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                                                                     [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-14928
                              ________________________

                        D.C. Docket No. 1:12-cr-20157-KMM-5



UNITED STATES OF AMERICA,

                                                                        Plaintiff - Appellee,


                                           versus


RAMON ENRIQUE ACOSTA,

                                                                    Defendant - Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                     (August 23, 2016)

Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and VOORHEES, *
District Judge.

       *
        Honorable Richard L. Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.
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PER CURIAM:

      Ramon Acosta, an airplane mechanic by trade, participated in a scheme to

smuggle cocaine into the United States by concealing it in the reserve fuel tanks of

private airplanes. He was convicted by a jury of (1) conspiracy to import cocaine

into the United States, in violation of 21 U.S.C. § 963; (2) importing more than

five kilograms of cocaine into the United States, in violation of 21 U.S.C. § 952(a)

and 18 U.S.C. § 2; (3) conspiracy to possess cocaine with intent to distribute it, in

violation of 21 U.S.C. § 846; and (4) possession of five kilograms or more of

cocaine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2.

      On appeal, Acosta challenges his convictions on numerous grounds. After

reviewing the record and briefing, and with the benefit of oral argument, we find

no reversible error in the underlying proceedings. Acosta raises two issues on

appeal that we believe worthy of further discussion, however: (1) whether the

district court abused its discretion in admitting evidence of Acosta’s uncharged

conduct because it constituted either inadmissible bad acts evidence or

inadmissible hearsay and (2) whether the district court’s jury instructions

constructively amended his indictment by impermissibly broadening the possible

bases for his convictions beyond what was contained in the indictment.



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Ultimately, though, these issues do not warrant reversal of Acosta’s convictions;

we therefore affirm.

                               I. BACKGROUND

      At the time of his involvement in the charged drug trafficking conspiracy,

Acosta was a Federal Aviation Authority-certified mechanic. He performed

general maintenance and repair work for private aircraft. Acosta’s work as an

airplane mechanic eventually brought him into contact with Paul Cordoba, a pilot

and drug smuggler. Cordoba was the head of a drug trafficking operation that

smuggled drugs from Venezuela into Florida aboard his planes.

      Acosta’s first encounter with Cordoba’s drug trafficking activities occurred

in 2007, when Cordoba and Jefferson Castillo, one of Cordoba’s associates,

smuggled marijuana from Arizona to Florida aboard a small prop plane. While

flying from Arizona to Florida, the two stopped in Dallas to refuel at the hanger

where Acosta was employed. They decided to spend the night and stored the

airplane, which still contained the smuggled marijuana, in the hanger with Acosta’s

permission. When Castillo expressed concern about leaving the plane in the

hanger, Cordoba assured him that Acosta was a friend and that there would not be

any problems; however, it is unclear from the record whether Acosta was aware

that the plane contained marijuana.




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      Subsequently, Acosta became more directly involved with Cordoba’s drug

trafficking. Sometime after Cordoba and Castillo’s visit, Acosta helped Cordoba

modify the black box in one of Cordoba’s planes so that drugs could be hidden

inside. Cordoba used the modified black box to smuggle drugs into the United

States on two occasions.

      From there, Cordoba and Acosta continued to experiment with smuggling

methods. Acosta proposed smuggling drugs in the reserve fuel tanks of Cordoba’s

planes. When Cordoba ultimately decided to implement this proposal, he recruited

Acosta to remove the drugs from the fuel tanks upon the planes’ arrival in the

United States. The scheme also involved a number of other participants beyond

Cordoba and Acosta, including Francisco Gamero Medina (“Gamero”), an airline

mechanic in Venezuela; Cordoba’s son Marlon Cordoba (“Marlon”); and Rediel

Rodriguez, a drug distributor in Florida.

      Cordoba flew a plane to Venezuela, where Gamero loaded a shipment of

cocaine into the plane’s reserve fuel tank, in May 2008. Cordoba flew the plane

back to the United States and, after making several stops, brought the plane to

Acosta in Dallas. There, Acosta removed the cocaine from the plane, placed the

drugs in briefcases, and loaded them back onto the plane for transport to Florida,

where Rodriguez sold the drugs.




