United States v. Cardinas Garcia

FILED
United States Court of Appeals
Tenth Circuit

February 23, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 08-5090
LUIS ALBERTO CARDINAS
GARCIA,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. CR-07-150-GKF)

Bill Zuhdi, Bill Zuhdi Attorney at Law, P.C., Oklahoma City, Oklahoma, for
Appellant.

Leena Alam, Assistant United States Attorney (David E. O’Meilia, United States
Attorney, with her on the brief), Office of the United States Attorney, Northern
District of Oklahoma, Tulsa, Oklahoma, for Appellee.

Before TACHA, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.

TYMKOVICH, Circuit Judge.
 A federal jury convicted Luis Alberto Cardinas Garcia (Cardinas) 1 of one

count of possessing 500 grams or more of a mixture containing methamphetamine

with intent to distribute, a violation of 21 U.S.C. § 841. He was sentenced to 151

months’ imprisonment.

On appeal, Cardinas raises three issues. First, he claims the evidence

presented at trial was insufficient to convict him. To support this claim, he

argues we should ignore two key pieces of evidence presented by the prosecution:

(1) the testimony of a government witness, which he asserts was inherently

incredible; and (2) testimony from a police officer who saw Cardinas sell

methamphetamine and cocaine to a confidential informant a month before

committing the present offense. Second, Cardinas claims the jury verdict form

used at his trial improperly led the jurors to believe he was required to prove his

innocence beyond a reasonable doubt. He asserts this was prejudicial error

because the jury reached an impasse after its first deliberation session and did not

return a guilty verdict until the following day. Third, he claims cumulative error

warrants reversal.

We conclude that sufficient evidence supports the conviction and that any

imperfection in the jury verdict form did not prejudice Cardinas. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm his conviction.

1
Though the parties referred to the defendant by the name Garcia in their
briefs and at oral argument, he stated at trial he prefers the name Cardinas. We
therefore use that name throughout this opinion.

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 I. Background

A. The May Drug Sale and the Suspected Stash House

In May 2007, as part of an investigation of drug-related activity in Tulsa,

Oklahoma, a special investigator from the Tulsa Police Department observed

Cardinas sell a package containing methamphetamine and cocaine to a

confidential informant. After Cardinas left the site of the drug sale in his Ford

Explorer, another Tulsa police officer stopped him for speeding. The officer used

a drug-sniffing dog to search Cardinas’s car, but found nothing and let Cardinas

go with a ticket for driving without a license. Because the investigation was

ongoing, the special investigator decided not to pursue charges against Cardinas

for the drug sale and instead had the drugs destroyed.

Cardinas remained a target. He frequently visited a suspected “stash

house”—a location where a drug dealer stores his drugs—that was under

surveillance by the Tulsa police. The particular stash house was an apartment

rented by Cardinas’s friend Isaias Gonzales.

During Cardinas’s visits, he would repeatedly exit Gonzales’s apartment,

meet various people in the parking lot, then return to the apartment. This regular

pattern of behavior suggested to the investigator that Cardinas was dealing drugs.

B. The June Drug Bust

On the night of June 12, 2007, a Tulsa police sergeant and an agent from

the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), conducted a

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surveillance operation at Gonzales’s apartment, suspecting it was being used to

facilitate drug dealing. Their investigation was separate from that of the Tulsa

special investigator’s, and they were apparently unaware of Cardinas’s May drug

sale and frequent visits to the apartment.

During the surveillance, the police sergeant and ATF agent observed

“short-term foot traffic”: three or four people separately entered Gonzales’s

apartment, stayed for a brief time, then left. R. Vol. 2 at 17, 26–27. This foot

traffic corroborated the sergeant and agent’s suspicions of drug activity, and they

decided to confront the occupants of the apartment.

When the sergeant and ATF agent approached the apartment, they

encountered Cardinas as he was leaving. They asked him whether the apartment

was his; he answered no, and they patted him down for drugs and weapons.

Finding nothing, the sergeant and agent proceeded to knock on Gonzales’s door

and obtain permission to enter and search his apartment. Cardinas remained at

the scene while the officers conducted their search.

