United States v. Francisco Jimenez Recio, United States of America v. Adrian Lopez-Meza

*846 ORDER

Judges Browning and B. Fletcher have voted to reject the petition for rehearing. Judge Gould would have granted the petition.

Judges Browning and B. Fletcher recommended denial of the petition for rehearing en banc. Judge Gould voted to grant the en banc hearing.

The full court was advised of the petition for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonre-cused active judges in favor of en banc consideration. Fed. R.App. P. 35(b).

The petition for rehearing and for rehearing en banc are DENIED.

join, dissenting from the denial of rehearing en banc:

With respect, I believe that our court took a wrong turn in the law of conspiracy in United States v. Cruz, 127 F.3d 791 (9th Cir.1997), and today’s order demonstrates how far off course we have ventured. By failing to rehear United States v. Redo, 258 F.3d 1069 (9th Cir.2001), en banc, we let stand the aberration wrought by Cruz now compounded by Redo . In so doing, we erect serious impediments to legitimate law enforcement efforts to combat drug trafficking by mandating the exclusion of relevant, probative, and, indeed, overwhelming evidence of guilt. We also perpetuate conflict with our sister circuits and, in my view, ignore black letter principles of conspiracy law set out for us by the U.S. Supreme Court. I respectfully dissent from the order denying rehearing en banc.

I

To convict Recio and Lopez-Meza of conspiracy under 21 U.S.C. § 846 , the government bore the burden of proving (1) that there was an agreement to possess the truck load of cocaine and marijuana in question with intent to distribute; and (2) that Recio and Lopez-Meza knew of the agreement’s objectives and intended to help further them. See United…

270 F.3d 845 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. FRANCISCO JIMENEZ RECIO, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ADRIAN LOPEZ-MEZA, DEFENDANT-APPELLANT. Nos. 99-30135, 99-30145 D.C. No. CR-97-00103-BLW UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed October 30, 2001 Before: BROWNING, B. FLETCHER, and GOULD, Circuit Judges. ORDER 1 Judges Browning and B. Fletcher have voted to reject the petition for rehearing. Judge Gould would have granted the petition. 2 Judges Browning and B. Fletcher recommended denial of the petition for rehearing en banc. Judge Gould voted to grant the en banc hearing. 3 The full court was advised of the petition for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35(b). 4 The petition for rehearing and for rehearing en banc are DENIED. 5 O'SCANNLAIN, Circuit Judge, with whom KOZINSKI, T.G. NELSON, TROTT, KLEINFELD, WARDLAW, GOULD, TALLMAN, and RAWLINSON, Circuit Judges, join, dissenting from the denial of…