546 F.3d 174 (2008)

UNITED STATES of America, Appellant,
v.
Juan Manuel HUEZO, Defendant-Appellee.

Docket No. 07-0031-cr.

United States Court of Appeals, Second Circuit.

Argued: May 13, 2008. Decided: October 14, 2008.

*176 Daniel L. Stein, Assistant United States Attorney, of counsel (Jeffrey A. Brown, Diane Gujarati, Assistant United States Attorneys, of counsel, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Appellant.

Julia L. Gatto, Sercarz & Riopelle, LLP, New York, N.Y., for Defendant-Appellee.

Before: NEWMAN, WALKER, and SOTOMAYOR, Circuit Judges.

Judge NEWMAN concurs in a separate opinion.

Judge SOTOMAYOR dissents in a separate opinion.

JOHN M. WALKER, JR., Circuit Judge:

Following a jury trial, defendant-appellant Juan Manuel Huezo was found guilty of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(1) and 2, and conspiracy to launder money, in violation of 18 U.S.C. § 1956(h). The District Court for the Southern District of New York (Samuel Conti, Judge^[1]) granted Huezo's post-verdict motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c)(2), concluding that the evidence was insufficient to support the knowledge and specific intent elements of both offenses.

On appeal, the government challenges the district court's ruling, arguing that there was sufficient circumstantial evidence for a rational juror to find that Huezo knowingly participated in a money laundering conspiracy and acted with the intent to commit the underlying substantive offense. Because we agree with the government, we reverse the judgment of acquittal and remand for further proceedings consistent with this opinion.

BACKGROUND

On June 14, 2005, Huezo was charged with conspiring to launder the proceeds of narcotics transactions and with committing, and aiding and abetting the commission of, the substantive offense of money laundering. At trial, which began on October 4, 2006, the government presented evidence of Huezo's participation in an international money laundering conspiracy *177 whereby millions of dollars in narcotics proceeds were secretly remitted to drug suppliers in Colombia from 2002 to 2005.

On November 5, 2004, co-conspirators Jose Linares and Eric Echevarria drove a Jeep Cherokee registered to Huezo and bearing Connecticut license plates to a meeting in Manhattan with an undercover officer named Robert Del Rio. At the meeting, at which Huezo was not present, Linares and Echevarria discussed the plans for delivering $1 million in two $500,000 installments to Del Rio, who was posing as a money launderer.

On November 8, 2004, the date of the first delivery, Huezo drove Linares to meet Del Rio in Manhattan. When they arrived, Del Rio walked to the back of Huezo's Jeep and removed a black bag from the trunk, presumably opened by Huezo from the driver's seat. The bag contained $500,000, "bundled up in stacks," as is typical for money laundering transactions. After the delivery, surveillance officers followed the Jeep to a house in Stamford, Connecticut, where Huezo and Linares picked up Echevarria and headed downtown for some shopping and dining. The three men then returned to the Connecticut house, where surveillance was discontinued.

On November 10, 2004, at 8:00 AM, the officers resumed surveillance of the Connecticut house. At some point that day, DEA Agent Adamo observed Huezo leave the house holding a small black bag that was "like a camera bag," and place it behind the driver's seat of the Jeep. Huezo got into the Jeep and started the engine. With the engine running, Huezo left the Jeep and positioned himself so that he could see the front of the house. Echevarria then walked out of the house, walked to the Jeep, and placed a black suitcase in the back of the Jeep as Huezo got back behind the wheel. Adamo testified that: "Based on my experience, [Huezo] was basically helping to guard the movement of that bag from the residence to the Jeep." Shortly thereafter, Linares emerged from the house and got into the Jeep, and the three men drove off to make the second delivery.

En route, New York state police stopped the Jeep for speeding. Once the vehicle was pulled over, Senior Investigator Hector Fernandez discovered that although Huezo's paper registration indicated that the Jeep was registered in Huezo's name and to a Stamford address, that registration was not on file with the state's computer system. Investigator Fernandez testified that one possible explanation was that "[i]f it's a newly registered vehicle, it takes a while before the vehicle is into the system."

