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United States v. Navarette-Aguilar, __ F.3d __ (9th Cir. Dec. 28, 2015): Ninth Circuit holds that “pattern of transactions” could not support inference of conspiracy to distribute a kilogram of heroin

In the 2002 science fiction thriller Minority Report, Tom Cruise manipulated a futuristic computer interface by donning special gloves and waving his hands in the air to manipulate holographic screens of images and data. Using this sytem, he was able to see crimes before they were committed, so that the would-be perpetrators could be pre-emptively arrested and punished. This worked in the movie, because the computer interface was connected to a coven of clairvoyant psychics. And because it was just a movie. And because, well, he’s Tom Cruise. But do not try this if you are a federal district judge ruling on a Rule 29 motion in a drug-distribution conspiracy case, because you will only be waving your hands in the air. And that, luckily for Mr. Samuel Navarette-Aguilar, is not good enough.

Mr. Navarette was indicted on a number of drug charges, the aggregate effect of which was to subject him to a mandatory minimum 20-year sentence if, and only if, the jury found beyond a reasonable doubt that he conspired to distribute a kilogram or more of heroin. The pertinent evidence consisted of the testimony of Mr. Equihua-Ramirez, who obtained heroin from Mr. Navarette, and Mr. Burns, who bought heroin from Mr. Equihua-Ramirez. Faced with Mr. Navarette’s Rule 29 challenge to the sufficiency of the evidence to support the one-kilogram finding, the district judge engaged in a sort of evidentiary reverse-Tetris, trying to stack these witnesses’ vague and cryptic quantity and frequency references on top of one another such that they would reach the one-kilogram mark. It could not be done.

Enter Tom Cruise. The jury could find the crucial kilogram notwithstanding the insufficiency of the physical and testimonial evidence, the judge concluded, because the evidence established a “pattern of transactions that would have allowed the jury to infer a preexisting agreement to distribute at least a kilogram of heroin.” In other words, the jury could have inferred that Mr. Navarette and his co-conspirators “must have agreed to distribute as much heroin as they could and that the distribution would have continued in a similar fashion,” eventually surpassing the one-kilogram mark.

Not good enough, said the Ninth Circuit. The evidence of the conspirators’ “pattern of transactions” could not reliably be extrapolated to find conspiracy to distribute a kilogram of heroin, because “the testimony did not show any consistency in those transactions, either with respect to amount or to frequency.” Instead, the transactions were “ad hoc” and “dependent on the level of demand at any given moment.” To find such evidence sufficient, the court reasoned, would be to allow speculation to stand in for evidence and to come “perilously close to impermissibly convicting the defendant of ‘hypothesized future bad acts.’” The court accordingly reversed the jury’s quantity finding, vacated Mr. Navarette’s sentence, and remanded the case for resentencing.

Moral: “Speculation cannot constitute substantial evidence.” Unless, of course, you are Tom Cruise.

(Congratulations to Per C. Olson of Portland, Oregon for the win.)

United States v. Cisneros-Rodriguez, __ F.3d __ (9th Cir. Dec. 23, 2015): The defendant was charged with illegal reentry after deportation. She moved to dismiss the indictment on the ground that her prior removal was fundamentally unfair. She argued that the ICE agent who conducted her removal proceeding violated her right to due process by telling her that an attorney could not help her because she had been convicted of an aggravated felony, even though she might have been eligible for a form of hardship relief from deportation despite the conviction. The Ninth Circuit agreed, reversed her conviction, and remanded the case with instructions to dismiss the indictment and vacate the conviction.

(Congratulations to Assistant Federal Public Defender Varell Laphalle Fuller of San Jose, California, for the win.)

Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona. He can be reached at

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