                 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
             Defendant-Appellant.
                                            OPINION

        Appeal from the United States District Court
          for the Western District of Washington
       John C. Coughenour, District Judge, Presiding

                  Argued and Submitted
           August 6, 2008—Seattle, Washington

                    Filed June 24, 2009

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

               Opinion by Judge Pregerson;
                Dissent by Judge Noonan




                           7671
7674               UNITED STATES v. TRAN


                        COUNSEL

Allen M. Ressler, John C. Dorgan, Browne & Ressler, Seattle,
Washington, for the defendant-appellant.

Catherine L. Chrisham, Susan M. Roe, Assistant United
States Attorneys, Seattle, Washington, for plaintiff-appellee
the United States of America.
                    UNITED STATES v. TRAN                 7675
                         OPINION

PREGERSON, Circuit Judge:

   Defendant-Appellant Hao Quang Tran (“Tran”) appeals his
jury convictions for conspiracy to possess more than 100 kilo-
grams of marijuana with intent to distribute in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B), and § 846, and two counts of
possession of marijuana with intent to distribute in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(D), and 18 U.S.C. § 2. Tran
argues that the district court erred by admitting a portion of
a co-defendant’s redacted plea agreement as substantive evi-
dence under Federal Rule of Evidence 801(d)(1)(A). Tran fur-
ther argues that there was insufficient evidence supporting his
convictions. Although we find that the district court did not
err in its evidentiary rulings, we reverse Tran’s convictions
because there was insufficient evidence to support them.

I.    BACKGROUND

     A.   The Marijuana Importation and Distribution
          Scheme

   In June 2006, the Department of Homeland Security, Immi-
gration and Customs Enforcement (ICE) was investigating a
marijuana importation and distribution organization. Under-
cover federal agents arranged to rent a warehouse facility to
an organization suspected of importing marijuana, while
maintaining surveillance of the facility. Agents observed a
trailer truck being driven into the warehouse. Then a man
drove a series of different cars into and out of the warehouse.
The trailer was then removed.

  After monitoring the warehouse for approximately two
weeks, the agents obtained a search warrant with approved
delayed notification. Inside the warehouse, the agents found
an insulated cargo container. Some insulation had been
7676                UNITED STATES v. TRAN
removed from the walls of the container to make a space for
contraband.

   On June 27, 2006, a new trailer was brought into the ware-
house. Agents followed the same man who had been observed
earlier as he drove cars into and then out of the warehouse and
over to the mall. Agents stopped each car after it departed
from the mall. They found marijuana in every car. In total, the
agents seized approximately 344 kilograms, or over 700
pounds, of marijuana.

   Tran, the defendant in this case, was a passenger in a silver
Mustang, one of the cars stopped by the agents. The silver
Mustang was being driven by Tam Nguyen (“Nguyen”). The
car was registered not to Tran or Nguyen, but to a third party.
Nothing was found in the backseat of the car, but agents dis-
covered approximately twenty-seven kilograms, or slightly
over sixty pounds, of marijuana in garbage bags inside the
trunk. Tran and Nguyen were promptly arrested.

  B.   Tran’s Trial

  Tran was charged with conspiracy to possess more than
100 kilograms of marijuana with intent to distribute and two
counts of possession of marijuana with intent to distribute.
Nguyen, the driver of the silver Mustang, pleaded guilty to
possession of marijuana with intent to distribute. Tran pleaded
not guilty and proceeded to trial.

   The government called Nguyen to testify against Tran.
Nguyen stated that he had known Tran for about a year and
that Tran had lived with him for about a month prior to their
arrests. According to Nguyen, Tran was with him in the car
when Nguyen picked up the marijuana, but Tran was not
involved in the marijuana distribution scheme. Nguyen stated
that Tran was with him at the time of their arrests because
Nguyen was tired that day and asked Tran “to go hang out”
with him.
                    UNITED STATES v. TRAN                  7677
   The prosecuting attorney questioned Nguyen regarding
how he learned of the drug transaction. According to Nguyen,
he was at home alone when he received a phone call from a
Vietnamese-speaking woman regarding the marijuana pick
up. Nguyen stated that Tran was staying with him at the time,
but was not present during the phone call. Nguyen testified
that the woman gave him a code and told him that someone
would call him when it was time to pick up the marijuana.

