United States Court of Appeals

For the Eighth Circuit

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No. 17-3434

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Miguel Zarco

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the District of North Dakota - Fargo

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Submitted: October 19, 2018

Filed: February 7, 2019 

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Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.

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GRUENDER, Circuit Judge.

A jury convicted Miguel Zarco of conspiracy to possess with intent to

distribute and to distribute a controlled substance. The district court sentenced him

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The Honorable Ralph R. Erickson, then United States District Judge for the

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District of North Dakota, now Circuit Judge for the United States Court of Appeals

for the Eighth Circuit.
to the mandatory minimum sentence of 120 months’ imprisonment and five years of

supervised release. Zarco appeals his conviction, claiming for the first time on appeal

that it was reversable error for the district court not to prohibit the prosecutor from

referring to the charged crime as a “historical conspiracy” during trial. Zarco argues

that the prosecutor’s use of that phrase created a structural error that violated his due

process rights. But even if the error was not structural, he maintains that reversal is

warranted because the error infected the trial with unfairness. We affirm.

The Government presented evidence at trial that Zarco conspired to distribute

substantial quantities of methamphetamine in California, Utah, and North Dakota. 

During opening statements, the prosecutor said that “in North Dakota the majority of

our drug conspiracies are historical conspiracies. They are conspiracies where we

look back in time usually from some triggering event that happens.” He continued

that “[t]hese cases are largely based on testimony . . . . the drugs aren’t there anymore

. . . . [b]ut we always have the testimony. So that’s why they’re so heavy on the

testimony stuff.” Zarco’s attorney responded in her opening statement: “The

government uses the term ‘historical conspiracy’ when they have a case that’s based

on little to no physical evidence. That’s what they call it. Their case is based solely

on the statements . . . of other individuals, individuals that I will submit to you have

bias.” She added that the jurors would not hear any evidence that Zarco was found

in possession of any controlled substances or that law enforcement conducted any

surveillance or orchestrated any controlled buys from him. The Government then

called twelve witnesses.

During closing arguments, the prosecutor again referenced the historical nature

of the conspiracy, noting that by the time law enforcement became involved, the

conspirators “had pretty much stopped dealing with each other a month orso earlier.” 

Law enforcement “had to try and go back in time and put the case together, and when

you do that you gotta look at the testimony of these witnesses.” With regard to the

elements of a conspiracy, the prosecutor said that the “judge has advised you of those

already and these are pretty much straight out of the Court’s instructions.” After a

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discussion of how the testimonial evidence fit those elements, he concluded that the

jury would “find beyond a reasonable doubt that the defendant is guilty of this

offense.” At no point during trial did Zarco’s attorney object to the prosecutor’s use

of the phrase “historical conspiracy.”

“The failure to object to any error, even a structural one, leaves the appellate

court with the power to notice only plain error.” Rahn v. Hawkins, 464 F.3d 813, 819

(8th Cir. 2006), abrogated on other grounds by Avichail ex rel. T.A. v. St. John's

Mercy Health Sys., 686 F.3d 548, 552 (8th Cir. 2012); see also United States v.

Johnson, 520 U.S. 461, 466-67 (1997) (applying plain-error review to an alleged

structural error). Plain-error review requires an appellant to demonstrate that “(1)

there is an error; (2) the error is clear and obvious, rather than subject to reasonable

dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary

case means it affected the outcome of the district court proceedings; and (4) the error

seriously affects the fairness, integrity or public reputation of judicial proceedings.” 

United States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks

omitted). Because there was no error, Zarco cannot establish the first prong, and we

need not discuss the other three. We also need not determine whether the alleged

error was structural. See Charboneau v. United States, 702 F.3d 1132, 1138 n.3 (8th

Cir. 2013) (concluding that appellant’s emphasis on an alleged structural error did not

affect its plain-error inquiry because “[w]hether an error can be properly

characterized as ‘structural’ has nothing to do with plain error review”). 

Zarco claims that the prosecutor improperly used “historical conspiracy” as a

“term of art,” rather than a “mere descriptor.” He argues that “[t]his is a problem

because terms of art in the law matter—they alter burdens of proof, presumptions,

jurors’ duties and expectations.” He also alleges that the prosecutor “created a crime”

by advertising “‘historical conspiracy’ to the jury as a different kind of conspiracy

that could not be supported by the normal markers of proof that the actual crime of

conspiracy has.”

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But Zarco does not explain how the prosecutor’s use of the phrase “historical

conspiracy” created a new crime or invited the jury to find him guilty under a relaxed

burden or proof. To the contrary, both parties’ opening statements demonstrate that

they understood “historical conspiracy” to be a “mere descriptor” of a conspiracy that

ended before law enforcement began investigating and for which little physical

evidence was available. The prosecutor said that “historical conspiracies” are

“conspiracies where we look back in time” and result in “cases . . . largely based on

testimony” because “the drugs aren’t there anymore.” Zarco’s attorney reiterated this

definition, telling the jury that “[t]he government usesthe term‘historical conspiracy’

when they have a case that’s based on little to no physical evidence.” Thus, there was

no confusion about what “historical conspiracy” meant. The prosecutor also relied

on the standard elements of conspiracy found in the district court’s unchallenged jury

instructions, undermining Zarco’s argument that he created a new crime. See United

States v. Pendleton, 832 F.3d 934, 944 (8th Cir. 2016) (“We presume that juries

follow a court’s instructions.”). The prosecutor’s statement during closing arguments

that the jury should “find beyond a reasonable doubt that the defendant is guilty of

this offense” similarly conflicts with Zarco’s claimthat the prosecutor invited the jury

to find him guilty by a lower burden of proof. 

We also note that federal courts, including our own, have used “historical

conspiracy” or its analogue, “dry conspiracy,” as a descriptive phrase without any

attendant legal significance. See, e.g., United States v. Pressley, 473 F. Supp. 2d

1303, 1313-14 (N.D. Ga. 2006) (“[A] dry or historical conspiracy is one in which the

only evidence of the illegal drug activity is the testimony of others who recount,

historically, such activities.”); United States v. Becerra, 435 F.3d 931, 937 (8th Cir.

2006) (noting that a “conspiracy to distributemethamphetamine that is proved beyond

a reasonable doubt through the testimony of co-conspirators without physical

evidence of controlled substance” is “a so-called ‘dry conspiracy’”); United States v.

El Herman, No. CR 04-4042-MWB, 2008 WL 835725, at *10 (N.D. Iowa Mar. 25,

2008), aff’d, 583 F.3d 576 (8th Cir. 2009) (describing a conspiracy case without any

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physical evidence or exhibits as a “pure historical conspiracy”); Van Nguyen v.

United States, 564 F. App’x 992, 993-94 (11th Cir. 2014) (per curiam) (describing

a narcotics offense as a “‘dry’ conspiracy because no drugs were seized, and the

government proved the existence of the narcotics through the testimony of . . . coconspirators”).

For all these reasons, the district court did not err by allowing the prosecutor

to use the phrase “historical conspiracy” during trial. Because the district court did

not err, we need not consider whether any error was structural. We affirm Zarco’s

conviction.

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