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      Cordoba organized a similar smuggling operation in November of that year.

This time, Marlon flew with a pilot to Venezuela, where Gamero loaded a

shipment of cocaine into the plane’s reserve fuel tank. Marlon then flew the plane

to the Bahamas, where he met with Cordoba. There, the two switched planes and

flew both to Fort Lauderdale, Florida. The next day, Cordoba, Marlon, Gamero,

and a few others flew the plane carrying the smuggled drugs to Acosta’s hanger in

Texas. Once the plane arrived in the hanger, Acosta and Gamero removed the

cocaine from the plane’s reserve fuel tank. Cordoba and the other conspirators

then repacked the cocaine in suitcases, loaded them aboard the plane, and flew

back to Florida.

      Cordoba arranged a final smuggling operation in August 2009. In contrast

to Acosta’s role in the prior two smuggling operations, however, his role in this

final scheme was limited. Although Acosta was aware that Cordoba was planning

to bring a load of cocaine into the United States, he was excluded from the

operation at Rodriguez’s suggestion for charging too high a fee. Although Acosta

did not directly participate in the final trip, Rodriguez offered to pay him $50,000

in “hush money.” Trial Tr. at 158 (Doc. 442).1

      Rodriguez planned to pay Acosta by selling one of the planes used in the

conspiracy. The plane was owned, in name, by Rodriguez’s girlfriend Kimberly

      1
          “Doc.” refers to the docket entry in the district court record in this case.

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Rosselle. 2 But Rodriguez ultimately decided not to sell the plane after police

began an investigation into the trafficking conspiracy. Police eventually arrested

Rodriguez, at which time Cordoba tried to convince Rosselle to transfer ownership

of the plane to him. When Rosselle refused, Acosta placed a mechanic’s lien on

the plane, presumably to encourage Rosselle to sell the plane to Cordoba and to

secure for himself the payment Rodriguez promised. When Cordoba eventually

acquired ownership of the plane, Acosta rescinded the lien.

       Acosta was arrested and charged with conspiracy to import cocaine,

importation of cocaine, conspiracy to possess cocaine with an intent to distribute,

and possession of cocaine with an intent to distribute. Notably, although there was

evidence of his involvement in several different smuggling operations, Acosta was

indicted only for his participation in the November 2008 trip.

       At Acosta’s trial, the government presented evidence of his involvement in

Cordoba’s trafficking operation. Both Castillo and Rodriguez testified as to

Acosta’s involvement. Their testimony covered Acosta’s participation beginning

with Cordoba and Castillo’s layover in 2007 and through the final smuggling trip

in August 2009. Both Castillo and Rodriguez testified in part based on their

personal experiences and in part based on their conversations with Cordoba, who


       2
          The conspirators put the plane in Rosselle’s name because some already owned planes
in their names, while others were not U.S. citizens and thus could not file the necessary
paperwork to establish ownership.

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had fled the country and did not testify at trial. In addition to testimony from

Rodriguez and Castillo, the government presented evidence that Cordoba’s flight

records were consistent with the government’s characterization of the trafficking

conspiracy and Acosta’s involvement. The government also introduced testimony

that Acosta received suspicious payments consistent with compensation for drug

trafficking. The jury ultimately found Acosta guilty on all four counts. Acosta

filed a motion for a new trial and a motion for acquittal. The district court denied

both motions, and Acosta filed a timely notice of appeal.

                                   II. ANALYSIS

A. Admission of Evidence Regarding Uncharged Conduct

      Acosta contends that the district court erred when it admitted testimony

about his participation in several instances of uncharged and arguably criminal

conduct. Specifically, Acosta takes issue with the admission of evidence

concerning: (1) his overnight housing of an airplane containing smuggled

marijuana, (2) his assistance in modifying an airplane black box to smuggle

cocaine, (3) his placement of a mechanic’s lien on the plane owned (at least on

paper) by Rosselle, and (4) his receipt of suspicious payments from Cordoba. He

contends that the district court should have refused to admit testimony about these

events because the testimony was inadmissible either as (1) bad acts evidence

under Federal Rule of Evidence 404(b) or (2) hearsay under Federal Rule of


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Evidence 802. We conclude the district court did not abuse its discretion in

admitting testimony concerning Acosta’s uncharged conduct.