   Nguyen testified that a man, later identified as Britton, the
same man seen driving cars into and out of the warehouse,
called him, identified Nguyen by his code, and arranged to
meet him at the McDonald’s at the mall. At the McDonald’s,
Tran was sitting and eating while Nguyen spoke with Britton.
Britton drove away in Nguyen’s car. Half an hour later, Brit-
ton brought the car back to Nguyen. Nguyen testified that this
was the first time he picked up a load of marijuana. Nguyen
did not remember what he told the prosecuting attorney and
an ICE agent, Agent Ingersoll, during an interview a week
before he testified at trial regarding Tran’s involvement in the
drug operation. He also did not remember saying in the inter-
view that Tran set up the drug transaction. He testified that he
did not know whether Tran had a connection with the people
in Canada who were supplying the marijuana.

   The government called Agent Ingersoll to impeach
Nguyen. The district court allowed Agent Ingersoll’s testi-
mony not for its truth, but only to impeach Nguyen’s credibil-
ity. Agent Ingersoll stated that he was present in a pre-trial
interview with Nguyen, during which Nguyen told a very dif-
ferent story than what he had recounted at trial. According to
Agent Ingersoll, Nguyen stated that he had worked for Tran,
and that he expected to be paid by Tran for transporting the
marijuana. According to Agent Ingersoll, Nguyen had further
stated that the woman that Nguyen spoke to on the phone was
a contact of Tran’s, and that Tran was standing next to
Nguyen during the phone conversation. Finally, according to
Agent Ingersoll, Nguyen said that Tran was with him during
7678                      UNITED STATES v. TRAN
the marijuana exchange because it was the first time that
Nguyen had picked up marijuana, and Tran was teaching him
what to do.

   The district court instructed the jury that Nguyen’s unsworn
pre-trial statements to Agent Ingersoll were admitted only to
assist the jury in judging Nguyen’s credibility. The court
explained that Agent Ingersoll’s testimony could not be con-
sidered for any purpose other than Nguyen’s credibility.

   The government then sought to admit a redacted portion of
Nguyen’s plea agreement under Federal Rule of Evidence
801(d)(1)(A).1 The Statement of Facts in the plea agreement
reads in relevant part: “Tam Phy Quy Nguyen, together with
Hao Quang Tran, picked up approximately 70 pounds of mar-
ijuana for redistribution that night.” Tran objected to the
admissibility of the plea agreement, arguing that the statement
in the plea agreement was not inconsistent with Nguyen’s in-
court testimony, and that the introduction of the plea agree-
ment would violate his right of confrontation. The district
court admitted the evidence over Tran’s objection.

   Under Federal Rule of Evidence 404(b)2, the district court
also admitted, over Tran’s objection, evidence that Tran had
previously been involved in marijuana deals. That evidence
was admitted solely for the purpose of showing Tran’s knowl-
  1
     Federal Rule of Evidence 801(d)(1)provides in relevant part that a prior
statement by a witness is not hearsay if “[t]he declarant testifies at the trial
or hearing and is subject to cross-examination concerning the statement,
and the statement is (A) inconsistent with the declarant’s testimony, and
was given under oath subject to the penalty of perjury at a trial, hearing,
or other proceeding, or in a deposition . . . .”
   2
     Federal Rule of Evidence 404(b) provides that “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person
in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident,
. . . .” (emphasis added).
                       UNITED STATES v. TRAN                      7679
edge. Two government witnesses, Tham Pham and Chad
Shaw, testified regarding Tran’s previous dealings in mari-
juana.

   At the time of his testimony, Pham pleaded guilty to a drug
related charge in a different jurisdiction. Pham admitted that
he was testifying against Tran in the hopes that his coopera-
tion would aid him at sentencing.

   Pham stated that Tran used to work for him, moving drug
money from California to Washington. According to Pham, in
2001, he had been involved in a three-month operation mov-
ing marijuana from Canada to the United States using trailer
trucks. Pham testified that in that operation, individuals would
bring their cars to a designated location, leaving their keys on
the visors of their cars. An unidentified individual (never seen
by Pham) would place the marijuana in the cars.

   Pham also testified that in 2003 he twice received mari-
juana from Tran. A friend of Pham’s in Canada would bring
the marijuana into the United States, then Tran would pick it
up and bring it to Pham in Washington state.

