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

Opinion by Judge BROWNING; Dissent by Judge GOULD

This case comes to us on remand from the United States Supreme Court. In United States v. Jimenez Recio, 537 U.S. 270 , 123 S.Ct. 819 , 154 L.Ed.2d 744 (2003) (Redo II), the Supreme Court overruled this Circuit’s criminal conspiracy rule as set forth in United States v. Cruz, 127 F.3d 791 (9th Cir.1997). The Court reversed our judgment in United States v. Jimenez Recio, 258 F.3d 1069 (9th Cir.2001) (Re cio I), insofar as that case relied on Cruz’s holding and remanded for further proceedings consistent with its opinion. We must now address the extent to which the Supreme Court’s decision in Recio II requires modification of our prior decision.

The Cruz rule dictated the framework of appellants’ second trial for conspiracy to distribute cocaine and marijuana, and use of the rule amounted to plain error. We therefore remand to the Idaho District Court with instructions to vacate appellants’ conspiracy convictions and to order a new trial.

I. Procedural History

The underlying facts of this case are set forth in our previous decision. See Redo I, 258 F.3d at 1070-73 ; see also id. at 1078 (Gould, J., dissenting). We review only the…

dissenting:

This case involves the second conviction upon jury trial of Jimenez Recio and Lopez-Meza for their participation in a drug conspiracy that unraveled when the police seized a truck containing more than $10 million of illicit drugs. The majority’s pri- or ruling was reversed by the United States Supreme Court because of the majority’s reliance on the Ninth Circuit’s Cruz precedent, which the Supreme Court roundly rejected. The majority persists in reversing the convictions of Jimenez Recio and Lopez-Meza on other faulty grounds. Though recognizing that Cruz was erroneous, the panel majority now continues in a different error by substituting its will in the place of the jury’s verdict on what are essentially questions of fact. The panel majority contravenes the considered verdicts of the jury which found the guilt of Jimenez Recio and Lopez-Meza beyond a reasonable doubt. Although the second trial, the verdict of which is the subject of this appeal, proceeded with an instruction pursuant to the Cruz rule, that only made it more difficult for the government to prove conspiracy. Because the government’s proof of conspiracy was sufficient even under the mistakenly…

371 F.3d 1093 UNITED STATES of America, Plaintiff-Appellee, v. Francisco Jimenez RECIO, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Adrian Lopez-Meza, Defendant-Appellant. No. 99-30135. No. 99-30145. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 9, 2003. Filed June 15, 2004. COPYRIGHT MATERIAL OMITTED M. Karl Shurtliff, Pike & Shurtliff, Boise, ID, for defendant-appellant Recio; Thomas A. Sullivan, Wiebe & Fouser, Caldwell, ID, for defendant-appellant Lopez-Meza. Thomas E. Moss, United States Attorney for the District of Idaho, Department of Justice, Boise, ID; Alan G. Burrow, Assistant United States Attorney, Department of Justice, Boise, ID, for the plaintiff-appellee. On Remand from the United States Supreme Court. Before: BROWNING, B. FLETCHER, and GOULD, Circuit Judges. Opinion by Judge BROWNING; Dissent by Judge GOULD JAMES R. BROWNING, Circuit Judge: This case comes to us on remand from the United States Supreme Court. In United States v. Jimenez Recio, 537 U.S. 270 , 123 S.Ct. 819 , 154 L.Ed.2d 744 (2003) ( Recio II ), the Supreme Court overruled this Circuit's criminal conspiracy rule as set forth in United…