UNITED STATES v. JIMENEZ RECIO et al.

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Syllabus
UNITED STATES v. JIMENEZ RECIO et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 01–1184. Argued November 12, 2002—Decided January 21, 2003
Ninth Circuit precedent states that a conspiracy terminates when “ ‘there
is affirmative evidence of . . . defeat of the object of the conspiracy.’ ”
United States v. Cruz, 127 F. 3d 791, 795 (emphasis added). Here, police
stopped a truck carrying illegal drugs, seized the drugs, and, with the
help of the truck’s drivers, set up a sting. The drivers paged a contact
who said he would call someone to get the truck. Respondents Jimenez
Recio and Lopez-Meza appeared in a car, and the former drove away in
the truck, the latter in the car. After a jury convicted them of conspir-
ing to possess and to distribute unlawful drugs, the judge ordered a new
trial because, under Cruz, the jury could not convict respondents unless
it believed they had joined the conspiracy before the police seized the
drugs, and it had not been so instructed. The new jury convicted re-
spondents, who appealed. The Ninth Circuit reversed, holding that the
evidence presented at the second trial was insufficient to show that re-
spondents had joined the conspiracy before the drug seizure.
Held: A conspiracy does not automatically terminate simply because the
Government has defeated its object. Thus, the Ninth Circuit is incor-
rect in its view that a conspiracy ends through “defeat” when the Gov-
ernment intervenes, making the conspiracy’s goals impossible to
achieve, even if the conspirators do not know that the Government has
intervened and are totally unaware that the conspiracy is bound to fail.
First, the Ninth Circuit’s rule is inconsistent with basic conspiracy law.
The agreement to commit an unlawful act is “a distinct evil,” which
“may exist and be punished whether or not the substantive crime en-
sues.” Salinas v. United States, 522 U. S. 52, 65. The conspiracy
poses a “threat to the public” over and above the threat of the substan-
tive crime’s commission—both because the “[c]ombination in crime
makes more likely the commission of [other] crimes” and because it “de-
creases the probability that the individuals involved will depart from
their path of criminality.” E. g., Callanan v. United States, 364 U. S.
587, 593–594. Where police have frustrated a conspiracy’s specific ob-
jective but conspirators (unaware of that fact) have neither abandoned
the conspiracy nor withdrawn, these special conspiracy-related dangers
remain, as does the conspiracy’s essence—the agreement to commit the

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Syllabus
crime. Second, this Court’s view is that of almost all courts and com-
mentators but for the Ninth Circuit. No other Federal Court of Ap-
peals has adopted the Ninth Circuit’s rule, and three have explicitly
rejected it. The Cruz majority argued that the traditional rule threat-
ened “endless” potential liability. But the majority’s example illustrat-
ing that point—a sting in which police instructed an arrested conspira-
tor to call all of his acquaintances to come and help him, with the
Government obtaining convictions of those who did so—draws its per-
suasive force from the fact that it bears certain resemblances to entrap-
ment, which the law independently forbids. At the same time, the Cruz
rule would reach well beyond arguable police misbehavior, potentially
threatening the use of properly run law enforcement sting operations.
See Lewis v. United States, 385 U. S. 206, 208–209. Ninth Circuit prece-
dent, whereby the language “ ‘the defendant . . . defeated its purpose’ ”
in United States v. Krasn, 614 F. 2d 1229, 1236, was changed to
“a conspiracy is presumed to continue until there is . . . defeat of the
[conspiracy’s purpose]” in United States v. Bloch, 696 F. 2d 1213, 1215
(emphasis added), may help to explain the Cruz rule’s origin. But, since
the Ninth Circuit’s earlier cases nowhere give any reason for the critical
language change, they cannot help to justify it. Pp. 274–277.
258 F. 3d 1069, reversed and remanded.
Breyer, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Scalia, Kennedy, Souter, Thomas, and Gins-
burg, JJ., joined. Stevens, J., filed an opinion concurring in part and
dissenting in part, post, p. 278.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the brief were Solicitor
General Olson, Assistant Attorney General Chertoff, James
A. Feldman, and Jonathan L. Marcus.
M. Karl Shurtliff argued the cause for respondents and
filed a brief for respondent Jimenez Recio. Thomas A. Sul-
livan filed a brief for respondent Lopez-Meza.*
*Jay Alan Sekulow, Stuart J. Roth, Colby M. May, Joel H. Thornton,
John P. Tuskey, and Shannon D. Woodruff filed a brief for the American
Center for Law and Justice et al. as amici curiae urging reversal.