During their search, the sergeant and ATF agent found nearly two pounds

of methamphetamine packaged in numerous plastic bags, as well as a set of

digital scales commonly used to weigh quantities of drugs. Upon finding this

evidence, they arrested Gonzales, and he proceeded to tell the sergeant and ATF

agent he received the drugs and scales from a man named Tony. Gonzales

claimed he had planned to sell the drugs and pay Tony with the proceeds. Based

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on this information, the sergeant and ATF agent allowed Cardinas and several

other men who were present in the apartment to leave. At the time, the sergeant

and ATF agent did not suspect Cardinas played a role in the possession or

distribution of the seized methamphetamine.

Later that night, the police sergeant communicated with the Tulsa special

investigator who had previously surveilled Cardinas. The sergeant found out for

the first time that the special investigator had already obtained a warrant to search

Cardinas’s own apartment based on information the special investigator had

gathered over the previous two months. The sergeant informed the special

investigator of Gonzales’s arrest and Cardinas’s presence at the stash house that

evening, and the Tulsa police executed the search warrant early the next morning,

on June 13, 2007.

The police did not find any drugs or drug paraphernalia at Cardinas’s

apartment. They did, however, find a large amount of cash. 2 Cardinas was later

charged with possession, with intent to distribute, the drugs found at Gonzales’s

apartment.

C. Gonzales’s Plea Agreement

When Gonzales was initially arrested, he erroneously believed he would not

be sent to jail for possessing the methamphetamine found at his apartment.

2
At trial, Cardinas disputed the amount of money the police officers found
during their search of his apartment. The officers claimed they found $1,700;
Cardinas asserted they found only $1,000.

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Instead, he was under the impression he would be deported to Mexico. Later,

upon learning he could be sentenced to significant jail time, Gonzales changed his

story about the origin of the drugs.

At a conference to discuss the possibility of a plea agreement, Gonzales

admitted to prosecutors he had lied about receiving the methamphetamine from

Tony. He stated he had fabricated the name Tony and had actually received the

drugs from Cardinas. He claimed Cardinas was planning to sell the drugs and had

promised to pay Gonzales $2,000 to hold them. After agreeing to testify

truthfully regarding Cardinas’s ownership of the drugs, Gonzales executed a plea

agreement, pursuant to which the government promised to recommend a lighter

sentence to Gonzales’s sentencing judge.

D. Cardinas’s Trial

Shortly before Cardinas’s trial, the government filed a notice pursuant to

Federal Rule of Evidence 404(b) announcing its intention to introduce testimony

regarding Cardinas’s May 2007 drug sale. The government asserted the testimony

would establish Cardinas’s “motive, opportunity, intent, preparation, plan,

knowledge, identity, . . . absence of mistake or accident and his consciousness of

guilt.” R. Vol. 1, Doc. 28 at 3. In response, Cardinas’s counsel filed a motion in

limine to exclude the testimony, arguing it would cause a distracting “minitrial,”

would be “burdensome and a confusion of the issues[,] . . . and [would] result in

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unfair prejudice.” R. Vol. 1, Doc. 29 at 5. The district court denied the motion in

limine and the case proceeded to trial.

At trial, the government offered testimony from various witnesses including

the ATF agent, Gonzales, the special investigator who had surveilled Cardinas

during the May drug sale, and a forensic scientist who testified that the drugs

seized at Gonzales’s apartment were indeed methamphetamine. Cardinas’s

counsel reasserted his Rule 404(b) objection to the special investigator’s

testimony, but the court overruled the objection and admitted the testimony with a

limiting instruction.

During the government’s case-in-chief, Cardinas’s counsel thoroughly

cross-examined Gonzales. The cross-examination emphasized that Gonzales had

initially lied to police regarding the origin of the methamphetamine. Gonzales

also admitted he had sold some of the methamphetamine to pay his rent. Finally,

Gonzales admitted he decided to testify against Cardinas only after learning he

could be sentenced to a significant jail term for possessing methamphetamine, and

only after executing a plea agreement with the government.

During the defense’s rebuttal, Cardinas took the stand to describe his

relationship with Gonzales and rebut Gonzales’s testimony. Cardinas testified

that he and Gonzales are Mexican citizens and came to the United States illegally.

