United States v. Jose Latorre-Cacho

United States Court of Appeals
For the First Circuit
No. 15-1295
UNITED STATES,
Appellee,
v.
JOSE LATORRE-CACHO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Thompson, Selya, and Barron,
Circuit Judges.
Tina Schneider was on brief for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief for appellee.
October 25, 2017

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BARRON, Circuit Judge. In 2014, a jury convicted Jose
Latorre-Cacho ("Latorre") of one count of conspiracy in violation
of 18 U.S.C. § 1962, which is a provision of the Racketeer
Influenced and Corrupt Organization ("RICO") Act. He now appeals.
Due to the portion of the jury instructions in which the District
Court incorrectly described what constitutes "racketeering
activity" under the Act, we vacate Latorre's conviction and remand
for further proceedings.
I.
In 2014, a multi-count, multi-defendant federal
indictment in the District of Puerto Rico charged Latorre with
RICO conspiracy in violation of 18 U.S.C. § 1962(d); conspiracy to
possess with intent to distribute a controlled substance in
violation of 21 U.S.C. §§ 841, 846 and 860; and conspiracy to
possess firearms in violation of 18 U.S.C. §§ 924(c)(1)(A) and
924(o). Latorre went to trial on all three counts. A jury
convicted him only of RICO conspiracy, which was listed as Count
I of the indictment. The District Court then sentenced Latorre to
a term of 120 months, to be followed by five years' supervised
release.
18 U.S.C. § 1962(d) makes it a crime to conspire to
commit a RICO Act violation. Id. 18 U.S.C. § 1962(c) provides
that it is unlawful under the RICO Act "for any person employed by
or associated with any enterprise engaged in, or the activities of

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which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such
enterprise's affairs through a pattern of racketeering activity or
collection of unlawful debt." Id.
A separate provision of the statute defines what
constitutes "racketeering activity" to include, among other
conduct: "any act or threat involving murder, kidnapping,
gambling, arson, robbery, bribery, extortion, dealing in obscene
matter, or dealing in a controlled substance or listed chemical."
Id. § 1961. That definition does not, however, include the
commission of firearms offenses, or even the involvement with
firearms, as "racketeering activity."
This last fact about the RICO Act's definition of
"racketeering activity" is a key component of one of Latorre's
challenges to his conviction on appeal. In particular, that
challenge takes aim at a portion of the extensive instructions
that the District Court gave the jury about it what it had to find
in order to convict Latorre of RICO conspiracy. In that portion
of the instructions, the District Court, in the course of
describing what constitutes "a pattern of racketeering activity,"
twice incorrectly stated that "firearms" constitutes "racketeering
activity." Specifically, the District Court stated:

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To establish a pattern of racketeering activity as
alleged in Count I of the indictment, the government
must prove three elements beyond a reasonable doubt.
First, that the defendant agreed that a conspirator,
which could include the defendant himself, did or would
intentionally commit or cause or aid and abet the
commission of two or more of the racketeering acts of
the types alleged in the indictment. Drug dealing,
firearms, robberies, carjackings.
...
Later in these instructions, I will detail for you
elements regarding each of these types of racketeering
activities. But you know from the summary I have given
you up to now that the types of racketeering activity
are the ones I just mentioned a minute ago, narcotics
distribution, robberies, and carjackings, and of course
firearms. (Emphases added).
On appeal, Latorre argues that his conviction must be
overturned because of the mistaken instructions that "firearms"
constitute "racketeering activity." He notes in this regard that
the government put forth extensive evidence of both the
enterprise's and Latorre's involvement with "firearms," and that
Latorre testified at trial that he had no sufficient connection to
the enterprise's racketeering activity (through firearms or
otherwise) to be found guilty of conspiring to commit a RICO Act
violation.
Latorre also presses three other challenges on appeal.
He argues that certain special interrogatories concerning drug
quantity set forth on the verdict form were unduly suggestive. He
contends that it was error for the District Court, after the jury

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told the District Court that it had reached a verdict and was
called back into the courtroom, to have directed the jury to
"complete" the verdict form after informing the jury that
"something is missing." Finally, he argues that the District Court
erred in not including special interrogatories on the verdict form
that would have required the jury to specify the "racketeering
activity" that the jury found.
Because we conclude that Latorre's challenge to the jury
instructions has merit, we do not reach his other challenges. We
thus both begin and end our analysis with the jury instructions
issue.
II.
In a federal criminal trial, the Fifth Amendment's
guarantee of due process of law requires the government to prove
beyond a reasonable doubt every element of the offense for which
the defendant is charged. Thus, jury instructions may violate a
defendant's constitutional right to due process if they relieve
the government of its obligation to meet that requirement. See
Middleton v. McNeil, 541 U.S. 433, 437 (2004).
At the same time, "not every ambiguity, inconsistency,
or deficiency in a jury instruction rises to the level of a due
process violation. The question is whether the ailing instruction
so infected the entire trial that the resulting conviction violates
due process." Id. (internal quotation and alteration omitted). A

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jury instruction thus violates the Constitution for failing to
properly instruct the jury regarding the elements of an offense
only when "there is a reasonable likelihood that the jury has
applied the challenged instruction in a way that violates the
Constitution." Id. (internal quotation omitted).
In this case, Latorre contends that the jury
instructions permitted the jury to return a verdict on the RICO
conspiracy count on a legally invalid theory of what constitutes
"racketeering activity" by defining "racketeering activity" to
include "firearms." See Skilling v. United States, 561 U.S. 358,
414 (2010) (explaining that "constitutional error occurs when a
jury is instructed on alternative theories of guilt and returns a
general verdict that may rest on a legally invalid theory") (citing
Yates v. United States, 354 U.S. 298 (1957)). The government
agrees that "racketeering activity" does not include "firearms."
Thus, our task is to determine whether, after taking account of
the District Court's erroneous description of "racketeering
activity," the instructions in their "entirety -- and in the
context of the evidence -- presented the relevant issues to the
jury fairly and adequately." Sony BMG Entm't v. Tenenbaum, 660
F.3d 487, 503 (1st Cir. 2011).
Latorre concedes, however, that he did not object at
trial to the portion of the jury instructions that he now contends
rendered the instructions invalid. Thus, in undertaking our

