                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 16-10395
                  Plaintiff-Appellee,
                                                     D.C. No.
                     v.                           2:15-cr-01465-
                                                      JJT-1
 PRAGEDIO ESPINOZA-VALDEZ,
               Defendant-Appellant.
                                                     OPINION

        Appeal from the United States District Court
                 for the District of Arizona
        John Joseph Tuchi, District Judge, Presiding

         Argued and Submitted November 17, 2017
                 San Francisco, California

                          Filed May 7, 2018

 Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit
     Judges, and Paul L. Friedman, * District Judge.

                  Opinion by Judge Friedman;
                  Dissent by Judge Rawlinson



    *
      The Honorable Paul L. Friedman, United States District Judge for
the District of Columbia, sitting by designation.
2            UNITED STATES V. ESPINOZA-VALDEZ

                          SUMMARY **


                          Criminal Law

   The panel reversed convictions for conspiracy to import
and conspiracy to distribute marijuana.

    The panel held that there was insufficient evidence for a
jury to find beyond a reasonable doubt that the defendant
entered into a conspiratorial agreement to import or
distribute marijuana, where (1) the government’s case rested
almost exclusively on expert testimony regarding drug
traffickers’ use of scouts to facilitate the transportation of
marijuana through the area in which Border Patrol agents
observed the defendant and two unknown men; and (2) the
government presented no evidence of (a) drugs that actually
passed through or were intended to pass through that area
under the defendant’s watch, or (b) any specific individuals
with whom the defendant allegedly conspired. The panel
emphasized that the government may not rely on expert
testimony of drug courier profiles alone to establish guilt.

    Dissenting, Judge Rawlinson wrote that it cannot fairly
be said that no reasonable juror could have found the
essential elements of conspiracy to import and distribute
marijuana beyond a reasonable doubt.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
            UNITED STATES V. ESPINOZA-VALDEZ                        3

                           COUNSEL

Atmore Baggot (argued), Apache Junction, Arizona, for
Defendant-Appellant.

Brooke T. Afshari (argued), Assistant United States
Attorney; Krissa M. Lanham, Deputy Appellate Chief;
Elizabeth A. Strange, First Assistant United States Attorney;
United States Attorney’s Office, Phoenix, Arizona; for
Plaintiff-Appellee.


                            OPINION

FRIEDMAN, District Judge:

    Pragedio Espinoza-Valdez appeals his convictions for
conspiracy to import and conspiracy to distribute marijuana.
He argues that the evidence presented at trial was
insufficient to support either conviction and that the district
court therefore erred in denying his motion for acquittal
notwithstanding the verdict. We agree and reverse the two
conspiracy convictions. 1

       I. STANDARD OF REVIEW AND LEGAL
                  AUTHORITY

     We review de novo whether, “after viewing the evidence
in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Nevils,
598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc); accord

     1
       Because we find it necessary to reverse on this ground, we need
not reach Espinoza-Valdez’s other arguments.
4          UNITED STATES V. ESPINOZA-VALDEZ

United States v. Grovo, 826 F.3d 1207, 1213–14 (9th Cir.
2016); United States v. Egge, 223 F.3d 1128, 1131 (9th Cir.
2000). Even on this deferential standard, we conclude that
the government presented insufficient evidence that
Espinoza-Valdez entered into a conspiratorial agreement to
distribute or import marijuana. The district court therefore
erred in denying Espinoza-Valdez’s motion for judgment of
acquittal.

