United States Court of Appeals

For the First Circuit

Nos. 11-2479, 11-2492

UNITED STATES OF AMERICA,

Appellee,

v.

JESÚS PABELLÓN RODRÍGUEZ; JIMMY CARRASQUILLO-RODRÍGUEZ,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella and Lipez, Circuit Judges.

José Luis Novas Debien for appellant Pabellón Rodríguez.

Michael C. Bourbeau, with whom Bourbeau & Bonilla, LLP, was on

brief, for appellant Carrasquillo-Rodríguez.

Justin Reid Martin, Assistant United States Attorney, with

whom Rosa Emilia Rodríguez-Veléz, United States Attorney, Nelson

Pérez-Sosa, Assistant United States Attorney, Chief, Appellate

Division, and Julia M. Meconiates, Assistant United States

Attorney, were on brief, for appellee. 

August 16, 2013
LIPEZ, Circuit Judge. Appellants Jimmy CarrasquilloRodríguez ("Carrasquillo") and Jesús Pabellón Rodríguez

("Pabellón") were convicted on drug and gun charges that arose from

a reverse sting operation orchestrated by federal Drug Enforcement

Administration ("DEA") agents seeking to stem the flow of illegal

narcotics from the Dominican Republic to Puerto Rico. Both

defendants challenge their convictions, primarily on sufficiency

grounds. They also claim that an error in the verdict form

requires a new trial. Carrasquillo also challenges his sentence.

The government concedes that Carrasquillo's conviction on

count four (possession of a firearm with an obliterated serial

number) must be vacated for insufficient evidence. With that

exception, we affirm the convictions and Carrasquillo's sentence. 

The evidence was sufficient to support the convictions. The error

in the verdict form, though obvious, does not meet the stringent

requirements of plain error. 

I.

The facts, as supported by the record, are as follows. 

In December 2008, the DEA created a fictional drug trafficking

organization in order to target groups engaged in international

drug trafficking operations. The group consisted of three

individuals: an informant from Colombia, an informant from the

Dominican Republic known as "Cibaíto," and DEA Task Force Officer

Jesús Marrero. Marrero and Cibaíto played the parts of underlings

-2-
for the Colombian informant, portrayed as the boss of the

organization. The group began giving Marrero's phone number to

individuals involved in the illegal drug trade, advertising him as

a drug distributor who received shipments from the Dominican

Republic. 

The group's marketing quickly paid off. On December 11,

2008, Marrero and Cibaíto met with Ramón González Duarte

("González"), a/k/a "Gigante," at a restaurant in Santo Domingo. 

González indicated that he wanted to purchase ninety kilograms of

pure cocaine from the fictional organization, and that he wanted

Marrero to transport to Puerto Rico an additional sixty kilograms

of cocaine that he would be purchasing from another source. 

González said that he worked for a man named Cagüitas, and that

they had the capacity to distribute over 500 kilograms of cocaine

per week, as Cagüitas controlled the drug traffic in Caguas, Puerto

Rico and the surrounding towns, and also shipped substantial

amounts to the continental United States, particularly New York. 

Marrero was to deliver the ninety kilograms to González's

cohort in Puerto Rico at a cost of $15,000 per kilo, plus a $2,000

transportation fee. He also agreed to transport González's

independently purchased sixty kilograms, charging the same

transportation fee of $2,000 per kilo. Marrero told González that

he needed to know who would be picking up the shipment in Puerto

Rico and paying him for the shipment. González stated: "I will

-3-
call the person who is going to take care of you when you arrive in

Puerto Rico. He's my son, so I trust him." He then picked up the

phone, dialed a number, and placed the phone on speakerphone. The

call was answered by a man identifying himself as "Hijo de

Gigante," or "Son of Gigante," who was later identified as

Carrasquillo. (Carrasquillo is González's stepson.) At some point

during the call, Carrisquillo handed the phone to Cagüitas, who

stated that Carrasquillo would be the individual in charge of

receiving the cocaine and making the payment to Marrero. 

Despite their tentative agreement, Marrero never received

the sixty kilograms that González had asked him to transport to

Puerto Rico. On December 15, Marrero called Carrasquillo to inform

him that he had returned from the Dominican Republic. Using coded

language, Carrasquillo asked Marrero if he had received the drug

cargo and was ready to exchange the drugs for money. The next day,

Marrero called Cagüitas, who told him that he would be sending

Carrasquillo to exchange cash for the drugs. Cagüitas put

Carrasquillo on the phone, who told Marrero to meet him at the

kiosks in Luquillo later that day.

