                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 07-30270
                Plaintiff-Appellee,            D.C. No.
               v.                          CR-06-00296-10-
HAO QUANG TRAN,                                 JCC
                                           Western District of
             Defendant-Appellant.
                                             Washington,
                                                Seattle

                                              ORDER


                   Filed October 23, 2009

    Before: Harry Pregerson, William C. Canby, Jr. and
             John T. Noonan, Circuit Judges.

                            Order;
                   Dissent by Judge Gould



                           ORDER

  A judge of this court sua sponte called for this case to be
reheard en banc. A vote was taken, and a majority of the
active judges of the court did not vote for a rehearing en banc.
Fed. R. App. P. 35(f). The call for this case to be reheard en
banc is DENIED.




                             14309
14310               UNITED STATES v. TRAN
GOULD, Circuit Judge, with whom O’SCANNLAIN,
KLEINFELD, TALLMAN, BYBEE, CALLAHAN, and
BEA, Circuit Judges, join, dissenting from denial of rehearing
en banc:

   I respectfully dissent from the denial of rehearing en banc,
believing that the majority opinion is in conflict with Jackson
v. Virginia, 443 U.S. 307 (1979). Although the majority cites
that case, its misapplication of Jackson v. Virginia is an error
that should not go uncorrected because it shifts power
improperly from the jury, the voice of the community, which
heard the evidence presented at trial, to our Ninth Circuit
panel, which errs extravagantly. The majority opinion
stretches the “mere presence” rule to undermine a bedrock
principle of appellate jurisprudence: jury verdicts must be
upheld if, “after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” Id. at 319 (emphasis in original). The dissent of Judge
Noonan correctly analyzed the requirements of Jackson v.
Virginia, and the majority did not.

   The evidentiary value of Tran’s co-conspirator’s inculpa-
tory plea-agreement statement, and whether it supported
Tran’s complicity or mere presence (the very question the
majority held must be answered in Tran’s favor) was put
before the jury. See Brief of Appellant at 11, 13, United States
v. Tran, 568 F.3d 1156 (9th Cir. Feb. 29, 2008) (No. 07-
30270). The statement admitted from Nguyen’s plea agree-
ment, that “Nguyen, together with Han Quong Tran, picked
up approximately 70 pounds of marijuana for redistribution
that night,” is itself adequate to uphold the jury’s verdict
against Tran. The jury could rationally have given that state-
ment its ordinary meaning that Tran and Nguyen both picked
up the drugs for distribution. Jackson v. Virginia requires that
we view “evidence in the light most favorable to the prosecu-
tion.” 443 U.S. at 319. If the jury may have credited an inter-
pretation of the plea-agreement statement consistent with
                    UNITED STATES v. TRAN               14311
Tran’s involvement beyond mere presence, I conclude that
Jackson v. Virginia requires us to honor that possibility
because of the superordinate primacy given to jury decisions
on disputed facts.

   The jury also considered substantial circumstantial evi-
dence that Tran was involved in the conspiracy: Tran was one
of two people found in a car that had previously been
observed departing a known drug warehouse operated by a
major marijuana importation and distribution organization,
the trunk of the car held more than sixty pounds of marijuana,
Tran’s earlier connections with marijuana distribution were
admitted to show he had extensive knowledge of how such
distribution works and Tran’s knowledge of drug distribution
compared with Nguyen’s youth and inexperience—he was
“young and stupid” in his own words—made it unlikely that
such a large quantity of drugs would have been entrusted to
Nguyen alone when such a knowledgeable, though mis-
guided, mentor was on hand. The jury had the opportunity to
consider whether Nguyen’s plea-agreement statement and this
corroborating evidence demonstrated his guilt or “supports no
more than Tran’s mere presence,” as the majority held, but the
jury rejected that argument, as was its prerogative. See Brief
of Appellant at 11, 13 (stating that “the government urged the
court (and the jury) to interpret the ‘together with’ sentence
to mean Tran was Nguyen’s accomplice” and quoting the
government as arguing in its closing that the plea agreement
showed “they [Nguyen and Tran] did this together”).

   The cases the majority cites stand only for the sensible
proposition that mere presence in a car or home where drugs
are found is not enough to convict of conspiracy to distribute
drugs, even when the defendant has knowledge of the conspir-
acy. See United States v. Estrada-Macias, 218 F.3d 1064,
1066 (9th Cir. 2000); United States v. Sanchez-Mata, 925
F.2d 1166, 1167-68 (9th Cir. 1991). But here Nguyen’s
explicit inculpatory plea-agreement statement, coupled with
the permissible and reasonable inferences to be drawn from
14312            UNITED STATES v. TRAN
the circumstantial evidence—such as the comparison of
Nguyen’s inexperience with Tran’s extensive knowledge—
are sufficient to support the jury’s verdict.
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