The officers decided to take the Jeep back to the state police barracks to verify its registration. At the barracks, an inventory search of the vehicle revealed that the suitcase in the trunk contained "[b]locks of money," totaling $500,000, and the small camera bag contained $6000, similarly packaged. Officers also found a hotel receipt in Huezo's name for a three-day stay in Connecticut from October 28 to October 30, 2004. The receipt listed a California address for Huezo. Linares and Echevarria had presented California driver's licenses at the time of the stop.

At the close of the government's case, and again at the close of all of the evidence, Huezo moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. He argued, inter alia, that the government had not presented sufficient evidence to establish his knowledge of, or intent to further, the money laundering conspiracy. The district court reserved decision on the motion.

On October 11, 2006, the jury returned a guilty verdict on both counts, and Huezo *178 renewed his motion for acquittal. On November 6, 2006, the district court granted Huezo's motion, finding that "no rational jury could have found on the basis of the evidence presented that the government proved beyond a reasonable doubt Defendant had the necessary knowledge and intent to be convicted of the crime of money laundering or the crime of conspiracy to commit money laundering, as charged." In particular, the district court found:

The evidence fails to prove: that the Defendant knew the object of the conspiracy was to launder the proceeds of some sort of criminal activity; that he joined the conspiracy with such knowledge and with the specific intent to further that objective; or that he took the actions he did with such knowledge and intent.

The district court first marshaled the evidence against Huezo: that Huezo's Jeep was used to drive to the November 5, 2004 meeting with Del Rio; that Huezo drove his vehicle and transported the money to the November 8 and November 10 drop-offs; that he personally handled the small black bag containing $6000; that he socialized with Linares and Echevarria following the November 8 drop-off; and that he was "watching and guarding" the movement of the larger suitcase from the house to the Jeep on November 10. The district court then noted the lack of direct evidence that Huezo knew the specific purpose of the trips, that he was privy to conversations regarding the details of the money laundering transactions, or that he ever saw the contents of the two suitcases, which would not have appeared to the casual observer to contain money to be laundered. Furthermore, the district court noted, the government had not connected the $6000 that Huezo placed behind the driver's seat to any money laundering transaction.

Thus, the district court reasoned, although the evidence was sufficient for a jury to find that Huezo was "probably guilty of some crime," it was insufficient for a jury to find beyond a reasonable doubt that Huezo knowingly engaged in a money laundering conspiracy with the specific intent to commit money laundering or engaged in the substantive offense of money laundering.

The government now appeals the judgment of acquittal, and we reverse.

DISCUSSION

I. Standard of Review

We review de novo the district court's conclusion that the evidence was insufficient to support Huezo's conviction. United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000). "In so doing, we view the evidence presented in the light most favorable to the government, and we draw all reasonable inferences in its favor. Furthermore, we consider the evidence in its totality, not in isolation, and the government need not negate every theory of innocence." Id. (citation omitted). We must uphold the jury's verdict if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original).

II. Requirement of Knowledge and Specific Intent

A. Money Laundering

The substantive offense of "transaction money laundering" requires proof of both knowledge and specific intent. Section 1956(a)(1)(B)(i) of Title 18 imposes punishment on anyone who,

knowing that the property involved in a financial transaction represents the proceeds *179 of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity[,] knowing that the transaction is designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.

18 U.S.C. § 1956(a)(1)(B)(i). We have interpreted the latter element, "knowing that the transaction is designed in whole or in part to conceal or disguise," as requiring "proof of intent to conceal." See United States v. Stephenson, 183 F.3d 110, 121 (2d Cir.1999).

