concurring.
I concur in the judgment and in all that Judge Rubin has written except for the following language [Page 12 of the typewritten draft]: “once the existence of a conspiracy and the defendant’s participation in it are both established, slight evidence of the defendant’s knowledge of the scheme may be sufficient to sustain the jury’s finding that he or she was a member (emphasis added).”
I realize that this language, appearing in prior decisions, is binding on us as a panel, but I believe the time has come for judicial re-evaluation of this “slight evidence” formulation. I believe that the true test on appeal is whether substantial evidence in the record supports a jury finding of the defendant’s knowledge of, and participation in, a conspiracy. I think the “substantial evidence” test is (1) consistent with the case law in this Circuit, (2) is compelled by decisions of the Supreme Court and (3) is also supported by sound policy considerations.
I.
An understanding of the devolution of the “slight evidence” rule in the Fifth Circuit requires re-examination of nearly a half century of case law. The earliest case on point that I have been able to discover is Tomplain v. United States, 5 Cir. 1930, 42 F.2d 202, cert. denied, 282 U.S. 886, 51 S.Ct. 89, 75 L.Ed. 781 (1930). There, in affirming a conspiracy conviction, the Court stated, “The conspiracy was conclusively established, and but slight evidence connecting the defendants was necessary. If the conflict was resolved in favor of the government, it was sufficient to support the conviction.” 42 F.2d at 203. The four paragraph opinion cited no authority in support of the “slight evidence” rule.1 Forty-three years elapsed before our Court cited Tom-plain as authority for any proposition. It went unnoticed until United States v. Perez, 5 Cir. 1973, 489 F.2d 51, cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). In that case, the Court stated that “[i]t was held long ago by this Court that once the jury has found the existence of a conspiracy (agreement), only slight additional evidence is necessary to connect the defendant with the conspiracy. Tomplain v. United States, 5 Cir. 1930, 42 F.2d 202.” 489 F.2d at 72. In other words, Perez was saying that the “slight evidence” rule has been the law of this Circuit since 1930.
Nevertheless, when one examines the Fifth Circuit cases from the Tomplain era *761and notes the absolute dearth of reliance on Tomplain as precedent, it really cannot be said that the “slight evidence” test was the law of this Circuit.2 In Beland v. United States, 5 Cir. 1938, 100 F.2d 289, cert. denied, 306 U.S. 636, 59 S.Ct. 485, 83 L.Ed. 1037 (1939), the Court clearly employed a “substantial evidence” test. Beland was a drug conspiracy case. I quote from the reported opinion: “Any substantial evidence of knowledge and participation in conspiracy will justify a verdict of guilty. . The existence of a conspiracy may be shown by inference. It may be established by circumstantial evidence. If there is any substantial evidence before a jury on which to base a conviction, this court will not disturb the verdict and will not inquire into or measure the weight of the evidence.” 100 F.2d at 291 (emphasis added and citations omitted).
Beland was followed in Pullin v. United States, 5 Cir. 1939, 104 F.2d 57, cert. denied, 308 U.S. 552, 60 S.Ct. 97, 84 L.Ed. 464 (1939). Significantly, Circuit Judge Foster, the author of the Tomplain opinion, was a member of the panel in Pullin and joined in that opinion, laying down the “substantial evidence” test. See, also, Judge Foster’s opinion in Copeland v. United States, 5 Cir. 1937, 90 F.2d 78, in which it was held that to support a conspiracy conviction circumstantial evidence must exclude every other reasonable hypothesis than that of guilt.
