FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PRAGEDIO ESPINOZA-VALDEZ,

Defendant-Appellant.

No. 16-10395

D.C. No.

2:15-cr-01465-

JJT-1

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 EspinozaValdez’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 handheld 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.