889 F.3d 654

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 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:
• 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 , 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 confessed. See Majority Opinion , p. 658, 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.

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