            1.   Standard of Review

       To successfully challenge a verdict based on an incorrect evidentiary ruling,

a defendant must establish that (1) his claim was adequately preserved; (2) the

district court abused its discretion in interpreting or applying an evidentiary rule;

and (3) this error affected a substantial right. United States v. Stephens, 365 F.3d

967, 974 (11th Cir. 2004). Although Acosta raised a Rule 404(b) objection at trial,

he never raised a hearsay objection. We thus review his contention that the district

court improperly admitted hearsay testimony for plain error. United States v.

Sorondo, 845 F.2d 945, 948 (11th Cir. 1988). “Under plain-error review, the

defendant has the burden to show that there is (1) error (2) that is plain and (3) that

affects substantial rights.” United States v. Monroe, 353 F.3d 1346, 1349 (11th

Cir. 2003) (alteration adopted) (internal quotation marks omitted). “If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Lejarde-Rada, 319

F.3d 1288, 1290 (11th Cir. 2003) (alteration adopted) (internal quotation marks

omitted).




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         2.   Admissibility Under Rule 404(b)

      Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Fed. R. Evid.

404(b)(1). Such evidence may, however, be admissible if it is inextricably

intertwined with the evidence of the charged offense. United States v. Cancelliere,

69 F.3d 1116, 1124 (11th Cir. 1995). Stated differently, Rule 404(b) does not

apply where bad acts evidence concerns the “context, motive, and set-up of the

crime” and is “linked in time and circumstances with the charged crime, or forms

an integral and natural part of an account of the crime, or is necessary to complete

the story of the crime for the jury.” United States v. Williford, 764 F.2d 1493,

1499 (11th Cir. 1985). Evidence of uncharged conduct may also “be admissible

for another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid.

404(b)(2).

      The bad acts evidence Acosta highlights was admissible because it was

inextricably intertwined with the evidence of his charged offense. To begin with,

testimony concerning the marijuana smuggling and the black box modification was

necessary to help the jury “understand[] . . . the context of the government’s case”

against Acosta because the evidence “explained the relationship” between Acosta


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and his co-conspirators as well as “the goal of the conspiracy.” United States v.

McLean, 138 F.3d 1398, 1404 (11th Cir. 1998). These two activities showed how

Acosta met many of the participants in the trafficking operation, how he was

integrated into the conspiracy, and the evolving sophistication of the trafficking

operation as time passed.3 See United States v. Troya, 733 F.3d 1125, 1132 (11th

Cir. 2013) (evidence admissible because it “established the method by which

Appellants obtained drugs to distribute”); United States v. Lehder-Rivas, 955 F.2d

1510, 1516 (11th Cir. 1992) (evidence was intrinsic when it concerned “the

formation of the conspiracy” and “basic ‘structural’ evidence” concerning the roles

and motives of the participants in the conspiracy).

       Evidence concerning the other two acts at issue—Acosta’s placement of a

mechanic’s lien on the plane and his receipt of suspicious payments—was also

inextricably intertwined with the charged conspiracy. That evidence helped

explain how Acosta was remunerated for his participation in the conspiracy.

       3
          Acosta also asserts that evidence concerning the marijuana smuggling and black box
modification was inadmissible because there was insufficient evidence demonstrating that he
participated in those incidents with knowledge of their criminal nature. But even granting that
point, the evidence was nonetheless admissible because it concerned the actions of Acosta’s co-
conspirators. See United States v. Meester, 762 F.2d 867, 877 (11th Cir. 1985) (finding that
evidence that “documented crimes committed by other members of the conspiracy” was
“intertwined with the evidence of the ongoing conspiracies and so [could not] be labeled
‘extrinsic’”); see also United States v. US Infrastructure, Inc., 576 F.3d 1195, 1210 (11th Cir.
2009) (observing that “evidence that an unindicted co-conspirator had engaged in crimes similar
to those charged against the defendants was admissible because it served to establish a
background for the later substantive acts charged in the indictment and was therefore relevant to
prove the existence and purpose of the ongoing conspiracies” (internal quotation marks
omitted)).