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inquiry into the import of the misstatements of law that the
instructions contained regarding what constitutes "racketeering
activity," we review only for plain error. United States v.
Prieto, 812 F.3d 6, 17 (1st Cir. 2016). Under this plain error
standard, Latorre "faces the 'heavy burden of showing (1) that an
error occurred; (2) that the error was clear or obvious; (3) that
the error affected his substantial rights; and (4) that the error
also seriously impaired the fairness, integrity, or public
reputation of judicial proceedings.'" Id. (quoting United States
v. Riccio, 529 F.3d 40, 46 (1st Cir. 2008)).
In general, we have explained that "[t]his multi-factor
analysis makes the road to success under the plain error standard
rather steep; hence, reversal constitutes a remedy that is granted
sparingly." United States v. Delgado-Marrero, 744 F.3d 167, 184
(1st Cir. 2014) (quoting United States v. Gelin, 712 F.3d 612, 620
(1st Cir. 2013). And, consistent with that caution, we have
emphasized that, even when a district court makes a clear or
obvious error in instructing the jury, the third prong of the plain
error standard still requires the defendant to show that the
"outcome of the case would likely have changed" had the erroneous
instruction not been given, United States v. Colon, 744 F.3d 752,
758 (1st Cir. 2014), or, put otherwise, that it is reasonably
probable that the clear and obvious error affected the result of
the proceedings, see United States v. Dominguez Benitez, 542 U.S.

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74, 81-82 (2004) (citing United States v. Bagley, 473 U.S. 667,
682 (1985)). Nevertheless, we also have made clear that, to
satisfy this third prong of the plain error standard, the defendant
need not "prove by a preponderance of the evidence that but for
[the] error things would have been different." United States v.
Rodríguez, 735 F.3d 1, 11-12 (1st Cir. 2013) (quoting United States
v. Dominguez Benitez, 542 U.S. 74, 84 n.9 (2004) (insertion in the
original)).
Finally, the fourth prong of the plain error standard
imposes a distinct potential obstacle to a defendant successfully
making an unpreserved challenge to a jury instruction's erroneous
description of an element of an offense. This prong requires a
defendant to show that the instructional error threatened the
fairness, integrity, or public reputation of the judicial
proceedings. United States v. Delgado-Marrero, 744 F.3d 167, 184
(1st Cir. 2014). And, we have made clear, judicial proceedings
are not so affected if the evidence of the defendant's guilt at
trial is "overwhelming" and "essentially uncontroverted." United
States v. Cotton, 535 U.S. 625, 633 (2002) (citing Johnson v.
United States, 520 U.S. 461, 470 (1997)).
III.
Against this backdrop, the government seems to concede
that, with respect to the first two prongs of the plain error
standard, the District Court committed a clear and obvious error

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when it instructed the jury that "racketeering activity" includes
"firearms." The government argues, however, that Latorre cannot
show the kind of effect on his substantial rights that he must
show in order to satisfy the third prong of the plain error
standard. Rather, the government contends, the problematic
references to "firearms" are best understood to be "isolated" and
"fleeting mistakes," and thus ones that cannot suffice to
demonstrate that there is a reasonable probability that, absent
these mistakes, the outcome at trial would have been different. 1
The government also contends, albeit cursorily, that Latorre
1 In effect, then, the government treats what it seems to
concede to be the "clear or obvious" misstatement of the law
concerning "firearms" as a basis for concluding that the first and
second prongs of the plain error test have been met, such that we
must then proceed to the third prong of the inquiry. At that step
of the inquiry, as the government frames it, we then must evaluate
whether that clear or obvious misstatement resulted in an
instruction that, considered in context, was sufficiently likely
to mislead the jury so as to affect, all things considered, the
substantial rights of the defendant. This approach accords with
the one that we have followed before in evaluating jury
instructions that contain a misstatement of the law. See United
States v. Pennue, 770 F.3d 985, 990 (1st Cir. 2014). Therefore,
we do not analyze here, under the second prong of the plain error
test, whether the instructions as a whole were clearly or obviously
misleading. Cf. United States v. Romero, 32 F.3d 641, 651–52 (1st
Cir. 1994). We instead focus only on the question the government
presses -- whether the instructions as a whole, erroneous though
a portion of them clearly was, affected the substantial rights of
the defendant. We do note, however, that, on the facts of this
case, we would find plain error under either approach, at least
given the government's failure to make any record-based argument
for concluding otherwise.