    The elements of conspiracy are “(1) an agreement to
accomplish an illegal objective, and (2) the intent to commit
the underlying offense.” United States v. Moe, 781 F.3d
1120, 1124 (9th Cir. 2015); see also United States v.
Loveland, 825 F.3d 555, 559 (9th Cir. 2016); United States
v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir. 2001);
United States v. Lennick, 18 F.3d 814, 818 (9th Cir. 1994).
To be convicted of conspiracy, the defendant must have
joined the agreement knowing its purpose and intending to
help accomplish that purpose. See United States v. Mincoff,
574 F.3d 1186, 1192 (9th Cir. 2009). The conspiratorial
agreement may be proved by direct or circumstantial
evidence. See Loveland, 825 F.3d at 561–62; Mincoff,
574 F.3d at 1192. It is not necessary that the conspirators
made a formal or express agreement or that they agreed on
every detail of the conspiracy. See Mincoff, 574 F.3d at
1194–95; United States v. Melvin, 91 F.3d 1218, 1224 (9th
Cir. 1996). Rather, the agreement may be inferred from the
defendants’ acts pursuant to the scheme and other
circumstantial evidence. See Grovo, 826 F.3d at 1216;
United States v. Lapier, 796 F.3d 1090, 1095 (9th Cir. 2015);
Mincoff, 574 F.3d at 1192. The government has the burden
of proving beyond a reasonable doubt the creation and
existence of the conspiratorial agreement, as well as the
defendant’s entry into that agreement. See Loveland,
825 F.3d at 557, 561; Moe, 781 F.3d at 1124; Lennick,
             UNITED STATES V. ESPINOZA-VALDEZ                           5

18 F.3d at 818, 820. Furthermore, “[t]he government has the
obligation to establish not only the opportunity but also the
actual meeting of minds. Mere association and activity with
a conspirator does not meet the test.” Lapier, 796 F.3d at
1095; see also Lennick, 18 F.3d at 818 (“[S]imple
knowledge, approval of, or acquiescence in the object or
purpose of a conspiracy, without an intention and agreement
to accomplish a specific illegal objective, is not sufficient.”).

               II. FACTUAL BACKGROUND

     In this case, the government presented evidence at trial
that U.S. Border Patrol agents had observed three men on a
mountaintop in the Vaiva Hills area of Arizona. Two of
them were communicating with one another. The third man,
Espinoza-Valdez, was initially observed some distance away
sitting under a tree. Later, he was observed walking behind
one of the other men and carrying a backpack. Upon seeing
the agents, Espinoza-Valdez dropped the Motorola radio he
was carrying and ran. The agents apprehended him and
found a Motorola battery clip, radio batteries, toilet paper,
wet wipes, and food in his backpack, to which carpet shoes
were attached. One of the agents testified that carpet shoes
are used by both drug couriers and undocumented
immigrants to avoid leaving footprints while passing
through the area. The agents also located a nearby campsite
with sleeping bags, water jugs, and additional food supplies.
They did not find any drugs in the area. 2




    2
       Fact witnesses also testified as to their opinions that a footprint
observed at a nearby scout encampment matched the sneaker print of the
shoes Espinoza-Valdez was wearing at the time of his arrest. The basis
for their lay opinion testimony is not clear to this court.
6          UNITED STATES V. ESPINOZA-VALDEZ

    In addition, U.S. Border Patrol Commander Bobby
Garcia testified as an expert on drug trafficking
organizations as follows: Drug trafficking organizations
smuggle marijuana into the United States using groups of
five to ten men who hike across the desert carrying
marijuana in backpacks. These backpackers are led by
guides who communicate by cell phone or radio with scouts
who camp along the route and monitor law enforcement
movements. Drug smugglers often use Motorola brand
radios with sophisticated encryption capabilities and carry
carpet shoes to disguise their footprints. The month of
October — when Espinoza-Valdez was apprehended — is
part of the fall “drug-smuggling season,” and the Vaiva Hills
area is a known drug-smuggling corridor. Drug traffickers
control the area and would not allow others to move through
it, and the circumstances surrounding Espinoza-Valdez’s
apprehension were consistent with him being a drug
trafficking scout.

    The government also presented evidence that,
approximately four months prior to the events giving rise to
the instant case, U.S. Border Patrol agents had apprehended
Espinoza-Valdez in the same Vaiva Hills area. At that time,
Espinoza-Valdez told the agents that he and others had
entered the United States and were backpacking marijuana
across the desert. The agents did not locate any backpacks
of marijuana. Espinoza-Valdez was released and not
charged with any criminal offense. This evidence was
admitted at trial under Federal Rule of Evidence 404(b), and
the court gave a limiting instruction.

