United States v. Cardona

United States Court of Appeals
For the First Circuit

No. 22-1415

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL CARDONA, SR., a/k/a RAFO,

Defendant, Appellant.

No. 22-1416

UNITED STATES OF AMERICA,

Appellee,

v.

ISAAC CARDONA,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Gelpí, Selya, and Lynch,
Circuit Judges.

Leslie Feldman-Rumpler for appellant Rafael Cardona, Sr.
 Jane Elizabeth Lee for appellant Isaac Cardona.
Donald C. Lockhart, Assistant United States Attorney, with
whom Joshua S. Levy, Acting United States Attorney, was on brief,
for appellee.

December 7, 2023
 LYNCH, Circuit Judge. Rafael Cardona Sr. and Isaac

Cardona were convicted of two conspiracies, one to distribute and

possess with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1),

846, and another to distribute and possess with intent to

distribute heroin, id. Isaac Cardona, who is Rafael Cardona Sr.'s

son, was also convicted of conspiracy to commit money laundering

with intent to promote the carrying on of unlawful activity, 18

U.S.C. §§ 1956(a)(1), (h), on the ground that he had agreed to use

the proceeds of unlawful activity -- conspiracy to distribute and

possess with intent to distribute cocaine, 21 U.S.C. § 846, and

distribution of cocaine, id. § 841(a)(1) -- to procure and resell

the heroin in that conspiracy.

Rafael Cardona Sr. contends for the first time on appeal

that one of his two conspiracy convictions must be vacated because

the two convictions are multiplicitous in violation of the Double

Jeopardy Clause. Isaac Cardona argues for the first time on appeal

that the money laundering statute under which he was charged is

unconstitutionally vague, and so his conviction under that statute

should be reversed. Isaac Cardona also argues that insufficient

evidence was presented at trial to establish beyond a reasonable

doubt that he had the requisite intent for a promotional money

laundering conviction, and that the court's failure to properly

instruct the jury on this element of the offense was plain error.

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 We conclude that review is not available for the

appellants' belated multiplicity and vagueness arguments because

they are covered by Federal Rules of Criminal Procedure 12(b)(3)

and 12(c)(3), which preclude appellate review of an untimely Rule

12(b)(3) claim, absent a showing of good cause. We further

conclude that sufficient evidence was presented at trial to support

Isaac Cardona's money laundering conviction, and that the

concededly erroneous jury instructions as to his intent did not

affect Cardona's substantial rights.

I.

The following facts are drawn from testimony,

surveillance footage, recorded communications between the

appellants and other co-conspirators, and other evidence. Because

one of the claims addressed in this opinion is a challenge to the

sufficiency of the evidence, "we recount the facts in the light

most favorable to the verdict." United States v. Paz-Alvarez, 799

F.3d 12, 18 (1st Cir. 2015) (citing United States v. Rodríguez-

Soler, 773 F.3d 289, 290 (1st Cir. 2014)).

During 2015 and 2016, David Cruz was a drug dealer based

in Westfield, Massachusetts, who obtained cocaine and heroin from

sources in Mexico. On August 2, 2016, David Cruz received an

eleven kilogram cocaine shipment from Mexican suppliers. Later

that day David Cruz sold one and a half kilos of the cocaine to

Isaac Cardona. Isaac Cardona paid Cruz a $14,980 cash down payment

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on the $52,500 purchase price, with the understanding that he would

pay Cruz the full amount once he had sold a kilo to a customer

with whom he had previously agreed to transact.

On August 15, 2016, Isaac Cardona informed Cruz and

Rafael Cardona Sr. that the customer with whom he had made

arrangements had stolen the kilo of cocaine. Both Cardonas planned

to track the customer down and retrieve the cocaine, but Cruz

suggested to them an alternative plan. Cruz proposed that Isaac

Cardona transport cash proceeds from Cruz's cocaine sales to

California, use that money to buy a kilo of heroin, return with

the heroin to Massachusetts, and then sell the heroin in small

retail amounts, which would enable Isaac Cardona to pay off his

debt to Cruz. Isaac Cardona agreed to this plan, and Cardona Sr.

did not object to it. Cruz informed his heroin supplier of the

planned purchase and gave Isaac Cardona the supplier's contact

number so that Cardona could procure the heroin once he drove

Cruz's car to California. The next day, Cruz showed Cardona how

to operate the hidden compartment in his Nissan Juke in preparation

for the trip. On August 17, both Cardonas discussed repairs that

Cruz and Isaac Cardona were having performed on the Juke so that

it would pass inspection. Cruz gave Isaac Cardona a box to take

to California that contained $12,000 in cash, which was intended

as a down payment for the heroin.