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Acosta’s placement of the lien and his receipt of suspicious payments “arose out of

the same transaction or series of transactions as the charged offense” and, as such,

evidence concerning them did not constitute extrinsic evidence and was admissible

under Rule 404(b). United States v. Collins, 779 F.2d 1520, 1532 (11th Cir. 1986).

Nor does it matter that this conduct arguably occurred after the conclusion of the

conspiracy. “Carefully circumscribed evidence of criminal activity after the

conclusion of the conspiracy may be admissible to ‘complete the story’ of the

conspiracy.” Lehder-Rivas, 955 F.2d at 1516.

      Even if the evidence at issue was not inextricably intertwined with the

offenses charged in Acosta’s indictment, it was probative of something other than

Acosta’s criminal propensity, and thus admissible nonetheless. For evidence of

other crimes or acts to be admissible under such a theory, the evidence must meet

three requirements: “(1) it must be relevant to an issue other than [the] defendant’s

character; (2) there must be sufficient proof to enable a jury to find by a

preponderance of the evidence that the defendant committed the act(s) in question;

and (3) the probative value of the evidence cannot be substantially outweighed by

undue prejudice, and the evidence must satisfy [Federal Rule of Evidence] 403.”

United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).

      Evidence concerning all four of the acts at issue here passes muster under

this test. First, the evidence was probative of something other than Acosta’s


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criminal propensity—namely, his criminal intent. Acosta’s principal defense at

trial was that he was unaware of and uninvolved in any of Cordoba’s criminal

ventures. He argued that his transactions with Cordoba were strictly above-board.

Thus, at trial the government bore the burden of proving that Acosta knowingly

participated in the trafficking conspiracy. See id. at 1345 (“A defendant who

enters a not guilty plea makes intent a material issue which imposes a substantial

burden on the government to prove intent, which it may prove by qualifying Rule

404(b) evidence absent affirmative steps by the defendant to remove intent as an

issue.” (internal quotation marks omitted)). And evidence that Acosta willingly

participated in a prior criminal activity makes it more likely that he intended to

participate in the charged conspiracy. See United States v. Delgado, 56 F.3d 1357,

1365 (11th Cir. 1995) (“[B]ecause the defendant had unlawful intent in the

extrinsic offense, it is less likely that he had lawful intent in the present offense.”

(internal quotation marks omitted)); see also United States v. Jernigan, 341 F.3d

1273, 1280 (11th Cir. 2003) (describing the relevancy element of the Rule 404(b)

test as a “rule of inclusion”).

      Second, there was sufficient evidence to enable the jury to find that Acosta

performed all four of the acts in question. Generally speaking, “the uncorroborated

word of an accomplice . . . provides a sufficient basis for concluding that the

defendant committed extrinsic acts admissible under Rule 404(b).” United States


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v. Dickerson, 248 F.3d 1036, 1047 (11th Cir. 2001) (alteration in original) (internal

quotation marks omitted). Castillo and Rodriguez testified as to Acosta’s role in

Cordoba and Castillo’s 2007 layover and the modification of the black box in

2007. The government also presented testimony and documentary evidence of

Acosta’s placement of a lien on Rosselle’s plane and his receipt of suspicious

payments.

      Third, and finally, the probative value of the contested evidence outweighed

its prejudicial impact. In determining whether the probative value of evidence

outweighs its prejudicial impact, a district court must apply “a common sense

assessment of all the circumstances surrounding the extrinsic offense, including

prosecutorial need, overall similarity between the extrinsic act and the charged

offense, as well as temporal remoteness.” Jernigan, 341 F.3d at 1282 (internal

marks omitted). We consider the evidence “in a light most favorable to its

admission, maximizing its probative value and minimizing its undue prejudicial

impact.” Id. at 1284 (internal quotation marks omitted). Indeed, we have explained

that, even when this balancing test is close, “it is precisely these close questions

that give rise to the deferential abuse of discretion standard of review.” Id. at 1285.

