UNITED STATES OF AMERICA,No. 97-10377Plaintiff-Appellee,D.C. No.v.CR 96-00393-JMRLEON GARCIA, aka Cody Garcia,OPINIONDefendant-Appellant.

Appeal from the United States District Courtfor the District of ArizonaJohn M. Roll, District Judge, PresidingArgued and SubmittedJuly 17, 1998--San Francisco, CaliforniaFiled August 25, 1998Before: Stephen Reinhardt, John T. Noonan, andDavid R. Thompson, Circuit Judges.Opinion by Judge Reinhardt

_____________________________COUNSEL Arthur J. Hutton, Tucson, Arizona, for the defendant-appellant.Terry L. Chandler, Assistant United States Attorney, Tucson,Arizona, for the plaintiff-appellee.

_____________________________OPINION REINHARDT, Circuit Judge:In this case, we consider whether testimony regarding theexistence of an implicit, general agreement among gang mem-bers to support one another in fights against rival gangs canconstitute sufficient evidence to support a conviction of con-spiracy to commit assault when the conduct of the allegedconspirators is otherwise insufficient.One evening, a confrontation broke out between rival gangsat a party on the Pasqua Yaqui Indian reservation. The resul-tant gunfire injured four young people, including appellantCody Garcia. Two young men involved in the shooting, Gar-cia and Noah Humo, were charged with conspiracy to assaultthree named individuals with dangerous weapons. A juryacquitted Humo but convicted Garcia. Because there is nodirect evidence of an agreement to commit the criminal actwhich was the alleged object of the conspiracy, and becausethe circumstances of the shootings do not support the exis-tence of an agreement, implicit or explicit, the governmentrelied heavily on the gang affiliation of the participants toshow the existence of such an agreement. We hold that gangmembership itself cannot establish guilt of a crime, and a gen-eral agreement, implicit or explicit, to support one another ingang fights does not provide substantial proof of the specificagreement required for a conviction of conspiracy to commitassault. The defendant's conviction therefore rests on insuffi-cient evidence, and we reverse.BackgroundThe party at which the shootings occurred was held in terri-tory controlled by the Crips gang. The participants wereapparently mainly young Native Americans. While many ofthe attendees were associated with the Crips, some membersof the Bloods gang were also present. Appellant Cody Garciaarrived at the party in a truck driven by his uncle, waving ared bandanna1 out the truck window and calling out his gangaffiliation: "ESPB Blood!" Upon arrival, Garcia began"talking smack" to (insulting) several Crips members. Prose-cution witnesses testified that Garcia's actions suggested thathe was looking for trouble and issuing a challenge to fight tothe Crips at the party.Meanwhile, Garcia's fellow Bloods member Julio Baltazarwas also "talking smack" to Crips members, and Blood NoahHumo bumped shoulders with one Crips member and calledanother by a derogatory Spanish term. Neither Baltazar norHumo had arrived with Garcia, nor is there any indication thatthey had met before the party to discuss plans or that theywere seen talking together during the party.At some point, shooting broke out. Witnesses saw bothBloods and Crips, including Garcia and Humo, shooting atone another. Baltazar was seen waving a knife or trying tostab a Crip. The testimony at trial does not shed light on whattook place immediately prior to the shooting, other than thefact that one witness heard Garcia ask, "Who has the gun?"There is some indication that members of the two gangs mayhave "squared off" before the shooting began. No testimonyestablishes whether the shooting followed a provocation orverbal or physical confrontation.Four individuals were injured by the gunfire: the defendant,Stacy Romero, Gabriel Valenzuela, and Gilbert Baumea.Stacy Romero who at the time was twelve years old was thecousin both of Garcia's co-defendant Humo and his fellowBlood, Baltazar. No evidence presented at trial establishedthat any of the injured persons was shot by Garcia, and he wascharged only with conspiracy. The government charged bothGarcia and Humo with conspiracy to assault Romero, Valenz-uela, and Baumea with dangerous weapons under 18 U.S.C.SS 371, 113(a)(3) and 1153; Humo alone was charged withtwo counts of assault resulting in serious bodily injury under18 U.S.C. SS 113(a)(6) and 1153.After a jury trial, Humo was acquitted on all counts. Garciawas convicted of conspiracy to assault with a dangerousweapon and sentenced to 60 months in prison. He appeals onthe ground that there was insufficient evidence to support hisconviction.Sufficiency of the Evidence[1] In order to prove a conspiracy, the government mustpresent sufficient evidence to demonstrate both an overt actand an agreement to engage in the specific criminal activitycharged in the indictment. See