*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

December 18, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ABEL BUSTOS, a/k/a Gavino Toledo,

Defendant-Appellant.

No. 07-5157

(D.Ct. No. 4:07-cr-00028-GKF-2)

(N.D. Okla.)

_____________________________

ORDER AND JUDGMENT*

Before BRISCOE, BRORBY, and EBEL, Circuit Judges.

Defendant-Appellant Abel Bustos appeals his convictions on grounds the

district court committed plain error in providing defective verdict forms which

impermissibly conditioned a “not guilty verdict” on a “beyond a reasonable

doubt” finding and abused its discretion by instructing the jury to consider his

immigration status in conjunction with the charge of being in possession of a

firearm in furtherance of a drug trafficking crime. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm Mr. Bustos’s convictions. 
-2-

I. Preliminary Background

Following a multiple count indictment charging him and his cousin,

Epifanio Bustos, with numerous drug related offenses, Abel Bustos (Mr. Bustos)

pled not guilty to the three counts in the indictment pertaining to him, including

possession of at least fifty grams of a substance containing methamphetamine

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii)

(Count 1); possession of a firearm and ammunition in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 3); and being

an illegal alien in possession of a firearm and ammunition, in violation of 18

U.S.C. § 922(g)(5) (Count 5). A trial followed, in which the jury found Mr.

Bustos guilty of Count 5 for being an illegal alien in possession of a firearm and

ammunition. However, the jury could not reach a verdict on the other two counts,

leading to a second trial on Counts 1 and 3. At the second trial, the jury found

Mr. Bustos guilty of both Counts 1 and 3. The district court sentenced Mr.

Bustos to sixty-three months imprisonment on Counts 1 and 5, to be served

concurrently, with a term of supervised release of five years, and a fine of $1,000

on Count 1; and sixty months imprisonment on Count 3, to be served

consecutively to the other counts, with a term of supervised release of three years. 

While Mr. Bustos’s first appeal issue is premised on the verdict forms

provided to the jury at both trials as they apply to each count on which he was
-3-

convicted, the parties rely primarily on the evidence presented at the second trial

to support their arguments on that issue. In contrast, the second appeal issue is

premised solely on the jury instructions from the second trial as they relate to

Count 3. We have compared the relevant evidence presented in both trials and

note the same witnesses presented substantially the same testimony. Where

relevant, we note facts applicable exclusively to each trial as they pertain to the

separate count or counts on which Mr. Bustos was convicted.

II. Factual Background

At both jury trials the government offered the testimony of Tulsa,

Oklahoma Police Officer Greg McGowan, who conducted the January 17, 2007

traffic stop involving Mr. Bustos. Officer McGowan testified he stopped the

driver of a Ford Mustang, Epifanio Bustos, for failure to wear a seatbelt. 

Because the driver did not possess a valid driver’s license, Officer McGowan

asked both the driver and his passenger, the defendant, Mr. Bustos, for their

names; Mr. Bustos falsely identified himself as “Gavino Toledo.” After learning

Epifanio Bustos had an outstanding misdemeanor arrest warrant, Officer

McGowan radioed for assistance. Once Tulsa Police Officer Steve Castleberry

arrived, the officers instructed Epifanio Bustos to step out of the car and arrested

him on the outstanding warrant. 
1

 At the first trial, a forensic scientist testified that the net amount of

methamphetamine contained in the baggie found in the vehicle was 52.92 grams;

at the second trial, the parties stipulated 52.92 grams was the net amount found in

the vehicle. 

2

 At both trials, the pistol under the passenger’s seat was identified as a .40

S&W caliber Smith and Wesson pistol, model SW40VE, serial number PDV6436,

and the ammunition as thirteen rounds of Remington Peters .40 S&W caliber JWC

ammunition. 

-4-

Officer McGowan then instructed Mr. Bustos to exit the car and began a

search of the vehicle, where he discovered a loaded pistol and a box containing

numerous .40-caliber rounds of ammunition under the driver’s seat. In the back

seat he also found a gun case containing a digital scale with a plastic baggie

containing a white crystal-like substance. It was later determined the baggie

found in the vehicle held 52.92 grams of a substance containing a detectable

amount of methamphetamine.1

Officer Castleberry also testified, explaining he searched the passenger’s

side of the vehicle and discovered a loaded .40-caliber semi-automatic pistol

under the front passenger’s seat as well as thirteen rounds of ammunition.2

 Mr.