      As described above, Acosta’s principal defense at trial was the lack of

criminal intent, and the evidence concerning Acosta’s uncharged conduct spoke to

his criminal intent. As such, the evidence was highly probative. See Delgado, 56


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F.3d at 1366 (observing that “[t]he greater the government’s need for evidence of

intent, the more likely that the probative value will outweigh any possible

prejudice” (internal quotation marks omitted)). There was also minimal risk that

its admission would unduly prejudice Acosta. The evidence all concerned the

charged conspiracy in one way or another, either because it established the modus

operandi of the conspirators or the conspiracy’s fallout and aftermath. Thus, it

seems more likely that the jury used it for its proper purpose of establishing

Acosta’s knowing participation in the drug conspiracy and less likely that the jury

used it to draw an improper inference about Acosta’s general propensity to engage

in criminal conduct. In fact, Acosta himself presents no compelling reason why

testimony concerning these acts substantially prejudiced him. And, even if there

was some risk that the jury could have drawn improper inferences from the

evidence presented, “any unfair prejudice . . was mitigated by the district court’s

limiting instruction to the jury.” Edouard, 485 F.3d at 1346. The district court

therefore committed no abuse of discretion in declining to exclude the evidence

under Rule 404(b).

         3.    Admissibility under Rule 802

      Concluding that evidence of Acosta’s bad acts was admissible under Rule

404(b) is insufficient to end our inquiry, however, because Acosta also contends

that the evidence was inadmissible for a different reason: it was hearsay. He points


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to portions of Castillo and Rodriguez’s testimony where they each described

statements made by Cordoba about Acosta’s involvement in various stages of the

trafficking conspiracy. A statement constitutes hearsay if it was made out of court

and a party offers it in evidence to prove the truth of the matter asserted in the

statement. Fed. R. Evid. 801(c). And such hearsay is generally inadmissible.

See Fed. R. Evid. 802.

      Even were we to agree that the testimony Acosta identifies constituted

inadmissible hearsay and that the district court plainly erred in admitting it for that

reason (or, for that matter, any other reason), we would nonetheless affirm his

convictions because Acosta has failed to demonstrate the admission of that

testimony affected a substantial right. Stephens, 365 F.3d at 974. “[W]here an

[evidentiary] error had no substantial influence on the outcome, and sufficient

evidence uninfected by error supports the verdict, reversal is not warranted.”

United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990).

      Had the district court excluded the evidence Acosta identifies, there was

ample other evidence supporting the jury’s guilty verdict.4 Rodriguez testified

based on his personal knowledge of Acosta’s involvement in the November 2008

trafficking operation and recounted personally observing Acosta remove cocaine

from the reserve tank of Cordoba’s plane. Beyond that testimony, the government

      4
       Remember, Acosta was only charged and convicted of involvement in the November
2008 smuggling operation.
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presented evidence of the suspicious flight patterns of Cordoba’s planes and how

those flight patterns lined up with descriptions of the trafficking scheme in

testimony provided by Rodriguez and Castillo. This evidence, which was

uninfected by the purported errors Acosta identifies, is sufficient to support the

jury’s verdict. We cannot conclude that the evidentiary errors Acosta highlights on

appeal, to the extent they are in fact errors, had a substantial effect on the verdict.

Reversal is therefore unwarranted on that basis. Hawkins, 705 F.2d at 1493.

B. Jury Instructions

      The second issue we address also concerns the evidence of Acosta’s

uncharged conduct, albeit tangentially so. Acosta contends that the district court

instructed the jury that it could consider the bad acts evidence to convict him of

crimes that had not been charged in the indictment. In doing so, Acosta argues, the

district court’s jury instructions constructively amended the indictment.

