United States Court of Appeals

For the First Circuit

No. 08-1167

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL PELLETIER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,

Lipez and Howard, Circuit Judges.

Stephen D. Riden, with whom Michael J. Tuteur, Erica Templeton

Spencer, Nathalie E. Cohen, Michael Thompson and Foley & Lardner

LLP were on brief, for appellant.

Renée M. Bunker, Assistant United States Attorney, with whom

Paula D. Silsby, United States Attorney, was on brief, for

appellee.

December 1, 2011
HOWARD, Circuit Judge. After a six-day jury trial in

July 2007, Michael Pelletier was convicted of various counts

related to his role in the importation, possession and distribution

of marijuana. He was sentenced to life imprisonment. On appeal, 1

he asserts that the district court erred when it admitted certain

testimony, improperly instructed the jury, and denied his motion

for acquittal based on insufficiency of the evidence. We affirm.

I. Background

We recite the relevant factual background in the light

most favorable to the verdict. United States v. Gonzalez-Ramirez,

561 F.3d 22, 24 (1st Cir.), cert. denied, 130 S. Ct. 524 (2009). 

The scheme at the heart of Pelletier's convictions was relatively

simple. A confederate of Pelletier's either swam or was driven

across the St. John River into Canada from a point near Madawaska,

Maine. After meeting with Canadian marijuana suppliers, 2

Pelletier's associate swam back across the river, most often

carrying the contraband in two, thirty-pound, watertight duffel

bags, although occasionally ferrying larger amounts. The purchase

price of the marijuana was approximately $1,000 per pound. 

Pelletier was convicted of conspiracies to import and 1

distribute marijuana, money laundering and Social Security fraud. 

He was one of six people indicted on the distribution count. In

addition to Pelletier, who was tried individually, two of the six, 

Raymond Fogg and Anthony Caparotta, were convicted in a joint

trial. The others pled guilty.

Pelletier himself was confined to a wheelchair due to a

2

childhood accident.

-2-
Pelletier, or those working under him, later sold the marijuana for

$2,200 - $2,800 per pound.

II. Evidentiary issues

This appeal primarily invokes challenges to the testimony

of Pelletier's former girlfriend and that of Adam Hafford, who was

one of Pelletier's "swimmers." Pelletier attacks this testimony 3

in two slices. The first cantle concerns evidence of Pelletier's

criminal history. The second, directed only at Hafford's

testimony, implicates the hearsay exception for statements against

interest set forth in Federal Rule of Evidence 804(b)(3).

A. Pelletier's prior crimes

On the eve of trial, Pelletier filed a motion in limine

to exclude, inter alia, evidence of his prior drug convictions.4

During a chambers conference prior to the first trial day, defense

counsel agreed that Pelletier would not object to testimony that he

had been in prison, but counsel expressed his objection to

testimony about the reason for Pelletier's incarceration, viz.,

drug trafficking convictions. The trial judge expressed his view

that he "[didn't] think that gets in." The prosecutor responded

that he "didn't anticipate eliciting from any of the witnesses the

reason why Mr. Pelletier was in prison." At the same time,

however, the prosecutor cited various authorities for the

Hafford testified pursuant to a plea and cooperation 3

agreement.

According to the government, Pelletier had four felony drug 4

convictions in Maine state court in 1994 and 2001.

-3-
proposition that prior drug trafficking involvement can be admitted

to prove a defendant's knowledge or intent.

During the first day of trial, Pelletier's former

girlfriend, Kendra Cyr, testified that Pelletier had told her in

January 2001 that he was going to jail "for something he had done

previously." Pursuant to the parties' agreement, the trial court

instructed the jury that the fact of incarceration was offered for

context only, and was neither indicative of Pelletier's character

nor probative as to the pending charges. Things did not go as

smoothly when the subject of Pelletier's prior incarceration was

next broached.