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 From August 20 through August 23, Isaac Cardona traveled

to California in Cruz's Juke. During this time, Cardona Sr.

encouraged his son by telephone to "[k]eep going over there. Tell

[them] to . . . charge the horse more," euphemistically referring

to heroin.1 Cardona Sr. also gave Isaac advice on how he should

act when meeting with the heroin suppliers.

Once in California, Isaac informed Cruz that he did not

want to drive the Juke back to Massachusetts. Cruz told this to

Cardona Sr. in the hope that Cardona Sr. could change his son's

mind. Cardona Sr. stated that next time he would make the trip

himself. Isaac Cardona parked the Juke, which contained the box

of cash, at the airport and flew back to the East Coast.

Around this time, Cardona Sr. asked Cruz to front him a

kilo of cocaine in return for $34,000, to be paid after

distribution. Cruz declined on the ground that Isaac Cardona still

owed him money. Cruz indicated, however, that he would sell

cocaine to Cardona Sr. after Cruz had paid off his debt to his

suppliers. He told Cardona Sr., "We will leave it for next time

then. Say, yes, that I do not have it this time, but for the next

one, yes." Cardona Sr. responded, "All right then, that's fine."

1 The transcripts of intercepted phone calls between
Cardona and Cardona Sr. were translated from Spanish. There is no
challenge to the accuracy of the translations.

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 Soon thereafter, Cruz travelled to California to

purchase heroin from his supplier and retrieve the Juke. Cruz

completed the purchase, placed the substance he received -- later

revealed to be fentanyl, rather than heroin -- in the Juke's hidden

compartment, and arranged for a commercial car carrier to transport

the vehicle back to Massachusetts. Cruz informed both Cardonas of

his actions during this time. Cruz then flew back to the East

Coast.

On September 9, unbeknownst to Cruz and the Cardonas,

law enforcement intercepted the car carrier carrying the Juke, and

the Juke was impounded. Law enforcement uncovered 994 grams of

fentanyl in the hidden compartment of the vehicle.

On September 11, Cruz sent a message to Isaac Cardona:

"I told you I picked up Lard and I wanted to know what have you

thought about what we're going to do to pay." Cardona responded,

"I'll work it and you grab all the profit and square it away."

Cruz was arrested in Massachusetts on September 12.

In the days following Cruz's arrest, the Cardonas and

Cruz's brother, ignorant of the seizure of Cruz's Juke, spoke about

the need to find the Juke and recover the stashed heroin. Cruz's

suppliers were demanding information from the Cardonas about Cruz

and the location of the heroin. Cardona Sr. asked Isaac Cardona

to coordinate with Cruz's suppliers about his efforts to locate

the Juke, and Isaac made contact with them.

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 On November 2, one of Cruz's clients contacted Cardona

Sr. Cardona Sr. explained that Cruz had been arrested, and stated,

"What did you need? We could talk, man. . . . But uh . . . if

[you need] anything we'll hit you up man. You understand? We're

here. . . . What you need you know uh . . . write to me or

something, to the phone or something, understand?"

II.

On November 2, 2017, a federal grand jury returned a

five count superseding indictment against Cardona, Cardona Sr.,

and three other co-conspirators, whose liability varied as to each

of the conspiracy counts. Count One charged Isaac Cardona and

Rafael Cardona Sr. with conspiracy to distribute and possess with

intent to distribute cocaine, in violation of 21 U.S.C. § 846.

Count Two charged Isaac Cardona and Rafael Cardona Sr. with

conspiracy to distribute and possess with intent to distribute

heroin, in violation of 21 U.S.C. § 846. Count Five charged Isaac

Cardona with conspiracy to commit money laundering with intent to

promote the carrying on of unlawful activity, in violation of 18

U.S.C. §§ 1956(a)(1), (h), and alleged in particular that Isaac

Cardona had agreed to purchase heroin in California to resell in

Massachusetts with the knowledge that said financial transaction

would involve the proceeds of unlawful narcotics distribution.