It seems quite clear to me that Tomplain notwithstanding the “substantial evidence” test thus emerged as the firmly established law of the Fifth Circuit.3 The later cases reaffirmed this position. See, e. g., Beland v. United States, 5 Cir. 1941, 117 F.2d 958, 959, cert. denied, 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541 (1941) (“substantial evidence of knowledge and participation will justify a verdict of guilty”); Badon v. United States, 5 Cir. 1959, 269 F.2d 75, cert. denied, 361 U.S. 894, 80 S.Ct. 199, 4 L.Ed.2d 152 (1959) (substantial evidence of knowledge and participation); Wood v. United States, 5 Cir. 1960, 283 F.2d 4 (quoting Badon “substantial evidence” formulation); Wilson v. United States, 5 Cir. 1963, 320 F.2d 493, 495 (quoting Beland “substantial evidence” formulation). The record shows, therefore, that until 1963 this Court tested conspiracy convictions on appeal by the substantial evidence standard.4
After another five or six years the “slight evidence” formulation made a new appearance in our cases. In Bradford v. United States, 5 Cir. 1969, 413 F.2d 467, in the process of remanding the case of defendant Bradford for other proceedings the opinion stated, “[b]ut there is no doubt that in this case a conspiracy existed. Under such circumstances only slight additional evidence is required to connect a defendant with it.” 413 F.2d at 469 (footnote omitted). No case from this Circuit was cited as authority for this proposition. With all deference, I *762think this view of the law is wholly wrong. I believe that as in all criminal cases the burden on the government in prosecutions for conspiracy is to produce evidence of such substantiality as to justify a reasonably minded jury in believing beyond a reasonable doubt that the defendant was, in fact, connected with the conspiracy.
Lopez v. United States, 5 Cir. 1969, 414 F.2d 909, was the second case to employ the “slight evidence” formula. The Lopez Court relied upon Bradford to support its conclusion,5 but the Court also indicated its awareness of the substantial evidence test when it cited Badon v. United States, supra, in its discussion of the jury’s function. 414 F.2d at 911-12.
Nevertheless, subsequent decisions have seized upon the magic words “slight evidence” and have relied upon Bradford 6 and Lopez7 for support of this theory of appellate review in conspiracy cases. Once the floodgates were thus opened, other cases simply relied on the progeny of Bradford and Lopez.8 Even so, while the “slight evidence” flood inundated the plains of the Fifth Circuit, a few cases still recognized the correctness and vitality of the “substantial evidence” test. See, e. g., United States v. Salinas-Salinas, 5 Cir. 1977, 555 F.2d 470, 472-73; United States v. Goodson, 5 Cir. 1974, 502 F.2d 1303, 1305-06; United States v. Menichino, 5 Cir. 1974, 497 F.2d 935; United States v. Amato, 5 Cir. 1974, 495 F.2d 545, 549-50, cert. denied, 419 U.S. 1013, 95 S.Ct. 333, 42 L.Ed.2d 286 (1974).
Our Court applied the “slight evidence” test so often and so ritualistically that by 1975 some district judges were led to believe that the government only had to adduce slight evidence at trial in order to connect a defendant to a conspiracy and they so charged juries. However, we immediately corrected that error. See, e. g., *763United States v. Hall, 5 Cir. 1976, 525 F.2d 1254; United States v. Marionneaux, 5 Cir. 1975, 514 F.2d 1244, 1249; United States v. Brasseaux, 5 Cir. 1975, 509 F.2d 157, 161 n. 5. As those cases established, the government still bears the burden of proving each and every element of the conspiracy charge beyond a reasonable doubt.
Once the jury has reached a verdict of guilty, assuming that the trial judge properly submitted the case to the jury, the task on appeal is somewhat different. Loose recitation of formulae will not suffice, for it is our duty to review the cold record before us and to sustain the verdict of the jury “if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) (emphasis added).
In sum, I believe that the law of this Circuit is (and if not, ought to be) that the conspiracy conviction of any individual defendant may be sustained only if the record reveals substantial evidence of the defendant’s knowledge of the existence of the conspiracy and of his participation in that conspiracy. Judge Rubin has authorized me to state that he joins in this concurring opinion insofar as it urges re-evaluation of the “slight evidence” formulation.
II.
The “substantial evidence” test on the point under discussion is mandated by decisions of the Supreme Court. No decision of the Supreme Court has ever tested the sufficiency of the evidence to support a jury verdict in a conspiracy case by the “slight evidence” standard. Instead, its decisions have consistently employed the “substantial evidence” rule.