   The government also presented Chad Shaw as a witness.
Shaw had previously been convicted for conspiring to distrib-
ute the drug MDMA, also known as ecstasy. Shaw testified
that he worked for Pham, delivering marijuana from Seattle
to Minnesota in 2004. Shaw stated that he met Tran through
Pham, and that on several occasions Tran was present when
marijuana was being delivered.

  The district court expressly limited the admissibility of the
evidence presented by Pham and Shaw to the issue of Tran’s
knowledge.3
  3
   The district court instructed the jury: “You have heard evidence of
other crimes engaged in by the defendant. You may consider that evidence
only as it bears on the defendant’s knowledge and for no other purpose.”
7680                 UNITED STATES v. TRAN
   In addition to the testimony of Agent Ingersoll, Nguyen,
Pham, and Shaw, the government’s case in chief involved the
testimony of several ICE agents. In addition to impeaching
Nguyen’s testimony, Agent Ingersoll testified about his role
in renting the warehouse space to members of the drug opera-
tion. He did not mention Tran during his testimony. Agent
Cagen also testified regarding the plan to rent the warehouse
space, and also did not mention Tran in his testimony. Agent
Abeyall testified that he was present when Tran and Nguyen
were arrested and that there was marijuana in the trunk of the
car. A final agent testified regarding the total weight of mari-
juana found as a result of the ICE operation, and the amount
of marijuana found in the car driven by Nguyen. At the close
of the government’s case, Tran moved for a judgment of
acquittal under Federal Rule of Criminal Procedure 29, argu-
ing that the government had not made a prima facie case on
all the elements of the charged offenses. The motion was
denied.

   The jury found Tran guilty on all three counts. Tran was
sentenced to a five-year term of imprisonment. On appeal, he
argues that: (1) the district court erred by admitting a state-
ment in Nguyen’s plea agreement as a prior inconsistent state-
ment under Federal Rule of Evidence 801(d)(1)(A); (2) the
district court erred by concluding that Nguyen’s plea agree-
ment was “given under oath” and therefore admissible as sub-
stantive evidence of Tran’s guilt; and (3) there was
insufficient evidence from which the jury could find Tran
guilty of the charges. We discuss each of Tran’s arguments in
turn.

II.    DISCUSSION

  A.    Nguyen’s Plea Agreement Was Admissible as a
        Prior Inconsistent Statement.

   Tran first contends that the district court erred when it con-
cluded that Nguyen’s plea agreement constituted a prior
                     UNITED STATES v. TRAN                  7681
inconsistent statement under Rule 801(d)(1)(A). We review a
district court’s evidentiary rulings for abuse of discretion.
United States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007) (en
banc); United States v. Hernandez-Herrera, 273 F.3d 1213,
1217 (9th Cir. 2001) (“We review the admission of evidence
under an exception to the hearsay rule for abuse of discre-
tion.”). “Evidentiary rulings will be reversed for abuse of dis-
cretion only if such nonconstitutional error more likely than
not affected the verdict.” United States v. Corona, 34 F.3d
876, 882 (9th Cir. 1994).

   [1] Rule 801(d)(1)(A) provides that a trial witness’s out-of-
court statement is not hearsay if the statement is “inconsistent
with the declarant’s testimony, and was given under oath sub-
ject to the penalty of perjury at a trial, hearing, or other pro-
ceeding, or in a deposition.” We have stated that “trial judges
must retain a high degree of flexibility in deciding the exact
point at which a prior statement is sufficiently inconsistent
with a witness’s trial testimony to permit its use in evidence.”
United States v. Morgan, 555 F.2d 238, 242 (9th Cir. 1977).

   The district court ruled that the statement in Nguyen’s plea
agreement was inconsistent with Nguyen’s in-court testi-
mony. We conclude that the court by so ruling did not abuse
its discretion. Nguyen’s in-court testimony was vague and
evasive. He testified that he picked up the marijuana because
he was “young and stupid and did some stupid things” and
that he was in the car on that night to “pick up whatever was
in the car.” Nguyen conceded that Tran was with him on that
night, but stated that Tran was not involved in the drug deal.
Nguyen also testified that he did not remember the names of
the people who told him about the marijuana transportation
scheme. And although he could remember meeting with the
prosecuting attorney and Agent Ingersoll the week before his
testimony, he did not remember what he had told them about
Tran’s involvement.