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cannot meet his burden under the fourth prong of the plain error
test.
In explaining why we do not agree with the government,
we first describe why we conclude that the misstatements of law
that the oral instructions contained regarding "firearms"
constituting "racketeering activity" are quite serious. We then
explain why we are not persuaded by the government's contention
that the misstatements were adequately mitigated by other portions
of the oral instructions that also referenced the types of conduct
that constitute "racketeering activity." Next, we explain why our
precedent does not support the government's contention that the
written instructions ensured that the oral instructions, despite
the misstatements that they contained, probably had no effect on
the outcome of the trial. And, finally, we explain our reasons
for concluding that, when considered in light of the evidence
adduced at trial, the errors in the oral instructions were so
likely to mislead the jury as to what conduct could constitute "a
pattern of racketeering activity," 18 U.S.C. § 1961, that it is
reasonably probable that those misstatements impacted the outcome
at trial and thus that Latorre has demonstrated plain error.
A.
Although the government characterizes the District
Court's misstatements regarding "firearms" constituting
"racketeering activity" as "isolated" and "fleeting," it is hard

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to credit that description just based on a review of the part of
the instructions that contains the misstatements. The District
Court in this part of the instructions expressly described
"firearms" as "racketeering activity" not once, but twice. And
the District Court did so in seemingly quite a considered fashion.
The District Court emphasized that it would "detail for
[the jury] elements regarding each of these types of racketeering
activities" -- which activities the District Court expressly
described as including "firearms" -- "later in these
instructions." What is more, the District Court went on to inform
the jury that, important as these follow-on "details" about "these
types of racketeering activities" would be, "you know from the
summary I have given you up to now that the types of racketeering
activity are the ones I just mentioned a minute ago." And,
finally, the District Court pointed out that such racketeering
activity "of course" included "firearms." Thus, the legal mistake
about the nature of the "pattern of racketeering activity" element
was repeated, rather than isolated, and emphatic, rather than
fleeting.
The government does contend the District Court in making
these misstatements was merely providing a general description of
"racketeering activity." By contrast, the government contends,
when the District Court specifically described the racketeering
activities allegedly engaged in by the enterprise at issue in this

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particular case, the District Court at that point did not
erroneously state that "firearms" constituted "racketeering
activity." Instead, the District Court at that point listed only
conduct that did qualify as "racketeering activity." Thus, the
government suggests, the jury was likely to focus on that proper
part of the instructions rather than the erroneous one, as only
the proper part was focused on the particular charge of RICO
conspiracy that had been brought against Latorre.
But, in fact, the problematic portion of the
instructions did not offer merely a generalized account of
"racketeering activity," such that we may presume that a jury would
have been inclined to discount that description in the face of
another part of the instructions that did not repeat the error and
that was more tailored to the charges in this particular case.
The problematic portion of the instructions referenced only types
of conduct -- drug trafficking, robbery, carjacking and
"firearms" -- that the indictment tied to the particular enterprise
with which Latorre was charged with conspiring. Thus, the District
Court in this part of the instructions appears to have been
offering a description of "racketeering activity" that was itself
tailored to Latorre's case. And that fact makes it probable that
the jury followed that part of the instructions, as the government
appears to accept that the jury would not have been inclined to
ignore an instruction from the District Court about the nature of

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"racketeering activity" that was specifically describing the
nature of the offense that Latorre was charged with committing.
B.
Given how clearly the District Court instructed the jury
that it could convict Latorre on an invalid legal theory of what
constituted "racketeering activity," Latorre's challenge
necessarily turns on whether, as the government contends, the rest
of the instructions somehow sufficed to counteract that erroneous
instruction. But, contrary to the government's contention, we
conclude that the instructions as a whole did not suffice to
disabuse the jury of the misimpression about what it needed to
find that had been created by the erroneous part of the
instructions. For that reason, we conclude that there was a
reasonable probability that the error -- clear and obvious as it
was -- misled the jury about what it needed to find in order to
convict Latorre.
In arguing otherwise, the government points first to a
portion of the oral instructions in which the District Court began
by stating: "I will define for you what is racketeering activity.
Racketeering activity is defined to include a variety, could be
many, a variety of state crimes subject to imprisonment for more
than one year, as well as a variety of Federal crimes subject to
Federal indictment." The District Court then went on to state
that "[y]ou are instructed as a matter of law that drug

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trafficking, robbery, carjacking qualify as racketeering
activities."
This part of the instructions would appear to provide
the strongest support for the government's contention that the
misstatements, in context, were less concerning than they
otherwise would seem to have been. After all, the District Court
purported to define "racketeering activity" in this portion of the
instructions and, in doing so, mentioned by name only types of
conduct that are "racketeering activity." But, this portion of
the instructions did not come after -- and thereby arguably make
up for -- the misstatements by the District Court in which it had
named "firearms" as a type of "racketeering activity." Rather,
this listing of only types of conduct that do in fact qualify as
"racketeering activity" preceded the incorrect description of
"firearms" constituting such activity that came later. And, given
how emphatic and seemingly considered the subsequent mistaken
description was, it is reasonably probable that the jury would not
have ignored that mistaken description simply because it had
earlier received the preceding description of "racketeering
activity" that the government contends we must assume the jury
privileged.
Further supporting this conclusion is the fact that the
District Court did not at any point in the supposedly curative
precedent passage actually state that the list of qualifying

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racketeering activities that was being set forth was an exhaustive,
as opposed to merely an illustrative, one. In fact, the sentence
that immediately precedes the list suggests just the opposite, by
stating that "[r]acketeering activity is defined to include a
variety, could be many, a variety of state crimes subject to
imprisonment for more than one year, as well as a variety of
Federal crimes subject to Federal indictment." (Emphasis added).
It is thus hard to see how it is reasonably probable that, just
because the jury first heard a general description of "racketeering
activity" that stressed how broad that category of activity is,
the jury would have ignored as wrong the District Court's later
and seemingly insistent instruction that a particular type of
conduct -- "firearms" -- falls within that broad category.
The government next points to a supposedly compensating
statement in the oral instructions that, unlike the statement that
we have just addressed, does follow the misstatements about
"firearms." But, while it may often make sense to presume that a
jury gave more weight to a follow-on proper statement of the law
than to a prior, erroneous one, see United States v. Pennue, 770
F.3d 985, 990 (1st Cir. 2014), the context here does not permit us
to do so.
In the follow-on statement that the government points to
here, the District Court explained for the jury that it had to be
unanimous as to the types of predicate "racketeering activity"

