Lima

MEMORANDUM *

Freddy Lima appeals his jury conviction for possession with intent to distribute heroin in violation of 21 U.S.C. § 841 (a)(1), and conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. § 846 . The evidence in this case was insufficient for any rational jury to arrive at a guilty verdict; therefore, we reverse both counts.

The government failed to show that Lima knowingly possessed a controlled substance with intent to distribute it. See United States v. Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir.2000). Although the government submits that Lima constructively possessed the heroin by sitting in a car next to a bag containing the drugs, our previous case law establishes that mere proximity to drugs or association with the person who controls them is insufficient to prove possession. See United States v. Vasquez-Chan, 978 F.2d 546, 550 (9th Cir.1992); see also United States v. Ramirez, 176 F.3d 1179, 1181 (9th Cir.1999). Lima’s testimony that he tried to push the bag away from him does not demonstrate that he had dominion and control over the drugs. Moreover, an aiding and abetting theory is unsupportable here because the government did…