The remaining counts did not charge the appellants.

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 On October 18, 2021, each of the Cardonas was convicted

by jury trial on all counts. They timely appeal.

III.

A.

Cardona Sr. argues on appeal that one of his convictions

should be vacated because the two conspiracies of which he was

convicted, he says, were multiplicitous. "A prosecution is

multiplicitous when the government charges a defendant twice for

what is essentially a single crime . . . ." United States v.

Chiaradio, 684 F.3d 265, 272 (1st Cir. 2012) (citing United States

v. Destefano, No. 98-2054, 1999 WL 1319192, at *1 (1st Cir. Nov.

22, 1999) (per curiam)). A multiplicitous prosecution violates

the Double Jeopardy Clause's prohibition "against multiple

punishments for the same offense." Id. (quoting United States v.

Pires, 642 F.3d 1, 15 (1st Cir. 2011)).

The prosecution replies first that, because Cardona

Sr.'s multiplicity claim is untimely, it cannot be reviewed by

this court. Under Fed. R. Crim. P. 12(b)(3), a multiplicity

objection "must be raised by pretrial motion if the basis for the

motion is then reasonably available and the motion can be

determined without a trial on the merits." Fed. R. Crim. P.

12(c)(3) provides that "[i]f a party does not meet the deadline

for making a Rule 12(b)(3) motion, the motion is untimely. But a

court may consider [the motion] if the party shows good cause."

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 Cardona Sr. concedes in his opening brief that his

multiplicity claim is unpreserved, having been raised for the first

time on appeal. He also does not dispute in his briefs the

appellee's contention that the multiplicity claim could have been

determined without a trial on the merits, nor does he advance a

good cause for the motion's untimeliness.2 Cardona Sr. argues

nonetheless that the claim should be reviewed for plain error.

Our precedent precludes this argument. We have

previously concluded that a legal argument that is untimely under

Rules 12(b)(3) and (c)(3) "cannot be raised on appeal absent a

showing of good cause." United States v. Reyes, 24 F.4th 1, 16

n.8 (1st Cir. 2022) (quoting United States v. Lindsey, 3 F.4th 32,

40-41 (1st Cir. 2021)). Where a defendant does not show good cause

to consider an unpreserved Rule 12(b)(3) argument on appeal, he is

2 Counsel for Cardona Sr. argued for the first time
during oral argument that the multiplicity motion was not untimely
because it could not have been determined prior to a trial on the
merits. Because Cardona Sr. did not address this argument in his
briefs despite the appellee's invocation of Rule 12(b)(3), it has
been waived. See Reisman v. Associated Facs. of the Univ. of Me.,
939 F.3d 409, 414 (1st Cir. 2019) ("[C]ontentions 'raised [] for
the first time at oral argument . . . [are] waived.'" (alterations
in original) (quoting Bernardo ex rel. M & K Eng'g, Inc. v.
Johnson, 814 F.3d 481, 492 n.17 (1st Cir. 2016))); Bradley v. Vill.
of Univ. Park, 59 F.4th 887, 897 (7th Cir. 2023) ("[A]ppellant's
counterarguments [were] waived on appeal where he 'did not respond
to [appellee's arguments] in his reply brief.'" (third alteration
in original) (quoting Webb v. Frawley, 906 F.3d 569, 582 (7th Cir.
2018))).

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"not entitled to plain error review." Id. (quoting Lindsey, 3

