Wednesday, May 09, 2018

US v. Espinoza-Valdez, No. 16-10395 (5-7-18)(Friedman w/Bybee; dissent by Rawlinson). 

This is a "scout" case that ends with the conspiracy to import and conspiracy to distribute marijuana being dismissed. 

A "scout" case refers to a practice of drug traffickers to place several individuals on mountaintops who monitor law enforcement movements.  The scouts communicate with backpackers via radio.  Here, the government raided a mountaintop, and caught the defendant.  He had a radio, batteries, provisions, and other evidence of drug trafficking (special shoes and so forth). The defendant had been apprehended months previously backpacking.  What the government didn't have was evidence with whom he conspired, the object of the conspiracy, any agreement, or evidence of what had occurred with others.  The government used solely expert testimony to explain the structure of the trafficking, role, and possible amounts.

The 9th reversed for insufficiency of evidence.  The 9th reasoned that while it was probable he was a scout, more was needed than an expert "profiling." The risk of profiles are too great, and the actual evidence of an agreement for a conspiracy was nonexistent.

Dissenting, Rawlinson argues that in a light most favorable to the government, and drawing favorable inferences from the evidence, the convictions should be sustained.  Conspiracies can be proved by circumstantial evidence, and there was enough here, with the explanations by the expert, to find that a reasonable jury could convict.

Congrats to Phoenix CJA lawyer Atmore Baggot for the win. 

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/07/16-10395.pdf

 

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