Appeal from the United States District Court for the Southern District of California. D.C. No. CR-91-0660-h. Marilyn L. Huff, District Judge, Presiding
Before: D.w. Nelson, Reinhardt and Kozinski, Circuit Judges.
A jury found Jaime Ramos-Guerrero guilty of conspiracy to import marijuana, importation of marijuana, conspiracy to possess marijuana with the intent to distribute, and possession of marijuana with intent to distribute. He was sentenced to a term of 35 months in custody and two years of supervised release. Ramos-Guerrero appeals on grounds of insufficiency of the evidence. We reverse.
Based on observations six days earlier of a marijuana smuggling operation in the area, Border Patrol Agent William Doolittle and seven other agents converged on a road just north of the United States-Mexico border in the early morning of July 9, 1991. As had occurred on July 3, a white pickup passed by, turned around, came back, and stopped. Waiting pedestrians then loaded the truck with marijuana. A brown pickup followed the white pickup's route. Ramos-Guerrero was arrested as a passenger in the brown pickup. One of the agents testified to seeing Ramos-Guerrero look to the left and right, as if looking for something, as the brown trucks initially drove through the area.
A defendant's mere presence during illicit activity by members of a conspiracy does not sufficiently establish involvement in the conspiracy. United States v. Esparza, 876 F.2d 1390, 1393 (9th Cir. 1989); United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). Nonetheless, a defendant's presence may support such an inference when viewed in context with other evidence. Penagos, 823 F.2d at 848.
The government offers two theories of Ramos-Guerrero's involvement in the conspiracy: that he was a "lookout" and that he was to become the driver of the white pickup after the marijuana was placed in the truck bed.
The evidence did not establish sufficiently that Ramos-Guerrero acted as a "lookout". A passenger's act of looking to the left and right while in a vehicle, without more, is of little or no significance. The government presented no evidence of any persons or activities that were the objects of Ramos-Guerrero's attention as he looked left and right. See Penagos, 823 F.2d at 349. We also note that, as a passenger, Ramos-Guerrero had no direct control over the brown pickup that followed the conspirators separately to the point of delivery. See id. Finally, Ramos-Guerrero did not attempt to avoid capture. See id.
The actions of Ramos-Guerrero are consistent with innocence. "When a defendant's behavior is entirely consistent with innocence, the government must 'produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the defendant [in fact engaged in criminal conduct].'" United States v. Bishop, 959 F.2d 820, 831 (9th Cir. 1992) (quoting Penagos, 823 F.2d at 349). A reasonable jury could not have found beyond a reasonable doubt that Ramos-Guerrero acted as a "lookout" for the conspiracy.
2. "Load Vehicle Driver" Evidence
Agent Doolittle's description of the events of July 3 did not include observation of a passenger in the brown truck. Nor did Agent Doolittle identify the person who drove the white truck on July 3 after ...