  [2] The portion of Nguyen’s plea agreement that was
admitted into evidence was inconsistent with Nguyen’s reluc-
7682                UNITED STATES v. TRAN
tant and evasive in-court testimony. Under an abuse of discre-
tion standard, it was not error for the district court to admit
this statement. Accordingly, we affirm the district court’s rul-
ing admitting the plea agreement’s statement.

  B.   The District Court Did Not Plainly Err by Conclud-
       ing Nguyen’s Plea Agreement was “Given Under
       Oath.”

   Tran next argues that the plea agreement was not admissi-
ble as substantive evidence against him because it was not
“given under oath.” Because Tran did not object to the use of
Nguyen’s plea agreement statement as substantive evidence at
the time of trial, we review for plain error. See Jones v.
United States, 527 U.S. 373, 388 (1999). Under a plain error
standard, relief is not warranted unless there is: (1) an error;
(2) that was plain; and (3) that affected the defendant’s sub-
stantial rights. Id. at 389. Even if these conditions are met,
reversal is discretionary and will be granted only if the error
“seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Dallman, 533 F.3d
755, 761 (9th Cir. 2008) (quoting United States v. Ameline,
409 F.3d 1073, 1078 (9th Cir. 2005) (en banc)).

   [3] It was not plain error for the court to admit into evi-
dence Nguyen’s plea agreement statement that “Tam Phu Quy
Nguyen, together with Hao Quang Tran, picked up approxi-
mately 70 pounds of marijuana for re-distribution that
night[ ]” as substantive evidence against Tran. Nguyen’s
redacted plea agreement states that Nguyen “understands that
before entering this plea of guilty, he will be placed under
oath.” No evidence was presented that the trial court departed
from the customary practice of placing Nguyen under oath
before Nguyen signed the plea agreement. A transcript of the
Nguyen’s plea hearing shows that Nguyen was in fact under
oath when he pleaded guilty in court. While under oath,
Nguyen also agreed that he had carefully reviewed the written
                     UNITED STATES v. TRAN                   7683
plea agreement, and that all the terms of his agreement with
the government were contained therein.

   [4] Moreover, the district court’s admission of Nguyen’s
plea agreement including the single statement noting Tran’s
presence with Nguyen does not “seriously affect[ ] the fair-
ness, integrity, or public reputation of judicial proceedings.”
Garcia-Guizar, 160 F.3d 511, 516 (9th Cir. 1998). There was
plenty of other evidence in the record—including Nguyen’s
testimony that Tran was with him on the night they were
arrested, and the testimony of the ICE agent who arrested
Nguyen and Tran—showing that Tran was together with
Nguyen the night of the drug deal.

  C.     There Was Insufficient Evidence Supporting the
         Charges Against Tran.

   Tran also contends that there was insufficient evidence to
support his convictions for conspiracy to possess marijuana
with intent to distribute, and for two counts of possession of
marijuana with intent to distribute. We review de novo a chal-
lenge to the sufficiency of the evidence. United States v.
Antonakeas, 255 F.3d 714, 723 (9th Cir. 2001). “Viewing the
evidence in the light most favorable to the government, we
must determine whether any rational jury could have found
[the defendant] guilty of each element of the crime beyond a
reasonable doubt.” United States v. Esquivel-Ortega, 484 F.3d
1221, 1224 (9th Cir. 2007). It is “the responsibility of the trier
of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319
(1979).

    1.    Conspiracy Conviction

  [5] Tran argues that the government failed to prove that he
participated in the conspiracy to possess marijuana for distri-
bution. To successfully prosecute Tran on the conspiracy
7684                UNITED STATES v. TRAN
charge, the government was required to prove: (1) that within
five years leading up to and including June 27, 2006, there
was an agreement between two or more people to commit the
crime of possessing marijuana with the intent to distribute it;
and (2) that Tran became a member of the conspiracy, know-
ing of at least one of its objects and intending to help accom-
plish it.

   “[O]nly a slight connection is necessary to support a con-
viction of knowing participation” in a conspiracy. United
States v. Sanchez-Mata, 925 F.2d 1166, 1167 (9th Cir. 1991).
“ ‘[S]light connection’ in this context does not mean that the
government’s burden of proving a connection is slight.”
United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th
Cir. 2001).