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272 UNITED STATES v. JIMENEZ RECIO
Opinion of the Court
Justice Breyer delivered the opinion of the Court.
We here consider the validity of a Ninth Circuit rule that
a conspiracy ends automatically when the object of the con-
spiracy becomes impossible to achieve—when, for example,
the Government frustrates a drug conspiracy’s objective by
seizing the drugs that its members have agreed to distribute.
In our view, conspiracy law does not contain any such “auto-
matic termination” rule.
I
In United States v. Cruz, 127 F. 3d 791, 795 (CA9 1997),
the Ninth Circuit, following the language of an earlier case,
United States v. Castro, 972 F. 2d 1107, 1112 (CA9 1992),
wrote that a conspiracy terminates when “ ‘there is affirma-
tive evidence of abandonment, withdrawal, disavowal or de-
feat of the object of the conspiracy.’ ” (Emphasis added.)
It considered the conviction of an individual who, the Gov-
ernment had charged, joined a conspiracy (to distribute
drugs) after the Government had seized the drugs in ques-
tion. The Circuit found that the Government’s seizure of
the drugs guaranteed the “defeat” of the conspiracy’s objec-
tive, namely, drug distribution. The Circuit held that the
conspiracy had terminated with that “defeat,” i. e., when the
Government seized the drugs. Hence the individual, who
had joined the conspiracy after that point, could not be con-
victed as a conspiracy member.
In this case the lower courts applied the Cruz rule to simi-
lar facts: On November 18, 1997, police stopped a truck in
Nevada. They found, and seized, a large stash of illegal
drugs. With the help of the truck’s two drivers, they set
up a sting. The Government took the truck to the drivers’
destination, a mall in Idaho. The drivers paged a contact
and described the truck’s location. The contact said that he
would call someone to get the truck. And three hours later,
the two defendants, Francisco Jimenez Recio and Adrian
Lopez-Meza, appeared in a car. Jimenez Recio drove away
in the truck; Lopez-Meza drove the car away in a simi-

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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 hav-
ing 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 be-
lieved they had joined the conspiracy before the Nevada po-
lice stopped the truck and seized the drugs. The judge or-
dered 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 be-
lieved independently warranted reversal. The third mem-
ber, dissenting, believed that the evidence at both trials ade-
quately 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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Opinion of the Court
banc “at the earliest opportunity.” 258 F. 3d 1069, 1079, n. 2
(2001) (opinion of Gould, J.).
The Government sought certiorari. It noted that the
Ninth Circuit’s holding in this case was premised upon the
legal rule enunciated in Cruz. And it asked us to decide the
rule’s validity, i. e., to decide whether “a conspiracy ends as a
matter of law when the government frustrates its objective.”
Pet. for Cert. (I). We agreed to consider that question.
II
In Cruz, the Ninth Circuit held that a conspiracy continues
“ ‘until there is affirmative evidence of abandonment, with-
drawal, disavowal or defeat of the object of the conspiracy.’ ”
127 F. 3d, at 795 (quoting Castro, supra, at 1112). The criti-
cal portion of this statement is the last segment, that a con-
spiracy ends once there has been “ ‘defeat of [its] object.’ ”
The Circuit’s holdings make clear that the phrase means that
the conspiracy ends through “defeat” when the Government
intervenes, making the conspiracy’s goals impossible to
achieve, even if the conspirators do not know that the Gov-
ernment has intervened and are totally unaware that the
conspiracy is bound to fail. In our view, this statement of
the law is incorrect. A conspiracy does not automatically
terminate simply because the Government, unbeknownst to
some of the conspirators, has “defeat[ed]” the conspiracy’s
“object.”
Two basic considerations convince us that this is the
proper view of the law. First, the Ninth Circuit’s rule is
inconsistent with our own understanding of basic conspiracy
law. The Court has repeatedly said that the essence of a
conspiracy is “an agreement to commit an unlawful act.”
Iannelli v. United States, 420 U. S. 770, 777 (1975); see
United States v. Shabani, 513 U. S. 10, 16 (1994); Braverman
v. United States, 317 U. S. 49, 53 (1942). That agreement is
“a distinct evil,” which “may exist and be punished whether
or not the substantive crime ensues.” Salinas v. United