      “A fundamental principle stemming from [the Fifth A]mendment is that a

defendant can only be convicted for a crime charged in the indictment.” United

States v. Keller, 916 F.2d 628, 633 (11th Cir. 1990). Altering or expanding the

essential elements of an offense “to broaden the possible bases for conviction

beyond what is contained in the indictment” constructively amends the indictment




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and constitutes per se reversible error.5 Id. at 633-34. “[S]uch an instruction

violates a defendant’s constitutional right to be tried on only those charges

presented in a grand jury indictment and creates the possibility that the defendant

may have been convicted on grounds not alleged in the indictment.” Cancelliere,

69 F.3d at 1121. “In determining whether an indictment was constructively

amended, we must assess . . . the court’s instructions ‘in context’ to see whether

the indictment was expanded either literally or in effect.” United States v. Castro,

89 F.3d 1443, 1453 (11th Cir. 1996).

       When instructing the jury on how it could consider evidence of Acosta’s

uncharged conduct, the district court stated:

             With respect to the conspiracy counts, the [bad acts] evidence
       that you have heard relates to and may be considered by you as
       evidence of whether the defendant—whether there was a conspiracy
       and whether this defendant willfully participated in that conspiracy.
              ....
              With respect to the conspiracy count, you may consider this
       evidence to establish, one, the existence of any conspiracy, whether it
       be the conspiracy to import with intent to distribute or the conspiracy
       to possess—conspiracy to import or the conspiracy to possess with
       intent to distribute, and whether the defendant was a willful
       participant in that conspiracy.

       5
          The government contends that any error arising out of the constructive amendment of
Acosta’s indictment is not per se reversible because Acosta never raised that issue before the
district court; thus, plain error review applies. See United States v. Madden, 733 F.3d 1314,
1319 (11th Cir. 2013). Acosta responds that he objected to the jury instructions as a whole and
that this general objection was sufficient to preserve the constructive amendment issue for
appeal. We need not resolve the question of whether Acosta properly preserved an objection to
the constructive amendment of his indictment, however, because we conclude that no
constructive amendment occurred.
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Trial Tr. at 189-91 (Doc. 443). Acosta reads the final quoted paragraph of the

instruction as informing the jurors that they could use evidence of his uncharged

conduct to convict him of “any conspiracy,” presumably even those not charged in

his indictment. Id. at 191 (emphasis added). But Acosta’s narrow focus on that

single phrase largely ignores the context in which it was used.

      When we consider that context, it becomes clear that the district court was

not instructing the jury that it could convict Acosta of any conspiracy under the

sun; rather, the court was instructing the jury that it could use evidence of Acosta’s

uncharged conduct to convict him of any conspiracy charged in the indictment.

The district court began the sentence in question with the qualifying phrase,

“[w]ith respect to the conspiracy count”—that is, the conspiracy charged. Then,

the court did not state that Acosta’s bad acts could be used to establish his

participation in “any conspiracy,” it stated that the evidence could be used to

establish Acosta’s participation in “any conspiracy, whether it be the . . .

conspiracy to import or the conspiracy to possess with intent to distribute.” Id.

(emphasis added). Thus, despite the breadth of the words “any conspiracy” when

read in a vacuum, the district court narrowed the universe of possible conspiracies

to two: conspiracy to import cocaine and conspiracy to possess cocaine with the

intent to distribute it, both of which were charged in Acosta’s indictment. And,

lest there be any doubt that this interpretation is correct, the court clarified that the
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jury could only convict Acosta of charges included in the indictment, stating, “I

caution you that [Acosta] is on trial only for the specific crimes charged in the

indictment. You’re here to determine from the evidence in this case whether

[Acosta] is guilty or not guilty of those specific crimes.” Jury Instr. at 21 (Doc.

402). After considering the district court’s instruction as a whole, “we do not

believe the jury could have convicted [Acosta] based upon a charge not contained

in the indictment” and thus conclude that the district court’s jury instructions did

not constructively amend his indictment. Castro, 89 F.3d at 1453.

                                III. CONCLUSION

      We find no reversible error in the underlying proceedings and therefore

affirm the judgment of the district court.

      AFFIRMED.




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