“The gist of the offense of conspiracy . is agreement among the conspirators to commit an offense attended by an act of one or more of the conspirators to effect the object of the conspiracy. Those having no knowledge of the conspiracy are not conspirators, . . . .” United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 207, 85 L.Ed. 128 (1940) (citations omitted).
[Ijntent, when given effect by overt act, is the gist of conspiracy. While it is not identical with mere knowledge that another purposes unlawful action, it is not unrelated to such knowledge. Without the knowledge, the intent cannot exist. Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal. This, because charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning ... a dragnet to draw in all substantive crimes.
Direct Sales v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674 (1943) (citations omitted). Accord, Ingram v. United States, 360 U.S. 672, 677-80, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959).
Thus, there must be an agreement, a conspiracy, and an individual defendant must have knowledge of the conspiracy and an intent to join, or associate himself with the objectives of, that conspiracy. Moreover, “conspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself.” Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 1319, 3 L.Ed.2d 1503 (1959).
If knowledge, participation and criminal intent are the elements of the crime of conspiracy, there can be no doubt that the government must prove each of these elements beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197, 204—216, 97 S.Ct. 2319, 2324-30, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); United States v. Salinas-Salinas, 5 Cir. 1977, 555 F.2d 470, 473.
On appellate review of a conspiracy conviction,
[i]t is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. Participation in a criminal conspiracy need not be proved by direct evidence; a common *764purpose and plan may be inferred from a ‘development and a collocation of circumstances’.
Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) (emphasis added and citation omitted).
As recently as 1974 the Supreme Court has reaffirmed the substantial evidence rule announced in Glasser. In Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590, the Court said,
The general rule of application is that “[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it”, (citing Glasser).
III.
Judge Learned Hand once felt justified in describing a conspiracy prosecution as “that darling of the modern prosecutor’s nursery”, Harrison v. United States, 2 Cir. 1925, 7 F.2d 259, 263.
The disadvantages which every defendant faces in a criminal trial are, as a rule, highly intensified in a trial for conspiracy.
The courts, first, and then the Congress have created an exception to the hearsay rule which admits a statement of a co-conspirator during the course and in furtherance of the conspiracy. See IV J. Wigmore, Evidence § 1079 (J. Chadbourne ed. 1972); Fed.R.Evid. 801(d)(2)(E). Such statements are calculated to have an enormous impact on juries in conspiracy trials, and the necessity for proper judicial control of such hearsay testimony led this Court to order, sua sponte, that the case of United States v. James, 5 Cir. 1978, 576 F.2d 1121, be reheard en banc in order to decide what procedures should be employed by a trial judge in admitting co-conspirator statements.
Since conspiracies, by definition, involve more than one person, joint trials are often conducted. Judges are generally reluctant to sever these trials, and individual defendants are placed in a precarious position from “guilt by association”.
A conspiracy trial may take place in any district where any overt act is committed by any of the conspirators. This rule often forces defendants to defend themselves many hundreds, and sometimes even thousands, of miles away from home. As Mr. Justice Jackson once noted, this rule reduces to a “phantom” the right of an accused under the Sixth Amendment to trial “by an impartial jury of the State and district wherein the crime shall have been committed.” Krulewitch v. United States, 336 U.S. 440, 452, 69 S.Ct. 716, 722, 93 L.Ed. 790 (1949) (Jackson, J., concurring).
Over my dissent, this Court has recently permitted the Government under a conspiracy indictment to try two defendants in Georgia when they had stolen automobiles in Illinois and sold them in Illinois without any knowledge that the vehicles would be placed in interstate commerce and without any knowledge that the vehicles would be transported to Georgia. See United States v. Beil, 5 Cir. 1978, 577 F.2d 1313.
In view of these factors, which are to be found only in conspiracy prosecutions, I cannot bring myself to believe that upon appellate review only “slight evidence” is required to connect a particular defendant with a conspiracy. “Substantial evidence” should be, and I believe is, the test. The courts should be free to say so. Yet, because of prior decisions which I believe to have been mistaken, my hands are tied. Only an en banc court, or the Supreme Court by a positively specific utterance, can untie them.