The Supreme Court's recent decision in Cuellar v. United States, ___ U.S. ___, 128 S.Ct. 1994, 170 L.Ed.2d 942 (2008), supports this interpretation. In Cuellar, the defendant was convicted under the "transportation money laundering" statute, 18 U.S.C. § 1956(a)(2)(B)(i), of attempting to transport the proceeds of unlawful activity across the United States border, "knowing that such transportation ... [was] designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control of the [funds]." 18 U.S.C. § 1956(a)(2)(B)(i). Interpreting this knowledge element, the Court stated that "[t]he statutory text makes clear ... that a conviction under this provision requires proof that the purpose —not merely effect—of the transportation was to conceal or disguise a listed attribute." Cuellar, 128 S.Ct. at 2005 (emphasis added); see also id. (suggesting that the government must show, "for instance,... that petitioner knew about or intended the effect"). The Court specified that

merely hiding funds during transportation is not sufficient to violate the statute, even if substantial efforts have been expended to conceal the money. Our conclusion turns on the text of § 1956(a)(2)(B)(i), and particularly on the term "design." In this context, "design" means purpose or plan; i.e., the intended aim of the transportation.

Id. at 2003.

Although the transaction and transportation provisions of the money laundering statute are distinct, they are almost identically worded. "The use of similar language, let alone identical language, in two different provisions of the same statute is, as the Supreme Court has emphasized, a strong indication that the two provisions should be interpreted pari passu, i.e., in the same manner." Sompo Japan Ins. Co. of Am. v. Union Pac. R.R., 456 F.3d 54, 66 (2d Cir.2006) (alteration, internal quotation marks, and citation omitted). Thus, Cuellar confirms that a conviction for transaction money laundering, like a conviction for transportation money laundering, requires proof that the purpose or intended aim of the transaction was to conceal or disguise a specified attribute of the funds.

B. Aiding and Abetting

Huezo was also charged with money laundering on an aiding and abetting theory. Under 18 U.S.C. § 2(a), anyone who aids or abets the commission of an offense against the United States is punishable as a principal. To convict a defendant of aiding and abetting a given crime, the government must prove "that the underlying crime was committed by a person other than the defendant, that the defendant knew of the crime, and that the defendant acted with the intent to contribute to the success of the underlying crime." United States v. Reifler, 446 F.3d 65, 96 (2d Cir.2006) (internal quotation marks and citation omitted). To prove that the defendant acted with specific intent, *180 the government need not establish that he knew all of the details of the crime, only that he "joined the venture, [that he] shared in it, and that his efforts contributed towards its success." Id. (alteration in original) (internal quotation marks and citation omitted).

C. Conspiracy

In addition to the substantive offense of money laundering, Huezo was charged with conspiring to launder money, in violation of 18 U.S.C. § 1956(h). "To prove conspiracy, the government must show that the defendant agreed with another to commit the offense; that he knowingly engaged in the conspiracy with the specific intent to commit the offenses that were the objects of the conspiracy; and that an overt act in furtherance of the conspiracy was committed." United States v. Monaco, 194 F.3d 381, 386 (2d Cir.1999) (internal quotation marks and citation omitted). Proof that the defendant simply associated with conspirators is insufficient, United States v. Salameh, 152 F.3d 88, 151 (2d Cir.1998) (per curiam); nevertheless, "[b]oth the existence of a conspiracy and a given defendant's participation in it with the requisite knowledge and criminal intent may be established through circumstantial evidence," United States v. Stewart, 485 F.3d 666, 671 (2d Cir.2007).

The government need not show that the defendant knew all of the details of the conspiracy, "so long as he knew its general nature and extent." United States v. Rosa, 17 F.3d 1531, 1543 (2d Cir.1994). Nor must the government prove that the defendant knew the identities of all of the other conspirators. United States v. Downing, 297 F.3d 52, 57 (2d Cir.2002). Indeed, a defendant may be a co-conspirator if he knows only one other member of the conspiracy, see United States v. Manarite, 448 F.2d 583, 589 (2d Cir.1971), and "a single act may be sufficient for an inference of involvement in a criminal enterprise of substantial scope at least if the act is of a nature justifying an inference of knowledge of the broader conspiracy," United States v. Tramunti, 513 F.2d 1087, 1112 (2d Cir.1975). As with every criminal offense, the government bears the burden of proving each element beyond a reasonable doubt.^[2]

*181 III. Sufficiency of the Evidence

The government argues that the circumstantial evidence it presented was sufficient for a rational juror to infer that Huezo had the requisite criminal knowledge and intent to support his convictions for money laundering and conspiracy to commit money laundering. We agree.