They grew up in the same hometown in Mexico and became friends in Tulsa

because of their shared history. Cardinas claimed he helped Gonzales move into

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the apartment where the methamphetamine was found, had sold Gonzales some

furniture and a sound system, and visited Gonzales’s apartment once or twice a

week merely to trade movies.

With respect to the May 2007 drug sale, Cardinas explained he did not

actually sell the drugs to the confidential informant but was merely a one-time

middleman. Cardinas explained that over the course of a month, the confidential

informant (who was Cardinas’s work colleague) had asked every day for help in

obtaining drugs and kept “insisting and insisting” that Cardinas help him. R. Vol.

2 at 191–2. Cardinas testified he finally relented, obtained the drugs, and

delivered the drugs to his friend while under surveillance by the Tulsa special

investigator. Cardinas claimed he had never sold, or helped anyone obtain, drugs

before that day.

As for the June drug bust, Cardinas explained he was present at Gonzales’s

apartment that night merely to pick up money from Gonzales for the furniture

Cardinas had sold him. Cardinas claimed he had entered Gonzales’s apartment,

picked up the money, and less than five minutes later had left the apartment when

he encountered the Tulsa police sergeant and the ATF agent. Cardinas testified

he had nothing to do with the drugs or scales seized at Gonzales’s apartment and

had never seen them prior to that night.

Finally, Cardinas claimed that after he and Gonzales were arrested, while

they shared a holding cell, Gonzales revealed to him the true source of the

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methamphetamine and digital scales the police found at Gonzales’s apartment.

According to Cardinas, Gonzales said the drugs belonged to a man named Esteban

Contreras.

E. Jury Deliberations

At the close of Cardinas’s case, the court held a conference to finalize the

jury instructions. After addressing the parties’ various concerns—and discussing

whether the proposed instructions properly described the burden of proof—the

court asked whether Cardinas’s counsel had any final objections. He stated he did

not. At no time during the conference did either party object to the jury verdict

form.

The court then called the jury, read the instructions, and allowed the parties

to make closing arguments. After approximately four hours of deliberation, the

jury sent a note to the trial judge stating that the jurors had not yet reached a

“unanimous agreement” and “seem[ed] to be at an impasse.” R. Vol. 2 at 275.

The note stated that one juror needed to pick up a child from day care and could

not continue deliberating, and the jury sought guidance on how to proceed given

the time constraints. At a conference with the parties’ attorneys, the court noted

that the jury had not been deliberating long and, after confirming with the parties

the appropriate course of action, dismissed the jury for the day.

The next day, the jury deliberated for approximately one and a half hours

and returned a unanimous guilty verdict.

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 II. Discussion

Cardinas raises three issues on appeal. First, he claims we should

disregard two key pieces of evidence admitted at trial, and then conclude the

evidence was insufficient to sustain his conviction. Cardinas contends Gonzales’s

testimony—which was the only evidence directly linking Cardinas to the

methamphetamine found at the stash house—was “inherently incredible,” and we

should ignore it. He also urges us to ignore the testimony of the Tulsa special

investigator regarding the May 2007 drug sale, claiming the testimony was

improperly admitted under Rule of Evidence 404(b).

Second, Cardinas claims the jury verdict form improperly shifted the

burden of proof by suggesting he was required to prove his innocence beyond a

reasonable doubt. He argues the verdict form was important to the jury’s

deliberative process, and the error warrants a new trial. In particular, he asserts

the record shows the error on the verdict form was not harmless, because the

jurors came to an impasse at the end of their first deliberation session and did not

return a guilty verdict until the next day.

Third, Cardinas claims cumulative error warrants reversal of his conviction.

We address each of these contentions in turn.

A. Sufficiency of the Evidence

We review Cardinas’s sufficiency of the evidence claim de novo, viewing

the evidence as a whole and in the light most favorable to the government.

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United States v. Parker, 553 F.3d 1309, 1316 (2009). Furthermore, our review is

deferential to the jury’s fact-finding, and we must sustain Cardinas’s conviction if

any rational juror could have found him guilty. Id.