CONCLUSION
It is not to be thought by what I have above written that the enforcement of the law against conspiracies is unimportant. Certainly, unlawful conspiracies should be prosecuted. The point is that when the sufficiency of the evidence is drawn into question the correct test should be applied.
ON PETITIONS FOR REHEARING AND PETITIONS FOR REHEARING EN BANC
Before BROWN, Chief Judge, COLEMAN, GOLDBERG, AINSWORTH, GOD-BOLD, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges.
. The full text of Tomplain is:
Before BRYAN and FOSTER, Circuit Judges, and HOLMES, District Judge.
FOSTER, Circuit Judge.
Walton Tomplain, Nolan Tomplain, Bartoul Cheramie, and Natilus Alario were convicted on an indictment charging them and eleven others with conspiring to import, possess, and transport intoxicating liquor by means of a boat named the Isabel, and certain trucks and automobiles, in violation of the National Prohibition Act (27 USCA).
Error is assigned to the refusal of a directed verdict and to the overruling of a motion in arrest of judgment, both based upon the alleged insufficiency of the evidence.
The record shows positively that the Isabel, loaded with liquor, docked at Harry Bourg’s landing on Grand Caillou bayou. A number of men and several automobiles were there, and a quantity of the liquor was unloaded. The vessel, five trucks, and some of the men were captured. The overt acts alleged were sufficiently proved.
It may be conceded that the evidence connecting the four appellants with the transaction was not as strong as it might have been and was disputed. However, we need not review it, as we cannot say, as a matter of law, there was no evidence at all to go before the jury. The conspiracy was conclusively established, and but slight evidence connecting the defendants was necessary. If the conflict was resolved in favor of the government, it was sufficient to support the conviction. The question presented was essentially for the jury.
The record presents no reversible error.
Affirmed.
. Other circuits had no illusions as to the meaning of the Tomplain “slight evidence” test. See, e. g., Galatas v. United States, 8 Cir. 1935, 80 F.2d 15, cert. denied, 297 U.S. 711, 56 S.Ct. 574, 80 L.Ed. 998 (1936) (slight evidence connecting a defendant may still be substantial and therefore sufficient to sustain a conspiracy conviction); United States v. Goldman, 2 Cir. 1941, 118 F.2d 310, cert. denied, 313 U.S. 588, 61 S.Ct. 1109, 85 L.Ed. 1543 (1941) (“ample proof’ of the conspiracy).
. For other cases of this Circuit dealing generally with conspiracies, see, e. g., Duke v. United States, 5 Cir. 1956, 233 F.2d 897; Jolley v. United States, 5 Cir. 1956, 232 F.2d 83; Owens v. United States, 5 Cir. 1955, 221 F.2d 351; United States v. Hood, 5 Cir. 1953, 200 F.2d 639, cert. denied, 345 U.S. 941, 73 S.Ct. 832, 97 L.Ed. 1367 (1953); Baker v. United States, 5 Cir. 1946, 156 F.2d 386, cert. denied, 329 U.S. 763, 67 S.Ct. 123, 91 L.Ed. 657 (1946); Burk v. United States, 5 Cir. 1943, 134 F.2d 879; Kopald-Quinn & Co. v. United States, 5 Cir. 1939, 101 F.2d 628, cert. denied sub nom., Ricebaum v. United States, 307 U.S. 628, 59 S.Ct. 835, 83 L.Ed. 1511 (1939).
. Cases such as Wilson and Beland have been cited on other occasions by our Court as authority for various propositions. See, e. g., United States v. Mendez, 5 Cir. 1974, 496 F.2d 128 (knowledge and participation must be proven); United States v. Jacobs, 5 Cir. 1971, 451 F.2d 530, 535 n. 7, cert. denied sub nom. Kastenbaum v. United States, 405 U.S. 955, 92 S.Ct. 1170, 31 L.Ed.2d 231 (1972) (conspiracy often may be proven only by inferences drawn from circumstantial evidence); Henderson v. United States, 5 Cir. 1968, 390 F.2d 871 (record sufficient to sustain conspiracy convictions). Nothing in such cases repudiated the “substantial evidence” test.
