dissenting:
This case involves the second conviction upon jury trial of Jimenez Recio and Lopez-Meza for their participation in a drug conspiracy that unraveled when the police seized a truck containing more than $10 million of illicit drugs. The majority’s pri- or ruling was reversed by the United States Supreme Court because of the majority’s reliance on the Ninth Circuit’s Cruz precedent, which the Supreme Court roundly rejected. The majority persists in reversing the convictions of Jimenez Recio and Lopez-Meza on other faulty grounds. Though recognizing that Cruz was erroneous, the panel majority now continues in a different error by substituting its will in the place of the jury’s verdict on what are essentially questions of fact. The panel majority contravenes the considered verdicts of the jury which found the guilt of Jimenez Recio and Lopez-Meza beyond a reasonable doubt. Although the second trial, the verdict of which is the subject of this appeal, proceeded with an instruction pursuant to the Cruz rule, that only made it more difficult for the government to prove conspiracy. Because the government’s proof of conspiracy was sufficient even under the mistakenly restrictive requirements of Cruz, the verdict properly stands. We may not so casually arrogate the role of the jury, nor so lightly disregard the deliberate views of the jury in this case.
There was sufficient evidence for a rational jury to convict both defendants for a multi-load conspiracy and a single-load conspiracy, even with the restrictive Cruz instrúction. If the evidence is viewed in the light most favorable to the government, as is required, there is no need to remand the case for yet a third trial on the single-load conspiracy. I have expressed my views on the sufficiency of the convicting evidence before, see United States v. Redo, 258 F.3d 1069, 1077-85 (Gould, J., dissenting), and I reaffirm them here.
The panel majority clings to the view that there was insufficient evidence for the multi-load conspiracy convictions. These convictions are unaffected by taint from United States v. Cruz, 127 F.3d 791 (9th Cir.1997), abrogated by United States v. Redo, 537 U.S. 270, 123 S.Ct. 819, 154 L.Ed.2d 744 (2003). I disagree with the panel majority’s incomplete and incorrect view of the evidence presented at the second trial. There was sufficient evidence that defendants were involved in a running conspiracy involving multiple loads. I need not repeat my exposition, but stand by it. See Recio, 258 F.3d at 1082-1085.
Also, a remand for a third trial is necessary only if the evidence was insufficient for the single-load conspiracy convictions under the now-discredited Cruz rule. The only potential prejudice of the Cruz rule fell on the government; if the pre-seizure single-load conspiracy convictions are based on sufficient evidence even with *1111Cruz’s improvident restrictions, then no party has suffered prejudice based on the application of the erroneous Cruz rule, where the jury, instructed under it, returned verdicts of guilt. The panel majority, however, holds that the pre-seizure evidence was insufficient. As I explained in my earlier dissent, the panel majority errs.
I summarized my views in first dissent: With respect to Jimenez Recio: ... '
The evidence of the phone calls,-to Nu Acres and the non-owner operator insurance policy combined with probative evidence of Jimenez Recio’s incredible story upon arrest, the use of pagers and the very high value of the drugs in, the truck, is solid evidence when viewed in the light most favorable to the government; it is clearly sufficient for a reasonable jury to have found beyond a reasonable doubt that Jimenez Recio was involved in the conspiracy before the seizure of the drugs.
Recio, 258 F.3d at 1081. The same is true for Lopez-Meza:
The connection between Lopez-Meza, Raul and Nu Acres, the drug’s destination, the evidence of Lopez-Meza’s implausible story, his two pagers and two phone cards, and his participation in the transportation of more than $10 million of marijuana and cocaine, together demonstrate that a reasonable jury could determine Lopez-Meza’s participation in the pre-seizure conspiracy beyond a reasonable doubt, and in my view this evidence is more than sufficient to permit a jury verdict of conviction in the second trial.
Id. at 1082.
There is no need to remand for a third trial because there was ample and sufficient evidence to support both defendants’ convictions for a single-load conspiracy. For the broader conspiracy and the single-load conspiracy, “[t]he majority addresses only a part of the evidence ... [and ignores that] the jury said that it had no reasonable doubt. The evidence in the second trial is sufficient to support the jury’s decision.” Id. at 1089-90.
The - panel majority acknowledges that the evidence presented at 'the first trial was sufficient for a rational jury to convict the defendants on a non-Cruz, conspiracy indictment. This tracks the views that I have previously expressed. See Recio, 258 F.3d at 1089 n. 5 (Gould, J., dissenting). One can only hope that, when this case is again predictably appealed after yet another round of predictable guilty verdicts in the defendants’ third jury trial, our court will finally abide fundamental principle and will refrain from interposing its views on factual matters that are in the province of the jury.1
I respectfully dissent.