  [6] Viewing the evidence in the light most favorable to the
government, the evidence was insufficient to show that Tran
had even a slight connection to the conspiracy. The principal
evidence presented to the jury was:

    •   The in-court testimony of Nguyen, in which
        Nguyen stated that Tran was present in the car
        during the drug transaction but denied that Tran
        was involved in the drug conspiracy.

    •   The testimony of government agents describing
        the marijuana distribution operation generally,
        but not mentioning any role by Tran in the con-
        spiracy.

    •   A single sentence in Nguyen’s plea agreement
        stating that “Tam Phu Quy Nguyen, together with
        Hao Quang Tran, picked up approximately 70
        pounds of marijuana for re-distribution that
        night.”

    •   The testimony of Agent Ingersoll admitted solely
        for impeachment, recounting that, during a pre-
                     UNITED STATES v. TRAN                   7685
        trial interview with the FBI and the prosecuting
        attorney, Nguyen had implicated Tran in the drug
        conspiracy.

    •   The testimony of two government witnesses,
        Pham and Shaw, describing their prior drug deal-
        ings with Tran, admitted for the limited purpose
        of showing Tran’s knowledge.

Once these pieces of evidence are confined to the purposes for
which they were admitted, the government’s proof against
Tran only amounts to: (1) Tran’s presence as Nguyen’s pas-
senger during the marijuana deal; and (2) Tran’s knowledge
of marijuana distribution tactics, based on the testimony of
Pham and Shaw that was admitted for the limited purpose of
showing Tran’s knowledge under Rule 404(b).

   [7] The evidence presented against Tran and the reasonable
inferences drawn from that evidence do not support even a
slight connection between Tran and the conspiracy. The evi-
dence at trial showed the sophisticated drug distribution ring
and named several individuals connected to it. Tran’s name,
however, was not mentioned during that testimony. Tran’s
name was mentioned only in connection with his arrest. Tran
did not own the silver Mustang carrying marijuana in the
trunk, nor was he the driver. No evidence was introduced at
trial from which it could be inferred—much less proved
beyond a reasonable doubt—that Tran participated in the con-
spiracy in any manner.

   [8] Tran’s presence as a passenger in the silver Mustang
while the marijuana was transported, and his knowledge of
marijuana and marijuana distribution was insufficient as a
matter of law to establish his guilt on the conspiracy charge.
“It is not a crime to be acquainted with criminals or to be
physically present when they are committing crimes.”
Herrera-Gonzales, 263 F.3d at 1095. “Our cases have estab-
lished that presence at the location of a conspiracy’s activities,
7686                 UNITED STATES v. TRAN
while the activities are taking place, knowing that they are
taking place, without proof of intentional participation in the
conspiracy, cannot support a conspiracy conviction.” Id. at
1097.

   Under our case law, Tran’s conviction on the conspiracy
charge cannot stand. Two other cases in which we found
insufficient evidence of participation in a conspiracy are illus-
trative.

   In Sanchez-Mata, law enforcement agents linked a silver
Audi to a remote location where marijuana was discovered.
925 F.2d at 1167. Sanchez-Mata was never seen in that vicin-
ity. Id. When officers stopped the silver Audi, Sanchez-Mata
was a passenger. Id. The agents could smell marijuana from
the outside of the car, and discovered 141 pounds of mari-
juana in the trunk of the Audi. Id. Sanchez-Mata did not resist
arrest or carry a weapon. Id. There were no drugs in the pas-
senger compartment of the Audi. Sanchez-Mata did not own
the car, nor did he have a key to it. His fingerprints were not
on the drugs. Id. At trial, the government offered evidence
that Sanchez-Mata previously pleaded guilty to a drug-related
charge. Id. at 1168. This evidence was admitted for the lim-
ited purpose of showing that Sanchez-Mata “knew what mari-
juana smelled like and must have recognized the strong odor
present.” Id. Sanchez-Mata was convicted of conspiracy to
possess with intent to distribute and possession with intent to
distribute marijuana. Id. at 1167. We reversed both convic-
tions. Id. at 1170.