Hafford testified on the third day of trial. He 

testified that he met Pelletier "in Windham . . . sometime between

2000 and 2004." When asked why the two were "at Windham," Hafford

replied, "Um, he was there for drug charges, and I was there for -"

at which point defense counsel cut off the testimony with an

objection to the admission of Pelletier's criminal history. The 5

prosecutor immediately stated that he "didn't claim it." At

sidebar, he added that the testimony was elicited unintentionally,

as the result of "an inartfully-phrased question," and that he had

no objection to the jury being instructed to ignore the testimony. 

Defense counsel did not immediately agree, noting that "the cat's

out of the bag." 

The record reflects that in 2001 Hafford and Pelletier were 5

in a state correctional facility in Windham, Maine, and that

Pelletier was released before Hafford.

-4-
After excusing the jury, the court stated, "I guess my 

thought, as I began to hear the questions this morning, was that I

was inclined to admit the evidence of the prior convictions

anyway." The court's reasoning was based on defense counsel's 

cross-examination of an earlier witness, Jeff Dubois, regarding

purchasing marijuana from Pelletier. Dubois testified that he did

not literally get the marijuana from Pelletier, agreeing with

defense counsel's characterization that "it would just mysteriously

appear" in his car. According to the court, this "phraseology

invite[d] the jury to allow an argument, if it is going to be made,

that Mr. Pelletier essentially had nothing to do with the fact that

marijuana went into [Dubois's] car." In light of the apparent

defense strategy of showing that Pelletier was only involved with

cash, and not marijuana, the court concluded that the testimony 

was probative as rebuttal to an assertion of ignorance or mistake. 

Moreover, the court noted that any potential prejudice could be

countered with a limiting instruction.

Defense counsel reiterated the argument made in the

motion in limine that, under Federal Rule of Evidence 403, the

probative value of the convictions was far outweighed by the unfair

prejudice to Pelletier. The government then suggested another

basis for admissibility. Noting that cross-examination of Kendra

Cyr had elicited testimony about Pelletier's potentially legitimate 

sources of income, the prosecutor posited that the prior

convictions were probative of Pelletier's intent and knowledge. 

The court agreed, denied the motion in limine, and, at defense

-5-
counsel's request, immediately gave a limiting instruction to the

jury. The court first instructed the jury that the evidence could

not be used to show that Pelletier is a bad person or that he

committed the crimes for which he was standing trial, but "only to

show possible motive, his intent, his preparation, any plan, or

absence of mistake or accident." Both sides declined any further

instruction. As Pelletier's counsel requested, the court's final

jury instructions on the prior crime evidence did not include the

purposes for which the evidence could be used.

On the final day of trial, Pelletier called his sisterin-law (and former girlfriend) Rina Pelletier to testify about his

legitimate sources of income, including watchmaking and jewelry

making. She also testified about her own employment, their joint

purchase of a home, and profits Pelletier made from selling certain

property. On cross-examination, the government asked several

questions concerning Michael Pelletier's drug trafficking

activities and arrest in 2000, prior to the charged conspiracy. 

The defense did not object to the cross-examination. 

Pelletier argues that admission of Hafford's statement

that Pelletier was in jail "for drug charges" and the questioning

of Rina Pelletier about Michael Pelletier's criminal past violated

Federal Rules of Evidence 403 and 404(b). Given the defense's

trial objection, we review the trial court's admission of Hafford's

statement for abuse of discretion. United States v. Hicks, 575

F.3d 130, 141 (1st Cir.), cert. denied, 130 S. Ct. 647 (2009). The

lack of objection to the government's questioning of Rina Pelletier

-6-
subjects that testimony to plain error review. United States v.

Rodríguez-Berríos, 573 F.3d 55, 63 (1st Cir. 2009), cert. denied,

130 S. Ct. 1300 (2010). There was no error in the admission of any

of the testimony, plain or otherwise.

Rule 404(b) prohibits the admission of evidence of a

person's "other crimes, wrongs, or acts . . . to prove the

character of a person in order to show action in conformity

therewith." Fed. R. Evid. 404(b). While the rule allows such

evidence as proof of "motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident," id.,

the "other acts" may not be used for the sole purpose of proving

that a defendant had a propensity to commit a crime, see RodríguezBerríos, 573 F.3d at 64.

