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This section contains the nature of the case and procedural background.

Undercover agents met with parties representing themselves as engaged in smuggling marijuana from Columbia. The agents were hired to provide ships to meet at sea other ships carrying marijuana and to transfer the cargo and then store it. When the smugglers informed the agents that the mother ship had left Columbia, the Coast Guard was alerted. The vessel was boarded, and 363 bales of marijuana were found in the hold. D was found aboard the vessel and charged with conspiracy to import and conspiracy to possess with intent to distribute and was convicted on both counts. A panel of the court of appeals affirmed the first count but held the evidence insufficient on the second. The court agreed to hear the case en banc.

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