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that it found in order to render a guilty verdict on the RICO
conspiracy count. In elaborating on that particular point of law
regarding the requirement of unanimity as it applies to the
"pattern of racketeering activity" element, the District Court
made no mention of firearms. Instead, the District Court referred
only to types of conduct that do in fact qualify as "racketeering
activity." Specifically, the District Court explained the
unanimity requirement by stating that:
[Y]our verdict must be unanimous as to which types of
predicate racketeering activity the defendants agreed
would be committed. For example, at least two acts of
drug trafficking, at least two acts of robbery,
carjacking or any combination thereof. And you already
know that the types of racketeering activity charged are
drug trafficking, robbery and carjacking.
There is a problem, however, with portraying this
statement as if it conflicted with the District Court's earlier
statements that described "firearms" as "racketeering activity."
In the passage just quoted above, the District Court was not
purporting to define the type of conduct that constitutes
"racketeering activity," as the District Court had been purporting
to do in offering the prior, erroneous description that named
"firearms" as a type of "racketeering activity." Rather, the
District Court was simply instructing the jury that it must
unanimously find that the enterprise engaged in a particular
predicate "racketeering activity" in order to convict Latorre for
RICO conspiracy and thus that the jury could not convict him on

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the basis of having unanimously found only that the enterprise had
engaged in some type of "racketeering activity," with some jurors
having different ideas than others of what that activity was.
For that reason, when this portion of the instructions
is considered in conjunction with the District Court's prior
statements that "firearms" constitute "racketeering activity,"
this portion of the instructions could quite comfortably be
understood to have been merely providing some of the "details"
about the elements of "racketeering activity" that the earlier
portion of the instructions had expressly informed the jury it
would soon receive. And, given that the earlier portion of the
instructions had been quite insistent in instructing the jury that
"racketeering activity" encompassed "firearms," the nature of the
"correct" subsequent instruction is such that it is reasonably
probable that the jury followed the emphatic but mistaken portion
of the instructions. For, we do not see on what basis we could
simply assume that the jury would have ignored what it had been
told in error -- that "firearms" was "of course" "racketeering
activity" -- when it had not been instructed (even impliedly) to
do so.
We note as well that, in setting forth the list of
activities that qualify as "racketeering activity" in the part of
the instructions that described the need for unanimity, the
District Court introduced the list with the words "[f]or example."

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For this reason, too, it is reasonably probable that the jury would
not have understood the list that then followed to have been an
implicit instruction to consider no other conduct as "racketeering
activity," including even conduct such as "firearms" that the
District Court had expressly said the jury "of course" could
consider as "racketeering activity."
Indeed, if the District Court intended for this portion
of the instructions to convey any such message, then it is not
clear why the District Court used the words "for example."
Moreover, whatever the District Court's intent may have been in
instructing the jury as it did, the fact remains that it did use
the introductory words "for example." Thus, this feature of the
supposedly curative "correct" instruction further adds to the
likelihood that the jury did just what we repeatedly have said
that we must assume that juries do -- namely, follow the
instructions in a way that, if possible, makes them cohere rather
than conflict. See Francis v. Franklin, 471 U.S. 307, 321 n.7
(1985) (finding that a reasonable juror seeks "to make sense of"
arguably conflicting instructions); see also United States v.
Olano, 507 U.S. 725, 740 (1993) (“[We] presum[e] that jurors,
conscious of the gravity of their task, attend closely the
particular language of the trial court's instructions in a criminal
case and strive to understand, make sense of, and follow
the instructions given them") (citation omitted).

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Of course, the last sentence in the passage from the
instructions quoted above does state that "you already know that
the types of racketeering activity charged are drug trafficking,
robbery and carjacking." And this last sentence thus made no
mention of "firearms." But, each of the activities mentioned in
that sentence is also mentioned in the list of activities that is
both set forth in the sentence that precedes it and that is
introduced there by the words "for example." A jury thus could
quite reasonably have understood this portion of the instructions
merely to have been illustrating a point about unanimity by
identifying possible groupings of some -- rather than all -- of
the "racketeering activity" relevant to Latorre's case. In this
respect, this portion of the instructions is easily read to have
been doing nothing more than conveying some of the "details" about
the "pattern of racketeering activity" element that the District
Court had earlier expressly said that it would provide when it
instructed the jury without equivocation that "racketeering
activity" includes "firearms."
Finally, the government points to one other portion of
the oral instructions that it contends conflicts with -- and
thereby likely renders unproblematic -- the misstatements about
"firearms" that came before. The government notes that the
instructions expressly refer at one point to the indictment's
description of "racketeering activity," and the government

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contends that the indictment made clear to the jury that "firearms"
do not qualify as such an activity. Thus, the government argues,
the portion of the instructions that directed the jury's attention
to the indictment (at least probably) served to disabuse the jury
of whatever mistaken understanding of the law that the references
to "firearms" might have engendered.
Notably, however, this supposedly curative reference in
the oral instructions to the indictment does not actually purport
to instruct the jury to rely solely on the indictment's description
of "racketeering activity" to determine what conduct qualifies as
such activity. Rather, the portion of the instructions that
contains this reference instructs the jury about how to understand
the import of the requirement that racketeering activities must be
related to one another. So, once again, it seems reasonably
probable -- though, of course, not certain -- that the jury would
have thought the District Court was giving "details" about the
"pattern of racketeering activity" element, which the District
Court had earlier described to the jury as one that could be
satisfied in part through evidence of the enterprise having engaged
in activity involving "firearms."
Moreover, in referencing the indictment, the District
Court did not direct the jury's attention to any particular portion
of the indictment as the one that identifies "the types of
racketeering activities described" therein. The absence of any