. “Admittedly the evidence here is slight. However, when, as in this case, the existence of a conspiracy is shown, slight evidence may be sufficient to connect a particular defendant with it. Bradford v. United States, 5 Cir. 1969, 413 F.2d 467; . . . .” 414 F.2d at 911.
. Among the cases which have cited Bradford for the “slight evidence” test have been United States v. McGann, 5 Cir. 1970, 431 F.2d 1104, 1107, cert. denied sub nom. Pruitt v. United States, 401 U.S. 919, 91 S.Ct. 904, 27 L.Ed.2d 821 (1971); United States v. Rodriguez, 5 Cir. 1974, 498 F.2d 302, 312; United States v. Reynolds, 5 Cir. 1975, 511 F.2d 603, 607.
. Lopez has clearly made the most significant contribution to our adherence to “precedent”. See, e. g., United States v. McGann, 5 Cir. 1970, 431 F.2d 1104, 1107, cert. denied sub nom. Pruitt v. United States, 401 U.S. 919, 91 S.Ct. 904, 27 L.Ed.2d 821 (1971); United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 830, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971); United States v. Morado, 5 Cir. 1972, 454 F.2d 167, 175, cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116 (1972); United States v. Fontenot, 5 Cir. 1973, 483 F.2d 315, 321; United States v. Lee, 5 Cir. 1973, 483 F.2d 968, 969; United States v. Wilson, 5 Cir. 1974, 500 F.2d 715, 727, cert. denied sub nom. Levin v. United States, 420 U.S. 977, 95 S.Ct. 1403, 43 L.Ed.2d 658 (1975); United States v. Sanchez, 5 Cir. 1975, 508 F.2d 388, 392, cert. denied, 423 U.S. 827, 96 S.Ct. 45, 46 L.Ed.2d 44 (1975); United States v. Wayman, 5 Cir. 1975, 510 F.2d 1020, 1026, cert. denied sub nom. Moore v. United States, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975); United States v. Reynolds, 5 Cir. 1975, 511 F.2d 603, 607; United States v. Prince, 5 Cir. 1975, 515 F.2d 564, 567, cert. denied sub nom. Craft v. United States, 423 U.S. 1032, 96 S.Ct. 563, 46 L.Ed.2d 406 (1975); United States v. James, 5 Cir. 1976, 528 F.2d 999, 1012, cert. denied sub nom. Henry v. United States, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976); United States v. Crockett, 5 Cir. 1976, 534 F.2d 589, 594; United States v. Bass, 5 Cir. 1977, 562 F.2d 967, 969.
. See, e. g., United States v. Evans, 5 Cir. 1978, 572 F.2d 455, 469; United States v. Trevino, 5 Cir. 1977, 556 F.2d 1265, 1268; United States v. Barnard, 5 Cir. 1977, 553 F.2d 389, 393; United States v. Alvarez, 5 Cir. 1977, 548 F.2d 542, 544; United States v. Nicholson, 5 Cir. 1976, 525 F.2d 1233, 1237, cert. denied, 425 U.S. 972, 96 S.Ct. 2170, 48 L.Ed.2d 795 (1976); United States v. Prieto, 5 Cir. 1974, 505 F.2d 8, 11; United States v. Smith, 5 Cir. 1974, 504 F.2d 560, 562, n. 2; United States v. Maslanka, 5 Cir. 1974, 501 F.2d 208, 216, cert. denied sub nom. Knight v. United States, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1975); United States v. Miller, 5 Cir. 1974, 500 F.2d 751, 763, rev’d on other grounds, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); United States v. Perez, 5 Cir. 1974, 489 F.2d 51, 72, cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1975); United States v. Edwards, 5 Cir. 1974, 488 F.2d 1154, 1157; United States v. Iacovetti, 5 Cir. 1972, 466 F.2d 1147, 1154, cert. denied, 410 U.S. 908, 93 S.Ct. 963, 35 L.Ed.2d 270 (1973).