When Marrero arrived at the kiosk, he met Carrasquillo

and Carrasquillo's driver, Jiel Sánchez. Because Marrero had taken

longer than Carrasquillo and his compatriots had expected, the

unidentified people to whom Carrasquillo's organization was to sell

the drugs were no longer willing to front the money, and would pay

-4-
only upon seeing the drugs. Carrasquillo asked for a credit,

meaning that Marrero would hand over the shipment for nothing, with

Carrasquillo paying him back later with the proceeds of his sale to

other parties. Carrasquillo's organization negotiated with Cibaíto

(the informant in the Dominican Republic), whereby the drugs would

be extended to the organization on a credit. The "guarantee" was

González himself: he was to stay at Cibaíto's house in the

Dominican Republic until the payment for the ninety kilos was

delivered. 

Marrero, however, would not accept a credit for the

transportation costs associated with the drugs. As Marrero had

told them that the drugs cost $2,000 per kilo to ship, Carrasquillo

would have to come up with $180,000 before he received the ninety

kilos. Because of Carrasquillo's cash flow problems, the parties

agreed that Marrero would give Carrasquillo the drugs in a series

of smaller transactions. He would hand off the first thirty kilos

to Carrasquillo for the transportation cost of $60,000. 

Carrasquillo would then sell the drugs, returning a few hours later

to give Marrero another $60,000 for a second thirty kilo bale. 

Only sixty kilos were to be transferred pursuant to this

arrangement. The parties agreed that this transaction would take

place the next day, December 17, at a kiosk in Luquillo. 

Marrero arrived at the kiosk and sat down at a table. 

Shortly thereafter, Jiel Sánchez arrived with an individual unknown

-5-
to Marrero, later identified as Pabellón. Pabellón is

Carrasquillo's brother and González's stepson. Without greeting

Marrero, Sánchez and Pabellón looked around the kiosk, went to the

counter, ordered a beer, went to the door of the bathroom, and then

left quickly. Upon exiting, the pair surveilled the parking lot in

the back and side of the establishment. Apparently satisfied that

the coast was clear, one of them placed a call. Carrasquillo

arrived about eight minutes later. 

Carrasquillo and Marrero had a conversation, during which

Carrasquillo said that the money was on its way and repeatedly

demanded that Marrero show him the drugs. Marrero told him that

until he saw the money, Carrasquillo would not see the drugs. 

After making a few phone calls, Carrasquillo told Marrero that the

money was at another kiosk, and asked Marrero to accompany him

there. Because there was no surveillance at the second kiosk,

Marrero refused, stating that the drugs were close by and he did

not want to be separated from them. With both parties refusing to

budge, Marrero terminated the meeting. 

The next day, December 18, with the deal still

uncompleted, Marrero called González to complain. Marrero objected

to being surveilled by Sánchez and Pabellón, and generally objected

to the presence of anyone but Carrasquillo at the meetings. 

González explained that the group was nervous because they had seen

a car parked at the kiosk with people inside. Marrero and González

-6-
both expressed suspicion as to the other's credentials in the drug

trade, with González noting that no one in the Dominican Republic

appeared to have heard of Marrero. 

Later that same day, Marrero spoke to González's boss,

Cagüitas. Marrero and Cagüitas agreed that Carrasquillo would meet

Marrero in the parking lot of the Metropol restaurant in Fajardo 

later that day. Marrero insisted that Carrasquillo come alone. 

Before Marrero arrived at the restaurant, a DEA task force agent

observed a blue Toyota pull into the parking lot, followed by a

black Honda. The agent recognized the Honda: it was the same car

that Sánchez and Pabellón had driven to the kiosk the day before. 

Marrero arrived and made his way to the Toyota, which Carrasquillo

had driven to the meeting. Marrero asked Carrasquillo where the

money was, and Carrasquillo removed a plastic bag containing

$59,000 from underneath the driver's seat. After briefly examining

the contents, Marrero called his surveillance to give the signal

for the arrest. 

After receiving Marrero's signal, DEA Task Force Agent

Edwin Colón-García and two other officers moved in and arrested

Carrasquillo. Meanwhile, Agent Jimmy Alverio-Hernández parked his

vehicle in front of the black Honda and moved around to the Honda's

front passenger side door, where he observed what appeared to be a

weapon under a blue rag on the floor of the front passenger seat. 

After alerting his fellow officers about the gun, the agent ordered

-7-
the passenger of the Honda, later identified as Pabellón, out of

the car and placed him under arrest. Agents also arrested the

driver of the Honda, Jiel Sánchez. The weapon on the floor of the

front passenger seat was determined to be a .45 caliber Ruger

pistol with an obliterated serial number. 

On December 23, 2009, Carrasquillo, Pabellón, and

González were indicted for conspiracy to possess with intent to

distribute five kilograms or more of cocaine (count one) and

conspiracy to import into the United States from the Dominican

Republic five kilograms or more of cocaine (count two). 

Carrasquillo and Pabellón were also both charged with possession of

a firearm in furtherance of a drug trafficking crime, specifically

the alleged conspiracy (count three), and possession of a firearm

with an obliterated serial number (count four). Pabellón alone was

charged with being a felon in possession of a firearm (count five). 

