Recio
United States v. Recio
Opinion
Lead Opinion
Browning, J.
Francisco Jimenez Recio and Adrian Lopez-Meza appeal their convictions of conspiracy to possess with intent to distribute a controlled substance on the same grounds and Recio also appeals his conviction for possession with intent to distribute 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 second 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 confiscate 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 conspiracy 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.…
Dissenting Opinion
Gould, J.
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 marijuana. 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 Procedure 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 reasonable 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 conspiracy count for both Recio and Lopez, a second trial on the possession count for Lopez, and sentencing on the possession count for Recio.