, or (2) if the evidence is necessary "to permit
the prosecutor to offer a coherent and comprehensible story
regarding the commission of the crime." Vizcarra-Martinez,
66 F.3d at 1012, 1013 (excluding personal use methamphet-
amine in a case involving possession of a chemical precursor).
Here, the district court did not abuse its discretion by conclud-
ing that the evidence could be admitted as "inextricably inter-
twined" and going to show knowledge, intent and the absence
of mistake. For the same reasons, the district court did not
abuse its discretion in finding the odor evidence relevant
under Rule 403.

Recio and Lopez also argue that the district court erred by
denying a motion for a mistrial due to prosecutorial miscon-
duct and by failing to give a curative instruction regarding
prosecutorial misconduct. I disagree. During trial, the prose-
cutor referred to a place that the government argued was the
intended destination of the drugs as a "stash house." Recio
and Lopez objected to the use of this term. The district court
sustained the objection, but allowed the government to refer
to the residence as the destination of the drugs. At closing
argument, the prosecutor again referred to the residence as a
"stash house." The defendants objected, moved for a mistrial
and requested a limiting instruction. The court sustained the
objection, denied the motion for a new trial to allow more lee-
way because the prosecutor was engaged in argument, and did
not give a limiting instructions.

The district court's denial of a motion for a mistrial is
reviewed for abuse of discretion. See United States v.
Ramirez, 176 F.3d 1179, 1183 (9th Cir. 1999). A district
court's refusal to give a limiting instruction also is reviewed
for abuse of discretion. See United States v. Soliman, 813 F.2d
277, 278 (9th Cir. 1987). To determine whether alleged pro-
secutorial misconduct requires reversal, this court must con-
sider, in the context of the entire trial, whether the conduct
appears likely to have affected the jury's ability to judge the
evidence fairly. See United States v. Young, 470 U.S. 1, 11
(1985). Reversal is only required if it is more probable than
not that the alleged misconduct affected the jury's verdict. See
United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990).

Here, the prosecutor's reference to the alleged drug destina-
tion as a "stash house" during closing argument may have
gone a bit beyond spirited advocacy, as the district court
acknowledged by sustaining the defendants' objections. The
court, however, instructed the prosecutor to refrain from refer-
ring to the alleged destination as the "stash house," and the
prosecutor so refrained. Considering the weight of the evi-
dence against Recio and Lopez, and the relatively benign
nature of the prosecutor's statement in the context of the rest
of the trial, the district court did not abuse its discretion by
refusing to grant a motion for a mistrial or by refusing to give
a limiting instruction to the jury.

Finally, Recio and Lopez argue that the district court
improperly admitted expert testimony under Federal Rules of
Evidence 702 and 704 when Special Agent Anthony Hinton
("Hinton") of the DEA, after being qualified as an expert,
opined over objection that (1) the conspiracy involved a large
and complex organization, and (2) the conspiracy was
involved in other prior loads of drugs. Second Trial Tr. 647-
48.

This court reviews for abuse of discretion a district court's
decision to admit expert testimony. See United States v. Cam-
pos, 217 F.3d 707, 710 (9th Cir. 2000). Federal Rule of Evi-
dence 702 provides that a qualified expert my testify if his
"scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to deter-
mine a fact in issue." Federal Rule of Evidence 704 allows a
qualified expert to state an opinion regarding an ultimate
issue, provided that the ultimate issue does not pertain to the
mental state or condition of a defendant in a criminal case.

Here, the district court qualified Hinton as an expert based
on his knowledge, experience, training and education. Second
Trial Tr. 617-36. Hinton's testimony that the organization
"was involved in other loads," while helping establish the
existence of a larger conspiracy, was the agent's opinion,
based on his expertise, of whether the facts and circumstances
of this group of people and their activities demonstrated a
conspiracy larger than just the one load of marijuana and
cocaine. Because Hinton's testimony at all times remained
within boundaries set by Rules 702 and 704, the district court
did not abuse its discretion by admitting the testimony.

IV. CONCLUSION

The majority correctly is concerned that proof be made of
criminal conspiracy beyond a reasonable doubt, but the
majority incorrectly invades the province of a jury when it
holds that evidence in the first trial was insufficient. It is no
answer to say that the jury in the first trial made no finding
of pre-seizure conspiracy because it was improperly
instructed. The legal test to determine if a second trial was
permissible requires us to assess the boundaries of permissible
inferences that a jury reasonably could have drawn when
viewing all of the evidence in the light most favorable to the
government. In this light, the evidence was sufficient to show
a serious criminal conspiracy in which Recio and Lopez were
involved before the drugs were seized. I would affirm the dis-
trict court's correct decision to let the jury verdict stand after
the second trial./dcs/programs/www/cgi-prod/getfile.sh[51]: rmove:  not found
/dcs/programs/www/cgi-prod/getfile.sh[52]: rmove:  not found
/dcs/programs/www/cgi-prod/getfile.sh[53]: rmove:  not found

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FOOTNOTES

2 The circumstances suggest the government dismissed Count Two
against Lopez-Meza only to avoid the incongruity of charging both defen-
dants with conspiracy, but only Recio with possession, although both basi-
cally engaged in the same conduct.
1 The district court ordered the defendants retried after the first trial
because the first trial jury impermissibly was not instructed pursuant to
United States v. Cruz, 127 F.3d 791, 795 (9th Cir. 1997) (conspiracy to
distribute illegal drugs ends when law enforcement authorities confiscate
the drugs). In this case, pursuant to Cruz, the first trial jury should have
been instructed to consider evidence linking Recio and Lopez to a conspir-
acy that ended when police officers seized the drugs from Arce and Sotelo
at 1:18 a.m. on November 18, 1997.
2 The majority states that Arce "had never met Lopez or Recio before the
drugs were seized." This is not entirely clear from the record when viewed
in the light most favorable to the government. Although later in the trial
Arce testified that the first time he met Lopez was in the Boise jail, when
Arce first testified about his prior relationship with Lopez he stated: "I
didn't really know [Lopez] or he didn't really know me." Given the other
evidence, a jury may have inferred that Lopez was making a guarded
admission of some degree of prior knowledge of Lopez.
3 See supra note 1. I also conclude that we should not reach Recio's
claim of ineffective assistance of counsel as set forth in the disposition at
pages 6-7. We ordinarily do not reach ineffective assistance of counsel
claims on direct appeal. See United States v. Pope, 841 F.2d 954, 958 (9th
Cir. 1988). Such claims normally should be raised in habeas corpus pro-
ceedings, which permit counsel "to develop a record as to what counsel
did, why it was done, and what, if any, prejudice resulted." Id. There are
two exceptions to this general rule: (1) if the record is sufficiently devel-
oped to permit review and determination of the issue, or (2) where the
legal representation is so inadequate that it obviously denies a defendant
his Sixth Amendment right to counsel. See United States v. Ross, 206 F.3d896, 900 (9th Cir. 2000). Here, the record lacks any mention of Recio's
lawyer's reasons for failing to make the motion. Also, Recio's legal repre-
sentation was not so inadequate that it obviously denied him a Sixth
Amendment right to counsel. For these reasons, we should not reach
Recio's ineffective assistance of counsel claim.