Bustos was then arrested and a search of his person resulted in the discovery of

$810 in cash and a Mexican identification card in the name of Gavino Toledo. 

Officer Castleberry and another officer, Frank Khalil, who speaks Spanish,

were present during a subsequent interview of Mr. Bustos and offered the
-5-

following evidence. They testified Mr. Bustos was verbally read his Miranda

rights in Spanish and provided a document with his Miranda rights printed on it

in Spanish, which Mr. Bustos signed. Mr. Bustos acknowledged he understood

his rights and that he was waiving those rights. According to the officers, Mr.

Bustos clearly understood the questions and discussion in the subsequent

interview, which was conducted primarily in English, and responded to the

questions posed without any hesitation or confusion. During the interview, Mr.

Bustos stated: (1) his real name was Abel Bustos; (2) he was an illegal alien; (3)

he and Epifanio were in the drug business together; (4) the drugs found in the

vehicle belonged to them; (5) they purchased approximately two ounces of

methamphetamine a couple of days prior to their arrest; and (6) they typically

packaged and sold their drugs in $20 baggies (i.e., each containing $20 worth of

methamphetamine).

During the interview, Mr. Bustos also admitted the semi-automatic pistol

found under the front passenger’s seat belonged to him, and, at the time of the

traffic stop, he and Epifanio each placed their guns underneath their seats. 

Finally, during his interview, Mr. Bustos explained to the officers that his

Mexican identification card containing the name Gavino Toledo was a fake. 

At the second trial, Officers Castleberry and Khalil testified as to their
-6-

considerable training and experience in narcotics investigations. Based on that

training and experience, they stated their opinion that possession of more than

two ounces of methamphetamine, together with digital scales, firearms, false

identification to avoid detection, and a large amount of cash in the amount of

$810, indicated Mr. Bustos was engaged in a scheme to illegally distribute drugs. 

At both trials Mr. Bustos testified on his own behalf, admitting he was born

in Mexico in 1977, came to the United States in 1989, and is an illegal alien. He

also gave evidence he was educated in the United States, where he learned to read

and write in English and that he speaks both Spanish and English, but he reads

and writes better in English and speaks better in Spanish. He also stated he

stayed with his girlfriend, Rosa Marian Soto-Ramos, in a hotel for a few days

before going to his aunt’s house on January 13 or 14, 2007. According to him, he

left his aunt’s house on January 17 when Epifanio gave him a ride to pick up a

cell phone and they were stopped by the police. At the second trial, Mr. Bustos

specifically testified he had not been alone with Epifanio any time in the five

days preceding his arrest, never left the hotel by himself, and did not leave his

aunt’s house until January 17, 2007, thereby intimating he did not have the

opportunity to purchase drugs a few days prior to his arrest, as allegedly stated in

his interview. 
-7-

At both trials, Mr. Bustos also testified he was unaware guns or drugs were

in Epifanio’s car until the traffic stop, when Epifanio told him. He also denied

telling police officers he was dealing drugs with his cousin or sold $20 drug

baggies. He stated that at the time of the traffic stop he picked up a gun that was

between the seats and put it under his seat because he was nervous. More

specifically, at the first trial, he testified that he briefly possessed the gun when

he picked it up and put it under the seat and stipulated that the gun was

manufactured outside the state and that it traveled in interstate commerce. At the

second trial, he stipulated the pistol and thirteen rounds of .40-caliber ammunition

were possessed by him on January 17, 2007, and that the firearm was functional

and capable of firing a projectile. Also at the second trial, he testified his fake

identification card was for the purpose of obtaining employment and admitted he

understood and waived his Miranda rights and understood the questions he was

asked in English during his interview. 

Ms. Soto-Ramos also testified at both trials and stated that beginning on

January 11, 2007, she and Mr. Bustos stayed together at a hotel for three days,

and due to adverse weather they did not leave the hotel during their stay. She

stated they went to Mr. Bustos’s aunt’s house on January 14, 2007, where they

stayed until January 17, 2007, when Mr. Bustos left the house and was arrested. 

At the second trial, Mr. Bustos’s father testified, merely confirming Mr. Bustos
3

 Regarding the verdict forms issue presented, we consider the jury

instructions used at both trials only for the purpose of determining whether the

jury verdict forms used constituted plain error, and we do not otherwise consider

the content or substance of the jury instructions.

-8-

was born in Mexico in 1977, came to the United States in 1989, attended school

in the United States, and his grandmother’s surname was “Toledo.” 

