Whether a criminal defendant may be convicted based solely on evidence of his mere presence near the scene of the crime, without any evidence that the defendant participated in the crime

QUESTION PRESENTED After sitting through the trial of Petitioner Justin Henning and his co-defendants, the district court granted Henning’s motion for acquittal on the handful of counts on which the jury had convicted him, calling the evidence against him the “thin[nest]” it had ever seen. After the government appealed, the United States Court of Appeals for the Ninth Circuit overturned that decision in part, reversing the grant of acquittal but affirming the grant of a new trial. The Ninth Circuit did so based only on evidence of Mr. Henning’s mere presence near the scene of the crime. Every other federal court to have considered the issue has concluded that mere presence alone is not enough to sustain a criminal conviction. State courts have also consistently applied the same rule. The question presented is: Whether a criminal defendant may be convicted based solely on evidence of his mere presence near the scene of the crime, without any evidence that the defendant participated in the crime.