          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
            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


                                       - 2 -
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:




                                            - 3 -
             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


                                   - 4 -
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


                                       - 5 -
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


                                 - 6 -
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.


                                    - 7 -
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


                                  - 8 -
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




      1In 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.


                                    - 9 -
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


                                   - 10 -
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


                                       - 11 -
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


                                        - 12 -
"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


                                     - 13 -
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


                                   - 14 -
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"


                                  - 15 -
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


                                     - 16 -
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."


                                   - 17 -
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).


                                        - 18 -
             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


                                  - 19 -
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


                                    - 20 -
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."




                                        - 21 -
             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


                                      - 22 -
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


                                   - 23 -
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


                                     - 24 -
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


                                   - 25 -
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

                                - 26 -
           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.


                                 - 27 -
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


                                    - 28 -
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


                                    - 29 -
            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.


                               - 30 -
"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-




                              - 31 -
            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.


                                        - 32 -
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


                                          - 33 -
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


                                  - 34 -
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




                                       - 35 -
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:




                                   - 36 -
          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.


                                   - 37 -
   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


                               - 38 -
            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


                                    - 39 -
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.




                                      - 40 -