III. Issue: Jury Verdict Forms

A. Jury Instructions

At the beginning of both trials, the district court read the opening

instructions to the jury, explaining that Mr. Bustos “pleaded not guilty and is

presumed innocent,” and “may not be found guilty by you unless ... you

unanimously find that the government has proved his guilt beyond a reasonable

doubt.”3

 R., Vol. 1, Doc. 59 at 2; Doc. 85 at 2; Vol. 4 at 17; Vol. 8 at 11. The

district court further instructed, “I remind you that the defendant is presumed

innocent and it is the government that must prove the defendant’s guilt beyond a

reasonable doubt.” R., Vol. 1, Doc. 59 at 3; Doc. 85 at 3.

Similarly, prior to the jury’s deliberations, the district court read the

closing instructions, which reiterated principles regarding Mr. Bustos’s

presumption of innocence, the government’s burden of proof, and the standard of

reasonable doubt required for a guilty verdict. For instance, one closing
-9-

instruction used in both trials stated, in part:

The government has the burden of proving the defendant guilty

beyond a reasonable doubt. The law does not require a defendant to

prove his innocence or produce any evidence at all. The government

has the burden of proving the defendant guilty beyond a reasonable

doubt, and if it fails to do so, you must find the defendant not guilty.

R., Vol. 1, Doc. 59 at 8; Doc. 85 at 8; Vol. 6 at 260; Vol. 9 at 199. Other closing

instructions similarly instructed the jury, stating, “[y]ou are here to decide

whether the government has proved beyond a reasonable doubt that the defendant

is guilty of the crime charged,” and “[t]he defendant is presumed to be innocent

of the crime charged.” R., Vol. 1, Doc. 59 at 15, 18; Doc. 85 at 15, 18. When

instructing the jury on the essential elements of each offense charged, the district

court instructed: “[t]o find the defendant guilty of this crime you must be

convinced that the United States has proved each of the following [elements]

beyond a reasonable doubt ....” R., Vol. 1, Doc. 59 at 32; Doc. 85 at 23, 29. In

instructing the jury in reaching a verdict, the district court instructed:

If you find from the evidence in this case and under these

instructions, beyond a reasonable doubt, that the defendant, Abel

Bustos, is guilty of any of the crimes charged against him in this

case, then you should find the defendant guilty ....

If, however, you do not so find, or if you entertain a reasonable

doubt as to the guilt of the defendant, Abel Bustos, as to any or all of

the crimes charged against him, then you should find the defendant

Abel Bustos not guilty ....

The court will furnish verdict forms for your use.

R., Vol. 1, Doc. 59 at 40; Doc. 85 at 35. Finally, regarding the jury’s
-10-

deliberations, it instructed: “[y]ou must decide whether the government has

proved the defendant guilty beyond a reasonable doubt.” R., Vol. 1, Doc. 59 at

41; Doc. 85 at 36.

B. Jury Verdict Forms

The jury verdict form used in the first trial on Count 5 read as follows:

VERDICT FORM - COUNT FIVE

We the jury, duly impaneled and sworn in the above case,

unanimously find beyond a reasonable doubt as follows as to Count

Five of the Indictment:

Count Five

On or about the 17th day of January 2007, in the Northern

District of Oklahoma, Abel Bustos, a/k/a/ “Gavino Toledo,”

defendant herein, then being an alien illegally and unlawfully in the

United States, did knowingly possess in or affecting commerce, a

firearm or ammunition, to wit:

1. One Smith and Wesson, Model SW40VE, .40 S&W caliber, pistol,

serial number PDV6436;

2. Thirteen rounds, Remington Peters, .40 S&W caliber, JWC

ammunition, 

in violation of Title 18, United States Code, Section 922(g)(5).

NOT GUILTY ___ GUILTY ___

R., Vol. 1, Doc. 57. The jury verdict forms used at the second trial, on Counts 1

and 3, were framed in a similar fashion, as follows:
-11-

VERDICT FORM - COUNT ONE

We the jury, duly impaneled and sworn in the above case,

unanimously find beyond a reasonable doubt as follows as to Count

One of the Indictment:

Count One

On or about the 17th day of January 2007, in the Northern

District of Oklahoma, Abel Bustos, a/k/a “Gavino Toledo,” defendant

herein, did knowingly and intentionally possess with the intent to

distribute 50 grams or more of a mixture or substance containing a

detectable amount of methamphetamine, a Schedule II controlled

substance, in violation of Title 21, United States Code, Sections

841(a)(1) and (b)(1)(B)(viii). 