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275 Cite as: 537 U. S. 270 (2003)
Opinion of the Court
States, 522 U. S. 52, 65 (1997). The conspiracy poses a
“threat to the public” over and above the threat of the com-
mission of the relevant substantive crime—both because the
“[c]ombination in crime makes more likely the commission of
[other] crimes” and because it “decreases the probability that
the individuals involved will depart from their path of crimi-
nality.” Callanan v. United States, 364 U. S. 587, 593–594
(1961); see also United States v. Rabinowich, 238 U. S. 78, 88
(1915) (conspiracy “sometimes quite outweigh[s], in injury to
the public, the mere commission of the contemplated crime”).
Where police have frustrated a conspiracy’s specific objec-
tive but conspirators (unaware of that fact) have neither
abandoned the conspiracy nor withdrawn, these special
conspiracy-related dangers remain. Cf. 2 W. LaFave &
A. Scott, Substantive Criminal Law § 6.5, p. 85 (1986) (“[i]m-
possibility” does not terminate conspiracy because “criminal
combinations are dangerous apart from the danger of attain-
ing the particular objective”). So too remains the essence of
the conspiracy—the agreement to commit the crime. That
being so, the Government’s defeat of the conspiracy’s objec-
tive will not necessarily and automatically terminate the
conspiracy.
Second, the view we endorse today is the view of almost
all courts and commentators but for the Ninth Circuit. No
other Federal Court of Appeals has adopted the Ninth Cir-
cuit’s rule. Three have explicitly rejected it. In United
States v. Wallace, 85 F. 3d 1063, 1068 (CA2 1996), for exam-
ple, the court said that the fact that a “conspiracy cannot
actually be realized because of facts unknown to the conspir-
ators is irrelevant.” See also United States v. Belardo-
Quin˜ ones, 71 F. 3d 941, 944 (CA1 1995) (conspiracy exists
even if, unbeknownst to conspirators, crime is impossible to
commit); United States v. LaBudda, 882 F. 2d 244, 248 (CA7
1989) (defendants can be found guilty of conspiracy even if
conspiracy’s object “is unattainable from the very begin-
ning”). One treatise, after surveying lower court conspir-

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acy decisions, has concluded that “[i]mpossibility of success
is not a defense.” 2 LaFave & Scott, Substantive Criminal
Law § 6.5, at 85; see also id., § 6.5(b), at 90–93. And the
American Law Institute’s Model Penal Code § 5.03, p. 384
(1985), would find that a conspiracy “terminates when the
crime or crimes that are its object are committed” or when
the relevant “agreement . . . is abandoned.” It would not
find “impossibility” a basis for termination.
The Cruz majority argued that the more traditional termi-
nation rule threatened “endless” potential liability. To illus-
trate the point, the majority posited a sting in which police
instructed an arrested conspirator to go through the “tele-
phone directory . . . [and] call all of his acquaintances” to
come and help him, with the Government obtaining convic-
tions of those who did so. 127 F. 3d, at 795, n. 3. The prob-
lem with this example, however, is that, even though it is
not necessarily an example of entrapment itself, it draws its
persuasive force from the fact that it bears certain resem-
blances to entrapment. The law independently forbids con-
victions that rest upon entrapment. See Jacobson v. United
States, 503 U. S. 540, 548–549 (1992); Sorrells v. United
States, 287 U. S. 435, 442–445 (1932). And the example fails
to explain why a different branch of the law, conspiracy
law, should be modified to forbid entrapment-like behavior
that falls outside the bounds of current entrapment law.
Cf. United States v. Russell, 411 U. S. 423, 435 (1973) (“de-
fense of entrapment . . . not intended to give the federal
judiciary . . . veto” over disapproved “law enforcement prac-
tices”). At the same time, the Cruz rule would reach well
beyond arguable police misbehavior, potentially threatening
the use of properly run law enforcement sting operations.
See Lewis v. United States, 385 U. S. 206, 208–209 (1966)
(Government may “use decoys” and conceal agents’ identity);
see also M. Lyman, Criminal Investigation 484–485 (2d ed.
1999) (explaining the importance of undercover operations in
enforcing drug laws).

