                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3434
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                     Miguel Zarco

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of North Dakota - Fargo
                                   ____________

                           Submitted: October 19, 2018
                             Filed: February 7, 2019
                                  ____________

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
                              ____________

GRUENDER, Circuit Judge.

       A jury convicted Miguel Zarco of conspiracy to possess with intent to
distribute and to distribute a controlled substance. The district court1 sentenced him


      1
        The Honorable Ralph R. Erickson, then United States District Judge for the
District of North Dakota, now Circuit Judge for the United States Court of Appeals
for the Eighth Circuit.
to the mandatory minimum sentence of 120 months’ imprisonment and five years of
supervised release. Zarco appeals his conviction, claiming for the first time on appeal
that it was reversable error for the district court not to prohibit the prosecutor from
referring to the charged crime as a “historical conspiracy” during trial. Zarco argues
that the prosecutor’s use of that phrase created a structural error that violated his due
process rights. But even if the error was not structural, he maintains that reversal is
warranted because the error infected the trial with unfairness. We affirm.

         The Government presented evidence at trial that Zarco conspired to distribute
substantial quantities of methamphetamine in California, Utah, and North Dakota.
During opening statements, the prosecutor said that “in North Dakota the majority of
our drug conspiracies are historical conspiracies. They are conspiracies where we
look back in time usually from some triggering event that happens.” He continued
that “[t]hese cases are largely based on testimony . . . . the drugs aren’t there anymore
. . . . [b]ut we always have the testimony. So that’s why they’re so heavy on the
testimony stuff.” Zarco’s attorney responded in her opening statement: “The
government uses the term ‘historical conspiracy’ when they have a case that’s based
on little to no physical evidence. That’s what they call it. Their case is based solely
on the statements . . . of other individuals, individuals that I will submit to you have
bias.” She added that the jurors would not hear any evidence that Zarco was found
in possession of any controlled substances or that law enforcement conducted any
surveillance or orchestrated any controlled buys from him. The Government then
called twelve witnesses.

      During closing arguments, the prosecutor again referenced the historical nature
of the conspiracy, noting that by the time law enforcement became involved, the
conspirators “had pretty much stopped dealing with each other a month or so earlier.”
Law enforcement “had to try and go back in time and put the case together, and when
you do that you gotta look at the testimony of these witnesses.” With regard to the
elements of a conspiracy, the prosecutor said that the “judge has advised you of those
already and these are pretty much straight out of the Court’s instructions.” After a

                                          -2-
discussion of how the testimonial evidence fit those elements, he concluded that the
jury would “find beyond a reasonable doubt that the defendant is guilty of this
offense.” At no point during trial did Zarco’s attorney object to the prosecutor’s use
of the phrase “historical conspiracy.”

       “The failure to object to any error, even a structural one, leaves the appellate
court with the power to notice only plain error.” Rahn v. Hawkins, 464 F.3d 813, 819
(8th Cir. 2006), abrogated on other grounds by Avichail ex rel. T.A. v. St. John's
Mercy Health Sys., 686 F.3d 548, 552 (8th Cir. 2012); see also United States v.
Johnson, 520 U.S. 461, 466-67 (1997) (applying plain-error review to an alleged
structural error). Plain-error review requires an appellant to demonstrate that “(1)
there is an error; (2) the error is clear and obvious, rather than subject to reasonable
dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary
case means it affected the outcome of the district court proceedings; and (4) the error
seriously affects the fairness, integrity or public reputation of judicial proceedings.”
United States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks
omitted). Because there was no error, Zarco cannot establish the first prong, and we
need not discuss the other three. We also need not determine whether the alleged
error was structural. See Charboneau v. United States, 702 F.3d 1132, 1138 n.3 (8th
Cir. 2013) (concluding that appellant’s emphasis on an alleged structural error did not
affect its plain-error inquiry because “[w]hether an error can be properly
characterized as ‘structural’ has nothing to do with plain error review”).

       Zarco claims that the prosecutor improperly used “historical conspiracy” as a
“term of art,” rather than a “mere descriptor.” He argues that “[t]his is a problem
because terms of art in the law matter—they alter burdens of proof, presumptions,
jurors’ duties and expectations.” He also alleges that the prosecutor “created a crime”
by advertising “‘historical conspiracy’ to the jury as a different kind of conspiracy
that could not be supported by the normal markers of proof that the actual crime of
conspiracy has.”



                                          -3-
       But Zarco does not explain how the prosecutor’s use of the phrase “historical
conspiracy” created a new crime or invited the jury to find him guilty under a relaxed
burden or proof. To the contrary, both parties’ opening statements demonstrate that
they understood “historical conspiracy” to be a “mere descriptor” of a conspiracy that
ended before law enforcement began investigating and for which little physical
evidence was available. The prosecutor said that “historical conspiracies” are
“conspiracies where we look back in time” and result in “cases . . . largely based on
testimony” because “the drugs aren’t there anymore.” Zarco’s attorney reiterated this
definition, telling the jury that “[t]he government uses the term ‘historical conspiracy’
when they have a case that’s based on little to no physical evidence.” Thus, there was
no confusion about what “historical conspiracy” meant. The prosecutor also relied
on the standard elements of conspiracy found in the district court’s unchallenged jury
instructions, undermining Zarco’s argument that he created a new crime. See United
States v. Pendleton, 832 F.3d 934, 944 (8th Cir. 2016) (“We presume that juries
follow a court’s instructions.”). The prosecutor’s statement during closing arguments
that the jury should “find beyond a reasonable doubt that the defendant is guilty of
this offense” similarly conflicts with Zarco’s claim that the prosecutor invited the jury
to find him guilty by a lower burden of proof.

       We also note that federal courts, including our own, have used “historical
conspiracy” or its analogue, “dry conspiracy,” as a descriptive phrase without any
attendant legal significance. See, e.g., United States v. Pressley, 473 F. Supp. 2d
1303, 1313-14 (N.D. Ga. 2006) (“[A] dry or historical conspiracy is one in which the
only evidence of the illegal drug activity is the testimony of others who recount,
historically, such activities.”); United States v. Becerra, 435 F.3d 931, 937 (8th Cir.
2006) (noting that a “conspiracy to distribute methamphetamine that is proved beyond
a reasonable doubt through the testimony of co-conspirators without physical
evidence of controlled substance” is “a so-called ‘dry conspiracy’”); United States v.
El Herman, No. CR 04-4042-MWB, 2008 WL 835725, at *10 (N.D. Iowa Mar. 25,
2008), aff’d, 583 F.3d 576 (8th Cir. 2009) (describing a conspiracy case without any


                                          -4-
physical evidence or exhibits as a “pure historical conspiracy”); Van Nguyen v.
United States, 564 F. App’x 992, 993-94 (11th Cir. 2014) (per curiam) (describing
a narcotics offense as a “‘dry’ conspiracy because no drugs were seized, and the
government proved the existence of the narcotics through the testimony of . . . co-
conspirators”).

       For all these reasons, the district court did not err by allowing the prosecutor
to use the phrase “historical conspiracy” during trial. Because the district court did
not err, we need not consider whether any error was structural. We affirm Zarco’s
conviction.

                       ______________________________




                                         -5-