In the context of sufficiency of the evidence claims, we normally do not

revisit factual issues that are the exclusive province of the jury. We accept at

face value the jury’s credibility determinations and its balancing of conflicting

evidence. Id. Indeed, we will overturn a jury’s credibility determination and

disregard a witness’s testimony only if the testimony is inherently incredible—

that is, only if the events recounted by the witness were impossible “under the

laws of nature” or the witness “physically could not have possibly observed” the

events at issue. United States v. Oliver, 278 F.3d 1035, 1043 (10th Cir. 2001)

(quoting Tapia v. Tansy, 926 F.2d 1554, 1562 (10th Cir. 1991)).

To convict a defendant for possession of illegal drugs with intent to

distribute, a jury must find, beyond a reasonable doubt, that the defendant (1)

knowingly possessed the drugs and (2) had the specific intent to distribute them.

United States v. Lauder, 409 F.3d 1254, 1259 (2005). But the government need

not prove the defendant actually possessed the drugs at the time he was arrested; a

conviction may be based on constructive possession. Id. To prove constructive

possession, the government must present evidence establishing “some nexus, link,

or other connection between the defendant and the contraband.” Id. (citing

United States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994)). If the evidence

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“supports at least a plausible inference that the defendant had knowledge of and

access to the contraband,” it is sufficient to prove constructive possession. Id.

(alteration omitted) (quoting United States v. Norman, 388 F.3d 1337, 1341 (10th

Cir. 2004)).

If it were proper for the jury to credit Gonzales’s testimony and the

government’s Rule 404(b) evidence, there is no question Cardinas’s conviction

was supported by sufficient evidence. The evidence showed Cardinas had access

to Gonzales’s apartment and the methamphetamine stored there: the Tulsa special

investigator saw him coming and going from Gonzales’s apartment three or more

times per week over the course of two months. Furthermore, Cardinas was

present at the apartment the night of the June drug bust, and Gonzales himself

testified Cardinas was the owner of the drugs and planned to sell them. Finally,

the drugs were packaged in small plastic bags and a digital scale was found with

them; these facts, along with Cardinas’s May drug sale, suggest Cardinas had the

specific intent to distribute the drugs. In sum, viewed in its entirety, and with

inferences drawn in favor of the government, the record contains sufficient

evidence to sustain Cardinas’s conviction. Cf. Lauder, 409 F.3d at 1260 (finding

that the evidence was sufficient to prove a transient occupant of a house had

constructive possession of, and intent to distribute, drugs stored in the house).

But Cardinas argues we may not credit Gonzales’s testimony or the

government’s Rule 404(b) evidence. He asserts the only admissible evidence

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linking him to the drugs was the ATF agent’s testimony that Cardinas was present

at Gonzales’s apartment on the night of the drug bust. “Mere presence,” Cardinas

argues, “is not enough for a conviction.” Aplt. Br. at 25. Thus, we must consider

Cardinas’s objections to Gonzales’s testimony and his objections to the

government’s Rule 404(b) evidence.

1. Gonzales’s Testimony

We reject Cardinas’s argument regarding the credibility of Gonzales’s

testimony. Cardinas asserts that because Gonzales initially lied to the police

about the origin of the drugs, and failed to explain at trial why he did so, his

testimony was inherently incredible. But this assertion does not come close to

establishing “inherent incredibility” under our case law.

As an initial matter, the record reveals a perfectly rational explanation for

Gonzales’s change of story. When Gonzales was arrested, he erroneously

believed he would not spend time in jail for possession of the methamphetamine,

but would only be deported. At the time, Gonzales might have figured that given

his light punishment, he could gain nothing by telling the truth. Indeed, Gonzales

testified during direct examination that he fabricated the story about Tony to

protect his longtime friend Cardinas.

But Gonzales later learned he faced significant potential jail time for

possession of methamphetamine. With this knowledge, Gonzales might have

perceived he could gain something quite valuable by telling the truth: leniency

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with the prosecutors and the possibility of a reduced sentence. Indeed, this is

exactly what Gonzales received in his plea agreement.