F.4th at 42).3

Cardona Sr. contends that his new multiplicity argument has

not been waived, because there is no indication that during trial

he intentionally relinquished his right to object on multiplicity

3 Cardona Sr. contends that Reyes and Lindsey are not
on point because they do not address the 2014 amendments to Rule
12. This argument is unavailing. Prior to the 2014 amendments,
Rule 12's timeliness requirement was provided by Federal Rule of
Criminal Procedure 12(e), which stated that "[a] party waives any
Rule 12(b)(3) defense, objection, or request not raised by the
deadline the court sets under Rule 12(c) or by any extension the
court provides. For good cause, the court may grant relief from
the waiver." Fed. R. Crim. P. 12(e) (2013). At the time this
pre-2014 version of Rule 12 was in effect, this court held that
plain error review was not available for an untimely Rule 12(b)(3)
motion absent a showing of good cause. See United States v.
Walker, 665 F.3d 212, 228 (1st Cir. 2011). While the 2014
amendments to Rule 12 removed use of the word "waiver" and
transplanted the timeliness requirement from 12(e) to (c)(3), the
amendments did not alter the meaning of the rule's timeliness
requirement. The advisory committee notes to the 2014 amendments
explain that Rule 12(c)(3) "retains the existing standard for
untimely claims. The party seeking relief must show 'good cause'
for failure to raise a claim by the deadline . . . ." Fed. R.
Crim. P. 12 advisory committee's note to 2014 amendments; see
United States v. Walker-Couvertier, 860 F.3d 1, 9 n.1 (1st Cir.
2017) ("Though the express reference to 'waiver' in Rule 12 was
deleted in December of 2014, the amendment did not substantively
change the rule." (citing Fed. R. Crim. P. 12 advisory committee's
note to 2014 amendments)); United States v. Bowline, 917 F.3d 1227,
1235 (10th Cir. 2019) ("[E]limination of the word waiver from [Rule
12] did not change the operative standard. The Advisory Committee
Notes could not be clearer on this point." (citing Fed. R. Crim.
P. 12 advisory committee's note to 2014 amendments)). Because the
timeliness requirement in Rule 12 did not change with the 2014
amendments to the rule, there was no need for this court in Lindsey
or Reyes to address those amendments. See 3 F.4th at 41; 24 F.4th
at 16 n.8. Accordingly, our holdings in those decisions bind our
analysis here.

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grounds. This argument misunderstands Rule 12's timeliness

requirement. Under Rule 12(c)(3), review of an untimely 12(b)(3)

motion is foreclosed absent good cause, regardless of whether the

appellant intended to forgo an objection during trial.4 See United

States v. Galindo-Serrano, 925 F.3d 40, 47-49 (1st Cir. 2019)

(holding that review of appellant's untimely suppression motion is

precluded under Rule 12(c)(3) despite an absence of intentional

waiver). This is made clear by the Rule 12 advisory committee

notes, which state that

[a]lthough the term waiver in the context of
a criminal case ordinarily refers to the
intentional relinquishment of a known right,
[Rule 12] has never required any determination
that a party who failed to make a timely motion
intended to relinquish a defense, objection,
or request that was not raised in a timely
fashion.

4 Additional cases cited by Cardona Sr. do not refute
this conclusion. Cardona Sr. first cites United States v. Soto,
in which the government argued that the appellant's double jeopardy
claim was waived under the pre-2014 version of Rule 12. 799 F.3d
68, 86 n.10 (1st Cir. 2015). We rejected the government's argument
because "[t]he amended Rule 12 eliminated any reference to waiver."
Id. We did not, however, issue a holding as to whether the present
version of Rule 12 precluded review of the defendant's claim. See
id. Cardona Sr. also cites United States v. Kuljko, but in that
decision we avoided addressing whether "the appellant's challenge
. . . was either waived or forfeited." 1 F.4th 87, 92 (1st Cir.
2021). Cardona Sr. additionally cites United States v. King, in
which this court reviewed an unpreserved multiplicity claim for
plain error. 554 F.3d 177, 180 (1st Cir. 2009). We did not
address in that decision whether review was foreclosed by Rule 12.
See id.

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Fed. R. Crim. P. 12 advisory committee notes to 2014 amendments;

see United States v. Fry, 792 F.3d 884, 888-89 (8th Cir. 2015)

(declining to review multiplicity claim because appellant "has not

shown 'good cause' for failing to raise a timely challenge to the

multiplicity of the indictment"); United States v. Santiago-Ortiz,

797 Fed. App'x. 34, 38-39 (2d Cir. 2019) (unpublished) (holding

that Rule 12(b)(3) multiplicity claim is not reviewable because

appellant "fail[ed] to raise it before, during, or after trial in

the district court"). In requiring a multiplicity claim to be

made prior to trial, Rule 12's timeliness requirement prevents the

"manifest[] unfair[ness]" that would result if the "defendant

[could] sit silently by, take his chances with the jury, and then

be allowed to ambush the prosecution through a post-trial attack."