   With respect to Sanchez-Mata’s conspiracy conviction, we
observed that there was insufficient evidence of even a slight
connection between the defendant and the conspiracy. Id. at
1167-68. Although the government had offered evidence from
which the jury could have concluded that Sanchez-Mata knew
that marijuana was present, we held that “knowledge that
drugs are present is not enough to prove involvement in a
drug conspiracy.” Id. at 1168 (citing United States v. Pena-
                    UNITED STATES v. TRAN                  7687
gos, 823 F.2d 346 (9th Cir. 1987), United States v. Lopez, 625
F.2d 889 (9th Cir. 1980), and United States v. Cloughessy,
572 F.2d 190 (9th Cir. 1977)). Although it was undisputed
that a conspiracy existed, there was insufficient evidence from
which a rational jury could have concluded that Sanchez-Mata
was a participant in that conspiracy. Sanchez-Mata, 925 F.2d
at 1170.

   In United States v. Estrada-Macias, 218 F.3d 1064, 1064
(9th Cir. 2000), the defendant was convicted of conspiracy to
manufacture methamphetamine. Drug Enforcement Adminis-
tration (“DEA”) agents learned of large shipments of pseu-
doephedrine tablets, often used to make methamphetamine.
Id. at 1065. The tablets were delivered to an apartment. Id.
Agents followed a man, Ramirez-Vasquez, driving a truck
carrying ten cases of the tablets from that first apartment to
a second apartment. Id. Less than two hours later, a car driven
by another man, Garcia, arrived at the second apartment. Id.
The car was stopped and Garcia was questioned. Id. Estrada-
Macias was a passenger in that car. Id.

  That same day, the agents learned that a second shipment
of tablets was being shipped to another house. Id. Within
hours of the delivery of the tablets to that house, Garcia and
Estrada-Macias were observed being picked up by Ramirez-
Vasquez. Id.

  After obtaining a warrant, the agents searched the house
and a trailer parked in the driveway of the house. Id. They
found substantial evidence that methamphetamine was being
manufactured in the trailer. Id. Estrada-Macias, Vasquez-
Ramirez, and Garcia were all arrested. Id. at 1066. Estrada-
Macias initially lied to the agents about where he lived, but
quickly admitted that he had been living in the trailer for the
preceding three months. Id. Estrada-Macias was convicted of
conspiracy to manufacture methamphetamine. Id.

  In reversing that conviction, we held that the evidence was
“certainly sufficient to raise a strong inference that [Estrada-
7688                UNITED STATES v. TRAN
Macias] must have known that several individuals living
around him were engaged in a conspiracy to manufacture
methamphetamine. That inference is not strong enough to per-
mit conviction. ‘Mere casual association with conspiring peo-
ple is not enough.’ ” Id. (quoting Cloughessy, 572 F.2d at
191). Absent evidence of Estrada-Macias’s participation in
the conspiracy, his knowledge of the conspiracy, and sleeping
in a trailer used to manufacture methamphetamine was insuf-
ficient to support his conviction. Id.; see also Herrera-
Gonzalez, 263 F.3d at 1097 (discussing Estrada-Macias).

   Like the appellants in Sanchez-Mata and Estrada-Macias,
Tran was clearly present when a drug conspiracy was under-
way. Law enforcement officers and co-defendant Nguyen tes-
tified that Tran was the passenger in a car that was carrying
a large quantity of marijuana in its trunk. And as in Sanchez-
Mata and Estrada-Macias, a rational trier of fact could have
inferred that Tran had knowledge of the presence of drugs and
that a drug conspiracy was underway.

   [9] As in Sanchez-Mata and Estrada-Macias, however, the
government produced insufficient evidence from which a
rational jury could have concluded that Tran had even a slight
connection to the conspiracy. Tran’s name was never men-
tioned by the law enforcement officers who described the
marijuana smuggling operation at Tran’s trial. Tran did not
drive the car carrying the marijuana, nor was he the owner of
that car. The marijuana was found in the trunk of the car, but
not in the passenger compartment with Tran. The government
urges us to affirm Tran’s convictions, but it did not even
attempt to distinguish Tran’s case from Sanchez-Mata or
Estrada-Macias, nor did it point to any cases in support of its
position.