Defendants' jury trial began on February 7, 2011. On

February 11, the jury found defendants guilty on all counts. After

the denial of motions for judgments of acquittal pursuant to

Federal Rule of Criminal Procedure 29, defendants were sentenced. 

González received a sentence of 120 months. Carrasquillo was

sentenced to 144 months on counts one and two, and 60 months on

count four, to be served concurrently with one another. The court

also imposed a mandatory 60-month consecutive sentence on count

three, resulting in a total sentence for Carrasquillo of 204

-8-
months. Pabellón received a 135-month sentence on counts one and

two, a 60-month sentence for count four, and a 120-month sentence

for count five, all to be served concurrently with each other. 

Like Carrasquillo, Pabellón received a mandatory 60-month

consecutive sentence for count three, resulting in a total sentence

of 195 months. This timely appeal followed.1

II.

Both defendants challenge the sufficiency of the evidence

underlying certain of their convictions. Although he was convicted

on counts one through four, Carrasquillo raises a sufficiency

challenge only as to counts three and four (the firearm-related

counts). Pabellón, on the other hand, raises no sufficiency

challenge to the firearm-related counts on which he was convicted

(counts three through five), focusing instead on the two drug

conspiracy counts (counts one and two). 

We review preserved challenges to the sufficiency of

evidence de novo. United States v. Ihenacho, 716 F.3d 266, 279

(1st Cir. 2013). In analyzing such claims, we consider "'whether

any rational factfinder could have found that the evidence

presented at trial, together with all reasonable inferences, viewed

in the light most favorable to the government, established each

element of the particular offense beyond a reasonable doubt.'" 

1

 González did not appeal his convictions or sentence. 

-9-
United States v. Willson, 708 F.3d 47, 52 (1st Cir. 2013) (quoting

United States v. Poulin, 631 F.3d 17, 22 (1st Cir. 2011)).

A. Carrasquillo

As noted, Carrasquillo challenges the sufficiency of the

evidence underlying his convictions for possessing a firearm in

furtherance of a drug trafficking offense in violation of 18 U.S.C.

§ 924(c)(1)(A) (count three) and possessing a firearm with an

obliterated serial number in violation of 18 U.S.C. § 922(k) (count

four). Because the government concedes that the evidence was not

sufficient to establish that Carrasquillo knew Pabellón would

possess a firearm carrying an obliterated serial number,2 we need

only consider Carrasquillo's challenge to his count three

conviction.

 For a conviction under § 924(c)(1)(A), "the government

must prove that the defendant (1) committed a drug trafficking

crime; (2) knowingly possessed a firearm; and (3) possessed the

firearm in furtherance of the drug trafficking crime." United

States v. Vázquez-Castro, 640 F.3d 19, 25 (1st Cir. 2011). We have

noted an important caveat to the second and third prongs of this

analysis: "[u]nder Pinkerton v. United States, 328 U.S. 640 (1946),

2

 Although we vacate Carrasquillo's conviction and sentence on

count four, we need not remand for resentencing. The count four

sentence runs concurrently with the 144-month sentence for counts

one and two, which we affirm. Neither Carrasquillo nor the

government argues that a resentencing is necessary in light of the

government's concession that count four must be vacated. 

-10-
the defendant does not need to have carried the gun himself to be

liable under § 924(c)." United States v. Flecha-Maldonado, 373

F.3d 170, 179 (1st Cir. 2004). Rather, "[s]o long as there is

sufficient evidence that a co-conspirator carried or used a firearm

in furtherance of the conspiracy and that this was reasonably

foreseeable to the defendant, the defendant can be held liable as

if he himself carried or used the firearm."3 Id.

Carrasquillo concedes that the evidence presented at

trial "clearly established" a drug conspiracy between himself and

González to (1) possess cocaine with intent to distribute, and (2)

import cocaine into the United States from the Dominican Republic,

thereby satisfying the first prong of the § 924(c)(1)(A) analysis. 

He maintains, however, that the government failed to produce any

3 Carrasquillo also argues that the district court erred in

instructing on Pinkerton liability as to counts three and four. 

Because he failed to object to this alleged error at trial, our

review is for plain error. This standard "imposes a heavy burden

on the appellant, who must demonstrate: (1) that an error occurred

(2) which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired the

fairness, integrity, or public reputation of the judicial

proceedings." United States v. Ramos-Mejía, No. 12-1738, 2013 WL

3287077, at *1 (1st Cir. July 1, 2013) (internal quotation marks

omitted). Because we find that there was sufficient evidence to

enable a jury to conclude, beyond a reasonable doubt, that

Carrasquillo and Pabellón were members of a drug conspiracy, see

infra Part II(B), there was no "clear or obvious" error in

instructing the jury on the Pinkerton theory of liability with

respect to counts three and four, see United States v. VázquezCastro, 640 F.3d 19, 25 (1st Cir. 2011) (finding that Pinkerton

charge was proper on substantive weapons count because government

presented sufficient evidence that defendant and his co-defendants

were members of cocaine conspiracy (that weapon was alleged to have

been used in furtherance of)). 