NOT GUILTY ___ GUILTY ___

VERDICT FORM - COUNT THREE

We the jury, duly impaneled and sworn in the above case,

unanimously find beyond a reasonable doubt as follows as to Count

Three of the Indictment:

Count Three

On or about the 17th day of January 2007, in the Northern

District of Oklahoma, Abel Bustos, a/k/a “Gavino Toledo,” defendant

herein, did knowingly possess a firearm, to wit, a Smith and Wesson,

Model SW40VE, .40 S&W caliber, pistol, serial number PDV6436 in

furtherance of a drug trafficking crime for which he may be

prosecuted in a court of the United States, to wit, possession with

intent to distribute methamphetamine as charged in Count One

above, in violation of Title 18, United States Code, Section

924(c)(1)(A)(i).

NOT GUILTY ___ GUILTY ___

R., Vol. 1, Docs. 86-87. Mr. Bustos did not raise an objection to the jury verdict

forms at trial. 
-12-

C. Discussion

In his first issue on appeal, Mr. Bustos contends the district court

committed plain error in providing the jury with these verdict forms, which he

claims conditioned “a not guilty verdict on a unanimous finding beyond a

reasonable doubt.” Apt. Br. at 8. In support, he explains that because “the spaces

for recording a not guilty verdict followed after the declaration of a verdict

beyond a reasonable doubt,” it created “a reasonable likelihood that the jury

applied the wrong standards.” Id. at 6. Specifically, he suggests the presumption

of innocence was negated or destroyed and the burden of proof shifted because it

appeared he had to prove his own innocence beyond a reasonable doubt. In

making his plain error argument, Mr. Bustos contends, without further

explanation or detail, that the jury verdict form errors affected his substantial

rights by determining the outcome of the case and struck “directly at the fairness,

integrity, and public reputation of the proceedings.” Id. at 6.

“We review de novo the jury instructions as a whole and view them in the

context of the entire trial to determine if they accurately state the governing law

and provide the jury with an accurate understanding of the relevant legal

standards and factual issues in the case.” United States v. Bedford, 536 F.3d

1148, 1152 (10th Cir. 2008) (quotation marks and citations omitted). Therefore,

we review de novo whether a jury was misled on the applicable law. See
-13-

Hardeman v. City of Albuquerque, 377 F.3d 1106, 1123 (10th Cir. 2004). With

respect to individual instructions, “[w]e review the district court’s decision to

give or to refuse a particular jury instruction for abuse of discretion.” Bedford,

536 F.3d at 1152. Generally, “[w]e review verdict forms under the same abuse of

discretion standard we apply to jury instructions,” United States v. Stiger, 413

F.3d 1185, 1190 (10th Cir. 2005) (quotation marks and citation omitted), and will

reverse only if we have “substantial doubt that the jury was fairly guided,” United

States v. Smith, 13 F.3d 1421, 1424 (10th Cir. 1994) (quotation marks and citation

omitted). However, in this case, because Mr. Bustos did not raise his objections

to the verdict forms at trial, we review them for plain error. See United States v.

LaVallee, 439 F.3d 670, 684 (10th Cir. 2006). To satisfy this standard, Mr.

Bustos must show: (1) an error; (2) that is plain; (3) which affects his substantial

rights; and (4) seriously affects the fairness, integrity, or public reputation of

judicial proceedings. See United States v. Zapata, 546 F.3d 1179, 1190 (10th Cir.

2008), cert. denied, ___ S. Ct. ___, 2008 WL 4905459 (Dec. 15, 2008) (No. 08-

7263). The elements in establishing plain error are conjunctive, and only “[i]f all

four prongs are satisfied, ... may [we] then exercise our discretion to notice the

forfeited error.” United States v. Gonzalez Edeza, 359 F.3d 1246, 1250 (10th Cir.

2004) (quotation marks and citation omitted). 