                    III. DISCUSSION

    Despite the evidence of Espinoza-Valdez’s presence
with two unknown men in a known drug-smuggling corridor
close to the Mexican border near what appeared to be a camp
             UNITED STATES V. ESPINOZA-VALDEZ                           7

for drug trafficking scouts, as well as the seizure of items
that were suspicious in this context, there was insufficient
evidence for a jury to find beyond a reasonable doubt that
Espinoza-Valdez entered into a conspiratorial agreement to
import or distribute marijuana. The government’s case
rested almost exclusively on the expert testimony regarding
drug traffickers’ use of scouts to facilitate the transportation
of marijuana through the Vaiva Hills area. The government
presented no evidence of drugs that actually passed through
or were intended to pass through that area under Espinoza-
Valdez’s watch. Nor did the government present evidence
of any specific individuals with whom Espinoza-Valdez
allegedly conspired. There simply is no evidence as to what
(if anything) was specifically agreed to, who agreed to it, or
what any agreement was intended to accomplish. 3 Given the
dearth of evidence of an agreement to import or distribute
marijuana between Espinoza-Valdez and the two unknown
men observed on the mountain — or anyone else — the
government has not met its burden of proving his
participation in a conspiracy beyond a reasonable doubt. See




    3
      The government argues in its brief that acting as a lookout or scout
by itself proves an agreement to conspire. But the published opinions on
which it primarily relies only further underscore the lack of evidence of
a conspiratorial agreement in this case. For example, in United States v.
Mares, law enforcement officers observed Mares and his co-defendant
speaking “at some length” with a drug courier just minutes before a drug
transaction took place. 940 F.2d 455, 458–59 (9th Cir. 1991). And in
United States v. Perez, law enforcement agents observed Perez watching
a drug transaction from his automobile, arrested him, and discovered
1.5 grams of cocaine concealed in a hatband in the back of his car.
491 F.2d 167, 170–71 (9th Cir. 1974).
8             UNITED STATES V. ESPINOZA-VALDEZ

Loveland, 825 F.3d at 557; Lapier, 796 F.3d at 1095; United
States v. Penagos, 823 F.2d 346, 347–50 (9th Cir. 1987). 4

    Furthermore, we have long held that drug courier profile
evidence such as that admitted here is admissible only for
limited purposes. See United States v. Webb, 115 F.3d 711,
715 (9th Cir. 1997), abrogated on other grounds by United
States v. Hankey, 203 F.3d 1160, 1169 n.7 (9th Cir. 2000). 5
Drug courier profile testimony is inherently prejudicial
because of the potential it has for including innocent citizens
as profiled drug couriers and because simply matching a

    4
       The dissent relies on this court’s recent decision in United States
v. Niebla-Torres, 847 F.3d 1049 (9th Cir. 2017). While we agree that
Niebla-Torres involved strikingly similar facts to those present in the
instant case, see id. at 1052–53, the primary issue in that case was
whether to admit Niebla-Torres’ confession that he had been acting as a
scout over his contention that the confession had been involuntary, see
id. at 1053. While this court reviewed the denial of Niebla-Torres’
motion for judgment of acquittal de novo, see id. at 1054, it first reviewed
the sufficiency of the evidence offered to corroborate his confession by
applying a burden far less than beyond a reasonable doubt. Under the
corpus delicti doctrine, the court in Niebla-Torres looked only to
determine whether there was “substantial independent evidence that the
offense ha[d] been committed” before admitting the confession. See id.
at 1057 (citation omitted). Once the court found, under this minimal
standard, that admission of the confession was appropriate, it easily
concluded that, “viewing all the evidence (including the confession) in
the light most favorable to the prosecution, any rational trier of fact could
have found [guilt] beyond a reasonable doubt . . . .” See id. at 1059. In
this case, Espinoza-Valdez never confessed to the crime with which he
was charged. As a result, Niebla-Torres has only limited application.

