dissenting:

I would reverse for failure of the district court to grant appellant’s motion for acquittal. I find no sufficient evidence connecting appellant to the narcotics sale on October 30, 1978, or to a narcotics conspiracy.

Barajas and Pena were the principal conspirators. Pena delivered to Barajas, who then sold to the agents. Three rendezvous points were involved in the sale: Kerry’s Restaurant, where the agreement of sale was reached between Barajas and the agents; the BART station, where delivery was to be made but which was then felt by Barajas to be unsafe; Capp Street, where delivery ultimately was made followed by arrest. Appellant’s sole function was to drive Pena. He drove him to Kerry’s Restaurant, followed him when he accompanied Barajas to the BART station, picked him up there and drove him to Capp Street. Appellant never took part in any discussion with Barajas or the government agents. He stayed in his car while Pena dealt with Barajas. The government and the majority opinion find three bits of evidence which it is felt establish that appellant was a knowing participant in the transaction.

1. At the BART station appellant contacted Pena and walked with him back to appellant’s car. The opinion states: “An agent, charged with surveillance duties, noticed that Pena and appellant were ‘looking all around very intently in occupied vehicles in the area.’ ” The agent later corrected this statement. He testified: “A. I don’t believe that I testified that I saw them looking in and out of automobiles. Q. What did you testify? A. That I observed the *839 individuals looking at some vehicles which were occupied.” The “very intently” seems to have been dropped, whatever that may mean. The extent to which appellant himself participated in looking at vehicles and how he did so is not spelled out.

2. The fact that the paper bag containing the heroin was obtained by Pena by reaching into the passenger’s side of appellant’s car while appellant stayed in the driver’s seat. The bag was in Pena’s possession. The fact that it was in the car is not, to me, sufficient to give rise to an inference that the driver of the car knew what was in it.

3. The opinion states: “Appellant was arrested in the Chevrolet from which it was not possible to see the arrest of Barajas and Pena. Upon being advised that he was under arrest appellant stated: ‘I don’t know anything about it, I’m just giving a friend a ride.’ ” The construction placed on this by the government, and apparently by the majority of the court, is that appellant spontaneously asserted his innocence without having any way of knowing what he was being arrested for or that Barajas and Pena had been arrested for involvement in a narcotics violation. The conclusion thus is drawn that this spontaneous assertion of innocence was proof of complicity. The record does not bear this out. It states:

Thus, when appellant made the statement credited to him he had already been told what he was under arrest for. I do not see how he could have been informed of the basis for his arrest without the arresting officer having identified the transaction in which he was felt to have participated. The assertion of innocence seems to me to be wholly consistent with innocence.

The standard for sufficiency of the evidence to establish guilt of conspiracy is the same as that applying to any crime: guilt must be established beyond a reasonable doubt.

In United States v. Friedman, 593 F.2d 109, 115 (9th Cir. 1979), this court stated:

In United States v. Dunn, 564 F.2d 348, 356-57 (9th Cir. 1977), we stated:

To the same effect: United States v. Bracy, 566 F.2d 649, 659 (9th Cir.), cert. denied, 439 U.S. 818 , 99 S.Ct. 79 , 58 L.Ed.2d 109 (1978). 1

*840 In my judgment this standard was not met and it was error not to grant appellant’s motion for acquittal. Upon that ground I would reverse and express no view as to the other points discussed in the majority opinion.

. Some confusion seems to have arisen in this circuit regarding what is sometimes called the “slight evidence rule.” United States v. Dunn, supra, has given some clarification. There, we said:

564 F.2d at 356-57 . To the same effect are United States v. Noah, 594 F.2d 1303, 1309-10 (9th Cir. 1979); United States v. Thomas, 586 F.2d 123, 127 (9th Cir. 1978); United States v. Kostoff, 585 F.2d 378, 380 (9th Cir. 1978); United States v. Weiner, 578 F.2d 757, 769 (9th Cir.), cert. denied, 439 U.S. 981 , 99 S.Ct. 568 , 58 L.Ed.2d 651 (1978); and United States v. Contreras-Diaz, 575 F.2d 740, 745 (9th Cir.) cert. denied, 439 U.S. 855 , 99 S.Ct. 167 , 58 L.Ed.2d 161 (1978).

Confusion also exists as to whether this “rule” fixes the standard for establishing guilt or only that for admission of the hearsay declarations of a coconspirator. Compare United States v. Weiner, supra, with United States v. Fried, 576 F.2d 787, 793 (9th Cir.), cert. denied, 439 U.S. 895 , 99 S.Ct. 255 , 58 L.Ed.2d 241 (1978).