As an initial matter, there was abundant evidence establishing the existence of a large-scale conspiracy to launder money and its connection to the November 8 and November 10 transactions. There was expert testimony as to the laundering of narcotics proceeds in dollars by using money laundering brokers who would deposit the cash in small increments, sell the dollars to businessmen for pesos at a below-market rate, and then deliver the pesos in cash to dealers in Colombia. Cooperating witness Edgar DeCastro, a major Colombian money broker, testified to laundering over $50 million, nearly all of which were the proceeds of drug deals. He described in detail, generally consistent with the expert testimony, the techniques and individual steps involved in his money laundering schemes, and he specifically discussed the arrangements he made in November 2004 to launder $1 million that would be delivered to New York City in two installments of $500,000.

Trial testimony from a member of the Drug Enforcement Task Force and surveillance team established DeCastro's role in orchestrating the November 5 meeting of Linares, Echevarria, and undercover agent Del Rio, at which the three men scheduled the first $500,000 drop-off for November 8. And Del Rio testified that just prior to that delivery, he and Linares scheduled the second $500,000 drop-off for November 10. Furthermore, the money being delivered was packaged in bundled stacks or "bricks," and a government witness testified that such packaging was typical for money laundering transactions involving the proceeds of narcotics sales. From all of this evidence, a rational juror could easily have concluded that the money involved in the November 8 and November 10 transactions constituted the proceeds of criminal activity (namely, drug trafficking) and that the transactions were "designed to conceal or disguise" the nature, location, source, ownership, or control of those proceeds. 18 U.S.C. § 1956(a)(1)(B)(i).

There was sufficient circumstantial evidence to connect Huezo to this money laundering conspiracy and to support an inference that Huezo knew about the conspiracy and acted with the specific intent to participate in it for the purpose of concealing or disguising one of the statutorily specified attributes of the funds. Although "a defendant's mere presence at the scene of a criminal act or association with conspirators does not constitute intentional participation in the conspiracy," United States v. Samaria, 239 F.3d 228, 235 (2d Cir.2001), and "is insufficient to prove aiding and abetting" even if the defendant has knowledge of the crime, United States v. Cruz, 363 F.3d 187, 198 (2d Cir.2004) (internal quotation marks and citation omitted), the evidence in this case of Huezo's activities went well beyond mere presence or association.

*182 The government presented evidence from which the jury could find that Linares and Echevarria drove to the November 5 meeting with Del Rio in Huezo's Jeep, which was loaned to them for that purpose (inferrable from the next day's trip); that on November 8, Huezo, accompanied by Linares, drove a suitcase containing $500,000 to a meeting with Del Rio and unlocked the trunk from the driver's seat to allow Del Rio to remove the suitcase; that on November 10, after "basically helping to guard" the movement of a second suitcase containing $500,000 into the Jeep, Huezo drove with Linares and Echevarria to a second, planned drop-off meeting; and that, at least during this time period, he shared a residence and socialized with Linares and Echevarria. Moreover, there was evidence that Huezo personally took possession of the small bag containing $6000, that he placed it behind his own seat in the Jeep, and that the money was packaged similarly to the $500,000 in the larger suitcases. Although there was no direct evidence that Huezo saw or knew what was in any of the bags, a rational trier of fact could infer from this circumstantial evidence and from Huezo's special treatment of the small bag (in placing it behind the driver's seat in the vehicle registered to him) that the bag belonged to Huezo, that it constituted payment of $6000 for his assistance, and, from its packaging, that the money came from the same funds that were the subject of the money laundering operation. From this conclusion, and from the evidence that Huezo resided in the same house as Linares and Echevarria—the same house where all of the money was kept—a jury could reasonably infer that Huezo had the requisite knowledge and specific intent to commit the money laundering crimes charged. See Samaria, 239 F.3d at 235 (noting that "[c]ircumstantial evidence of knowledge and specific intent sufficient to sustain a conviction must include some indicia of the specific elements of the underlying crime," and that such indicia may include evidence that the defendant "received a share of the profits from the conspiracy").