United States v. Walker, 665 F.3d 212, 228 (1st Cir. 2011). It

also averts the "needless inefficiency in the trial process" that

would obtain "if defendants [were] not required . . . to raise all

of their grounds in pursuing a [pretrial motion]." United States

v. Crooker, 688 F.3d 1, 10 (1st Cir. 2012). The "timely

presentation of [defective indictment claims] to the district

court allows full development of the factual record and permits

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the government to appeal any adverse . . . decision prior to

trial."5 Id.

B.

Isaac Cardona argues for the first time on appeal that

his money laundering conviction should be reversed because, in his

view, the Money Laundering Control Act of 1986, 18 U.S.C. § 1956,

violates the due process guarantee against vague criminal laws.

We must, here too, first determine whether this argument

not made in the trial court or sought to be excused for good cause

is reviewable. The prosecution argues that this claim may not be

reviewed on appeal under Fed. R. Crim. P. 12(b)(3) and (c)(3).

Rule 12(b)(3) states that an argument that the indictment "fail[s]

to state an offense" must be made before trial. The prosecution

argues that Cardona's claim that the Money Laundering Control Act

is unconstitutional constitutes an objection that the indictment

failed to state an offense, and so is covered by Rule 12(b)(3).6

Cardona admits that his constitutional attack is a facial attack.

5 Isaac Cardona attempts in his reply brief to join
Cardona Sr.'s multiplicity claim. Because we hold that the claim
is not reviewable, we do not address whether an appellant may adopt
a co-appellant's argument for the first time in a reply brief.
See United States v. De La Paz-Rentas, 613 F.3d 18, 29 (1st Cir.
2010).

6 To support this argument, the prosecution cites
United States v. Seuss, in which this court held that an
unconstitutional vagueness claim constitutes a "defense of failure
of an indictment to charge an offense" under Rule 12. 474 F.2d
385, 387 n.2 (1st Cir. 1973). At the time of the court's decision

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 Cardona does not dispute that Rule 12(b)(3) applies to

his vagueness claim, and so we assume that his motion is covered

by that provision.7 See Sabra v. Maricopa Cnty. Cmty. Coll. Dist.,

in Seuss, Federal Rule of Criminal Procedure 12(b)(2) stated that
"[d]efenses and objections . . . that [the indictment or
information] fails to show jurisdiction in the court or to charge
an offense . . . shall be noticed by the court at any time during
the pendency of the proceedings." Fed. R. Crim. P. 12(b)(2)
(1992). In light of this language, we determined that the
appellant's unpreserved vagueness claim was reviewable. See
Seuss, 474 F.2d at 387 n.2. The 2014 amendments to Rule 12,
however, "remove[d] language that allowed the court at any time
while the case is pending to hear a claim that the 'indictment or
information fails . . . to state an offense.'" Fed. R. Crim. P.
12 advisory committee's note to 2014 amendments (alteration in
original). We do not address in this decision whether our holding
in Seuss applies to the amended version of Rule 12.
We do note that two circuits have held that Rule 12(b)(3)
covers constitutional attacks. See United States v. Mullet, 822
F.3d 842, 847-48 (6th Cir. 2016) ("Because the defendants' argument
[that the Hate Crimes Act is unconstitutional] does not go to the
court's jurisdiction, they forfeited it by not raising it before
trial [under] Fed. R. Crim. P. 12(b)(3)(B)." (emphasis in
original)); United States v. Herrera, 51 F.4th 1226, 1282-85 (10th
Cir. 2022) (holding that the defendant's unpreserved challenge to
the constitutionality of the statute "both on its face and as
applied" is waived under Rule 12(b)(3)(B)).