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Opinion of the Court
In tracing the origins of the statement of conspiracy law
upon which the Cruz panel relied, we have found a 1982
Ninth Circuit case, United States v. Bloch, 696 F. 2d 1213, in
which the court, referring to an earlier case, United States
v. Krasn, 614 F. 2d 1229 (CA9 1980), changed the language
of the traditional conspiracy termination rule. Krasn said
that a conspiracy is “ ‘presumed to continue unless there is
affirmative evidence that the defendant abandoned, with-
drew from, or disavowed the conspiracy or defeated its pur-
pose.’ ” Id., at 1236 (emphasis added). The Bloch panel
changed the grammatical structure. It said that “a con-
spiracy is presumed to continue until there is . . . defeat of
the purposes of the conspiracy.” 696 F. 2d, at 1215 (em-
phasis added). Later Ninth Circuit cases apparently read
the change to mean that a conspiracy terminates, not only
when the defendant defeats its objective, but also when
someone else defeats that objective, perhaps the police. In
Castro, the panel followed Bloch. 972 F. 2d, at 1112. In
Cruz, the panel quoted Castro. 127 F. 3d, at 795. This his-
tory may help to explain the origin of the Cruz rule. But,
since the Circuit’s earlier cases nowhere give any reason for
the critical change of language, they cannot help to justify it.
III
We conclude that the Ninth Circuit’s conspiracy-
termination law holding set forth in Cruz is erroneous in the
manner discussed. We reverse the present judgment inso-
far as it relies upon that holding. Because Jimenez Recio
and Lopez-Meza have raised other arguments not here con-
sidered, we remand the case, specifying that the Court of
Appeals may consider those arguments, if they were prop-
erly raised.
The judgment of the Ninth Circuit is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.

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Opinion of Stevens, J.
Justice Stevens, concurring in part and dissenting in
part.
In accordance with United States v. Cruz, 127 F. 3d 791,
795–796 (CA9 1997), the District Judge charged the jury with
the following instruction:
“A defendant may only be found guilty of the conspir-
acy charged in the indictment if he joined the conspiracy
at a time when it was possible to achieve the objective
of that conspiracy.” App. to Pet. for Cert. 75a–76a.
For the reasons stated in the Court’s opinion, that instruc-
tion was erroneous.
My reason for not joining the Court’s opinion without qual-
ification is procedural. The relevant Rule in effect at the
time of this trial provided: “No party may assign as error
any portion of the charge or omission therefrom unless that
party objects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which that party ob-
jects and the grounds of the objection.” Fed. Rule Crim.
Proc. 30 (1988). The Government neither objected to the
erroneous instruction at trial, nor bothered to question the
validity of the Cruz decision on appeal to the Ninth Circuit.*
Although the Government did challenge Cruz in its petition
for rehearing en banc, in my judgment that challenge came
too late to preserve the question the Court decides today.
*Indeed, the Government embraced the flawed Cruz rule in its closing
argument to the jury:
“So, in summary, assuming that you find that this conspiracy simply
encompassed the one load, in order for each defendant to be found guilty,
what must be proved beyond a reasonable doubt? That there was a drug
conspiracy; number 2, it was limited to just the one load that was seized;
the defendant joined that conspiracy, became involved in the conspiracy;
the defendant joined or became involved before the narcotics were
seized . . . . If one of those elements is missing, you must acquit. That’s
the burden that’s placed on the United States, one that we willingly ac-
cept.” App. to Brief in Opposition 34a (emphases added).

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Opinion of Stevens, J.
Cf. United States v. Williams, 504 U. S. 36, 56–60 (1992)
(Stevens, J., dissenting). The prosecutor, like the defend-
ant, should be required to turn square corners.