In analyzing the third prong on whether the alleged error affected a
-14-

substantial right, the defendant must show the error was “prejudicial,” so that the

error “must have affected the outcome of the district court proceedings.” United

States v. Olano, 507 U.S. 725, 734 (1993). Stated another way, the defendant

must show “a reasonable probability that, but for the error claimed, the result of

the proceeding would have been different.” United States v. Dominguez Benitez,

542 U.S. 74, 81-82 (2004) (quotation marks and citation omitted). Similarly, we

have held a defendant cannot satisfy the fourth prong – that the error seriously

affected the fairness, integrity, or public reputation of the judicial proceedings –

if there is overwhelming and essentially uncontroverted evidence of the

defendant’s guilt as to the charged crime. See United States v. Brown, 400 F.3d

1242, 1254 (10th Cir. 2005). In applying these principles, “we generally presume

that juries follow courts’ instructions,” United States v. Taylor, 514 F.3d 1092,

1100 (10th Cir. 2008), and “do not weigh conflicting evidence or make credibility

determinations as these are exclusively functions of the jury,” Zapata, 546 F.3d at

1188.

In this case, we agree the verdict forms should have been better constructed

to eliminate any question, as raised here, that the applicable standard of

reasonable doubt and burden of proof might somehow be applied to a finding of 

“not guilty,” rather than only to a finding of “guilty.” However, even if plain

error occurred in their construction, Mr. Bustos has failed to establish the third
-15-

prong of the plain error analysis to show such an error affected his substantial

rights. This is because a review of the record establishes the juries at both trials

were presented with opening and closing jury instructions that clearly and

repeatedly articulated the presumption of innocence principle and explained that

the applicable standard of reasonable doubt and the government’s burden of proof

applied only to a finding of guilty, and not, as argued, to a “not guilty” finding. 

As a result, the jury instructions more than sufficiently stated the governing

law and provided the jury with an intelligent, meaningful understanding of the

applicable issues and standards, making it improbable the jury at either trial

applied the wrong standard or burden based on any faulty construction of the

disputed jury verdict forms. See United States v. Cerrato-Reyes, 176 F.3d 1253,

1262 (10th Cir. 1999) (holding jury was not misled by one instruction which

failed to clearly state the government’s burden of proof beyond a reasonable

doubt, in view of the instructions as a whole, which repeatedly informed the jury

that the government had the burden to prove the defendant’s guilt beyond a

reasonable doubt, and there was no indication the burden of proof ever shifted to

the defendant), abrogation on other grounds recognized by United States v.

Overstreet, 51 F.App’x 838, 841 n.1 (10th Cir. Nov. 20, 2002) (unpublished op.). 

Thus, Mr. Bustos has not shown, nor does the record disclose, any prejudice

caused by the jury verdict forms, as it is evident they did not affect the outcome
-16-

of the district court proceedings. See Olano, 507 U.S. at 734. In other words, he

has not shown the result of either trial would have been different but for the

allegedly defective jury verdict forms. See Dominguez Benitez, 542 U.S. at 81-

82. 

Our conclusion is bolstered by the evidence presented at both trials. While

we need not address the fourth prong of the plain error test because all four

prongs must be satisfied to establish plain error, we do so for Mr. Bustos’s benefit

to eliminate any doubt as to the serious allegations associated with his claimed

jury verdict form error. In this case, the record shows overwhelming and

essentially uncontroverted evidence supported the juries’ findings that Mr. Bustos

was guilty of the counts charged, which negates his allegation that the verdict

form error seriously affected the fairness, integrity, or public reputation of the

judicial proceedings. This is especially relevant with respect to Count 5, on

which Mr. Bustos was convicted in the first trial. During that trial, Mr. Bustos

admitted he was an illegal alien and possessed the firearm when he placed it

under the passenger’s seat and stipulated the firearm was manufactured outside

the state and traveled in interstate commerce. His admissions and stipulation are

sufficient to meet the elements necessary for the crime charged under 18 U.S.C.

§ 922(g)(5) for being an illegal alien knowingly in possession a firearm in or

affecting interstate commerce. Thus, even if we disregard Mr. Bustos’s own
-17-

admissions during his police interview that he was an illegal alien and the firearm

belonged to him, overwhelming and uncontroverted evidence supported the

charge in Count 5. For this reason, we conclude any error in the jury verdict form

on Count 5 did not seriously affect the fairness, integrity, or public reputation of

his first trial. See Brown, 400 F.3d at 1253-54. 

The same is true with respect to the second trial and Counts 1 and 3,

concerning his possession of at least fifty grams of a substance containing

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B)(viii), and possession of a firearm and ammunition in furtherance of

a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). 