Given this explanation of the shifting testimony, the mere fact that

Gonzales failed at trial to explain his reasons for changing his story does not

make his testimony inherently incredible. Furthermore, during cross-examination

Cardinas’s counsel was able to reveal the inconsistencies in Gonzales’s testimony

and his motive for implicating Cardinas (i.e., favorable treatment from the

government). The jury thus had before it all facts relevant to Gonzales’s

credibility. In this context, the jury acted within “the bounds of reason” when it

credited Gonzales’s testimony despite the inconsistencies. See Oliver, 278 F.3d

at 1043.

Moreover, the doctrine of inherent incredibility is a longshot. A fact-

finder’s credibility determinations are “virtually unreviewable on appeal.” United

States v. Virgen-Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003) (quoting United

States v. Jones, 160 F.3d 473, 480 (8th Cir. 1998)). Cardinas’s arguments simply

fail to overcome the stringent standards of the inherent incredibility doctrine.

Cardinas relies on our decision in Tapia but does not explain why

Gonzales’s story described events that he “physically could not have possibly

observed” or events that “could not have occurred under the laws of nature.”

Oliver, 278 F.3d at 1043 (quoting Tapia, 926 F.2d at 1562); see United States v.

Williams, 216 F.3d 611, 614 (7th Cir. 2000) (“Because Williams has failed to

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allege any such special circumstances here, his challenge to the sufficiency of the

evidence is without merit.”).

In Tapia, we were not confronted with a situation where the witness

claimed to be in two different places at the same time or made other claims

contrary to the “laws of nature.” Rather, there—as here—the witnesses’

testimony presented two distinct versions of the historical facts. In these

situations, we have held that the testimony of a drug dealer’s compatriots,

regardless of whether the testimony is “confused” or “self-contradicting,” is not

inherently incredible. See Lauder, 409 F.3d at 1259–60; see also Williams, 216

F.3d at 614 (“We must leave open the possibility that even a liar tells the truth

once in a while, and the jury is in the best position to judge [a witness’s]

credibility.”). Given the reality of these types of prosecutions, juries frequently

hear conflicting testimony pitting the word of co-conspirators against each other.

Nor does Cardinas explain why Gonzales “physically could not have

possibly observed” the events he recounted. Oliver, 278 F.3d at 1043 (quoting

Tapia, 926 F.2d at 1562). Gonzales lived at the stash house that Cardinas

frequently visited and out of which Cardinas allegedly dealt drugs. Nothing

impeded Gonzales’s ability to observe Cardinas’s actions—the observations he

recounted at trial were of the type any co-conspirator would experience. See id.

Despite Cardinas’s insistence that Gonzales’s waffling made his testimony

inherently incredible, conflicting versions of facts are precisely within the

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province of the jury to resolve and nothing in this case takes the testimony

outside of the jury’s realm. See Tapia, 926 F.2d at 1562 (“Nor does the fact that

there are several conflicting versions [of the facts] affect our determination of

credibility as a matter of law.”); cf. United States v. Smith, 308 F.3d 726, 746 (7th

Cir. 2002) (“Deference to the finder of fact, with the opportunity to observe the

witnesses, supports credibility findings even in the face of some internal conflicts

[in the witnesses’ testimony].”).

As a final point, it is worth noting that the jury was instructed that it need

not believe Gonzales. Indeed, it was told that “You should receive this type of

testimony with caution and weigh it with great care” since it is the product of a

“plea agreement with Mr. Gonzales, providing a possible recommendation of a

lesser sentence than he would otherwise likely receive.” R. Vol. 1, Doc. 38 at 15

(Jury Instruction No. 11).

Thus, because Gonzales had a rational reason for changing his story

regarding the origin of the methamphetamine, and because Cardinas’s inherent

incredibility arguments fail under our case law, we see no reason to set aside the

jury’s verdict under a sufficiency of the evidence challenge.

2. Rule 404(b) Evidence

Gonzales’s testimony, if believed, is sufficient on its own to sustain

Cardinas’s conviction. The testimony was direct evidence of Cardinas’s

ownership of the drugs and his intent to distribute them. See 16 McCormick on

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Evidence § 185 (6th ed. 2006) (“Direct evidence is evidence which, if believed,

resolves a matter in issue.”); see also id. (testimony from an eyewitness who saw

the defendant commit the crime is direct evidence of the defendant’s guilt).