We employ a two-part test to determine whether the

district court abused its discretion under Rule 404(b). First, we

evaluate whether the evidence has "special relevance," that is,

whether it is relevant to any purpose other than to prove that a

defendant has a propensity to commit a crime. Id. Then, special

relevance notwithstanding, we must determine whether the probative

value of the evidence is substantially outweighed by its danger of

unfair prejudice. Id.; Fed. R. Evid. 403.

Pelletier first argues, without citation to case law,

that the court committed reversible error simply because it

admitted the testimony without the prosecution asking for it to

reconsider its original position. We can find no support for this

-7-
reasoning, and proceed to evaluate the district court's decision

under our two-part test.6

First, we agree with the district court that the crossexamination of government witnesses opened the door to introduction

of Pelletier's prior convictions. Where defense counsel's

questioning raised the specter of Pelletier having legitimate

sources of income, and of not taking part in the delivery of

marijuana which "mysteriously appeared" in a buyer's car, there was

no abuse of discretion in allowing the evidence in response. E.g.,

United States v. Balthazard, 360 F.3d 309, 317 (1st Cir. 2004)

(finding no error in allowing evidence in response to issue raised

by defense counsel). To the contrary, failure to allow such

evidence "could allow 'litigants to create misleading impressions,

secure in the knowledge that the other side was barred from

disabusing the jury.'" United States v. Marin, 523 F.3d 24, 29

(1st Cir. 2008) (quoting United States v. Catano, 65 F.3d 219, 226

(1st Cir. 1995)).

Pelletier next claims that the evidence of his prior drug

crimes had no special relevance. We disagree. In the context of

drug conspiracy cases, we have found prior convictions probative of

knowledge and intent where they indicate a prior relationship

between conspirators, United States v. Landrau-Lopez, 444 F.3d 19, 

24 (1st Cir. 2006), and where they may be relevant to the

While the prosecutor immediately disclaimed Hafford's 6

comment, he indicated during a pretrial conference that the

defendant's prior involvement in drug trafficking might become an

issue if Pelletier disputed knowledge or intent at trial.

-8-
defendant's knowledge of the presence of contraband and intent to

distribute it, United States v. Nickens, 955 F.2d 112, 124-25 (1st

Cir. 1992). Here, given Pelletier's apparent defense, these issues

were squarely -- even if only implicitly -- placed before the jury.

Pelletier argues that none of the permissible 404(b)

factors were genuine issues in the case. Instead, he claims that

the defense strategy was to undermine government witness

credibility, rather than to contest any particular aspect of the

case. Based on our review of the transcript of the proceedings,

this claim rings hollow. "[T]he simple fact that [the defendant]

did not argue lack of knowledge or intent . . . would not, by

itself, remove those issues from the case." United States v.

Ferrer-Cruz, 899 F.2d 135, 138 (1st Cir. 1990). Where, as here,

the defendant did not stipulate to the court that he would not

dispute those issues such that the trial court would have been

justified in preventing the very cross-examination conducted below,

the court was well within its discretion in admitting the evidence

under Rule 404(b). See id. at 139.

We also have little difficulty concluding that the

probative value of the evidence exceeded any unfair prejudice to

Pelletier. As we noted in the 404(b) analysis, the evidence was

probative of Pelletier's knowledge and intent, and served to rebut

inferences raised in cross-examination. Moreover, the court's

limiting instruction cabined any potential prejudice. See United

States v. Ofray-Campos, 534 F.3d 1, 35 (1st Cir. 2008). Finally,

to the extent that Pelletier now claims that the limiting

-9-
instruction was defective because it did not pare down the list of

permissible uses of the evidence, we note that trial counsel was

apprised of the proposed language, declined an opportunity to

provide the court with any changes, and again declined comment

after the instruction was read to the jury. We thus deem his

challenge to the limiting instruction waived. See United States 7

v. Medina, 427 F.3d 88, 91-92 (1st Cir. 2005) (finding waiver in

response to "a party's considered decision not to avail itself of

a procedural right").8

Based on the foregoing, we conclude that the testimony

regarding Pelletier's prior crimes was properly admitted.