Furthermore, jurors are entitled, and routinely encouraged, to rely on their common sense and experience in drawing inferences. Cf. Salameh, 152 F.3d at 143; United States v. Gleason, 616 F.2d 2, 13 n. 7 (2d Cir.1979). Based on the complexity and scale of the money laundering scheme, common sense and experience would support an inference that the principals in the conspiracy would not have trusted an outsider (with no knowledge of their criminal purpose) to transport $1 million in laundered funds, to be present when Del Rio removed the first suitcase containing $500,000 from the trunk, and to share a house over several days with witting conspirators.

The government also presented circumstantial evidence that shortly before the November 2004 money laundering transactions Huezo, Linares, and Echevarria had come to Connecticut from California for the specific purpose of carrying out those transactions. Although Huezo's vehicle had Connecticut license plates, the police discovered at the November 10 traffic stop that the Jeep's Connecticut registration did not appear in the state's computer system, which can occur when a vehicle has been recently registered. And when officers searched Huezo's Jeep, they found a receipt from a hotel in Connecticut at which Huezo had apparently stayed in late October 2004, just days before the November transactions. The receipt provided a California address for Huezo, and both Linares and Echevarria possessed California driver's licenses. Taken together, all of this evidence supports a reasonable inference that the three men traveled from *183 California to Connecticut and met for the express purpose of facilitating the money laundering conspiracy. From this conclusion, a jury could reasonably infer that Huezo participated in the conspiracy by design and not simply by happenstance, and that his involvement was both knowing and intentional.

Viewing the evidence in its totality, as we must, we find that the government established more than just Huezo's association with money launderers and his presence at critical events. In that respect, this case differs from United States v. Samaria, upon which the district court relied in finding the evidence insufficient. In Samaria, 239 F.3d at 231, the defendant raised a sufficiency challenge to his convictions for conspiracy to receive or possess stolen goods, conspiracy to commit credit card fraud, and the commission and aiding and abetting of credit card fraud. The defendant argued that he was simply a "gypsy cab driver" who used his private vehicle to take passengers to their requested destinations, and that he therefore lacked the requisite criminal knowledge and intent. Id. at 232. At trial, the government's proof consisted of testimony that the defendant permitted conspirators to load a box containing stolen goods into his car, appeared to serve as a "lookout," and drove the conspirators to another location where they picked up and loaded additional boxes into a yellow cab. See id. at 232-33, 236. We held that this evidence only demonstrated the defendant's presence at the scene of a criminal act or his association with conspirators, and that it was insufficient to establish beyond a reasonable doubt that the defendant knew that the boxes he helped to transport contained stolen goods and that he acted with an intent to further the receipt or possession of stolen goods. Id. at 236.

The instant case differs from Samaria in several respects. In Samaria, the defendant's regular employment as a gypsy cab driver supports an inference that he became involved in the conspiracy by happenstance and not by design—it so happened that the passengers who hired him were conspirators using his services to transport goods that they had stolen or purchased through credit card fraud. The same inference cannot be drawn about Huezo because he had no independent reason for his involvement as a driver in the conspiracy. Far from it, Huezo resided in the same house as the conspirators and was observed dining and shopping with them—activities that would suggest a relationship considerably closer than that of a mere driver-for-hire. Cf. id. at 233 ("At trial, the government presented no evidence of any other contact or connection between [the defendant] and [the conspirators] outside of [the defendant's] presence at the two pickups....").

