## Facts

- Federal agents investigated a heroin importation and distribution plan involving an informant (Manny Banda) and members of the Ayala-Zarate family.
- Banda contacted Hilda Escobar de Bright and arranged a meeting; the government’s theory was that she agreed to assist in importing heroin from Mexico.
- Escobar de Bright testified she drove to Mexico only because she felt threatened by Banda and did not know of a heroin plan.
- After she returned to the border area, her 17-year-old son entered her car; customs officers later discovered about four ounces of heroin on his person.
- Escobar de Bright was indicted on four counts: (1) conspiracy to import heroin, (2) importation, (3) conspiracy to possess heroin with intent to distribute, and (4) possession with intent to distribute (and aiding and abetting).
- A jury convicted her on all counts; she received concurrent six-year sentences.
- On appeal, after an en banc decision eliminated the circuit’s concurrent-sentence doctrine, the panel considered the merits of her challenges to the conspiracy convictions.

## Issues

1. Whether the district court erred by refusing to instruct the jury that a defendant cannot be convicted of conspiracy if the only alleged agreement was with a government agent or informant.
2. Whether the defense challenge applied only to the conspiracy-to-import count or also to the conspiracy-to-possess-with-intent-to-distribute count.
3. Whether the failure to give the requested instruction improperly prevented presentation of the defense theory and, if so, whether the error was harmless.

## Decision

- The court reversed Escobar de Bright’s conspiracy convictions (Counts One and Three).
- The court held the district court committed reversible error by refusing a defense instruction explaining that an agreement solely with a government informant cannot support a conspiracy conviction.
- The court concluded the appellate challenge and instructional error applied equally to both conspiracy counts.
- The court left undisturbed the substantive convictions for importation and possession with intent to distribute (Counts Two and Four).

## Legal Principles

- A conspiracy conviction requires an agreement with at least one genuine, non-governmental co-conspirator; an agreement only with a government agent or informant is legally insufficient.
- A criminal defendant is entitled to a jury instruction on a recognized defense theory when it is supported by law and has some evidentiary foundation.
- General conspiracy instructions are inadequate when they permit jurors to treat a defendant’s dealings solely with an informant as the necessary “agreement” element.
- Failure to give a properly supported theory-of-defense instruction is reversible when it may have allowed conviction based on a legally invalid theory.

## Conclusion

Because the evidence permitted a finding that Escobar de Bright’s only agreement was with a government informant, the district court’s refusal to instruct the jury on that point required reversal of both conspiracy convictions, while the substantive drug convictions remained in place.


United States v. Escobar de Bright, 742 F.2d 1196 (9th Cir. 1984)