B. Michael Easler's statements against interest

Hafford testified that Pelletier had recruited him to

help smuggle marijuana, asking Hafford to call when Hafford got out

of prison. Hafford did, in fact, connect with Pelletier upon his

release in 2004. He testified that at a June 2004 meeting,

Pelletier offered him two jobs: swimming marijuana across the river

In his reply brief, Pelletier refutes the government's waiver 7

argument by arguing that defense counsel "did in fact ask that a

limiting instruction not list the purposes for which the evidence

of prior crimes could be used." The transcript citation, however, 

is for a colloquy which occurred prior to the court's delivery of

the final jury instructions. The fact remains that counsel

remained silent at the time of the curative instruction at issue.

We note that even if the district court did commit error, any 8

such error was harmless. As trial counsel noted during the final

charging conference, references to Pelletier's criminal past were

"brief" and "in passing." Moreover, the prosecutor did not mention

the prior conviction in his closing argument. See United States v.

Benitez-Avila 570 F.3d 364, 372 (1st Cir.) (finding improper

admission of testimony harmless where it was highly probable that

the error did not influence the verdict), cert. denied, 130 S. Ct.

429 (2009).

-10-
for Pelletier, and finding a man named Michael Easler, who --

Pelletier claimed -- had robbed him of $310,000. Coincidentally,

Hafford had met Easler during his earlier prison stint, and

although the two did not discuss Pelletier, Hafford testified that

before he left prison he learned that Easler had worked for

Pelletier.

That brings us to the second evidentiary challenge, to 

Hafford's testimony about a conversation that he had with Easler

while both were in a Maine county jail in 2007. Over defense

counsel's hearsay objection, which was considered at a sidebar

conference, Hafford testified that Easler told him that he was in

jail for drug trafficking; that he had been smuggling marijuana for

Pelletier by swimming across the St. John River with sixty pounds

of marijuana beginning in "springtime" and ending when "there was

ice in the water"; and that he had stolen $110,000 from Pelletier. 

Hafford's testimony about Easler's comments was

undoubtedly hearsay, as it was offered to prove the truth of the

matter asserted. Fed. R. Evid. 801(c) and 802. The trial court,

however, accepted the government's argument that it was admissible

as an exception to the hearsay prohibition pertaining to statements

against interest:

A statement which was at the time of its

making so far contrary to the declarant's

pecuniary or proprietary interest, or so far

tended to subject the declarant to civil or

criminal liability, . . . that a reasonable

person in the declarant's position would not

have made the statement unless believing it

was true. A statement tending to expose the

declarant to criminal liability and offered to

exculpate the accused is not admissible unless

-11-
corroborating circumstances clearly indicate

the trustworthiness of the statement.9

Fed. R. Evid. 804(b)(3).

Pelletier claims on appeal that Easler's statements did 

not satisfy Rule 804(b)(3). He also claims that the admission of

Easler's statements violated his rights under the Sixth Amendment's

Confrontation Clause. This latter argument was not raised below,

and is therefore reviewed only for plain error. There was no error

under either theory.

1. Rule 804(b)(3)

Pelletier first argues that Easler's statements to

Hafford do not satisfy 804(b)(3) because they are not against his

penal interest, or at least not sufficiently so to warrant their

admission. The construction of the evidentiary rule presents a

question of law and is subject to de novo review. United States v.

Barone, 114 F.3d 1284, 1296 (1st Cir. 1997). The application of

the rule to particular facts is reviewed for abuse of discretion. 

Id. A statement is admissible as against the declarant's penal

interest if it "tend[s] to subject the declarant to criminal

liability to such an extent that a reasonable person would not make

the statement unless it were true." United States v. Jiménez, 419

F.3d 34, 43 (1st Cir. 2005). "[T]his question can only be answered

in light of all the surrounding circumstances." Barone, 114 F.3d

The rule also requires that the declarant be unavailable to 9

testify. Fed. R. Evid. 804(b). The parties so stipulated, as

Easler's counsel had indicated that Easler would invoke his Fifth

Amendment rights against self-incrimination, thus making him

"unavailable" within the meaning of the rule. See Fed. R. Evid.