Nonetheless, the Rule 404(b) evidence—i.e., the Tulsa special investigator’s

testimony regarding the May 2007 drug sale—was important to the government’s

case. The evidence corroborated Gonzales’s testimony and circumstantially

proved Cardinas intended to distribute the nearly two pounds of drugs found at

Gonzales’s apartment. We therefore proceed to determine whether the district

court properly admitted the evidence under Rule 404(b).

We will not reverse a district court’s decision to admit Rule 404(b)

evidence unless the decision was an abuse of discretion. United States v. Mares,

441 F.3d 1152, 1156 (10th Cir. 2006). If the decision “falls within the bounds of

permissible choice in the circumstances and is not arbitrary, capricious, or

whimsical,” we must uphold it. Id. (internal quotation marks and bracket

omitted) (quoting United States v. Shumway, 112 F.3d 1413, 1419 (10th Cir.

1997)).

Federal Rule of Evidence 404(b) provides, in relevant part:

Other Crimes, Wrongs, or Acts.—Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith. It may, however, be admissible for other
purposes, such as proof of . . . intent, . . . plan, knowledge,
. . . or absence of mistake or accident.

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To admit evidence of “other acts” under Rule 404(b), a court must make a four-

factor inquiry: “(1) whether the evidence is offered for a proper purpose, (2) its

relevancy, (3) that the probative value of the evidence is not substantially

outweighed by its prejudicial effect, and (4) a limiting instruction is given if the

defendant so requests.” Mares, 441 F.3d at 1156. Cardinas challenges each of

the four elements as they relate to the May 2007 drug sale. We find no merit in

his arguments.

One, the evidence was offered for a proper purpose: to prove Cardinas’s

specific intent to distribute the drugs found in Gonzales’s apartment. See United

States v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000) (holding that a defendant’s

prior involvement with drugs may be admitted to show his intent for a drug

trafficking charge). Furthermore, the May 2007 drug sale was admissible to

corroborate Gonzales’s testimony that Cardinas intended to distribute the drugs.

See United States v. Edwards, 540 F.3d 1156, 1163 (10th Cir. 2008) (citing

United States v. Porter, 881 F.2d 878, 886 & n.8 (10th Cir. 1989)), cert. denied,

129 S. Ct. 964 (2009). The evidence was therefore offered for a proper purpose

under Rule 404(b). 3

3
Cardinas asserts the government’s Rule 404(b) notice was inadequate
because it contained only the boilerplate, scattershot argument that the May 2007
drug sale was admissible to prove Cardinas’s “motive, opportunity, intent,
preparation, plan, knowledge, identity, . . . absence of mistake or accident and his
consciousness of guilt.” R. Vol. 1, Doc. 28 at 3. While in the past we have
expressed reservations with this scattershot approach because it fails to
(continued...)

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 Two, the evidence was relevant. To determine relevance under Rule

404(b), we must examine factors such as the similarity of the uncharged act to the

charged conduct and the temporal proximity of the two acts. See Mares, 441 F.3d

at 1158; Becker, 230 F.3d at 1232. Here, Cardinas’s prior uncharged act

(distribution of cocaine and methamphetamine) was quite similar to the charged

crime (possession of methamphetamine with intent to distribute) and occurred

only a month before the June drug bust. Therefore, given its probative force, the

May drug sale was relevant under Rule 404(b). See United States v. Cherry, 433

F.3d 698, 702 & n.4 (10th Cir. 2005) (holding that testimony regarding the

defendant’s prior conviction for knowing distribution of crack cocaine, which

occurred five years before the charged conduct, was relevant to prove intent to

distribute crack); see also Mares, 441 F.3d at 1159 (a subsequent act of marijuana

trafficking, which occurred nearly one year after the charged conduct, was

relevant to show knowledge and plan).

Three, the probative value of the May 2007 drug sale was not substantially

outweighed by its prejudicial effect. “More often than not, intent is proved by

circumstantial evidence.” See United States v. Nickl, 427 F.3d 1286, 1300 (10th

3
(...continued)
adequately frame the issue for opposing counsel and the court, see Edwards, 540
F.3d at 1163, in this case it was clear the government’s Rule 404(b) evidence was
offered for the proper purpose of proving Cardinas’s intent. Furthermore,
Cardinas’s complaints about the government’s Rule 404(b) notice are new; he
failed to raise this argument to the district court.