   The evidence against Tran was not sufficient to support his
conspiracy conviction. The testimony by two government wit-
nesses, Pham and Shaw, attesting to Tran’s earlier connec-
tions with marijuana distribution were admitted solely for the
                     UNITED STATES v. TRAN                  7689
limited purpose of showing that Tran knew what marijuana
was and how those involved in a marijuana conspiracy dis-
tribute the contraband. Agent Ingersoll’s testimony recounting
what Nguyen, the driver of the silver Mustang, told both him
and the prosecuting attorney about Tran’s role in the conspir-
acy was admitted solely to impeach Nguyen’s credibility and
for no other purpose. The court acknowledged that these two
pieces of evidence were admitted for those limited purposes.

  [10] Lastly, there is the single sentence in Nguyen’s
redacted plea agreement’s statement of facts that “Tam Phu
Quy Nguyen, together with Hao Quang Tran, picked up
approximately 70 pounds of marijuana for redistribution that
night.” A rational jury could not find beyond a reasonable
doubt that Tran was guilty of conspiracy on the basis of
Nguyen’s statement, which supports no more than Tran’s
presence at the site of conspiratorial conduct carried on by
others. Accordingly Tran’s conviction for conspiracy to pos-
sess marijuana with the intent to distribute is vacated.

    2.   Possession with the Intent to Distribute
         Convictions

   To successfully prosecute Tran on the charges of posses-
sion of marijuana with intent to distribute, the government
was required to prove: (1) that Tran knowingly possessed
marijuana on June 27, 2006 (the date of his arrest); and (2)
that he possessed it with the intent to distribute it, or that he
aided and abetted Nguyen in the commission of the crime.

   [11] A conviction for possession with intent to distribute
may be based on one of three legal theories: (1) co-
conspirator liability, United States v. Pinkerton, 328 U.S. 640,
645-47 (1946); (2) aiding and abetting, United States v.
Savinovich, 845 F.2d 834, 838 (9th Cir. 1988); and (3) exer-
cising dominion and control over the contraband. United
States v. Behanna, 814 F.2d 1318, 1319 (9th Cir. 1987).
Sanchez-Mata, 925 F.2d at 1168. Because the government
7690                UNITED STATES v. TRAN
failed to prove that Tran was part of a conspiracy, Tran cannot
be guilty of possession with intent to distribute on a co-
conspirator theory. Id.

  With respect to the aiding and abetting theory, we
explained in Sanchez-Mata:

    Aiding and abetting . . . makes a defendant a princi-
    pal when he consciously shares in any criminal act
    whether or not there is a conspiracy. Nye & Nissen
    v. United States, 336 U.S. 613, 620 (1948). But it is
    necessary that the defendant “in some sort associate
    himself with the venture, that he participate in it as
    in something that he wishes to bring about, that he
    seek by his action to make it succeed.” Id. at 619.

Id. at 1168-69.

   [12] The government has not offered sufficient evidence
from which a rational jury could have found Tran guilty of
possession on an aiding and abetting theory. The evidence and
the reasonable inferences drawn from it support only a finding
that Tran was present as a passenger in the silver Mustang and
aware that the car contained marijuana. No evidence was
offered from which a rational jury could find that Tran “con-
sciously share[d]” in Nguyen’s criminal act of possessing the
marijuana with the intent to distribute it. Sanchez-Mata, 925
F.3d at 1169. Therefore, an aiding and abetting theory does
not support Tran’s convictions for possession with intent to
distribute.

  Finally, the government may prove possession with intent
to distribute by showing that Tran exercised dominion and
control over the contraband. Under this theory, “the govern-
ment must prove that the defendant both knows of the pres-
ence of the contraband and has the power to exercise
dominion and control over it.” Sanchez-Mata, 925 F.2d at
1169 (citing Behanna, 814 F.2d at 1319). Again, “[m]ere
                     UNITED STATES v. TRAN                  7691
proximity to contraband, presence on property where it is
found, and association with a person or persons having con-
trol of it are all insufficient to establish constructive posses-
sion.” United States v. Rodriguez, 761 F.2d 1339, 1341 (9th
Cir. 1985). Furthermore, “it is ‘well established that a passen-
ger may not be convicted unless there is evidence connecting
him with the contraband, other than his presence in the vehi-
cle.’ ” Sanchez-Mata, 925 F.2d at 1169 (quoting United States
v. Ramos, 476 F.2d 624, 625 (9th Cir. 1973)).