7 Cardona argues that unpreserved constitutional
claims are reviewed de novo, but Cardona's argument does not
address Rule 12, and with one exception, none of the cases cited
in support of his argument address that rule. The exception is
United States v. DiSanto, in which this court stated that under
Rule 12, "a claim that a statute is unconstitutional or that the
court lacked jurisdiction may be raised for the first time on
appeal." 86 F.3d 1238, 1244 (1st Cir. 1996). DiSanto does not
support Cardona's argument. At the time of the court's decision
in DiSanto, Rule 12(b)(2) expressly stated that an objection that
the indictment fails to charge an offense could be raised "at any
time during the pendency of the proceedings." Fed. R. Crim. P.
12(b)(2) (1996). The 2014 amendments to Rule 12 eliminated this
language, rendering DiSanto's holding obsolete. See Fed. R. Crim.
P. 12 advisory committee notes to 2014 amendments ("[Rule 12] has

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44 F.4th 867, 881 (9th Cir. 2022) (holding that appellant waives

claim by failing to respond in reply brief to appellee's argument);

Carlisle Ventures, Inc. v. Banco Español de Crédito, S.A., 176

F.3d 601, 609-10 (2d Cir. 1999) (declining to consider claim

because appellant failed to respond in reply brief to appellee's

argument that it was waived); Oken v. Corcoran, 220 F.3d 259, 273-

74 (4th Cir. 2000) (Michael, J., concurring) (arguing that

appellant abandoned rebuttal to appellee's waiver argument because

he failed to raise it in his reply brief).

Cardona instead argues that Rule 12(c)(3)'s timeliness

requirement for 12(b)(3) motions applies only to review by district

courts, and so does not preclude appellate review of an unpreserved

claim.8

We can easily dispose of this argument. This court has

on multiple occasions concluded that Rule 12(c)(3) precludes

also been amended to remove language that allowed the court at any
time while the case is pending to hear a claim that the 'indictment
or information fails . . . to state an offense.'" (alteration in
original)); see also United States v. Ríos-Rivera, 913 F.3d 38, 43
(1st Cir. 2019) (holding that DiSanto does not require the court
to review unpreserved constitutional claims de novo, as its
statement to that effect was mere dicta).

8 Cardona did not expressly make this argument in his
briefs. At oral argument, appellate counsel for Cardona clarified
her argument that Rule 12(c)(3) does not constrain review by
appellate courts. Appellate counsel during oral argument also
opted not to argue that Cardona's vagueness claim is covered in
the alternative by Fed. R. Crim. P. 12(b)(2), the rule that governs
pretrial motions that may be made at any time.

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appellate review of an untimely 12(b)(3) motion absent good cause.

See Reyes, 24 F.4th at 16 n.8; Lindsey, 3 F.4th at 40-41. As we

have explained, where a defendant does not "show 'good cause' for

a failure to raise a Rule 12(b)(3) challenge prior to trial . . . .

there is no unfairness in holding him to his waiver." Walker, 665

F.3d at 228. Cardona contends that, because his vagueness claim

is one purely of law, there would be no prejudice to the government

if we were to grant review. This ignores the judicial economy

reasons for requiring a Rule 12(b)(3) motion to be heard prior to

trial. See Crooker, 688 F.3d at 10. Cardona has put forth no

argument as to why our previous rulings on Rule 12's timeliness

requirement should not be followed. We cannot, then, review

Cardona's vagueness claim.

C.

Cardona next argues that insufficient evidence was

presented at trial to support his money laundering conviction.

The parties dispute the appropriate standard of review. We

conclude that Cardona's claim fails under any standard, and so

assume, in his favor, that the issue is preserved and apply de

novo review. See United States v. Cadden, 965 F.3d 1, 10 (1st

Cir. 2020) (observing that de novo review applies to preserved

claim of insufficient evidence to support a conviction (citing

United States v. Sebaggala, 256 F.3d 59, 63 (1st Cir. 2001))). We

assess the evidence "'in the light most favorable to the

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prosecution' and affirm so long as the 'body of proof, as a whole,

has sufficient bite to ground a reasoned conclusion that the

government proved each of the elements of the charged crime beyond

a reasonable doubt.'" Id. (quoting United States v. Lara, 181

F.3d 183, 200 (1st Cir. 1999)).

To commit promotional money laundering, one must,

knowing that the property involved in a
financial transaction represents the proceeds
of some form of unlawful activity, conduct[]
or attempt[] to conduct such a financial
transaction which in fact involves the
proceeds of specified unlawful activity . . .
with the intent to promote the carrying on of
specified unlawful activity.