Uncontroverted evidence established the vehicle Mr. Bustos occupied contained

more than two ounces of methamphetamine, together with digital scales, loaded

firearms, and ammunition located under the driver’s and passenger’s seats – none

of which Mr. Bustos denied were found in the vehicle. Mr. Bustos also stipulated

at the second trial that the pistol and thirteen rounds of .40-caliber ammunition

found under the passenger’s seat were possessed by him and that the plastic

baggie found in the vehicle specifically held 52.92 grams of a substance

containing a detectable amount of methamphetamine. In addition, Mr. Bustos did

not deny he had on his person $810 in cash and a fake identification card

containing a false name. Two officers with extensive training and expertise in
-18-

narcotics investigations also testified that, based on their training and expertise, it

was their opinion that possession of more than two ounces of methamphetamine,

together with digital scales, firearms, false identification to avoid detection, and a

large amount of cash in the amount of $810, indicated a scheme to illegally

distribute drugs. 

In convicting Mr. Bustos of Count 1, it is evident the jury credited this

evidence, as well as the officers’ testimony that he made incriminating admissions

during his police interview when he stated he and Epifanio Bustos were in the

drug business together; the drugs found in the vehicle belonged to them; they

purchased approximately two ounces of methamphetamine a couple of days prior

to their arrest; they typically packaged and sold their drugs in $20 baggies; the

semi-automatic pistol found under the front passenger’s seat belonged to him;

and, at the time of the traffic stop, both he and Epifanio placed their guns

underneath their seats. Similarly, in support of Count 3, it is clear the firearm

Mr. Bustos admitted to possessing, located under the front passenger’s seat, was

in close proximity to the drugs and drug scale found in the back seat of the

vehicle. It was also loaded and situated where it was readily accessible to Mr.

Bustos, as admitted by him when he explained he hid it under his seat. 

It is also evident from the testimony of the officers interviewing Mr.
-19-

Bustos, as well as his own testimony, that he had sufficient comprehension of

both English and Spanish, thereby dispelling any inference he did not understand

his Miranda rights or what he was asked and answered when he made his

incriminating admissions. A review of the record also shows the government’s

overwhelming inculpatory evidence was essentially uncontroverted, other than by

Mr. Bustos’s own self-serving statements, as well as his girlfriend’s and father’s

testimony, which offered little exculpatory evidence. Obviously, the jury

discredited their testimony when it found Mr. Bustos guilty of both the drug

trafficking and firearm charges. 

Because overwhelming and essentially uncontroverted evidence in the

record establishes Mr. Bustos’s guilt as to the charged crimes in Counts 1 and 3,

we conclude any error in the jury verdict forms did not seriously affect the

fairness, integrity, or public reputation of his second trial. See Brown, 400 F.3d

at 1253-54. For these reasons, we conclude Mr. Bustos’s arguments fail to

support his plain error claim on the issue of the verdict forms.
-20-

IV. Second Issue: Count 3

A. Jury Instructions on Firearm in Furtherance of Drug Trafficking Crime

During the second trial, Mr. Bustos’s counsel took up the issue of whether

being an illegal alien in possession of a firearm was relevant to Count 3 for being

in possession of a firearm in furtherance of a drug trafficking crime. He first

filed a motion in limine requesting the government be precluded from eliciting

testimony or referencing Mr. Bustos’s status as an illegal alien. He also

specifically objected to two instructions, the first of which stated: “Possession of

a Firearm or Ammunition by an Illegal Alien: You are instructed as a matter of

law that it is a violation of Federal law for an alien who is illegally and

unlawfully in the United States to possess a firearm or ammunition.” R., Vol. 1,

Doc. 85 at 32; Vol. 9 at 196-97; Apt. Br. at 15. The second instruction objected

to by Mr. Bustos stated:

Uncharged Conduct

The defendant is on trial only for the offenses charged in the

Indictment.

Evidence of the Defendant’s immigrant status should not be

considered by you except as it may help you in assessing the status

of the possession (legitimate or illegal) of the firearm in your

determination of whether the alleged possession of a firearm

furthered, advanced, or helped advance a drug trafficking crime. 

R., Vol. 1, Doc. 85 at 33; Vol. 9 at 196-97; Apt. Br. at 14. These instructions
4

 See United States v. Basham, 268 F.3d 1199, 1206-08 (10th Cir. 2001).

-21-

were used in conjunction with a Basham-related instruction,4 which stated, in

part:

Essential Elements of the Offense Charged in Count Three

The defendant is charged in Count Three with a violation of 18

U.S.C. Section 924(c)(1)(A)(i).

This law makes it a crime to possess a firearm in furtherance

of a drug trafficking crime.