    5
      In Webb, we explained that such testimony is admissible “only in
two circumstances”: (1) “to establish modus operandi, but only in
exceptional, complex cases,” or (2) “to rebut specific attempts by the
defense to suggest innocence based on the particular characteristics
described in the profile.” Id. at 715.
             UNITED STATES V. ESPINOZA-VALDEZ                        9

defendant to a drug profile may unfairly suggest to the jury
that otherwise innocuous conduct or events demonstrate
criminal activity. See United States v. Cordoba, 104 F.3d
225, 229–30 (9th Cir. 1997); United States v. Lim, 984 F.2d
331, 334–35 (9th Cir. 1993); United States v. Beltran-Rios,
878 F.2d 1208, 1210 (9th Cir. 1989); see also United States
v. White, 890 F.2d 1012, 1014 (8th Cir. 1989); United States
v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir. 1983). 6
A drug expert’s testimony cannot substitute for witnesses
who actually observed or participated in the illegal activity.
Nor can it be permitted to so submerge the factual evidence
that its unfair prejudicial effect substantially outweighs any
probative value it might have. See Rogers v. Raymark
Indus., Inc., 922 F.2d 1426, 1430–31 (9th Cir. 1991); White,
890 F.2d at 1013–14; Hernandez-Cuartas, 717 F.2d at 555.
The government may not rely on expert testimony of drug
courier profiles alone to establish guilt. Yet here, Garcia’s
broad expert testimony — describing the structure of drug
trafficking organizations and the drug scout profile and
linking Espinoza-Valdez to that profile — was the crux of
the government’s case.

    While it is possible, perhaps even probable, that
Espinoza-Valdez was on the mountaintop to act as a scout
for drug traffickers, a reasonable suspicion or probability of
guilt is not enough. Guilt, according to the basic principles
of our jurisprudence, must be established beyond a

    6
      The Supreme Court has defined “drug courier profile” evidence as
a “somewhat informal compilation of characteristics believed to be
typical of persons unlawfully carrying narcotics.” See Reid v. Georgia,
448 U.S. 438, 440 (1980); see also United States v. Murillo, 255 F.3d
1169, 1176 (9th Cir. 2001). Such profiles are “commonly used by agents
as a basis for reasonable suspicion to stop and question a subject.”
Cordoba, 104 F.3d at 229; accord United States v. Lui, 941 F.2d 844,
847 (9th Cir. 1991).
10         UNITED STATES V. ESPINOZA-VALDEZ

reasonable doubt. Here, it was not: Viewing the entirety of
the evidence in the light most favorable to the government,
there was insufficient evidence upon which a reasonable
mind might fairly find the existence of a conspiracy to
import or distribute marijuana — or of Espinoza-Valdez’s
agreement to join such a conspiracy — beyond a reasonable
doubt. See Grovo, 826 F.3d at 1213–14; Nevils, 598 F.3d at
1163–64; Egge, 223 F.3d at 1131.

    The district court’s judgment with respect to the
convictions for conspiracy to import and conspiracy to
distribute marijuana is REVERSED.



RAWLINSON, Circuit Judge, dissenting:

    I respectfully dissent from the conclusion of my
colleagues that insufficient evidence supported the
conviction of defendant Pragedio Espinoza-Valdez for
conspiracy to import and distribute marijuana.

    We start with a standard of review that presents a
significant obstacle for Espinoza-Valdez to overcome. First,
we review the evidence “in the light most favorable to the
prosecution,” with all inferences drawn in favor of the
prosecution’s case. United States v. Nevils, 598 F.3d 1158,
1163–64 (9th Cir. 2010) (en banc). Then, only after viewing
the “evidence in the light most favorable to the prosecution,”
and drawing all inferences in favor of the prosecution’s case,
we ask whether “any rational trier of fact [could find] the
essential elements of the crime beyond a reasonable doubt.”
Id. at 1164 (citation omitted) (emphasis in the original). So
the majority has concluded that even after viewing the
evidence in the light most favorable to the prosecution’s
case, and even after drawing all inferences in favor of the
           UNITED STATES V. ESPINOZA-VALDEZ              11

prosecution’s case, no reasonable juror could have found the
essential elements of conspiracy to import and distribute
marijuana beyond a reasonable doubt. I beg to differ. I do
not agree that Espinoza-Valdez has overcome this
formidable standard of review.

    The government may prove a drug conspiracy through
“circumstantial evidence that defendants acted together in
pursuit of a common illegal goal.” United States v. Mincoff,
574 F.3d 1186, 1192 (9th Cir. 2009) (citation omitted).
“Express agreement is not required; rather agreement may
be inferred from conduct.” Id. (citation omitted).