-11-
evidence that the weapon recovered was possessed by a member of the

conspiracy during the conspiracy's course. Additionally, he argues

that there is no evidence that Carrasquillo knew his co-conspirator

was carrying a firearm, or that it was reasonably foreseeable that

his co-conspirators were likely to be carrying firearms during the

course of the conspiracy and in furtherance thereof. 

First, there was sufficient evidence presented at trial

to allow a rational trier of fact to conclude that Pabellón

possessed the pistol during and in furtherance of the conspiracy. 

Pabellón and Sánchez escorted Carrasquillo's car into the parking

lot of the Metropol restaurant, where Carrasquillo was to exchange

$59,000 for 30 kilograms of cocaine. The loaded .45 caliber Ruger

was directly below Pabellón's seat. Given Sánchez and Pabellón's

prior countersurveillance activities at the December 17 kiosk

meeting between Carrasquillo and Marrero, a rational factfinder

could conclude that Sánchez and Pabellón attended the Metropol

restaurant meeting to provide protection for Carrasquillo (and the

$59,000) in furtherance of the drug conspiracy, and that the

presence of the gun was directly related to the pair's security

role. See United States v. Marin, 523 F.3d 24, 27 (1st Cir. 2008)

(noting that "possession of a firearm to protect drugs or sales

proceeds" is sufficient to establish the nexus between the firearm

and the drug crime). 

-12-
Carrasquillo emphasizes that Sánchez and Pabellón were

parked several cars away from the prospective site of the

transaction, and suggests that the gun in their car was therefore

not "possessed . . . in furtherance of the drug trafficking crime." 

However, "a gun need not be present at the moment that drugs are

verified, or at the moment that money or drugs change hands, in

order to be possessed in furtherance of a drug trafficking crime." 

United States v. Alverio-Meléndez, 640 F.3d 412, 420 (1st Cir.

2011). For the purposes of establishing a nexus between the

handgun and the conspiracy, it is sufficient that the jury could

reasonably conclude that Carrasquillo had an armed escort in the

same parking lot in which the drug transaction was to take place. 

Second, there was sufficient evidence to support the

finding that it was reasonably foreseeable to Carrasquillo that one

of his co-conspirators in the escort vehicle would possess a

firearm in furtherance of their drug conspiracy. In the first

transaction alone Carrasquillo intended to pick up over $400,000

worth of cocaine. He was then going to sell at least $60,000 of

the cocaine that same day, using those proceeds to acquire another

thirty-kilo bale. "Because firearms are considered 'common tools

of the drug trade,' a co-defendant's possession of a dangerous

weapon 'is foreseeable to a defendant with reason to believe that

their collaborative criminal venture includes an exchange of

controlled substances for a large amount of cash.'" United States

-13-
v. Thongsophaporn, 503 F.3d 51, 58 (1st Cir. 2007) (quoting United

States v. Bianco, 922 F.2d 910, 912 (1st Cir. 1991)); see also

United States v. Collazo-Aponte, 216 F.3d 163, 196 (1st Cir. 2000)

(noting that "the illegal drug industry is, to put it mildly, a

dangerous, violent business," and that "[a]s a corollary, the use

of firearms is foreseeable in trafficking offenses involving

substantial quantities of drugs" (internal quotation marks

omitted)), vacated on other grounds, 532 U.S. 1036 (2001). The

quantity of both the cash and the drugs that Carrasquillo and his

co-conspirators hoped to exchange during the course of their

conspiracy was substantial by any measure. 

Under these circumstances, a rational jury could have

concluded that it was reasonably foreseeable to Carrasquillo that

one of his co-conspirators would carry a firearm to the Metropol

restaurant meeting. See Vázquez-Castro, 640 F.3d at 27. The

district court therefore properly denied Carrasquillo's motion for

a judgment of acquittal on count three. 

B. Pabellón

As noted, Pabellón challenges the sufficiency of the

evidence underlying his convictions for conspiracy to possess with

intent to distribute a controlled substance (count one) and

conspiracy to import a controlled substance (count two). 

To prove the existence of a conspiracy, "the government

must prove beyond a reasonable doubt: (1) that an agreement existed

-14-
to commit the particular crime; (2) that the defendant knew of the

agreement; and (3) that he voluntarily participated in it." United

States v. Cruz-Rodriguez, 541 F.3d 19, 26 (1st Cir. 2008). "Such

an agreement may be express or tacit, that is, represented by words

or actions, and may be proved by direct or circumstantial

evidence." United States v. Rivera Calderón, 578 F.3d 78, 88 (1st

Cir. 2009).