18 U.S.C. § 1956(a)(1). Isaac argues that no evidence was shown

at trial to support the charge that he had intended to promote the

carrying on of heroin trafficking when he entered into the

agreement to procure heroin in California to sell it in

Massachusetts.

This argument misses the mark. Cardona does not dispute

that the evidence at trial established beyond a reasonable doubt

that he had agreed to purchase heroin with an intent to resell

it.9 Cardona's willingness to enter such an agreement, along with

his specific intent to sell heroin, is sufficient for a rational

trier of fact to find beyond a reasonable doubt that Cardona

9 Given that this aspect of the record is not in
dispute, we do not inquire into the evidence establishing that
Cardona conspired to purchase and resell heroin.

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intended to promote the carrying on of heroin trafficking. See

United States v. Santos, 553 U.S. 507, 518 (2008) ("Surely one

promotes 'the carrying on' of a gambling enterprise by merely

ensuring that it continues in business."); United States v. Trejo,

610 F.3d 308, 314 (5th Cir. 2010) (equating "intentional promotion"

with "the intent to further the progress" of the unlawful

activity); United States v. Warshak, 631 F.3d 266, 317 (6th Cir.

2010) ("The paradigmatic example of [promotional money laundering]

is a drug dealer using the proceeds of a drug transaction to

purchase additional drugs and consummate future sales." (citing

United States v. Torres, 53 F.3d 1129, 1137 n.6 (10th Cir. 1995)));

Torres, 53 F.3d at 1137 n.6 (finding testimony showed defendant

"would use the proceeds of the wire transfers to buy more

methamphetamine that would later be resold, thereby satisfying the

'promotion' element of § 1956(a)(1)(A)(i)").

Cardona maintains that his purpose in agreeing to sell

heroin was not to promote the carrying on of heroin trafficking,

but rather to pay back the debt he owed to Cruz. This argument

confuses an intent to engage in unlawful activity with the

"ultimate objective" of said activity. United States v. Cortés-

Cabán, 691 F.3d 1, 19 (1st Cir. 2012); see also United States v.

Santistevan, 39 F.3d 250, 255 n.7 (10th Cir. 1994) ("Motive, unlike

mens rea, is not an essential element of a criminal offense.").

Where a defendant's conduct satisfies the intent element of a

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criminal offense, the defendant's ultimate objective, or motive,

does not supplant that intent. See United States v. Hughes, 211

F.3d 676, 683 n.4 (1st Cir. 2000) ("Even if . . . [defendant's]

primary motive was to cover up the murder, he nevertheless intended

to carry out the cover up scheme by issuing an extortionate demand

. . . .").

Cardona also argues that, if the promotion element of

his money laundering conviction involved no more than a mere intent

to sell heroin, then his money laundering conspiracy and heroin

conspiracy convictions punished him twice for the same conduct and

thereby present a "merger problem." Santos, 553 U.S. at 515-16.

The Supreme Court has held that a money laundering conviction may

present a merger problem where "nearly every violation of [the

predicate crime with which the defendant is charged] would also be

a violation of the money-laundering statute." Id. at 515.

No such merger problem is present here. One may conspire

to distribute and possess with intent to distribute heroin without

engaging in a financial transaction. 21 U.S.C. §§ 841(a)(1), 846;

see Cortés-Cabán, 691 F.3d at 19 ("[I]t is well accepted that drugs

may be distributed [under 21 U.S.C. § 841(a)(1)] by giving them

away for free . . . ." (quoting United States v. Cormier, 468 F.3d

63, 70 n.3 (1st Cir. 2006))). Cardona therefore was not doubly

punished for the financial transaction covered by his money

laundering conviction. See United States v. Adorno-Molina, 774

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F.3d 116, 123-24 (1st Cir. 2014) (holding that there is no merger

problem for a money laundering conviction where the predicate crime

is drug trafficking); United States v. Pratt, 533 F.3d 34, 38 (1st

Cir. 2008) ("[T]he money laundering charge requires proof of a

financial transaction, . . . which is [not] required to prove the

drug conspiracy charge."); see also United States v. Webster, 623

F.3d 901, 906 (9th Cir. 2010) ("[C]onspiracy to possess with intent

to distribute . . . and possession with intent to distribute

. . . . do not merge with the money laundering crimes, because the

drug crimes need not involve the exchange of money." (citing United

States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir. 1979))).

