371 F.3d 1093 (9th Cir. 2004), 99-30135, United States v. Recio

Docket Nº99-30135, 99-30145.
Citation371 F.3d 1093
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Francisco Jimenez RECIO, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Adrian Lopez-Meza, Defendant-Appellant.
Case DateJune 15, 2004
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 1093

371 F.3d 1093 (9th Cir. 2004)

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.

United States Court of Appeals, Ninth Circuit

June 15, 2004

Argued and Submitted July 9, 2003.

Page 1094

[Copyrighted Material Omitted]

Page 1095

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.

Dissent by Judge GOULD

OPINION

Page 1096

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 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) (Recio 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 Recio I, 258 F.3d at 1070-73; see also id. at 1078 (Gould, J., dissenting). We review only the complicated procedural course this case has taken.

In 1998, appellants Francisco Jimenez Recio1 and Adrian Lopez-Meza proceeded to trial ("first trial") on counts of conspiracy to distribute cocaine and/or marijuana, and possession with intent to distribute cocaine and/or marijuana. A jury returned guilty verdicts on all counts. Lopez-Meza entered a post-verdict motion for acquittal under Federal Rule of Criminal Procedure 29(c), claiming that there was insufficient evidence to convict him on either the conspiracy or possession count. Jimenez Recio moved for judgment of acquittal on the conspiracy count alone, also pursuant to Rule 29(c).2 Both Jimenez Recio and Lopez-Meza based their motions for acquittal on the Cruz conspiracy rule, which held that a conspiracy continues " 'until there is affirmative evidence of abandonment, withdrawal, disavowal or defeat of the object of the conspiracy.' " See Cruz, 127 F.3d at 795 (quoting United States v. Castro, 972 F.2d 1107, 1112 (9th Cir. 1992)). The district court had overlooked the Cruz rule in conducting the trial and had not instructed the jury that Jimenez Recio and Lopez-Meza could be found guilty of conspiracy only if they joined the conspiracy prior to the government's seizure of the drug shipment. Jimenez Recio and Lopez-Meza argued that the government had produced insufficient evidence to show that either defendant had been involved in the conspiracy prior to seizure of the drugs by government agents.

Page 1097

The district court denied both motions for acquittal on the conspiracy counts, stating that there was sufficient evidence for a rational jury to find that the defendants had been involved in the conspiracy prior to the government's seizure of the drugs. The court also denied Lopez-Meza's motion for acquittal on the possession count, holding that there was sufficient evidence tying the defendant directly to the drugs for a rational jury to convict.

Although it rejected the motions for acquittal, the district court held that "because of the Court's error in instructing the jury, the granting of a new trial is, 'required in the interests of justice.' " United States v. Jiminez, CR No. 97-00103, Memorandum and Order at 7 (D.Idaho July 27, 1998) (quoting Federal Rule of Criminal Procedure 33). The court stated that it was possible that the jury had impermissibly convicted both defendants based solely on post-seizure involvement in the conspiracy, since the jury instructions had not incorporated the Cruz rule. The court also noted that the jury instructions on the possession count included a Pinkerton instruction, which allowed the jury to convict Lopez-Meza of possession based on the actions of co-conspirators during the course and in furtherance of the conspiracy. See Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Therefore, the jury instructions on the possession count were also infected by the neglect of the Cruz rule, since it was possible that the jury convicted Lopez-Meza on the possession count based solely on the post-seizure actions of his co-conspirator, Jimenez Recio. Although it acknowledged that neither defendant had moved for a new trial and that Federal Rule of Criminal Procedure 33 did not, on its face, provide for sua sponte conversion of motions for acquittal to motions for a new trial, the district court determined that Rule 33's failure to provide judges with such power was based on double jeopardy concerns not applicable to the case at hand. The district court vacated the conspiracy convictions and Lopez-Meza's possession conviction, and ordered a second trial. The government subsequently dropped the possession charge against Lopez-Meza.

Appellants' second trial for conspiracy was conducted in accordance with the Cruz rule. However, in addition to the "single-load" conspiracy charge that was the subject of the first trial and was governed by Cruz, the prosecution relied on a broader, "multi-load" conspiracy theory, introducing evidence that the drug shipment bore the hallmarks of a larger conspiracy involving more than one drug load. Under this multi-load theory, the defendants could be convicted based on either pre- or post-seizure involvement in the broader conspiracy. The jury again returned guilty verdicts on the conspiracy counts.

After the district court denied renewed Rule 29(c) motions for acquittal, Jimenez Recio and Lopez-Meza appealed to this Court. Both appellants made the following claims: (1) that the district court had erred in denying their motions for acquittal after both the first and the second trials; (2) that the district court had given an erroneous jury instruction on the scope of the conspiracy; and (3) that the district court had erred by denying a motion for mistrial due to prosecutorial misconduct. In addition, Lopez-Meza claimed that the district court erred in allowing evidence of the odor of burned marijuana in the blue Mazda that he was driving when arrested. Jimenez Recio also claimed that he had received ineffective assistance of counsel when his lawyer failed to raise a motion for acquittal on his possession count after the first trial.

