Unpublished Disposition, 846 F.2d 1383 (9th Cir. 1988)

MEMORANDUM^** 

Salvador Horacio Almada-Garcia appeals his conviction, following a jury trial, for conspiracy to distribute cocaine and possession with intent to distribute cocaine. Almada-Garcia contends that the district court erred in denying his motion for a judgment of acquittal because the government presented insufficient evidence that he knowingly participated in the charged crimes.

The facts pointing to guilt are, as acknowledged by the trial court, "thin" and "troublesome." We conclude that the evidence is simply inadequate to sustain the conviction and accordingly REVERSE.

It is unnecessary to repeat the facts in detail in this Memorandum disposition. Considered most favorably to the government, they establish that the defendant was present when his brother, sister and uncle engaged in criminal conduct clearly sufficient to sustain their convictions. But mere presence alone is not enough to prove guilt. United States v. Reese, 775 F.2d 1066, 1071-72 (9th Cir. 1985).

The facts also disclose that the crime was discussed by others in the defendant's presence. The essential elements of conspiracy are an agreement to accomplish an illegal objective coupled with one or more overt acts in furtherance of the illegal purpose. United States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir. 1980). Participation by the defendant in the conspiracy is essential for his guilt. There can be no conviction for guilt by association, and it is clear that mere association with members of a conspiracy, the existence of an opportunity to join a conspiracy, or simple knowledge, approval of, or acquiescence in the object or purpose of the conspiracy, without an intention and agreement to accomplish a specific illegal objective, is not sufficient to make one a conspirator. Miller v. United States, 382 F.2d 583, 587 (9th Cir. 1967), cert. denied, 390 U.S. 984 (1968). The same analysis applies to the appellant's conviction of the substantive crime of aiding and abetting the distribution of cocaine. To sustain an aiding and abetting conviction, the government must show that the defendant intentionally assisted a criminal venture. United States v. Groomer, 596 F.2d 356, 358 (9th Cir. 1979). We hold that Almada-Garcia, who merely sat and listened to others, is not a participant in their criminal plans.

The only evidence that arguably shows acts of participation includes the defendant standing on the balcony while his relatives engaged in criminal acts within the dwelling; the defendant advising a narcotics agent that a person had arrived at the premises; and the defendant advising another person to "come up" to the apartment. The government places a sinister cast on each of these acts. It characterizes the defendant as a "messenger" because he advised a narcotics agent that "the guy" had arrived at the apartment; as an "adviser" because he commented that a narcotics agent appeared nervous and should not be brought along; as a "subforeman" because he "ordered" another narcotics agent to "come up" to the apartment; and as engaged in "counter-surveillance" in standing on the balcony. We find this evidence far too ambiguous to agree with the government. We conclude that a rational juror could not find beyond a reasonable doubt that the defendant is guilty of the crimes charged based upon this "thin" evidence. United States v. Birges, 723 F.2d 666, 672 (9th Cir.), cert. denied, 466 U.S. 943 (1984).

In United States v. Penagos, 823 F.2d 346 (9th Cir. 1987), another panel of this court reached the same conclusion based upon similar facts. The government attempts to distinguish Penagos by contending that it is a case in which there was no unequivocal evidence that Penagos knowingly participated in the conspiracy. Here, according to the government's argument, this "thin" evidence described above is sufficient to show knowing participation. We disagree. Our system requires more convincing evidence than is shown here to affirm the conviction of Almada-Garcia.

REVERSED.