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such directive matters because, while there are a number of
separately titled sub-sections in Count I of the
indictment -- which is the one that concerns RICO
conspiracy -- none of those sub-sections is actually entitled
"Racketeering Activity." Nor do the headings or any other words
in the indictment make it obvious which subsection, if any, defines
the universe of conduct that is alleged to constitute "racketeering
activity."
To be sure, the subsection in the indictment entitled
"Racketeering Conspiracy" does use the phrase "racketeering
activity" and then goes on to list only qualifying conduct. By
contrast, the subsection entitled "Means and Methods of the
Conspiracy," in listing various activities in which the
"enterprise" is alleged to have engaged, does not use that phrase.
But, significantly, the activities that are listed in
that latter subsection also include, alongside "firearms,"
activities that are "racketeering activity." There is, therefore,
a reasonable probability the jury would have thought that the
listed activities in this subsection were all qualifying ones.
After all, for that not to be the case, the jury would have had to
have thought that the District Court had led the jury astray in
earlier telling it orally in no uncertain terms that "firearms"
was "of course" also "racketeering activity."

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Further adding to the reasonable probability that the
jury read the indictment to cohere rather than to conflict with
the District Court's earlier, erroneous instruction is the
following fact about the indictment. The subsection entitled
"Roles of the Defendants," in which Latorre is specifically named,
states that he "participated in various illegal activities of the
enterprise, including robbery." (Emphasis added). Considered in
conjunction with the ambiguities in the other subsections of the
indictment, that sentence fairly invites the jury to conclude that
the District Court meant what it said when it earlier explained:
"you know from the summary I have given you up to now that the
types of racketeering activity are the ones I just mentioned a
minute ago, narcotics distribution, robberies, and carjackings,
and of course firearms." (Emphasis added).
In all events, the question is whether the oral
instructions, taken as a whole, created a reasonable probability
that the jury would have been misled about the conduct the
government needed to prove to satisfy the "pattern of racketeering
activity" element. And here, we think that the potential for the
jury to have been so misled is substantial, notwithstanding that
there were portions of the instructions that described the relevant
law without misstating it.
To be sure, human speech being what it is, slip ups in
oral instructions are bound to occur, and jurors may be understood

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to have enough common sense to recognize them as such. For that
reason, the due process guarantee is not necessarily violated just
because a district court misstates the law at some points in the
course of instructing a jury. See Middleton, 541 U.S. at 438
(finding no due process violation because, only "a rare combination
of extremely refined lawyerly parsing of an instruction, and
extremely gullible acceptance of a result that makes no conceivable
sense" would have led a jury to have been misled by the mistaken
description of an element of an offense once the instructions were
considered as a whole).
But, by considering the context of the instructions as
a whole, we have previously found the plain error standard to have
been met notwithstanding that an arguably curative instruction was
given following a clearly and obviously erroneous one. United
States v. Delgado-Marrero, 744 F.3d 167, 190 (1st Cir. 2014)
(finding that, in context, plain error standard was met even though
government argued that special jury verdict and accompanying
instructions cured the instructional defect arising from the
omission of the reasonable doubt requirement for an element of the
offense). In this case, the context requires that same conclusion.
For, given the peculiarly emphatic nature of the erroneous
instruction and the fact that the rest of the oral instructions
could quite comfortably be read to cohere with the District Court's
misstatement of the law, there is very good reason to be concerned

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- 24 -
that the jury was misled by what it was told by the District Court.
See Smith v. Jenkins, 732 F.3d 51, 69 (1st Cir. 2013) (holding
that we presume that a jury follows the court's instructions, and
acts according to its charge).
C.
Of course, the jury did also receive written
instructions, and they contained no misstatements about what
constitutes "racketeering activity." The government thus contends
that the written instructions, which also must be considered in
assessing the significance of the oral misstatements, suffice to
diminish the concern that the oral misstatements affected
Latorre's substantial rights.
The government points in particular to Pennue, 770 F.3d
at 990, as support for that conclusion. But Pennue is a very
different case. There, the district court, in conveying the
instructions orally, appeared to have simply misread from the
written instructions at one point by omitting a key word -- namely
"not" -- such that the opposite of what was surely intended was
said. See id. at 988-89.
In finding no plain error from what we described as that
"slip of the tongue," we did reference the written instructions,
which both were correct and stated that the law in a way that could
not be reconciled with the misstatement. Id. at 990-91. But, we
did so only after examining the entirety of the instructions that

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- 25 -
the jury received, including the fact that the one incorrect oral
instruction was "followed immediately by a correct [oral]
instruction[.]" Id. at 990. In fact, in Pennue we expressly
stated that "we would hesitate to rely on written instructions
alone as a basis for concluding that the jury was not likely to be
misled by an incorrect oral instruction." Id.
We thus do not find the government's reliance on Pennue
persuasive. As we have explained, the errors in this case were
too seemingly considered to be dismissed as ones that a reasonable
jury would have recognized to be -- like the omission of the single
word in Pennue -- the product of a mere slip of the tongue. And
that is especially so given that the rest of the oral instructions
did not suffice to set the record straight by providing the jury
accurate statements of the law that, in context, were likely to
have been understood to have conflicted with the wrong ones.
D.
We also must consider the likely effect of the
instructional error in light of the evidence that was adduced at
trial. Stefanik, 674 F.3d at 76. But, a review of the record
does not show that the evidence adduced at trial was of a kind
that would render the District Court's notably insistent but still
erroneous description of racketeering activity to be immaterial to
the outcome at trial. As Latorre points out, there was substantial
evidence presented to the jury regarding firearms, both as to the