804(a)(1).

-12-
at 1295 (quoting Williamson v. United States, 512 U.S. 594, 599

(1994)).

In support of his argument, Pelletier notes that Easler's

statements to his fellow inmate were mere "boasts," and were

indistinguishable from the "braggadocio" and "boasting" that we

have previously found lacking in reliability. See, e.g., United

States v. Connolly, 504 F.3d 206, 215 (1st Cir. 2007). This

reliance on Connolly is misplaced. Connolly, and cases it relies

on, involved recantations, which we have described as "generally

viewed with considerable skepticism." Id. at 214 (quoting United

States v. Carbone, 880 F.2d 1500, 1502 (1st Cir. 1989)). Easler's

comments were the opposite of a recantation. Indeed, Easler

implicated himself in the very conspiracy for which Pelletier was

convicted. 

Pelletier also suggests that by the time Easler made

those statements, he had already been indicted on charges related

to this case and thus could not have believed his statements to

Hafford would further subject him to criminal liability. This

argument is meritless: the statements "inculpate[d] him in

criminal acts and conspiracies with others to commit criminal

acts." Barone, 114 F.3d at 1297. They also demonstrated "an

insider's knowledge of a criminal enterprise and its criminal

activities," which is another indication that the statements were

against his penal interest. Id. Against this backdrop, we

conclude that Easler's statements were sufficiently adverse to his

penal interests to fall within Rule 804(b)(3).

-13-
Our inquiry does not end there, however, as the rule also

requires "corroborating circumstances [that] clearly indicate the

trustworthiness of the statement." It is not necessary that the 10

corroboration consist of "independent evidence supporting the truth

of the matter asserted by the hearsay statements, but evidence that

clearly indicates that the statements were worthy of belief, based

upon the circumstances in which the statements were made." Barone,

114 F.3d at 1300.

The thrust of Pelletier's argument is that Easler had a

strong motive to lie because he had stolen a considerable amount of

money from Pelletier and would therefore benefit from Pelletier's

lengthy incarceration. However, the fact that Easler made the

statements to fellow inmate Hafford, rather than in an attempt to

curry favor with police, cuts in favor of admissibility. See id.

at 1301 (finding fact that declarant made statements to relatives

rather than police a corroborating circumstance). Pelletier also

claims that Easler's attempt to minimize his own role as little

more than that of a swimming drug mule, while at the same time

puffing up Pelletier's role as ringleader, suggests

untrustworthiness. Although this may be a plausible view of

Easler's statements, it is not the only one. The record reflects

that Easler's description of his involvement tracked Hafford's

By its terms, the rule in effect during Pelletier's trial 10

required corroboration only for statements offered to exculpate the

accused. See Fed. R. Civ. P. 804(b)(3) (1975) (repealed 2010). We

have required corroboration for inculpatory statements as well,

Barone, 114 F.3d at 1300 n.10, and the current rule includes the

inculpatory corroboration requirement. Fed. R. Evid. 804(b)(3)

(effective Dec. 1, 2010).

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description of his own aquatic smuggling. This suggests that

Easler was not, in fact, minimizing his role in the conspiracy. 

"[T]he 804(b)(3) corroboration inquiry is concerned only

with the admissibility of hearsay evidence based upon its

trustworthiness, a determination committed to the sound discretion

of the district court." Id. Even where the call is close, and we

do not find to it be especially close here, we respect the district

court's determination, absent clear abuse. Barone, 114 F.3d at

1296. We conclude that the district court did not abuse its

discretion in admitting Easler's statements under Federal Rule of

Evidence 804(b)(3).

2. Confrontation Clause

The Confrontation Clause provides that "[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him." U.S. Const. amend. VI. 