Together with the evidence suggesting that Huezo and his co-conspirators all came from California, and that Huezo had arrived in Connecticut just prior to the November 2004 transactions, the evidence taken as a whole amounts to more than the evidence of passive presence or association in Samaria. See United States v. Pedroza, 750 F.2d 187, 199 (2d Cir.1984) ("[T]he evidence against Pedroza was not limited to proof that he was present at certain critical stages of the conspiracy in a way that could have resulted from happenstance.... Here, Pedroza had to criss-cross the country to be present at the critical times; and there is nothing in the record to suggest that he may have had any purpose in these long trips and timely appearances other than to further the goals of the conspiracy.").

Furthermore, while there was no evidence that the defendant in Samaria personally *184 handled any of the boxes containing stolen goods—only that he observed the conspirators load boxes into his car and into the yellow cab, see 239 F.3d at 232—Huezo carried out of the Connecticut home that he shared with Linares and Echevarria a small bag containing $6000 in bundled cash and placed it behind the driver's seat of his Jeep. Huezo's actions are more consistent with those of a knowing participant whose role in the conspiracy was well-planned than those of an unwitting outsider who was simply performing his regular job (as the defendant in Samaria appeared to be).

We therefore reject Huezo's argument that although a jury could reasonably find that he knew that some type of crime was being committed, it could not reasonably find that he specifically knew that the crime was money laundering or that he had the specific intent to commit, or aid and abet, that crime. The facts and circumstances presented at trial were sufficient for a jury to find beyond a reasonable doubt that Huezo knowingly and intentionally engaged in money laundering and in a conspiracy to launder money.

CONCLUSION

For the foregoing reasons, the district court's judgment of acquittal notwithstanding the jury verdict is REVERSED, and the case is REMANDED to the district court for further proceedings consistent with this opinion.

JON O. NEWMAN, Circuit Judge, with whom Judge WALKER and Judge SOTOMAYOR (although dissenting on the merits) join, concurring:

Whether evidence suffices to permit a reasonable jury to find guilt beyond a reasonable doubt is sometimes a close question, as this case illustrates. The four judges who have conscientiously reviewed the record are evenly divided, but the hierarchical structure of the appellate process results in a 2-1 affirmance of the conviction. I agree with that result and join the entirety of Judge Walker's carefully reasoned opinion. I write separately, however, to take issue with one argument advanced by the Government. Although that argument accurately states a proposition that has often been repeated in the case law of this Court, I believe the proposition and a related formulation of it are incorrect, entered federal jurisprudence improvidently, have been routinely repeated without consideration of their infirmity, and should be discarded.

The Government contends that "`once a conspiracy is shown, the evidence sufficient to link another defendant to it need not be overwhelming.'"^[1] Br. for Appellant at 29 (quoting United States v. Samaria, 239 F.3d 228, 234 (2d Cir.2001)). A frequently used variation of the formulation states the proposition in these words:

[O]nce a conspiracy is shown, only slight evidence is needed to link another defendant with it.

*185 United States v. Marrapese, 486 F.2d 918, 921 (2d Cir.1973).

I propose to discuss the origin of this proposition, its casual insinuation into federal jurisprudence, and its perniciousness, matters I deal with in reverse order. Because the ill-advised formulation regarding the evidence needed to link a defendant to a conspiracy is more often expressed in federal case law as "slight evidence," rather than "not overwhelming evidence," I will refer to the "slight evidence" formulation.

The "slight evidence" formulation is inconsistent with the constitutional requirement that every element of an offense must be proven beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). And it is undisputed that a defendant's participation in a conspiracy is an element of the conspiracy offense. See 1 Leonard B. Sand et al., Modern Federal Jury Instructions —Criminal ¶ 19.01, Instruction 19-3 (second element is "that the defendant knowingly and willfully became a member of the conspiracy").