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- 26 -
enterprise's involvement with them and as to Latorre's connections
to firearms. In fact, the prosecutor in the government's closing
argument stated, that Latorre "was an armed seller and enforcer"
and "sold a firearm" and that members of the enterprise would "buy
guns, bullets and drugs."
Thus, the instruction that "firearms" constituted
"racketeering activity" -- if followed -- was hardly beside the
point in Latorre's case. Nor does the government make any record-
based argument for overlooking the error in the oral instructions;
the government relies instead solely on the contention that the
face of the instructions reveals that, as a whole, they were not
likely to mislead. See United States v. Castro–Taveras, 841 F.3d
34, 54 (1st Cir. 2016) (finding that government did not argue a
particular claim and thus waived that argument). 2
2 Advancing an argument that the government does not make in
connection with the jury instructions, the dissent notes that
Latorre was acquitted of the count charging him with conspiracy to
possess firearms in violation of 18 U.S.C. § 924(c)(1)(A), as if
that acquittal demonstrates that the erroneous instruction
regarding "firearms" was beside the point. But, with respect to
that count, the indictment described the only crime that had been
furthered as "drug trafficking," and the jury instructions did so
as well. Thus, the acquittal on this count shows only that the
jury acquitted Latorre of conspiracy to possess firearms in
furtherance of drug trafficking. The acquittal does not show that
the jury found that Latorre was not involved with "firearms."
Consistent with this conclusion, we note that the jury also
acquitted Latorre of conspiring to possess narcotics with the
intent to distribute, which further suggests that the acquittal on
the firearms conspiracy charge may simply have resulted from the
jury's doubts about Latorre's involvement with drugs rather than
from doubts about his involvement with firearms. Thus, the

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- 27 -
We do recognize that, even if a jury instruction misleads
the jury as to what it must find with respect to an element of the
offense, that instruction may not affect the defendant's
substantial rights if there is "overwhelming evidence that the
jury still would have convicted absent the error." United States
v. Colón Osorio, 360 F.3d 48, 52 (1st Cir. 2004). But, our review
of the record reveals no basis for so concluding, given that the
government emphasized at trial the ties between Latorre and the
enterprise with respect to firearms in particular, that Latorre
challenged those ties in his own testimony to the jury, and that
he requested (unsuccessfully) special interrogatories on the
verdict form as the specific predicate acts found. See Salinas v.
United States, 552 U.S. 52, 65-66 (1997) (holding that "[i]n some
cases the connection the defendant had to the alleged enterprise
or to the conspiracy to further it may be tenuous enough so that
his own commission of two predicate acts may become an important
part of the Government's case.") Nor does the government make any
argument to the contrary. See Castro–Taveras, 841 F.3d at 54.
Finally, given our reasons for finding the government's
arguments insufficient to show that Latorre's substantial rights
acquittal to which the dissent points simply does not show that it
is reasonably probable that, even if the jury was of the mistaken
view that "firearms" is a "racketeering activity," the outcome at
trial was not thereby affected. And that fact may explain why the
government itself, which surely knows the record well, does not
press this point.

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- 28 -
were not affected, we do not see how the fourth prong of the plain
error standard precludes Latorre from demonstrating plain error
here. Moreover, while the government does assert that Latorre
cannot satisfy that prong, it does so in only one sentence and
without offering any explanation as to why. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (referring to "the settled
appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived").
E.
In sum, the oral instructions in this case were most
unusual. They set forth an invalid legal theory regarding what
the government must prove as to a key element of the offense. They
did so, moreover, in clear and considered terms by telling the
jury, in effect, that it would be unreasonable to understand that
element any other way.
Even more unusually, no statement in the oral
instructions adequately countered that confidently-expressed
misstatement of the law. Rather, the other statements to which
the government points in the oral instructions were each framed in
ways that are comfortably read to cohere with -- rather than to
contravene -- the District Court's mistaken oral instruction.
And, finally, the evidence adduced at trial reinforces
our conclusion that the jury was likely misled. That evidence put

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- 29 -
in play the invalid description of the element of the offense that
the District Court set forth orally. That evidence also was not
so strong or uncontroverted as to render improbable the chance
that juror confusion about whether "firearms" constitutes
"racketeering activity" affected the verdict.
Significantly, the government does not actually
challenge the view that the plain error standard is met by a case
with attributes such as those that we have just described this
case as having. Rather, the government argues only that this case
does not have those attributes. And the government bases that
assertion solely on its contention that the erroneous, orally-
conveyed statements were adequately countered by statements
elsewhere in the oral instructions that did not contain the error,
as well as by the written instructions. But, for the reasons that
we have given, the notion that the other statements in the oral
instructions conflicted with the incorrect ones is belied by the
way that those "correct" parts of the instructions were phrased.
And we have never held that written instructions alone, simply by
not repeating an error, suffice to clear up confusion that a
misstatement in oral instructions otherwise would cause. Thus,
the premise for the government's only argument against finding
plain error is not supportable. 3
3 In discounting the probability of confusion in this case,
the dissent consistently downplays the seriousness of the District

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- 30 -
We should add that the evidence at trial -- as well as
the prosecutor's closing argument -- made the enterprise's alleged
involvement in firearms a central part of the case. Thus, these
features of the case heighten our concern that the jury was misled.
And, finally, there is one more feature of this case that causes
concern -- the plausibility of a jury thinking that, just as the
District Court had said, "firearms" are "of course" racketeering
activity. For, we cannot see why we should presume that lay
persons would think it so implausible that Congress, in trying to
stamp out organized crime, intended to target organized criminal
enterprises that were involved with firearms, that the District
Court must have erred in instructing the jury that "firearms" were
Court's errors as mere "ad-libs." But the District Court did not
tell the jurors to forget what they had been instructed from the
bench and to rely solely on the instructions that had been given
to them in writing. Rather, the District Court told the jury to
use the written instructions as a reference in the event that they
found it hard to "recollect" what they had been told orally. Thus,
the fact that the District Court "ad-libbed" is itself the problem.
Finally, the dissent repeatedly states that because "correct"
instructions were given orally, only speculation suggests that the
jury followed the incorrect ones. But we are obliged to read the
instructions as a whole, and, in this case, each "correct"
instruction, when so read, quite comfortably comports with rather
than conflicts with the misstatements. Thus, only speculation
supports the notion that the jurors did not presume that the
District Court intended for its oral instructions to cohere, for
ordinarily we assume that jurors have the common sense to do just
that. Olano, 507 U.S. at 740. And thus only speculation supports
the view that it is not reasonably probable that the jurors took
the District Court seriously when it told them that "firearms" "of
course" constituted "racketeering activity." See Franklin, 471
U.S. at 321.