Pabellón maintains that the evidence presented at trial

"gives equal or nearly equal support to a theory of guilt and a

theory of innocence." He states that he is not mentioned in any of

the recorded calls that were submitted into evidence, and that the

only actual evidence linking him to the conspiracy is his presence

in two places -- the kiosk where the original drug deal was

supposed to take place, and the parking lot of the Metropol

restaurant the next day, where Carrasquillo and Marrero were to

make their second attempt at exchanging drugs for money. 

Marrero's testimony supported the conclusion that

Pabellón was conducting countersurveillance and providing

protection to Carrasquillo at the December 17 meeting between

Carrasquillo and Marrero. The same conclusion, based on Marrero's

testimony and that of the other agents present at the bust, could

have been drawn regarding Pabellón's presence at the Metropol

restaurant. Although there was no evidence that Pabellón took part

in the negotiations between Marrero and Carrasquillo/González

-15-
regarding the purchase price of the drugs or the transfer of the

kilos, "a drug conspiracy may involve ancillary functions (e.g.,

accounting, communications, strong-arm enforcement), and one who

joined with drug dealers to perform one of those functions could be

deemed a drug conspirator." United States v. García-Torres, 280

F.3d 1, 4 (1st Cir. 2002); see also United States v. Soto-Beníquez,

356 F.3d 1, 18 (1st Cir. 2004) ("Advancing the aim of the

conspiracy can involve performing ancillary functions such as

processing and cooking drugs, procuring weapons, collecting monies,

enforcing discipline, chastising rivals, accounting, and the like,

as long as such actions are performed with the aim of furthering

the conspiracy."). It therefore follows that although the evidence

may suggest that Pabellón was merely the "muscle" and not the

"brains" of the operation, this fact does not make him a mere

"peripheral" character unworthy of the designation of conspirator. 

The district court therefore properly denied Pabellón's motion for

judgment of acquittal on count one.

There is less evidence supporting Pabellón's importation

conspiracy conviction, which requires that he knew the drugs were

imported. See United States v. Geronimo, 330 F.3d 67, 72 (1st Cir.

2003) ("[T]o convict a principal actor of importing a controlled

substance, the prosecution must prove that the accused knew the

drugs were imported."). Still, there is enough circumstantial

evidence to permit a reasonable jury to conclude that Pabellón knew

-16-
that the drugs sought to be purchased by the conspiracy came from

the Dominican Republic. First, there was the relationship between

the three defendants: Pabellón and Carrasquillo are brothers, and

González is their stepfather. There was substantial evidence that

both González and Carrasquillo knew that the drugs were imported. 

It would not be unreasonable for the jury to infer that Pabellón's

brother and stepfather shared with him the details of the plan. 

See, e.g., United States v. Bollinger, 796 F.2d 1394, 1405 (11th

Cir. 1986) (noting that defendant's extensive dealings with several

co-conspirators who knew that the contraband was imported is factor

supporting inference that defendant also knew drugs were imported). 

Second, and relatedly, Pabellón's own stepfather (González) was to

serve as human collateral for the purchase price of the drugs;

specifically, he was to stay at Cibaíto's house in the Dominican

Republic until the ninety kilos were paid for. Third, Pabellón was

a part of the deal to give $60,000 in transportation costs for

bringing drugs from the Dominican Republic to Puerto Rico in

exchange for cocaine. It would be reasonable for a jury to find

that, as a participant in the exchange, Pabellón knew the purpose

and amount of the money involved.

In short, these pieces of circumstantial evidence, taken

together, were sufficient to allow a reasonable jury to conclude

that Pabellón knew that the drugs were imported. The district

-17-
court therefore properly denied Pabellón's motion for judgment of

acquittal on count two.

III.

The defendants argue that the verdict form was faulty

because it erroneously instructed the jury that, to find them not

guilty, it had to find that they were innocent beyond a reasonable

doubt. For example, the verdict form for Carrasquillo's count

three charge reads as follows:

3. Count Three charges co-defendant Jimmy

Carrasquillo-Rodríguez of knowingly possessing

a firearm in furtherance of a drug trafficking

crime. We the jury, unanimously find, beyond a

reasonable doubt, that Jimmy CarrasquilloRodríguez, as to Count Three is:

___ Not Guilty ___ Guilty 

This same format was used on the verdict form for each count as to

each defendant.

We review the verdict form "as a whole, in conjunction

with the jury instructions, in order to determine whether the

issues were fairly presented to the jury." United States v.