To find the defendant guilty of this crime you must be

convinced that the United States has proved each of the following

beyond a reasonable doubt:

First: the defendant committed the crime of possession with

intent to distribute of a controlled substance, as charged

in Count One of the indictment, which is a drug

trafficking crime;

Second: the defendant possessed a firearm in furtherance of this

crime. 

....

Mere presence of a firearm at the scene is not enough to find

possession in furtherance of a drug trafficking crime, because the

firearm’s presence may be coincidental or entirely unrelated to the

underlying crime. Some factors that may help in determining

whether possession of a firearm furthers, advances, or helps advance

a drug trafficking crime include, but are not limited to:

1. the type of criminal activity that is being conducted;

2. accessibility of the firearm;

3. the type of firearm;

4. whether the firearm is stolen;

5. the status of the possession (legitimate or illegal); 
-22-

6. whether the firearm is loaded;

7. the time and circumstances under which the firearm is found; and 

8. proximity to drugs or drug profits.

R., Vol. 1, Doc. 85 at 29-30; Apt. Br. at 14-15 (emphasis added). 

While it is evident from the record that the district court considered Mr.

Bustos’s jury instruction objection, it did not formally rule on his objection but

expressly addressed Mr. Bustos’s motion in limine requesting the government be

precluded from eliciting testimony or referencing Mr. Bustos’s status as an illegal

alien. It denied the motion on grounds his illegal alien status was relevant, not

unreasonably prejudicial, and important in understanding the entire context of the

charged offense. We construe this, as well as the district court’s use of the

contested instructions, as an implicit denial of his objection to those instructions. 

See Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1116 (10th Cir. 2004). 

B. Discussion

In his second issue on appeal, Mr. Bustos contends the district court abused

its discretion at the second trial by using these jury instructions, arguing they

required the jury to consider his “immigration status as relevant to the legitimacy

of the firearm possession for the purposes of the § 924(c) count.” Apt. Br. at 1. 

Specifically, he suggests the instructions to which he objected were impermissibly

used in conjunction with the Basham instruction and constituted error because
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possession of a firearm by an illegal alien was not salient to the issue of whether

his possession was in furtherance of drug trafficking, and no evidence showed a

possible connection between drug trafficking and his illegal possession of a

firearm. He argues the contested instructions were prejudicial because they

misled or influenced the jury into affording greater weight to the factor of illegal

possession of a firearm by an illegal alien, and its prejudicial effect is evident,

given his testimony he had no involvement with drugs and only possessed the

firearm long enough to secrete it immediately after learning of its presence which

created grave doubt as to the jury’s verdict. For these reasons, he suggests the

erroneous instructions had a substantial influence on the outcome of the trial. 

As previously discussed, “[w]e review de novo the jury instructions as a

whole and view them in the context of the entire trial to determine if they

accurately state the governing law and provide the jury with an accurate

understanding of the relevant legal standards and factual issues in the case.”

Bedford, 536 F.3d at 1152. In turn, “[w]e review the district court’s decision to

give or to refuse a particular jury instruction for abuse of discretion.” Id. We

have held an erroneous instruction requires a new trial unless it appears “beyond a

reasonable doubt that the error complained of did not contribute to the verdict

obtained.” United States v. Smith, 534 F.3d 1211, 1220 (10th Cir. 2008) (quoting

United States v. Luke-Sanchez, 483 F.3d 703, 705 (10th Cir. 2007)), cert. denied,
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___ S. Ct. ___, 2008 WL 4734535 (Dec. 1, 2008) (No. 08-6960).

The statute on which Mr. Bustos’s Count 3 conviction rests, and his

appellate issue arises, states, in relevant part:

[A]ny person who, during and in relation to any crime of violence or

drug trafficking crime ... uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm, shall, in addition

to the punishment provided for such crime of violence or drug

trafficking crime ... be sentenced to a term of imprisonment of not

less than 5 years. 

18 U.S.C. § 924(c)(1)(A). We have held the “in furtherance of” element requires

the government to show possession of the firearm furthered, promoted, or

advanced the drug trafficking crime, see United States v. Jenkins, 313 F.3d 549,

559 (10th Cir. 2002), and therefore, it must demonstrate a direct connection

between the firearm and drug offense, see Basham, 268 F.3d at 1207. In the

context of drug distribution offenses, we view firearms as “tools of the trade” in

the distribution of illegal drugs, see United States v. Hall, 473 F.3d 1295, 1304

