Cite as: 537 U. S. 270 (2003)
Opinion of the Court
lar direction. Police stopped both vehicles and arrested both men.
A federal grand jury indicted Jimenez Recio, Lopez-Meza, and the two original truck drivers, charging them with having conspired, together and with others, to possess and to distribute unlawful drugs. A jury convicted all four. But the trial judge then decided that the jury instructions had been erroneous in respect to Jimenez Recio and Lopez-Meza. The judge noted that the Ninth Circuit, in Cruz, had held that the Government could not prosecute drug conspiracy defendants unless they had joined the conspiracy before the Government seized the drugs. See Cruz, supra, at 795-796. That holding, as applied here, meant that the jury could not convict Jimenez Recio and Lopez-Meza unless the jury believed they had joined the conspiracy before the Nevada police stopped the truck and seized the drugs. The judge ordered a new trial where the jury would be instructed to that effect. The new jury convicted the two men once again.
Jimenez Recio and Lopez-Meza appealed. They pointed out that, given Cruz, the jury had to find that they had joined the conspiracy before the Nevada stop, and they claimed that the evidence was insufficient at both trials to warrant any such jury finding. The Ninth Circuit panel, by a vote of 2 to 1, agreed. All three panel members accepted Cruz as binding law. Two members concluded that the evidence presented at the second trial was not sufficient to show that the defendants had joined the conspiracy before the Nevada drug seizure. One of the two wrote that the evidence at the first trial was not sufficient either, a circumstance she believed independently warranted reversal. The third member, dissenting, believed that the evidence at both trials adequately demonstrated preseizure membership. He added that he, like the other panel members, was bound by Cruz, but he wrote that in his view Cruz was "totally inconsistent with long established and appropriate principles of the law of conspiracy," and he urged the Circuit to overrule it en
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