United States v. Ramos-Rascon, 8 F.3d 704, 709 (9th Cir. 1993); United States v. Her-nandez, 876 F.2d 774, 777 (9th Cir. 1989). While an implicitagreement may be inferred from circumstantial evidence,proof that an individual engaged in illegal acts with others isnot sufficient to demonstrate the existence of a conspiracy.See United States v. Lennick, 18 F.3d 814, 818 (9th Cir.1994). Both the existence of and the individual's connectionto the conspiracy must be proven beyond a reasonable doubt.United States v. Klimavicius-Viloria, 144 F.3d 1249, 1266(citing United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1997)).2The government claims that it can establish the agreementto assault in two ways: first, that the concerted provocativeand violent acts by Garcia, Humo and Baltazar are sufficientto show the existence of a prior agreement; and second, thatby agreeing to become a member of the gang, Garcia implic-itly agreed to support his fellow gang members in violent con-frontations.[2] However, no inference of the existence of any agree-ment could reasonably be drawn from the actions of Garciaand other Bloods members on the night of the shooting. Aninference of an agreement is permissible only when the natureof the acts would logically require coordination and planning.See, e.g., United States v. Iriarte-Ortega, 113 F.3d 1022, 1024(9th Cir. 1997), amended by 127 F.3d 1200, cert. denied, 118S.Ct. 1209 (1998). The government presented no witnesseswho could explain the series of events immediately precedingthe shooting, so there is nothing to suggest that the violencebegan in accordance with some prearrangement. The factsestablish only that perceived insults escalated tensionsbetween members of rival gangs and that an ongoing gang-related dispute erupted into shooting. Testimony presented attrial suggest more chaos than concert. Such evidence does notestablish that parties to a conspiracy "work[ed] togetherunderstandingly, with a single design for the accomplishmentof a common purpose." United States v. Melchor-Lopez, 627F.2d 886, 890 (9th Cir. 1980) (quoting United States v. Mon-roe, 552 F.2d 860, 862-63 (9th Cir. 1977)).[3] Given that this circumstantial evidence fails to suggestthe existence of an agreement, we are left only with gangmembership as proof that Garcia conspired with fellowBloods to shoot the three named individuals. The governmentpoints to expert testimony at the trial by a local gang unitdetective, who stated that generally gang members have a"basic agreement" to back one another up in fights, an agree-ment which requires no advance planning or coordination.This testimony, which at most establishes one of the charac-teristics of gangs but not a specific objective of a particulargang -- let alone a specific agreement on the part of its mem-bers to accomplish an illegal objective -- is insufficient toprovide proof of a conspiracy to commit assault or other ille-gal acts.[4] Recent authority in this circuit establishes that"[m]embership in a gang cannot serve as proof of intent, orof the facilitation, advice, aid, promotion, encouragement orinstigation needed to establish aiding and abetting. " Mitchellv. Prunty, 107 F.3d 1337, 1342 (9th Cir.), cert. denied, 118S.Ct. 295 (1997), overruled in part on other grounds,Santamaria v. Horsley, 133 F.3d 1242 (9th Cir. 1998) (enbanc). In overturning the state conviction of a gang memberthat rested on the theory that the defendant aided and abetteda murder by "fanning the fires of gang warfare, " the Mitchellopinion expressed concern that allowing a conviction on thisbasis would "smack[ ] of guilt by association." Id. at 1342.The same concern is implicated when a conspiracy convictionis based on evidence that an individual is affiliated with agang which has a general rivalry with other gangs, and thatthis rivalry sometimes escalates into violent confrontations.The Mitchell court reasoned that the conviction in that casenecessarily rested on the faulty assumption that gang mem-bers typically act in a concerted fashion. Id. at 1342. Such anassumption would be particularly inappropriate here. Acts ofprovocation such as "talking smack" or bumping into rivalgang members certainly does not prove a high level of plan-ning or coordination. Rather, it may be fairly typical behaviorin a situation in which individuals who belong to rival gangsattend the same events. At most, it indicates that members ofa particular gang may be looking for trouble, or ready to fight.It does not demonstrate a coordinated effort with a specificillegal objective in mind. See Melchor-Lopez, 627 F.2d at 891(conspiracy requires proof of both "an intention and agree-ment to accomplish a specific illegal objective"). The fact thatgang members attend a function armed with weapons mayprove that they are prepared for violence, but without otherevidence it does not establish that they have made plans toinitiate it. And the fact that more than one member of theBloods was shooting at rival gang members also does notprove a prearrangement -- the Crips, too, were able to pullout their guns almost immediately, suggesting that readinessfor a gunfight requires no prior agreement. Such readinessmay be a sad commentary on the state of mind of many of thenation's youth, but it is not indicative of a criminal conspir-acy.