(10th Cir. 2007), but in Basham, we cautioned that “[m]ere presence of a firearm

at the scene is not enough to find possession in furtherance of a drug trafficking

crime, because the firearm’s presence may be coincidental or entirely unrelated to

the underlying crime,” 268 F.3d at 1206. Instead, we held the government’s

burden may be met by introducing evidence the defendant intended to keep the

firearm available for use during a drug transaction and that such intent may be
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established by circumstantial evidence. See id. at 1208. We then set out a list of

non-exhaustive factors for determining whether a firearm was used in furtherance

of a drug trafficking crime, including: (1) the type of drug activity being

conducted; (2) accessibility of the firearm; (3) the type of weapon; (4) whether

the weapon was stolen; (5) the status of the possession (legitimate or illegal); (6)

whether the gun is loaded; (7) the gun’s proximity to drugs or drug profits; and

(8) the time and circumstances under which the gun was found. See id. at 1207-

08. We determined these non-exhaustive factors are relevant and helpful to a jury

in attempting to discern the defendant’s intent in possessing a weapon. See id. at

1208.

To the extent Mr. Bustos is contesting the use of the illegal status of

possession factor applied in the Basham instruction, we note that not only this

circuit, but other circuits have determined this is a relevant factor in determining

if a firearm was used in furtherance of a drug trafficking crime. See United States

v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002); United States v. Timmons, 283 F.3d

1246, 1253 (11th Cir. 2002); United States v. Mackey, 265 F.3d 457, 462 (6th Cir.

2001); United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000) (en

banc). While this circuit has not had occasion to specifically address its

relevance to the crime charged, the Fourth Circuit has, and, in so doing,

determined the fact a defendant was a felon in illegal possession of a firearm was
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relevant in determining whether he possessed the firearm in furtherance of a drug

trafficking crime. See Lomax, 293 F.3d at 706. While it provided no further

discussion on this point, we agree with its conclusion and continue to hold illegal

firearm possession is a relevant factor in determining whether possession of a

firearm or ammunition was in furtherance of a drug trafficking crime. We base

our conclusion, in part, on the fact that if possession of the firearm is illegal, then

it follows that a reason may exist as to why a defendant would nevertheless

possess it in violation of the law and in the face of stiff penalties assessed for

such illegal possession. See 18 U.S.C. § 924(a)(2) (providing one who violates

18 U.S.C. § 922(g) for illegal possession of a firearm shall be imprisoned for not

more than ten years). It is reasonable to conclude possession of a firearm in

furtherance of a drug trafficking crime could be one explanation as to why a

defendant might risk possessing a firearm, even if such possession is illegal and

potentially subjects the possessor to a penalty of up to ten years imprisonment. 

Consequently, the illegal status of a defendant’s firearm possession has

probative value in terms of determining if that possession was in furtherance of a

drug trafficking crime. For this reason, we conclude the district court did not

abuse its discretion by including the status of possession factor as one of the

factors in the Basham jury instruction. In addition, the district court also did not

abuse its discretion in using the other contested jury instructions relating to Mr.
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Bustos’s illegal alien status. The district court’s instruction to the jury that it is a

violation of law for an illegal alien to possess a firearm or ammunition was

merely for the purpose of apprising the jury of the applicable law for the purpose

of assessing the status of possession factor. This instruction was appropriately

tempered with another jury instruction explaining Mr. Bustos’s immigrant status

should not be considered except as it may help in assessing the legal or illegal

status of his firearm possession in determining whether his possession furthered a

drug trafficking crime. As previously stated, “we generally presume that juries

follow courts’ instructions,” Taylor, 514 F.3d at 1100, and nothing in the record

or Mr. Bustos’s argument convinces us otherwise.

For these reasons, we conclude the district court did not abuse its discretion

in using the contested instructions. In so concluding, we disagree with Mr.

Bustos that his testimony – that he had no involvement with drugs and only

possessed the firearm long enough to secrete it – is sufficient to show the

prejudicial effect of those instructions. Rather, as noted, it is evident the jury

discredited his self-serving statements and that overwhelming evidence supported

the jury’s verdict on Count 3, where Mr. Bustos admitted possessing a loaded

firearm located under his seat which was readily accessible to him and in close

proximity to the drugs and drug scale in the back seat of the vehicle. For this

reason, even if the use of the contested instructions was erroneous, it appears
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“beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained.” Smith, 534 F.3d at 1220.

V. Conclusion

For the reasons provided herein, we AFFIRM Mr. Bustos’s convictions.

Entered by the Court:

WADE BRORBY

United States Circuit Judge