In Davis v. Washington, 547 U.S. 813 (2006), the Court held that

the Confrontation Clause applies only to "testimonial" hearsay. 

Id. at 821. Thus, "[t]he threshold question in every case is

whether the challenged statement is testimonial. If it is not, the

Confrontation Clause 'has no application.'" United States v.

Figueroa-Cartegena, 612 F.3d 69, 85 (1st Cir. 2010) (quoting

Whorton v. Bockting, 549 U.S. 406, 420 (2007)).

The testimony about Easler's statements during inmate-toinmate conversation was subject to cross-examination in court. The

evidence was not contained in ex parte in-court testimony or an

affidavit. The "primary purpose" of the statements was not the

-15-
establishing or proving of some fact at trial. Bullcoming v. New

Mexico, 564 U.S. , (2011) (slip op., at 9); id. (Sotomayor,

J., concurring, at 1); Michigan v. Bryant, 562 U.S. , (2011)

(slip op., at 11).

Although we have not previously had occasion to apply

Davis to the situation presented here -- statements made by one

inmate to another -- we have little difficulty holding that such

statements are not testimonial. Our position is consistent with

that of both the Supreme Court, see Davis, 547 U.S. at 823 n.2

(noting, in dicta, that statements from one prisoner to another are

"clearly nontestimonial") (citing Dutton v. Evans, 400 U.S. 74, 87-

89 (1970) (plurality opinion)), and other circuit courts that have

held inmate conversations to be nontestimonial, see United States

v. Smith, 383 F. App'x 355, 357 (4th Cir. 2010) (unpublished);

United States v. Spotted Elk, 548 F.3d 641, 662 (2nd Cir. 2008);

United States v. Johnson, 495 F.3d 951, 976 (8th Cir. 2007); United

States v. Johnson, 192 App'x 935, 938 (11th Cir. 2006)

(unpublished); see also United States v. Smalls, 605 F.3d 765, 778

(10th Cir. 2010) (finding statement made to confidential informant

nontestimonial where declarant knew informant only as an inmate);

United States v. Johnson, 581 F.3d 320, 323-24 (6th Cir. 2009)

(same). 

Moreover, Easler's jailhouse statements to Hafford bear

none of the characteristics of testimonial hearsay. They were made

not under formal circumstances, but rather to a fellow inmate with

a shared history, under circumstances that did not portend their

-16-
use at trial against Pelletier. See Davis, 547 U.S. at 824 ("An

accuser who makes a formal statement to government officers bears

testimony in a sense that a person who makes a casual remark to an

acquaintance does not." (quoting Crawford, 541 U.S. at 51)); see

also United States v. Brito, 427 F.3d 53, 60 (1st Cir. 2004)

(describing testimonial statements as those that a declarant would

reasonably understand will be preserved for prosecutorial use);

Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) (finding

statements non-testimonial where they were part of a private

conversation with a non-police officer). Accordingly, we conclude

that the Confrontation Clause was not implicated by the admission

of Hafford's testimony.11

III. Jury Instructions

Pelletier was convicted of, inter alia, conspiracy to

import marijuana and conspiracy to possess with intent to

distribute marijuana. See 21 U.S.C. §§ 841(b)(1)(A)(vii), 846,

960(b)(1)(G), 963. At the close of evidence, the trial judge first

instructed the jury on the elements of conspiracy, including the

requirement that the government prove that Pelletier intended that

the underlying crimes -- importation of marijuana and possession

with intent to distribute marijuana -- be committed.

In a footnote to his brief, Pelletier acknowledges Davis's 11

holding that non-testimonial evidence does not fall within the

Sixth Amendment's proscription, but baldly states that we should

avoid a "rubber-stamp" application of Davis because "the attributes

of Easler's jailhouse statements make them unique." Pelletier does

not, however, elaborate any further. Finding nothing unique about

Easler's statements to Hafford, we see no reason to depart from the

path cut by Davis.