[5] Finally, as the Mitchell panel warned, allowing gangmembership to serve as evidence of aiding and abetting"would invite absurd results. Any gang member could be heldliable for any other gang member's act at any time so long asthe act was predicated on `the common purpose of "fightingthe enemy." ' " Mitchell, 107 F.3d at 1341 (citation omitted).Similarly, allowing a general agreement among gang mem-bers to back each other up to serve as sufficient evidence ofa conspiracy would mean that any time more than one gangmember was involved in a fight it would constitute an act infurtherance of the conspiracy and all gang members could beheld criminally responsible -- whether they participated in orhad knowledge of the particular criminal act, and whether ornot they were present when the act occurred. Indeed, were weto accept "fighting the enemy" as an illegal objective, all gangmembers would probably be subject to felony prosecutionssooner rather than later, even though they had never person-ally committed an improper act. This is contrary to fundamen-tal principles of our justice system. "[T]here can be noconviction for guilt by association . . . . " Melchor-Lopez, 627F.2d at 891.Because of these concerns, evidence of gang membershipcannot itself prove that an individual has entered a criminalagreement to attack members of rival gangs. Moreover, herethe conspiracy allegation was even more specific: the statecharged Garcia with conspiracy to assault three specific indi-viduals -- Romero, Baumea and Valenzuela -- with deadlyweapons. Even if the testimony presented by the state had suf-ficed to establish a general conspiracy to assault Crips, it cer-tainly did not even hint at a conspiracy to assault the threeindividuals listed in the indictment. Of course, a more generalindictment would not have solved the state's problems in thiscase. In some cases, when evidence establishes that a particu-lar gang has a specific illegal objective such as selling drugs,evidence of gang membership may help to link gang membersto that objective.3 However, a general practice of supportingone another in fights, which is one of the ordinary characteris-tics of gangs, does not constitute the type of illegal objectivethat can form the predicate for a conspiracy charge. 4ConclusionBecause the government introduced no evidence fromwhich a jury could reasonably have found the existence of anagreement to engage in any unlawful conduct, the evidence ofconspiracy was insufficient as a matter of law. A contraryresult would allow courts to assume an ongoing conspiracy,universal among gangs and gang members, to commit anynumber of violent acts, rendering gang members automati-cally guilty of conspiracy for any improper conduct by anymember. We therefore reverse Garcia's conviction andremand to the district court to order his immediate release.5REVERSED AND REMANDED.MANDATE SHALL ISSUE FORTHWITH.

___________________________FOOTNOTES 1 The Bloods claim the color red and the Crips the color blue.2 Even though a defendant's connection to the conspiracy may be slight,the connection must nonetheless be proven beyond a reasonable doubt.Klimavicius-Viloria, 144 F.3d at 1266.3 See, e.g., United States v. Sloan, 65 F.3d 149, 151 (10th Cir. 1995)(gang membership relevant when evidence established that gang con-trolled drug distribution in particular housing projects); United States v.Robinson, 978 F.2d 1554, 1561 (10th Cir. 1992) (upholding admission ofevidence of gang membership as proof of knowledge and intent when"uncontroverted testimony" that selling cocaine was main purpose ofgang); United States v. Hartsfield, 976 F.2d 1349, 1352 (7th Cir. 1992)(testimony established that primary purpose of gang was to distributecocaine).4 Because we conclude that the evidence is insufficient to support Gar-cia's conspiracy conviction, we need not consider whether the expert'sstatements regarding the nature of gangs and the meaning of gang affilia-tion were admissible. We point out, however, that his general observationsfailed to identify a specific illegal objective, were not based on specificknowledge of Garcia's gang, and were not addressed specifically to theconduct of that gang, and therefore had little probative value with respectto the specific conspiracy alleged here.5 As a result of this decision, Garcia is not subject to retrial. See UnitedStates v. Graves, 143 F.3d 1185, 1191 n.7 (9th Cir. 1998). He has alreadyserved over a year in prison.