Riccio, 529 F.3d 40, 47 (1st Cir. 2008). Because there were no

objections below to this language in the verdict form, we review

for plain error. United States v. González-Vélez, 466 F.3d 27, 34-

35 (1st Cir. 2006). To satisfy this standard, defendants "must

show: (1) that an error occurred (2) which was clear or obvious and

which not only (3) affected the defendant's substantial rights, but

also (4) seriously impaired the fairness, integrity, or public

-18-
reputation of judicial proceedings." United States v. Brown, 669

F.3d 10, 28 (1st Cir. 2012) (internal quotation marks omitted). 

This standard is "so demanding that we have characterized it as

cold comfort to most defendants pursuing claims of instructional

error." Id. (internal quotation marks omitted); see also United

States v. Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001) ("[T]he

plain error hurdle, high in all events, nowhere looms larger than

in the context of alleged instructional errors."). 

The language in the verdict form constitutes clear and

obvious error, thereby satisfying the first two prongs of the plain

error analysis. It is fundamental that a criminal defendant, 

presumed innocent, can be found guilty only if the government

proves guilt beyond a reasonable doubt. See In re Winship, 397

U.S. 358, 361-64 (1970); Brinegar v. United States, 338 U.S. 160,

174 (1949). The verdict form suggested to the jury that it could

find defendants not guilty only if it found that their innocence

had been established beyond a reasonable doubt. By suggesting that

the defendants had the burden of proving their innocence, the

verdict form had serious constitutional implications. See Sullivan

v. Louisiana, 508 U.S. 275, 277 (1993) ("What the factfinder must

determine to return a verdict of guilty is prescribed by the Due

Process Clause."); id. at 278 ("[T]he jury verdict required by the

Sixth Amendment is a jury verdict of guilty beyond a reasonable

doubt."); In re Winship, 397 U.S. at 364. The district court

-19-
should never have allowed this verdict form to go to the jury. See

United States v. Cardinas Garcia, 596 F.3d 788, 799 (10th Cir.

2010) (stating verdict form with identical error "should have been

differently worded"); United States v. Bustos, 303 F. App'x 656,

663 (10th Cir. 2008) (same). 

But even an error with constitutional implications is

subject to the traditional four-prong plain error analysis. See

United States v. George, 676 F.3d 249, 257 (1st Cir. 2012); United

States v. Catalan-Roman, 585 F.3d 453, 463 n.8 (1st Cir. 2009);

United States v. Rodríguez-Lozada, 558 F.3d 29, 38 (1st Cir. 2009). 

Defendants must therefore satisfy the heavy burden imposed by the

third prong of showing that the error "affected their substantial

rights." In other words, defendants "must show 'a reasonable

probability that, but for [the error claimed], the result of the

proceeding would have been different.'" United States v. Hebshie,

549 F.3d 30, 44 (1st Cir. 2008) (alteration in original) (quoting

United States v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (en

banc) (internal quotation marks omitted)). Although this showing

does not require that "a defendant prove by a preponderance of the

evidence that but for [the] error things would have been

different," United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9

(2004), we will nevertheless sustain a conviction if we find that

"the result would quite likely have been the same" had the

-20-
erroneous instruction not been included, United States v. O'Brien,

435 F.3d 36, 40 (1st Cir. 2006). 

Defendants cannot clear this high hurdle. First, Jury

Instruction No. 2 gave a comprehensive, thorough, and accurate

explanation of the government's burden of proof and defendants'

presumption of innocence.4 Because the jury instructions and the

verdict form must be read in conjunction with one another, see

Brown, 669 F.3d at 31, the precision of the reasonable doubt

standard in the jury instructions is relevant to our analysis of

the potential prejudicial impact of the language in the verdict

form.

4 For example, one paragraph of the district court's eightparagraph Jury Instruction No. 2 reads as follows:

The presumption of innocence until proven

guilty means that the burden of proof is

always on the government to satisfy you that a

defendant is guilty of the crimes with which

he has been charged beyond a reasonable doubt. 

The law does not require that the government

prove guilt beyond all possible doubt; proof

beyond a reasonable doubt is sufficient to

convict. This burden never shifts to a

defendant. It is always the government's

burden to prove each of the elements of the

crimes charged beyond a reasonable doubt by

the evidence and the reasonable inferences to

be drawn from that evidence. A defendant has

the right to rely upon the failure or

inability of the government to establish

beyond a reasonable doubt any essential

element of an offense charged against him or

her. 