D.

Cardona additionally argues that we should vacate his

money laundering conspiracy conviction on the basis of erroneous

jury instructions. As the prosecution appropriately concedes, the

trial court erroneously informed the jurors that to convict Cardona

of conspiring to commit money laundering, they would need to find

beyond a reasonable doubt "that the defendant knew the [financial]

transaction to be either designed in whole or in part to promote

the carrying on of a conspiracy to distribute and possess with

intent to distribute a controlled substance."10 (Emphasis added).

The statute, in contrast, requires the defendant to have

10 The prosecution also admits that its proposed
instructions to the court likely led to the error.

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"inten[ded] to promote the carrying on of . . . unlawful activity."

18 U.S.C. § 1956(a)(1)(A)(i) (emphasis added); see United States

v. Cedeño-Pérez, 579 F.3d 54, 57 (1st Cir. 2009).

Cardona did not object to the jury instruction at trial,

so we review for plain error. United States v. Rivera-Ruperto,

852 F.3d 1, 10 (1st Cir. 2017). "Reversal under the plain error

standard requires: (1) that an error occurred; (2) that the error

was obvious; (3) that it affected the defendant's substantial

rights; and (4) that it threatens the fairness, integrity or public

reputation of the proceedings." Id. (citing United States v.

Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014)). "[T]he road

to success under the plain error standard [is] rather steep; hence,

reversal constitutes a remedy that is granted sparingly." United

States v. Latorre-Cacho, 874 F.3d 299, 303 (1st Cir. 2017) (quoting

Delgado-Marrero, 744 F.3d at 184). Accordingly, "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." Id.

(quoting United States v. Colon, 744 F.3d 752, 758 (1st Cir.

2014)).

Cardona has not demonstrated a "reasonable probability"

that the erroneous jury instructions affected the outcome of the

case. Id. at 304. Although the court misinformed the jury as to

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the mens rea element of money laundering, the court properly

instructed the jury on the elements of conspiracy to possess with

intent to distribute heroin. This included that, to convict the

appellants of such a conspiracy, the jury would have to find that

the appellants had "willfully joined" in "the agreement specified

in the indictment," and that the appellants had done so with "a

specific intent to distribute the heroin." See United States v.

Pennue, 770 F.3d 985, 990 (1st Cir. 2014) (holding that, in

determining whether the court's instructions were reasonably

likely to have misled the jury, "we do not assess the problematic

instruction in isolation, but, rather, inspect the jury charge as

a whole" (first citing United States v. Van Anh, 523 F.3d 43, 58

(1st Cir. 2008); and then citing United States v. Cintolo, 818

F.2d 980, 1003 (1st Cir. 1987))). The jury convicted Cardona of

conspiracy to possess with intent to distribute heroin, and so

must have found that he had entered into the agreement with Cruz

with a specific intent to distribute heroin. See United States v.

Munyenyezi, 781 F.3d 532, 542 (1st Cir. 2015) ("We normally assume

that juries follow instructions." (citing United States v. Acosta-

Colón, 741 F.3d 179, 202 n.13 (1st Cir. 2013))). It is implausible

that the jury could have found that Cardona had intended to

distribute heroin, but not that he had intended to promote the

carrying on of heroin distribution. See United States v. Doherty,

867 F.2d 47, 58 (1st Cir. 1989) ("We find the [erroneous jury

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instructions] harmless . . . because we believe it virtually

inconceivable that the jury could have found these appellants

guilty of conspiracy to commit mail fraud without believing that

they were conspiring to deprive the Commonwealth of money

. . . ."). It is not likely that the jury, had it been properly

instructed on the money laundering count, would have found that

Cardona had not entered into a promotional money laundering

conspiracy.11

IV.

We affirm the convictions.

Cardona contends that the court's error was
11

compounded by the prosecution's suggestion in opening and closing
arguments that he had committed money laundering merely by driving
cash in a concealed compartment to California. There is no
indication of this in our reading of the record. Although the
prosecution stated that Cardona had entered into a money laundering
conspiracy when he agreed to transport cash to California, the
prosecution did not make any statements implying that the offense
did not involve an additional element of intent.

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