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Cir. 2005). Though evidence of the May 2007 drug sale was “prejudicial” to

Cardinas in that it circumstantially established his intent to distribute the

methamphetamine found in Gonzales’s apartment, “such is the nature of evidence

establishing an element of the charged crime.” Mares, 441 F.3d at 1159. Here,

the Rule 404(b) evidence was not unfairly prejudicial and the district court did

not abuse its discretion in admitting the evidence.

Four, the district court, at Cardinas’s request, gave a limiting instruction.

Though Cardinas now claims the instruction was “inadequate,” he does not

explain why; nor did he object to the instruction when it was given at trial. In

fact, the instruction told the jury it could credit the testimony “for no other

purpose” than Cardinas’s “motive, opportunity, intent” and the like. R. Vol. 1,

Doc. 37 at 24 (Jury Instruction No. 20). We presume jurors will “conscientiously

follow the trial court’s instructions,” and we see no reason to depart from that

presumption here. Cherry, 433 F.3d at 702 (quoting United States v. Carter, 973

F.2d 1509, 1513 (10th Cir. 1992)).

In sum, the four prongs of the Rule 404(b) test were satisfied in this case.

The district court did not abuse its discretion in admitting evidence regarding

Cardinas’s May 2007 drug sale to prove his intent to distribute the

methamphetamine at issue.

* * *

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 To conclude, Gonzales’s testimony—as well as the Rule 404(b)

evidence—properly enter our sufficiency of the evidence calculus, and we reject

Cardinas’s sufficiency of the evidence claim.

B. The Verdict Form

Cardinas next claims that an error on his jury verdict form was prejudicial

and requires reversal. He concedes, however, that at trial he failed to object to

the verdict form before the jury retired for deliberations. See Fed. R. Crim. P.

30(d). We therefore review Cardinas’s claim for plain error only, see Fed. R.

Crim. P. 52(b), and will reverse his conviction only if (1) there was error, (2) that

was plain, which (3) affected Cardinas’s substantial rights, and which (4)

seriously affected the fairness, integrity, or public reputation of the judicial

proceedings below. See United States v. Pursley, 474 F.3d 757, 769 (10th Cir.

2007); see also United States v. LaVallee, 439 F.3d 670, 684 (10th Cir. 2006).

Cardinas’s verdict form stated:

We, the jury, duly impaneled and sworn in the above case,
unanimously find beyond a reasonable doubt as follows as
to the Indictment:

On or about June 12, 2007, in the Northern District of
Oklahoma, defendant, Luis Alberto Cardinas Garcia, did
knowingly and intentionally possess with the intent to
distribute 500 grams or more of a mixture and substance
containing a detectable amount of methamphetamine, in
violation of Title 21, United States Code, Sections
841(a)(1) and (b)(1)(A)(viii).

Not Guilty __ Guilty __

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R. Vol. 1, Doc. 38 at 1 (emphasis added). Cardinas argues the language in the

opening statement of the verdict form “erroneously shifted the burden of proof”

by implying Cardinas was required to prove his innocence beyond a reasonable

doubt and by failing to make clear that only the government carried the burden of

proof regarding his guilt. Aplt. Br. at 20. He asserts the error on the form was

harmful and requires reversal.

When reviewing a jury verdict form, we must determine whether it, along

with the instructions read to the jury, as a whole adequately stated the applicable

law. See United States v. Stiger, 413 F.3d 1185, 1190 (10th Cir. 2005). The

verdict form tendered here suggests that regardless of the jury’s verdict, the

reasonable doubt standard had to be satisfied, implying that the jury could not

acquit Cardinas unless it found him not guilty “beyond a reasonable doubt.” Of

course, due process requires the government to bear the burden of proof, not the

defendant. See Apprendi v. New Jersey, 530 U.S. 466, 477–78 (2000). The

verdict form should have been differently worded. 4

But even so, any error on the verdict form does not require reversal. We

look to the jury instructions as a whole, and, in that light we are satisfied the jury

4
The jury verdict form should be modified to correct any confusion in
future cases. See United States v. Bustos, 303 F. App’x 656, 663 (10th Cir. 2008)
(reviewing same verdict form and concluding it could “have been better
constructed to eliminate any question . . . that the applicable standard of
reasonable doubt and burden of proof might somehow be applied to a finding of
‘not guilty,’ rather than only to a finding of ‘guilty.’”).