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- 31 -
"racketeering activity." Thus, however rare hen's teeth may be,
this is the rare (though not unprecedented, see Delgado-Marrero,
744 F.3d at 190) case of an unpreserved challenge to a clear and
obvious instructional error that meets the plain error standard.
IV.
For these reasons, we vacate Latorre's conviction.
-Dissenting Opinion Follows-

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- 32 -
SELYA, Circuit Judge, dissenting. Picture this: a
district judge, charging the jury in a complex criminal case, reads
his prepared (written) instructions to the jury. While doing so,
he twice ad-libs remarks that are legally incorrect and run counter
to the correct instructions both read to the jurors and provided
to them in writing. The defendant's counsel, as well as counsel
for a separately represented codefendant, are apparently
unconcerned; neither lawyer interposes an objection. The jury
deliberates and returns a split verdict, convicting the defendant
on a charge of RICO conspiracy, but acquitting him on the other
charges.
On appeal, the defendant is represented by new counsel,
who, after scouring the record, argues that the judge's ad-libbed
remarks demand vacation of the conviction. The majority
acknowledges (as it must) that this claim was not preserved below
and can be reviewed only for plain error. It nonetheless holds
that — due to two errant phrases ad-libbed by the district judge
— the conviction should be set aside.
This holding blurs the vital distinction between
appellate review of preserved claims of error and appellate review
of unpreserved claims of error. To make matters worse, the
majority overlooks and/or undervalues telltales that argue
powerfully against the existence of a reasonable probability that
the district judge's ad-libbed remarks were outcome-determinative.

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- 33 -
In my view, the appropriate standard of review, applied as
precedent dictates, requires us to reject this unpreserved claim
of error. Because the majority reaches a contrary result only by
diluting the plain error standard, I respectfully dissent.
The plain error standard itself is not controversial: it
requires the party advancing an unpreserved claim to establish
"(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 judicial proceedings." United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001). Equally uncontroversial is the
proposition that the proponent of an unpreserved claim (here, the
defendant) must carry the devoir of persuasion as to each of these
four elements. See United States v. Bramley, 847 F.3d 1, 5 (1st
Cir. 2017); United States v. Vega Molina, 407 F.3d 511, 521 (1st
Cir. 2005).
In this case, the district judge, when instructing the
jury in open court, twice ad-libbed remarks that included
"firearms" in his description of "racketeering activities" that
might comprise a "pattern of racketeering activity." The
government concedes that these ad-libbed remarks were manifestly
incorrect and, thus, satisfy the first two elements of the plain
error standard. This appeal turns, then, on the third element:
whether the defendant has carried his burden of demonstrating that

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- 34 -
the judge's bevue "affected the defendant's substantial rights."
Duarte, 246 F.3d at 60.
To accomplish this task, the defendant must show, at a
minimum, a reasonable probability that, but for the alleged error,
the outcome of the trial would have been different. See Bramley,
847 F.3d at 7. This is a daunting standard, requiring the
defendant to show "some level of certainty and particularity[,]"
and we consistently have declined invitations to "indulge in
. . . speculation" on plain error review. Id. at 7-8 (citing Jones
v. United States, 527 U.S. 373, 394-95 (1999)). It is not enough
that there might be a possibility — even a strong possibility —
that the jury was confused by a contested instruction; rather, for
a reviewing court to find plain error, there must be a reasonable
probability that, but for the instruction, the jury would not have
convicted the defendant.
In the case at hand, one important integer in the
"reasonable probability" calculus is that the judge, on several
other occasions during the delivery of his charge, correctly
described the activities that might comprise a "pattern of
racketeering activity." Far from "notably insist[ing]" on the
erroneous instruction, ante at 25, the judge excluded the term
"firearms" from the relevant taxonomy every other time that he
explained "racketeering activity" — and he did so consistently in
the written instructions given to the jury. Where, as here, a

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judge gives conflicting versions of an element of an offense — one
correct, one not — it is virtually impossible to say, to a
reasonable degree of probability, that the jury went down one road
rather than the other. See, e.g., United States v. Pennue, 770
F.3d 985, 989-91 (1st Cir. 2014); cf. Middleton v. McNeil, 541
U.S. 433, 437 (2004) (per curiam) (concluding that state court did
not "unreasonably apply federal law when it found that there was
no reasonable likelihood [a] jury was misled" by erroneous
instruction when other correct instructions were also given).
The cases in which appellate courts have set aside
convictions based on unpreserved claims of non-structural
instructional error are hen's-teeth rare. Tellingly, the majority
does not cite a single decision in which we — or any other court,
for that matter — have set aside a conviction, on plain error
review, when a trial judge has given an undeniably correct
instruction but intermingled it with an incorrect instruction on
the same point. Cf. Pennue, 770 F.3d at 989 (finding that
appellant failed to show that a different result was "reasonably
likely" when court gave both erroneous and correct reasonable doubt
instructions); United States v. Rodríguez, 735 F.3d 1, 11-12 (1st
Cir. 2013) (finding that appellant failed to show "reasonable
probability" of different result when verdict form erroneously
contradicted judge's presumption of innocence instruction). As we