Although evidence that is small in quantity might be highly probative, indeed, probative enough to persuade beyond a reasonable doubt, the "slight evidence" wording creates an unacceptable risk that juries, if the phrase is included in a charge, or appellate courts, if the phrase is used when reviewing sufficiency of evidence, will be misled (or mislead themselves) into thinking that the defendant's link to the conspiracy may be established by evidence insufficient to surmount the reasonable doubt standard. The vice of the "slight evidence" formulation, or our Court's more recent "not overwhelming" version, is that these formulations, when stated in juxtaposition with the test for establishment of the conspiracy itself, which is rendered without any hint of quantitative diminution, may too easily be taken as an implication that proving participation in a conspiracy is subject to a lesser standard of proof than proving the existence of the conspiracy. But that implication is simply wrong.

Judge Easterbrook has usefully outlined the several meanings that the "slight evidence" phrase might convey to those who hear or use it. See United States v. Martinez de Ortiz, 883 F.2d 515, 524 (7th Cir.1989) (Easterbrook, J., concurring), reh'g granted and judgment vacated on other grounds, 897 F.2d 220 (7th Cir.1990). After setting forth the likely meanings that would undermine the reasonable doubt standard, he acknowledged that the phrase "could mean that if someone joins the conspiracy, `slight' activity to accomplish its objectives is enough, that peripheral conspirators commit the crime no less than the mastermind." Id. But, as he wisely observed, "That we have to tease [this proper meaning] out of a formula with dubious alternative meanings, though, is a mark against its use." Id. And in a particularly well-turned attack, he added:

Maybe we could torture the phrase until it confessed to a constitutionally acceptable meaning, but why bother? Far better to throw it overboard and adopt a formula that clearly explains what we are about.

Id. I fully agree, as I have previously argued, see Jon O. Newman, Beyond "Reasonable Doubt," 68 N.Y.U. L.Rev. 979, 994-95 (1993) (Madison Lecture).^[2]

*186 Retracing the steps by which the "slight evidence" formulation entered the case law of this Circuit not only identifies its dubious origin but also reveals how, in the course of repetition, important qualifications have been omitted. United States v. Ceballos, 340 F.3d 115 (2d Cir.2003), recently used the "not overwhelming" formulation, quoting it verbatim from United States v. Desena, 260 F.3d 150, 154 (2d Cir.2001). See Ceballos, 340 F.3d at 124. Desena quoted it verbatim from United States v. Head, 546 F.2d 6, 9-10 (2d Cir. 1976). See Desena, 260 F.3d at 154. However, Desena carefully went on to state, "Nevertheless, the prosecution must sufficiently prove the defendant's participation beyond a reasonable doubt," id. (citing United States v. Jones, 30 F.3d 276, 281-82 (2d Cir.1994)), a critical qualification omitted in the later cases. Head, the first case in our Circuit to use the "not overwhelming" formulation, cited Marrapese, 486 F.2d at 921. See Head, 546 F.2d at 9-10.

Marrapese, however, did not use the phrase "not overwhelming," but used the similar formulation "only slight evidence is needed."^[3] 486 F.2d at 921. Marrapese cited United States v. Knight, 416 F.2d 1181, 1184 (9th Cir.1969), and Bradford v. United States, 413 F.2d 467, 469 (5th Cir. 1969).^[4]See Marrapese, 486 F.2d at 921. Bradford said "only slight additional evidence," citing Poliafico v. United States, 237 F.2d 97, 104 (6th Cir.1956). See Bradford, 413 F.2d at 469. Poliafico said "slight evidence may be sufficient," citing United States v. Cohen, 197 F.2d 26 (3d Cir.1952). See Poliafico, 237 F.2d at 104. Knight, the other case cited by Marrapese, said "slight evidence may be sufficient," citing Cohen. See Knight, 416 F.2d at 1184. Thus, the trail back from