In Recio I, a majority of this panel held that there was insufficient evidence raised at the second trial for a rational jury to

Page 1098

conclude that Jimenez Recio and Lopez-Meza had been involved in either the single-load conspiracy prior to the government's seizure of the drugs, or a broader, multi-load conspiracy pre- or post-seizure. Recio I, 258 F.3d at 1071-73. We therefore reversed and dismissed with prejudice the conspiracy convictions. Id. at 1074. In addition, the panel majority held that Jimenez Recio's first lawyer had provided ineffective assistance in failing to raise a motion for acquittal on the possession count after the first trial. Id. The panel rejected Jimenez Recio's other claims pertaining to his possession conviction. The panel majority opinion did not reach the propriety or effect of reviewing evidence presented at the first trial. Id. at 1071 n. 1.

The Supreme Court granted certiorari and overruled the Cruz conspiracy rule. The Court held that "[a] conspiracy does not automatically terminate simply because the Government, unbeknownst to some of the conspirators, has 'defeated' the conspiracy's 'object'." Recio II, 537 U.S. at 274, 123 S.Ct. 819. The Court then remanded the case for further proceedings consistent with its opinion.

On remand, the government argues that we can and should affirm appellants' conspiracy convictions, despite the use of the Cruz rule in the second trial, because "[t]he jury was properly instructed and determined defendants' guilt as to all elements of conspiracy" and the Cruz instruction "only served to 'pose[ ] an unnecessary burden on the Government that in no way prejudiced the appellants.' " Appellants argue that the government must be held to its "chosen theory of the case," namely that it was required to prove appellants' pre-seizure involvement in the conspiracy. Appellants claim that the government is now estopped from asserting that appellants were involved post-seizure and, because there remains insufficient evidence of pre-seizure involvement, our decision in Recio I must be reaffirmed.

II. Conspiracy Convictions

To address the effect of the Supreme Court's overruling of the Cruz rule on our previous decision, we must distinguish between the prosecution's multi-load conspiracy charge and its single-load charge.

A. Multi-Load Conspiracy

In Recio I, the panel majority found that there was insufficient evidence for a reasonable jury to convict Jimenez Recio and Lopez-Meza of being part of a broader, multi-load drug conspiracy, either before or after the seizure of the drug shipment. In so holding, the panel...

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100 practice notes
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    ...But see infra note 114 (acknowledging ambiguity over the purpose of addressing structural error). (95) See United States v. Recio, 371 F.3d 1093, 1101 (9th Cir. 2004) ("[Al finding of structural error satisfies the third prong of the Olano test."); United States v. Adams, 252 F.3d......
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    ...only because it was foreclosed by precedent at that time. See Johnson v. United States, 520 U.S. 461 (1997); United States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004) (citing Johnson and explaining that "the four-part plain error test.., applies on direct appeal even where an interve......
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    ...(See, e.g., People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7 [76 Cal.Rptr.2d 180]; Page 1534 United States v. Recio (9th Cir. 2004) 371 F.3d 1093, 1101.) In so doing, these courts have recognized that certain constitutional and structural errors affect the “substantial rights” of the defen......
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  • 289 P.3d 1059 (Idaho App. 2012), 38980, State v. Parsons
    • United States
    • Court of Appeals of Idaho
    • September 13, 2012
    ...third prong of the plain-error test. " ) (emphasis added) and Perry, 150 Idaho at 222, 245 P.3d at 974, with United States v. Recio, 371 F.3d 1093, 1101 (9th Cir.2004) (" We now join [the Third and Fourth Circuits] and hold that a finding of structural error satisfies the third pr......
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    • December 20, 2005
    ...(See, e.g., People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7 [76 Cal.Rptr.2d 180]; Page 1534 United States v. Recio (9th Cir. 2004) 371 F.3d 1093, 1101.) In so doing, these courts have recognized that certain constitutional and structural errors affect the “substantial rights” of the defen......
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    ...withdrawal, disavowal or defeat of the object of the conspiracy.'” Id. at 1176 (quoting United States v. Recio, 371 F.3d 1093, 1096 (9th Cir. 2004)). “To withdraw from a conspiracy, a defendant must either disavow the unlawful goal of the conspiracy, affirmatively a......
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    ...that " seriously affected the fairness, integrity, or public reputation of the judicial proceedings." United States v. Recio, 371 F.3d 1093, 1100 (9th 1. Moreland first asserts that his due process rights were violated when the prosecution asked him to testify regarding whether tw......
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2 books & journal articles
  • Classifying constructive amendment as trial or structural error.
    • United States
    • University of Pennsylvania Law Review Vol. 158 Nbr. 2, January 2010
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    ...But see infra note 114 (acknowledging ambiguity over the purpose of addressing structural error). (95) See United States v. Recio, 371 F.3d 1093, 1101 (9th Cir. 2004) ("[Al finding of structural error satisfies the third prong of the Olano test."); United States v. Adams, 252 F.3d......
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    • Michigan Law Review Vol. 107 Nbr. 5, March 2009
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    ...only because it was foreclosed by precedent at that time. See Johnson v. United States, 520 U.S. 461 (1997); United States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004) (citing Johnson and explaining that "the four-part plain error test.., applies on direct appeal even where an interve......

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