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- 36 -
made clear in Rodríguez, 735 F.3d at 12, materials instructing the
jury "must be read in conjunction with one another."
The majority's failure to cite any case on point is not
for lack of trying. Yet, the closest the majority comes to
exhuming such a case is United States v. Delgado-Marrero, 744 F.3d
167 (1st Cir. 2014). That case, though, is readily
distinguishable. There, the judge failed to instruct the jury, in
a special verdict form, that its findings on drug quantity had to
be made beyond a reasonable doubt. Id. at 186. The error was
patent, and the only curative language to which the government
could point was that the district court had told the jury that its
deliberations "would be under the same terms and conditions" as
the other elements of the offense. Id. (internal quotation marks
omitted). Such oblique language is not even faintly comparable to
the detailed and correct explanations of "racketeering activity"
provided by the district judge at numerous points throughout the
trial in this case.
So, too, the majority's effort to conjure up a
"reasonable probability" of a different result by reading the
available tea leaves is unpersuasive. This effort turns a blind
eye to the strength of the government's case. Moreover, it either
ignores or undervalues a number of other salient considerations.
I offer a representative sampling:

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- 37 -
The district judge sent into the jury room copies of
both his prepared (written) instructions and the indictment. He
advised the jurors, before delivering his oral instructions, that
they would have in the jury room copies of these documents, which
would be available for their reference in case of doubt.
 The district judge sent into the jury room copies of
both his prepared (written) instructions and the
indictment. He advised the jurors, before delivering
his oral instructions, that they would have in the jury
room copies of these documents, which would be available
for their reference in case of doubt. Importantly, the
judge made a trenchant observation: he warned the jury,
that "[i]t is impossible for anyone to be able to
recollect all those principles of law out of one reading
by somebody. You need to have it in black and white so
you can use it as a reference during your deliberations."
Both the written set of instructions and the indictment
correctly described the nature of the "racketeering
activities" that might comprise a proscribed "pattern of
racketeering activity." Neither document was infected
by the misstatements that marred the judge's ad-libbed
remarks. Given these facts, common sense suggests that,
if any confusion existed, the jurors would heed the
judge's warning and look to the written instructions.

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- 38 -
 The record makes manifest that the parties focused at
trial on the correct components of a "pattern of
racketeering activity." The prosecutor — both in his
opening statement and in his summation — stressed that
the relevant racketeering predicates consisted of drug-
trafficking and robbery — offenses that unquestionably
fell within the proper purview of a "pattern of
racketeering activity." Nothing in defense counsel's
opening statement or final argument suggested anything
to the contrary. Courts have recognized that the way in
which parties pitch their arguments to a jury may have
decretory significance in determining the existence vel
non of plain error. See, e.g., United States v. Gaviria,
116 F.3d 1498, 1511 (D.C. Cir. 1997) (giving weight to
fact that defense and prosecution both had accurately
described government's burden to the jury as evidence
that incorrect instruction on the same point was not
plain error).
 The jury acquitted the defendant on the firearms
conspiracy charge under 18 U.S.C. §§ 924(c)(1)(A) and
924(o). Because these were the only firearms offenses,
the elements of which were presented to the jury, this
acquittal further supports the fact that the
racketeering activities for which the jury found the

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- 39 -
defendant culpable were the racketeering activities
actually proscribed under 18 U.S.C. § 1962, not the
firearm-focused activities arguably suggested by the
flawed instructions.
To say more would be to paint the lily. On this scumbled
record, it is sheer guesswork to speculate what effect, if any,
the judge's ad-libbed remarks had on the jury's resolution of the
RICO conspiracy count. And guesswork, of course, is an
insufficient basis on which to ground a finding of a reasonable
probability that an unpreserved error altered the outcome of a
case. See Bramley, 847 F.3d at 7. After all, where the impact of
an alleged error is unclear, it should be an a fortiori proposition
that "a defendant cannot meet his burden of showing that the error
actually affected his substantial rights." Jones, 527 U.S. at
394-95.
We long have recognized that "the plain error hurdle is
high." United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir.
1989). Such a hurdle is not merely a procedural frill; rather, it
plays a vital role in our multi-tiered system of justice. As the
Supreme Court has explained, timely and specific objections
"enable a trial court to correct any . . . mistakes before the
jury retires" and, thus, to avoid the significant costs "of an
unnecessary retrial." Jones, 527 U.S. at 387-88. And this hurdle,
"high in all events, nowhere looms larger than in the context of

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- 40 -
alleged instructional errors." United States v. Paniagua-Ramos,
251 F.3d 242, 246 (1st Cir. 2001). The majority's approach shrinks
this traditional hurdle so drastically that it becomes no hurdle
at all.
The crux of the problem in this case is that the majority
gives this burden nothing more than lip service — and grudging lip
service at that. It is not the government's job to rule out any
possibility that the jury was confused by the erroneous
instruction. That would put the shoe on the wrong foot. Instead,
it is the defendant's job to carry the burden of affirmatively
demonstrating a reasonable probability that, but for the error, he
would not have been convicted. Speculating about possibilities
does little to show that the defendant succeeded in hoisting that
burden here.
I believe that a proper application of the plain error
doctrine vitiates the claim of error that the majority finds
dispositive and that the defendant's remaining claims of error are
impuissant. Consequently, the defendant's conviction should be
affirmed. Because I fear that the majority, in reaching a
different result, not only is wrong but also is reducing the
difference between review of preserved and unpreserved claims of
error to the vanishing point, I respectfully dissent.

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