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The court's instruction on the underlying importation

crime included the following language: "It is against federal law

to import marijuana into the United States. To import means to

bring or transport into the United States from someplace outside

the United States." With respect to distribution, the charge

stated: "It is against federal law to have marijuana in your

possession with the intention of distributing it to someone else,

and it is against -- it is against federal law to distribute

marijuana."

Pelletier argues that the instruction on importation was

missing two elements related to scienter: that the importation was

knowing and intentional; and that Pelletier knew the marijuana came

from outside the United States. See United States v. Geronimo, 330

F.3d 67, 72 (1st Cir. 2002) ("[T]o convict a principal actor of

importing a controlled substance, the prosecution must prove that

the accused knew the drugs were imported.") He cites a similar

putative defect in the distribution instruction: that the

instruction lacked the elements of specific intent to distribute,

as well as knowing and intentional possession. United States v.

Dyer, 589 F.3d 520, 534 (1st Cir. 2009) ("[W]e have consistently

held that to prove possession with intent to distribute in

violation of 21 U.S.C. § 841, the government must establish that

the defendant knowingly and intentionally possessed a controlled

substance with specific intent to distribute."), cert. denied, 130

S. Ct. 2422 (2010).

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As no objection was lodged at trial, we review for plain

error. United States v. Garcia-Pastrana, 584 F.3d 351, 382 (1st

Cir. 2009) (noting that plain error standard requires a defendant

to "show an error that was plain (i.e., obvious and clear under

current law), prejudicial (i.e., affected the outcome of the

district court proceedings), and that seriously impaired the

fairness, integrity, or public reputation of the judicial

proceedings" (quoting United States v. Griffin, 524 F.3d 71, 76

(1st Cir. 2008))), cert. denied, 130 S. Ct. 1724 (2010). An

unpreserved objection to a jury instruction will only rarely

justify reversal of a conviction. Id. (citing United States v.

Weston, 960 F.2d 212, 216 (1st Cir. 1992)).

The government claims that there was no error, citing to

the court's preliminary instructions -- given prior to the parties'

opening statements -- which included the following language:

The underlying crime of importing a

drug requires intentional and knowing

importation of that drug and knowledge that

the drug came from outside the United States. 

The underlying crime of possessing a

drug with the intent to distribute it requires

intentional possession of the drug with the

specific intent to transfer it to someone

else.

Even if we assume, however, that the preliminary

instructions did not cure subsequent flaws in the final

instructions, Pelletier is not necessarily entitled to relief. A

trial court's failure to instruct the jury on all statutory

elements is not a structural error, and thus Pelletier must show

prejudice to warrant reversal of his conviction. Neder v. United

-19-
States, 527 U.S. 1, 9 (1999); United States v. Hebshie, 549 F.3d

30, 44 (1st Cir. 2008). To meet this burden, Pelletier must show

a "reasonable probability that, but for [the error claimed], the

result of the proceeding would have been different." Hebshie, 549

F.3d at 44; United States v. Moran, 393 F.3d 1, 13 (1st Cir. 2004)

(noting that, in context of jury instructions, plain error requires

showing that allegedly erroneous instruction affected outcome of

trial). We can affirm the conviction if "the result would quite

likely have been the same despite an erroneous instruction." 

Hebshie, 549 F.3d at 44 (quoting United States v. O'Brien, 435 F.3d

36, 40 (1st Cir. 2006)) (internal quotation marks omitted).

While the final instruction easily and quickly could have

been corrected if either the defense or prosecution had brought the

issue to the court's attention, we nevertheless conclude that the

result at trial was quite likely unaffected. With respect to the

importation charge, Pelletier's ex-girlfriend Cyr testified about

meeting Pelletier's Canadian drug source at least five times. She

also related Pelletier's tale of hiding money in his wheelchair

seat during a trip to Canada. Hafford, in addition to his

testimony about his conversations with Easler, testified that

Pelletier told him how the scheme worked. The evidence was thus

overwhelming that Pelletier knew the marijuana he was selling came

from outside the United States. Additionally, Cyr's testimony that

Pelletier informed her that Easler was bringing marijuana from

Canada, distributing it for him, and bringing him drug sale

proceeds -- which Cyr testified she counted and stacked with

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Pelletier -- proved beyond doubt Pelletier's knowledge and intent. 