   Again, our decision in Sanchez-Mata compels the reversal
of Tran’s convictions for possession with intent to distribute.
In Sanchez-Mata, the government was able to show that the
defendant was present in a car carrying 141 pounds of mari-
juana in its trunk. Sanchez-Mata, 925 F.2d at 1167. The car
smelled so strongly of marijuana that the police could smell
the drug from outside the vehicle. Id. The government offered
evidence in the form of Sanchez-Mata’s prior drug conviction
which showed that Sanchez-Mata knew what marijuana
smelled like. Id. at 1168. Nevertheless, we held that the gov-
ernment could not prevail on this theory because it failed to
show that Sanchez-Mata had dominion or control over the
drugs. Id. at 1169. We observed that Sanchez-Mata did not
have a key to the car or its trunk, was not driving the car, and
did not own the car. Id. The evidence showed that Sanchez-
Mata was a passenger in the car, but no evidence connected
him to the drugs. Id.

   [13] Likewise, Tran was clearly present in the silver Mus-
tang when law enforcement stopped it. There was a large
quantity of marijuana in the trunk of the car. The jury could
have reasonably concluded that, based on the testimony
regarding Tran’s past conduct relating to marijuana, he knew
that marijuana was in the car. There was not, however, other
evidence presented which would show that Tran exercised
dominion or control over that marijuana. Tran was not driving
the car, and the car was not his. Nothing but his presence con-
nected him to the marijuana in the car. See id. (quoting
7692                UNITED STATES v. TRAN
Ramos, 476 F.2d at 625 (explaining that “it is ‘well estab-
lished that a passenger may not be convicted unless there is
evidence connecting him with the contraband, other than his
presence in the vehicle.“) (emphasis added))); accord
Esquivel-Ortega, 484 F.3d at 1225. Accordingly, the convic-
tions for possession with intent to distribute also is vacated.

                       CONCLUSION

   The district court did not err by admitting a redacted por-
tion of Nguyen’s plea agreement under Federal Rule of Evi-
dence 801(d)(1)(A). The evidence against Tran was, however,
insufficient as a matter of law to support his conviction for
conspiracy or his convictions for possession with intent to dis-
tribute. His convictions are reversed.

  REVERSED.



NOONAN, Circuit Judge, dissenting:

  The redacted plea agreement of co-conspirator Nguyen,
admitted as substantive evidence against Tran, states:

      Tam Phu Quy Nguyen, together with Han Quong
    Tran, picked up approximately 70 pounds of mari-
    juana for redistribution that night. [italics supplied]

   Nguyen’s statement is sufficient to establish that Tran was
a participant in the conspiracy to distribute marijuana and was
himself in possession of marijuana with intent to distribute.
The co-conspirator Nguyen declares clearly and unequivo-
cally that together he and Tran picked up the 70 pounds for
redistribution.

  The majority, faced with this statement, says that it “sup-
ports no more than Tran’s presence at the time of conspirato-
                    UNITED STATES v. TRAN                 7693
rial conduct carried on by others.” The majority misreads the
sentence. The sentence does not say that Tran stood by while
Nguyen picked up the drugs. The sentence states that Nguyen
and Tran together picked up the drugs for distribution. The
verb “picked up” is an active verb. The modifier “together”
refers to joint action by the two conspirators. In any court in
the land Nguyen’s statement, if believed, would establish
Tran’s guilt of the crimes with which he was charged.

   In addition to this evidence, sufficient in itself to prove
Tran’s guilt, the government offered the following facts con-
firmatory of the conspiracy and of Tran’s more than slight
connection to it:

   A well-organized drug ring was smuggling marijuana from
Canada and distributing it in the U.S. The gang was operating
out of a suburban warehouse where cars showed up to get
batches of the drug. Tran was in one of the cars loaded from
the warehouse. Nguyen, the driver, 22 at the time, appears to
be naive if not stupid. It’s unlikely that the gang would let
him have 70 pounds of the drug without having him under
control. Tran had plenty of experience in drug smuggling
from Canada. No plausible reason was given why he should
be sitting in a car to which the drugs are offloaded unless he
was part of the conspiracy. Nguyen gave a vague account of
how he knew Tran and why he was there, and Nguyen was
impeached. A rational juror could infer that, beyond a reason-
able doubt, Tran was the conspiracy’s man to shepherd the
drugs in the car. This reasonable conclusion chimes with
Nguyen’s evidence that he and Tran together picked up the
marijuana.

  I dissent from the majority’s reversal of Tran’s conviction.