   Here is the evidence presented by the prosecution:

   • Defendant was apprehended adjacent to a “scout
       encampment” in an area known for marijuana
       smuggling.

   •   Expert testimony that scouts serve as lookouts for
       drug trafficking organizations in the area.

   •   Expert testimony that scouts typically communicate
       with marijuana smuggling groups via Motorola
       radios.

   •   Expert testimony that, in order to avoid detection,
       scouts wear “carpet shoes” to eliminate “foot signs.”

   •   Expert testimony that scouts typically are trusted
       individuals who previously worked for the drug
       trafficking organizations.

   In addition to the expert, the following testimony was
adduced regarding the events preceding defendant’s arrest:
12          UNITED STATES V. ESPINOZA-VALDEZ

     •   Defendant was observed near a scout encampment at
         the top of a mountain range in a known marijuana
         smuggling corridor.

     •   When agents attempted to apprehend the defendant,
         he fled.

     •   As the defendant fled, he dropped a Motorola radio.

     •   In the defendant’s backpack were batteries and
         accessories for a Motorola brand radio, and hanging
         from the backpack was a carpet shoe.

     •   The agents discovered a scout encampment nearby
         and found the defendant’s foot sign, a car battery
         charging a Motorola radio battery, and provisions.

     •   The defendant was apprehended months earlier in the
         same location. At that time, Defendants admitted
         “backpacking marijuana.”

    A reasonable inference from the combined evidence is
that the defendant agreed with one or more members of the
drug trafficking organization to serve as a lookout to enable
marijuana smugglers to safely deliver their loads.
Considered in the light most favorable to the prosecution,
that evidence is sufficient to support a conspiracy
conviction, as the specific identity of co-conspirators is not
required. United States v. Sangmeister, 685 F.2d 1124, 1127
(9th Cir 1982) ([“A]n accused may be found guilty of a
conspiracy if there is sufficient evidence of an unnamed
unindicted co-conspirator. . . .”) (citations omitted).

   We recently affirmed a conspiracy conviction based on
comparable evidence in United States v. Niebla-Torres,
          UNITED STATES V. ESPINOZA-VALDEZ               13

847 F.3d 1049, 1056–58 (9th Cir. 2017). We listed the
following as sufficient evidence of the crime:

       (1) agents arrested [the defendant] in an area
       controlled by drug trafficking organizations
       [same for our case]; (2) those organizations
       typically traffic marijuana [same for our
       case]; (3) [an agent] saw two men on the
       mountain trying to hide for several days
       leading up to the arrest [agents in our case
       observed subjects the day before the arrest];
       (4) [the defendant] was wearing camouflage
       clothing and carrying a cellular phone and
       radio batteries at the time of arrest [the
       defendant in our case had a handheld radio
       and radio batteries and was wearing black
       clothes with a camouflage hat]; (5) the
       arresting agents found binoculars and hand-
       held radios in nearby caves [agents in our
       case discovered a scout encampment nearby
       with defendant’s foot sign and a car battery
       charging a radio battery]; (6) scouts use these
       same items to help backpackers traverse the
       valley floor carrying marijuana [same for our
       case]; (7) [the defendant] was arrested on
       suspicion of scouting for a smuggling
       operation in the same area three years earlier
       [in our case, the defendant was apprehended
       months earlier in the same location and
       admitted “backpacking marijuana”].

Id. at 1057–58.

    The majority attempts to distinguish this binding
authority on the basis that the defendant in Niebla-Torres
14         UNITED STATES V. ESPINOZA-VALDEZ

confessed. See Majority Opinion, p. 2, n. 4. However, that
is not a meaningful distinction in view of the nearly identical
facts in Niebla-Torres, particularly considering our
obligation to construe the facts in the light most favorable to
the government. See Nevils, 598 F.3d at 1163–64. It simply
cannot be fairly said that no reasonable juror could have
convicted Espinoza-Valdez on these facts. See Id. at 1164.
Because the majority disposition fails to faithfully adhere to
the governing standard of review and breaks with binding
precedent, I respectfully dissent.