-21-
Second, we customarily assume that jurors follow the

instructions given to them by the district court. See MoralesVallellanes v. Potter, 605 F.3d 27, 34-35 (1st Cir. 2010) ("A basic

premise of our jury system is that the jury follows the court's

instructions, and therefore we assume, as we must, that the jury

acted according to its charge." (internal quotation marks

omitted)). Although the verdict form contained language suggesting

that innocence had to be proven beyond a reasonable doubt, it also

instructed that the jury could only find guilt if it found so

beyond a reasonable doubt. In addition to the language in the

verdict form making this requirement clear, the jury instructions

as to each specific count were also unambiguous about the showing

necessary to support a guilty verdict. In the instructions on

counts one and two, for example, the paragraph preceding the

elements of the offense reads as follows: "For you to find a

particular defendant guilty of conspiracy, you must be convinced

that the government has proven each of the following things beyond

a reasonable doubt." The jury instructions on counts three through

five contain similar language before listing the elements of those

crimes: "For you to find [defendant] guilty of this crime, you must

be satisfied that the government has proven each of the following

things beyond a reasonable doubt." Given these instructions --

which were read aloud by the judge before deliberations began, and

a copy of which were with the jury during their deliberations -- we

-22-
presume that when the jurors checked the "guilty" boxes on the

verdict form, they did so understanding that they could check that

box only if they found that the government had in fact proved that

defendants were guilty beyond a reasonable doubt. 

Finally, defendants put forward nothing to suggest that

they suffered prejudice from the erroneous language in the verdict

form. Instead of attempting to demonstrate actual prejudice,

defendants merely focus on the egregiousness of the error,

concluding that the language imposed an "impermissible burden"

which "negated" their "entitlement as a matter of law to an

acquittal should the Government's evidence . . . be deemed

insufficient." This error was especially injurious, they maintain,

because of the "nominal amount of evidence" the government

presented at trial. 

First, the evidence was far from nominal; indeed, it was

substantial. Second, this sort of general argument is insufficient

to "show that the error likely 'affected the outcome of the

district court proceedings.'"5

 Hebshie, 549 F.3d at 44 (emphasis

5 Some state courts have found that the use of nearly

identical language in verdict forms constitutes error warranting a

new trial, despite the fact that the defendants in those cases,

like defendants here, failed to challenge the verdict forms at

trial. See Cheddersingh v. State, 724 S.E.2d 366, 371 (Ga. 2012);

State v. McNally, 922 A.2d 479, 483 (Me. 2007); cf. State v.

Johnson, 842 P.2d 1287, 1289 (Ariz. 1992) (reversing where court

gave a similarly erroneous oral instruction). Although these

courts appear to apply a standard of review similar to the federal

plain error standard, none of these decisions contain a prejudice

analysis -- or at least the type of prejudice analysis that we are

-23-
added) (quoting United States v. Olano, 507 U.S. 725, 734 (1993));

see Jones v. United States, 527 U.S. 373, 394-95 (1999) ("Where the

effect of an alleged error is so uncertain, a defendant cannot meet

his burden of showing that the error actually affected his

substantial rights."). 

Having failed to establish prejudice, defendants cannot

show that the language in the verdict form constituted plain error

sufficient to warrant a new trial. 

IV.

Pabellón maintains that the district court's instructions

on count two were erroneous in that they failed to properly

instruct the jury as to the scienter element of the offense. 

Specifically, he argues that the instructions failed to specify

that in order to convict him on count two, the jury needed to find

that he had knowledge that the drugs that were the subject of the

deal had been imported from outside the United States. Because

Pabellón failed to object to the jury instruction, our review is

again limited to plain error. United States v. LaPlante, 714 F.3d

641, 643 (1st Cir. 2013). 

obligated to undertake on plain error review. These courts may

either be applying a relaxed state law version of the plain error

standard, or, though not denominated as such, structural error

analysis (though in McNally the Supreme Judicial Court of Maine

explicitly stated that it was not basing its decision on structural

error, 922 A.2d at 483 n.1). Because defendants do not allege that

the verdict form constituted structural error, we do not address

that argument. Also, we are not suggesting that this argument

would be viable. 

-24-
Here there was no error, much less plain error. As to

count two, the instructions read in relevant part: 

Defendants Jimmy CarrasquilloRodríguez, Jesús Pabellón-Rodríguez, and Ramon

González-Duarte are accused of conspiring to

commit a federal crime -- specifically, the

crime of importing into the United States from

the Dominican Republic, five kilograms or more

of cocaine. . . . 

For you to find a particular defendant

guilty of conspiracy, you must be convinced

that the government has proven each of the

following things beyond a reasonable doubt:

First, that the agreement specified in

the indictment . . . existed between at least

two people to import into the United States

from the Dominican Republic, five kilograms or

more of cocaine; and 

Second, that the defendant willfully

joined in that agreement; 

. . . .

To act "willfully" means to act

voluntarily and intelligently and with the

specific intent that the underlying crime be

committed -- that is to say, with bad purpose,

either to disobey or disregard the law -- not

to act by ignorance, accident or mistake. The

government must prove two types of intent

beyond a reasonable doubt before a defendant

can be said to have willfully joined the

conspiracy: an intent to agree and an intent,

whether reasonable or not, that the underlying

crime be committed. . . . 

