concurring:
I concur in the majority opinion but write separately to make the point that even if the evidence presented at the second trial, when taken in the light most favorable to the government, could (in the view of the dissent) suffice to convict the defendants on the broader conspiracy charge, their convictions should be overturned based on the insufficiency of the evidence at the first trial. At the first trial, the government argued and presented evidence relating solely to the single load conspiracy.1 It was only after a mistrial was declared that the government argued and presented additional evidence at the second trial relating to the alleged existence of a broader conspiracy. As I explain below, the evidence presented at *1075the first trial was plainly insufficient to support a conspiracy conviction under the single load theory in light of our controlling case law.
As the Supreme Court stated in Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), “[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Although it is evident that the defendants’ conspiracy convictions were not final (and hence unreviewable by this court) until after the conclusion of their second trial, see Richardson v. United States, 468 U.S. 317, 326 n. 6, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), the defendants moved for acquittal in the district court following each trial based on insufficiency of the evidence. Accordingly, although our circuit has yet to decide whether the sufficiency of the evidence at the first trial is reviewable after the second trial’s conclusion, cf. United States v. Sarkisian, 197 F.3d 966, 985 n. 7 (9th Cir.1999), I conclude that Jimenez Recio and Lopez-Meza now raise cognizable claims for acquittal based on the insufficiency of the evidence at both their first and second trials.
As the Court stated in Burks, “the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient.” 437 U.S. at 18, 98 S.Ct. 2141. Otherwise, “the purposes of the Clause would be negated were we to afford the government an opportunity for the proverbial ‘second bite at the apple.’ ” Id. at 17, 98 S.Ct. 2141. Indeed, “the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.” Id. at 16, 98 S.Ct. 2141.
In Burks,2 the Court further held that “[i]t cannot be meaningfully said that a person ‘waives’' his right to a judgment of acquittal by moving for a new trial.” Id. at 17, 98 S.Ct. 2141. Moreover, “it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient.... [Such an] appellate decision unmistakably mean[s] that the District Court ... erred in failing to grant a judgment of acquittal. To hold otherwise would create a purely arbitrary distinction between those in [the defendants’] position and others who would enjoy the benefit of a correct decision by the District Court.” Id. at 11, 98 S.Ct. 2141 (emphasis original). It would be similarly irrational to conclude here that because Jimenez Recio and Lopez-Meza were barred until now from appealing the district court’s denial of their motion for acquittal after the first trial, they have somehow “waived” their right to mount such a challenge.
*1076I would therefore recognize and decide this case on- the defendants’ respective claims that the government presented insufficient evidence at the first trial. As the majority opinion aptly reasons,3 the government’s case with respect to the single load conspiracy cannot withstand United States v. Cruz, 127 F.3d 791 (9th Cir.1997). Critically, the government’s own expert, Agent Hinton, as well as its star witness, Arce, testified that but for the government’s intervention, Arce and So-telo would have driven the truck themselves to the putative “stash house” at Nu Acres. Furthermore, the only evidence in the record of any pre-seizure involvement on the part of Jimenez Recio and Lopez-Meza consisted of a handful of phone calls, for which there was uncontroverted evidence that some of the calls made on the phone card possessed by Lopez-Meza could not possibly have been made by him. The conclusion is therefore inescapable that the defendants would almost certainly not have been involved in the transaction were it not for the government’s intervention.
Put another way, any communication which may have taken place between Jimenez Recio, Lopez-Meza, and the central traffickers before the drug seizure could not have contemplated a role for them in delivering these drugs. If anything, such evidence may be probative of involvement in a broader conspiracy (as argued by the government at the second trial), but not in the single transaction. The government’s posi-seizure evidence notwithstanding (e.g., more phone and pager calls to and from Jimenez Recio and Lopez-Meza; the defendants’ behavior at the Karcher Mall and at the time of arrest; and Jimenez Recio’s purchase of non-owner insurance), this does not amount to evidence beyond a reasonable doubt of pre-seizure involvement on the part of the defendants, at least with respect to the single load transaction.
In sum, the unavoidable inference that Jimenez Recio and Lopez-Meza would not have been involved in the transaction had the original delivery proceeded as planned precludes a finding of conspiracy beyond a reasonable doubt. Inasmuch as we are bound by Cruz, as the dissent concedes, see infra Dissenting Op. 1079 n.2, we have no choice but to reverse.4 I therefore would overturn the defendants’ convictions based on the insufficiency of the government’s case at the first trial alone.
Having said this, however, I also concur in the majority holding that the evidence presented at the second trial was again insufficient to convict the defendants beyond a reasonable doubt. To be sure, in my opinion, this is a closer call; the dissent correctly notes that the government presented more detailed evidence of phone and pager calls that may have involved Lopez-Meza, Jimenez Recio, Jose Meza (a.k.a.Raul), and others. Other circumstantial evidence — such as Jimenez Recio’s purchase of non-owner’s insurance, Lopez-Meza’s connection to his uncle Raul, the value of the drugs transported, and Agent Hinton’s testimony as to the likely sophistication and complexity of the drug operation — could militate in favor of a finding that the defendants may have been involved in an ongoing drug trafficking scheme. However, as the majority opinion properly reasons, precedent again prevents our finding the defendants guilty beyond a reasonable doubt of participation in a broader conspiracy. See United *1077States v. Umagat, 998 F.2d 770 (9th Cir.1993).
Under Umagat, the relatively minor role played by “mules” such as Jimenez Recio and Lopez-Meza does not justify imputing to them knowledge of and responsibility for a broader conspiracy. Notably, in Umagat, the government identified and proved the existence of four separate drug transactions; here, the government could not identify any transactions beyond the single load, much less demonstrate knowledge or participation in them by either defendant. Indeed, the bulk of the evidence presented by the government speaks only to the likelihood that a complex operation existed. It says nothing about whether bit players like Jimenez Recio and Lopez-Meza knew of and should be held responsible for involvement in other trafficking offenses. Significantly, the dissent omits virtually any discussion of Umagat.
Accordingly, I concur in the majority opinion.
. Indeed, the defendants were indicted for conspiracy based only on this theory.
. Richardson did not overrule Burks with respect to the ability of an appellate court to review the sufficiency of the evidence at the first trial. Richardson held only that the Double Jeopardy Clause does not bar a retrial after the first trial ends in a hung jury. Richardson, 468 U.S. at 325-26, 104 S.Ct. 3081. Indeed, the Richardson Court took pains to distinguish the procedural posture of that case from the one in Burks, and to reconcile the two holdings. See, e.g., id. at 324, 104 S.Ct. 3081 ("We are entirely unwilling to ... extend[ ] the reasoning of Burks, which arose out of an appellate finding of insufficiency of evidence to convict following a jury verdict of guilty, to a situation where the jury is unable to agree on a verdict.") (emphasis added); id. at 326, 104 S.Ct. 3081 ("a trial court's declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected”) (emphasis added). The Richardson holding is therefore inapposite to the present case, since here the jury returned guilty verdicts against Jimenez Recio and Lopez-Meza at their first trial, prior to the district court's declaration of a mistrial.
. Such reasoning with respect to the single load theory applies to both the first and second trials.
. Tellingly, apart from a brief footnote, the dissent’s analysis avoids any mention of Ci~uz whatsoever.