Illegal Alien's Drug, Gun Convictions Upheld

US v. Bustos, no. 07-5157, 12/18/08 - Convictions for possessing with intent to distribute meth, possession of guns and ammo in furtherance of the drug offense, and possession of guns and ammo by illegal alien, all arising from a traffic stop, affirmed. In first trial, defendant was convicted of the last charge but jury hung on first two. No such luck the second time around.

Held - no plain error in verdict forms used in both trials that arguably could be read as requiring a not guilty verdict only if the jury unanimously found defendant not guilty beyond a reasonable doubt, in light of the instructions as a whole on burden of proof and the strong evidence of guilt presented at both trials, meaning that outcome would not have been different with better verdict forms, meaning that defendant could not demonstrate prejudice.

Also, as to the gun and ammo possessed during drug crime charge, no abuse of discretion in including in elements instruction the status of the possession (whether defendant, as an illegal alien, could lawfully possess guns and ammo), since knowing you can’t lawfully possess these items and could get in big trouble for doing so makes it more likely that you took such a chance in order to further your drug dealing (got that?), and court also instructed jury not to consider defendant’s illegal status except as it might relate to the drug charge.