Accordingly, the instruction on the count charging conspiracy to

import was not plainly erroneous.

We have little difficulty reaching the same conclusion on

the distribution count. In addition to the evidence limned above, 

the jury heard Cyr testify that Pelletier met with customers in

Portland, Maine, and the jury also heard Dubois's testimony about

paying Pelletier for marijuana to sell after he moved to New

Hampshire. Again, the evidence was overwhelming that Pelletier

possessed marijuana with the specific intent to distribute it, and

that he did so knowingly and intentionally.

In sum, Pelletier has failed to demonstrate that the

instructions at issue affected the outcome of the trial. We

therefore conclude that the allegedly improper instructions did not

amount to plain error.

IV. Drug quantity

Pelletier's post-trial motion for acquittal focused

solely on the issue of whether there was sufficient evidence to

support the jury's verdict that the amount of marijuana

attributable to him equaled or exceeded 1,000 kilograms. See 21

U.S.C. § 841(b)(1)(A)(vii); Fed. R. Crim. P. 29. We review de novo

the district court's denial of Pelletier's Rule 29 motion. United

States v. Rodriguez-Lozada, 558 F.3d 29, 39 (1st Cir.), cert.

denied, 130 S. Ct. 283 (2009). We examine the evidence in the

light most favorable to the jury verdict, id., and we must be

satisfied that "the guilty verdict finds support in a plausible

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rendition of the record," United States v. Hatch, 434 F.3d 1, 4

(1st Cir. 2006).

The district court based its denial of Pelletier's motion

primarily, but not exclusively, on Adam Hafford's testimony

regarding both his and Michael Easler's smuggling efforts. Hafford

testified that he carried at least sixty pounds of marijuana on

each international swim, which took place "every week or two weeks"

from June to November 2004. All told, Hafford estimated that he

ferried between 1,000 and 1,500 pounds of marijuana while in

Pelletier's employ. From this testimony, the district court

concluded that the jury was entitled (although not required) to

take the higher number, 1,500 pounds, which translates to 680.38

kilograms.

Next, the district court considered Michael Easler's

contribution to the operation, as related by Hafford's testimony. 

As previously discussed, Hafford testified that Easler told him

that he carried sixty pounds of marijuana across the river from

springtime until "there was ice in the water." The district court 

found that the jury could reasonably conclude that Easler had

smuggled the same amount of marijuana as did Hafford -- 680.38

kilograms -- bringing the total to 1,360.76 kilograms. To this

total the district court added the amount of marijuana represented

by Easler's theft of drug proceeds from Pelletier. Concluding that

the evidence supported a finding that Easler stole between $250,000

and $310,000, and noting that Pelletier bought the marijuana for

$1,000 per pound, the court found that the cash represented between

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250 and 300 pounds, or 113.39 to 140.61 kilograms. Thus, the

district court concluded that the evidence supported a jury finding

well in excess of 1,000 kilograms.

Pelletier's appellate argument boils down to two

contentions. The first is that Easler's hearsay statements should

not have been placed before the jury, an argument we have already

rejected. Beyond the evidentiary argument, Pelletier also asserts

that Hafford's estimate of his own involvement and Easler's

"springtime to ice in the water" time frame were too imprecise to

form the basis for a jury verdict. We disagree. Reduced to its

essence, Pelletier's argument is that the jury should have rejected

the numbers provided by Hafford and Easler (through Hafford), or

that could have been inferred from their statements. Our review,

however, "requires that we assume that the jury accepted the

government's evidence and drew inferences in its favor." United

States v. Santiago, 560 F.3d 62, 65 (1st Cir.) (emphasis added),

cert. denied, 130 S. Ct. 140 (2009). Sufficient evidence existed

for a reasonable jury to have found beyond a reasonable doubt that

Pelletier conspired to import and possess with the intent to

distribute 1,000 kilograms or more of marijuana.

Affirmed.

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