Merke

ORDER AND MEMORANDUM ***

In his petition for rehearing and rehearing en banc, Appellant Sess Merke argues that there was insufficient evidence that he was a member of the single conspiracy charged in the Superseding Indictment and that the resulting variance was necessarily material because the jury was instructed that if they found that Merke was not a member of the charged conspiracy, they were required to find him not guilty. See United States v. Castaneda, 16 F.3d 1504 , 1509 n. 2 (9th Cir.1994).

*496 In the memorandum disposition filed on June 19, 2007, 234 Fed.Appx. 683 , we explained that even if the evidence showed that there were multiple conspiracies to transport stolen property in interstate commerce, the variance did not affect Merke’s substantial rights. We did not reach the issue of whether there was sufficient evidence of Merke’s membership in the single conspiracy charged in the Superseding Indictment.

We now affirm on different grounds. Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found the existence of the single overall conspiracy charged in the Superseding Indictment. See United States v. Arbelaez, 719 F.2d…

Dissent.

I do not agree that the evidence was sufficient to support the jury’s finding that there was a single overarching conspiracy in this case.

To establish a single conspiracy, the government must show “ ‘that each defendant knew or had reason to know of the scope of the conspiracy and that each defendant had reason to believe that their own benefits were dependent upon the success of the entire venture.’ ” United States v. Kenny, 645 F.2d 1323, 1335 (9th Cir.1981) (quoting United States v. Kostoff, 585 F.2d 378 (9th Cir.1978)). Viewing the evidence in the light most favorable to the prosecution, a rational jury could not conclude that Merke had such knowledge or belief about the single conspiracy. There was no evidence that Merke knew or had reason to know that any other supplier was involved in the conspiracy. Merke was uniquely situated for the supplier role. Merke’s position at ATL/Philips as the manager responsible for spare and defective parts meant he could easily move stolen items in and out of the office. Notwithstanding the majority’s references to Merke’s probable awareness that other suppliers contributed to a “steady stream of supply” for the Nguyens, there was…