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was not misled about the government’s burden of proving guilt beyond a

reasonable doubt. Cardinas therefore fails to overcome the third prong of the

plain error standard—whether the error affected his substantial rights. See United

States v. Zapata, 546 F.3d 1179, 1190–91 (10th Cir. 2008), cert. denied, 129 S.

Ct. 772 (2008).

Throughout the jury instructions, the district court consistently emphasized

that the burden of proof was upon the government. For example, the first jury

instruction stated: “The defendant pleaded not guilty and is presumed innocent.

He may not be found guilty by you unless all twelve of you unanimously find that

the government has proved his guilt beyond a reasonable doubt.” R. Vol. 1, Doc.

37 at 2. Another instruction stated: “Remember at all times, you are judges—

judges of the facts. You must decide whether the government has proved the

defendant guilty beyond a reasonable doubt.” Id. at 28 (Jury Instruction No. 24).

Yet another stated “The government has the burden of proving a defendant guilty

beyond a reasonable doubt. The law does not require a defendant to prove his

innocence or produce any evidence at all.” Id. at 8 (Jury Instruction No. 4)

(emphasis added). The judge finally instructed the jury: “I remind you that it is

your job to decide whether the government has proved the guilt of the defendant

beyond a reasonable doubt.” Id. at 12 (Jury Instruction No. 8).

Indeed, aside from the verdict form, Cardinas points to no other portion of

the jury instructions that suggests confusion regarding the burden of proof. We

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have previously held that a single, minor error in a set of jury instructions

regarding the burden of proof does not mislead a jury when the instructions as a

whole make the burden clear. See United States v. Martinez, 776 F.2d 1481, 1484

(10th Cir. 1985). Likewise, here it is unlikely that the wording of the jury verdict

form affected the outcome of Cardinas’s trial. 5

Cardinas disagrees, arguing the jury “wrestled with coming to a verdict”

and reached an “impasse” after four hours of deliberation. Aplt. Br. at 42–43.

According to Cardinas, the jury’s behavior proves that a different verdict form

would have resulted in acquittal. But nothing in the record suggests the jury’s

impasse was caused by confusion regarding the verdict form or jury instructions.

Instead, the record shows that a mere scheduling issue—specifically, a juror had

to pick up a child from day care—necessitated the jury’s adjourning for the

evening before reaching a verdict. Moreover, after the jury rendered its verdict,

Cardinas asked the court to poll the jurors, and each unequivocally stated

Cardinas was guilty. Whatever “impasse” the jury had faced, it dissipated the

next day when the jury reached its verdict.

5
Several unpublished opinions from this circuit and others support this
conclusion. See United States v. Bustos, 303 F. App’x 656, 663–64 (10th Cir.
2008); see also United States v. Edwards, 215 F. App’x 417, 420–21 (6th Cir.
2007); United States v. Vogel, No. 93-5275, 1994 WL 556994, at *9 (4th Cir. Oct.
12, 1994).

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 In sum, Cardinas has failed to show that any error on the verdict form

affected his substantial rights. We find no plain error with respect to the verdict

form and reject Cardinas’s claim.

C. Cumulative Error

Finally, Cardinas asserts that the cumulative effect of errors at his trial

warrants reversal. But we have determined that only one error occurred at

trial—the district court’s use of the flawed verdict form—and that the error did

not affect Cardinas’s substantial rights. We therefore reject his cumulative error

claim. See United States v. Rosario Fuentez, 231 F.3d 700, 709 (10th Cir. 2000)

(“Because we identified but one error in this case there is no basis for a

cumulative error determination.”).

III. Conclusion

For the foregoing reasons, we AFFIRM Cardinas’s conviction.

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