(Emphasis added.) A finding of guilty on count two therefore

required that to "willfully" join the conspiracy to import cocaine

from the Dominican Republic to the United States, Pabellón had to

intend that the underlying crime -- "specifically, the crime of

importing into the United States from the Dominican Republic, five

-25-
kilograms or more of cocaine" -- be committed. The instruction

embraces the concept of knowledge that the drugs were imported: if

one intends to bring drugs from the Dominican Republic to the

United States, one must have knowledge that the drugs are being

brought into the United States across national borders. The

district court's instructions on count two were therefore not

improper, much less plainly erroneous.6

V.

Carrasquillo challenges his sentence, arguing that the

district court failed to consider the application of United States

Sentencing Guidelines ("U.S.S.G.") § 2D1.1, Application Notes 12

and 14. We consider his arguments as to each of these Notes in

turn. 

Note 12 states in pertinent part:

[I]n a reverse sting, the agreed-upon quantity

of the controlled substance would more

accurately reflect the scale of the offense

because the amount actually delivered is

controlled by the government, not by the

defendant. If, however, the defendant

establishes that the defendant did not intend

to provide or purchase, or was not reasonably

capable of providing or purchasing, the

agreed-upon quantity of the controlled

substance, the court shall exclude from the

offense level determination the amount of

controlled substance that the defendant

6 Pabellón also argues that the cumulative effect of the

errors he asserts undermines the jury's determination of guilt. We

have identified only one error related to his conviction: the

erroneous language in the verdict form. There is no cumulative

error argument available to him. 

-26-
establishes that the defendant did not intend

to provide or purchase or was not reasonably

capable of providing or purchasing. 

U.S.S.G. § 2D1.1 cmt. n.12 (2011). Carrasquillo maintains that the

conspirators' inability to pay for the ninety kilograms of cocaine

up front shows that they were not "reasonably capable of

purchasing" such a large amount of drugs.

We review a district court's factual findings as to drug

quantity under the sentencing guidelines for clear error. United

States v. Correa-Alicea, 585 F.3d 484, 489 (1st Cir. 2009). Here

the agreed-upon quantity was ninety kilograms. This quantity shall

be reduced under Application Note 12 only if "the defendant

establishes that the defendant did not intend to provide or

purchase, or was not reasonably capable of providing or purchasing,

the agreed-upon quantity of the controlled substance." U.S.S.G.

§ 2D1.1 cmt. n.12 (emphasis added). 

Carrasquillo never put forward evidence indicating that

he and his co-conspirators were not reasonably capable of

purchasing the ninety kilograms of cocaine that they agreed to

purchase. Although Carrasquillo and his co-conspirators were only

able to come up with an initial $59,000 to receive the first

thirty-kilo bale, they were to use the profits from the sale (that

same day) of the first bale to fund the purchase of the second

bale, which they would then sell to purchase a third bale. The

conspirators were so confident that they could pay the purchase

-27-
price of the drugs that they were willing to bet González's life on

it. We therefore conclude that the district court did not err in

failing to reduce Carrasquillo's offense level under the

circumstances set out in Note 12.

 Note 14 states: 

If, in a reverse sting (an operation in which

a government agent sells or negotiates to sell

a controlled substance to a defendant), the

court finds that the government agent set a

price for the controlled substance that was

substantially below the market value of the

controlled substance, thereby leading to the

defendant's purchase of a significantly

greater quantity of the controlled substance

than his available resources would have

allowed him to purchase except for the

artificially low price set by the government

agent, a downward departure may be warranted. 

Id. cmt. n.14. Carrasquillo maintains that his sentence should be

reduced pursuant to Application Note 14 because the government, by

agreeing to transfer control of the drugs to Carrasquillo based

substantially on credit, agreed to sell the drugs at a price

"substantially below the market value." 

 We find this argument unconvincing. Although there may

be instances in which a "credit arrangement" could implicate the

issues identified in Application Note 14, see United States v.

Ruiz, 446 F.3d 762, 774-75 (8th Cir. 2006) ("A generous credit

arrangement becomes increasingly suspect where the government

possesses limited assurances of the defendant's ability to be

trusted with repayment."), the human collateral arrangement here --

-28-
particularly given the relationship between the co-conspirators -- 

seriously undermines any argument that Application Note 14 applies. 

Furthermore, Carrasquillo put forward no evidence suggesting that

such credit arrangements are uncommon in the drug trafficking

trade, or that the terms of this credit arrangement were more

generous than in the usual case. It was therefore not clear error

for the district court to fail to reduce Carrasquillo's offense

level pursuant to Application Note 14.

VI.

For the foregoing reasons, we affirm Pabellon's

convictions on all counts. We affirm Carrasquillo's convictions

and their sentences as to all counts except count four. We vacate

Carrasquillo's conviction and sentence for count four. 

So ordered. 

-29-