USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 95-1863

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN LABOY-DELGADO,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, Senior U.S. District Judge]

__________________________

_________________________

Before

Selya and Cummings,* Circuit Judges,

______________

and Coffin, Senior Circuit Judge.

____________________

_________________________

Jose C. Romo Matienzo on brief for appellant.

_____________________
John C. Keeney,
______________

Acting Assistant Attorney

M.B. Van Vliet and Philip Urofsky,

______________
______________
of Justice

and Guillermo Gil,

_____________

for appellee.

General, Theresa
_______

Criminal Division, U.S. Dep't

United States Attorney,

on brief

_________________________

May 21, 1996

_________________________

__________

*Of the Seventh Circuit, sitting by designation.

SELYA, Circuit Judge.

SELYA, Circuit Judge.
______________

On November 3,

1993, a federal

grand

jury empaneled

in the

District of

defendant-appellant Juan Laboy-Delgado

possess cocaine with

846,

intent to

Puerto Rico

indicted

(Laboy) for conspiring to

distribute, 21 U.S.C.

841

&

attempting to import cocaine and conspiring to that end, 21

U.S.C.

952, 960, & 963, and aiding and abetting the commission

of these

crimes, 18 U.S.C.

all counts

and the

Following Laboy's conviction on

district court's imposition

incarcerative sentence,

no safe harbor.

2.

of a

211-month

Laboy prosecuted this appeal.

He finds

Determining, as

we do, that his assignments

of

error lack merit, we affirm.

I.
I.

BACKGROUND
BACKGROUND

We elucidate the

most

flattering to

facts gleaned at

the jury's

verdict.

trial in the

light

See United States v.

___ ______________

Spinney, 65 F.3d 231, 233 (1st Cir. 1995).

_______

that

many

Figueroa

of the

Sanchez

conspirator,

pivotal facts

(Figueroa),

Zebedo

Maisonet

come

the

We note at the outset

from testimony

former

Gonzalez

wife

of

(Maisonet),

of Sonia

quondam

and

from

Maisonet himself.1

In early 1990, certain individuals,

hatched a plan

to import cocaine from Colombia to Puerto Rico by

way of St. Maarten.

Montijo,

Maisonet included,

Maisonet testified that a fellow rogue, Papo

sponsored the

appellant for

membership in

the cabal.

1Figueroa began cooperating with the authorities

during the

____________________

investigation.
agreement

Maisonet

joined her in a duet as

part of a plea

negotiated between the date of his arrest and the date

of the appellant's trial.

Maisonet discussed the venture's

prospects with the appellant in

the spring of 1990, but forged no enduring alliance.

That

detained a

summer,

gang

wind

conspirator attempting

Rico on a commercial

thwarted a

the

Customs

to carry cocaine

officials

into Puerto

airline flight, and mechanical difficulties

seaborne pickup of

pondered new

shifted.

cocaine in St.

strategies to

Maarten.

transport contraband

As the

from St.

Maarten

name.

to Puerto

This

time

haggling over

Rico, Montijo

again floated

the conspirators

the prospective

approached

the appellant's

him and,

division of spoils,

after

enlisted his

services.

The appellant

Rivera

(Guzman),

Maarten

travel

to

to ferry

Puerto Rico.

by boat to St.

preliminary to

long on bravado

He

(Laboy)

contraband

and Maisonet

Maarten to receive

and short

Guzman

from St.

planned to

the clandestine cargo

The planning

on security.

process proved

Figueroa attended

details of the anticipated trip

St. Maarten were reviewed.

also tape-recorded

cousin, Hector

shipment of

its transshipment.

pivotal meeting at which

from

arranged for his

the

to and

At the government's behest, she

telephone calls in which

she, the appellant,

and other coconspirators freely discussed the pending smuggle.

Fueled by Figueroa's input,

Victor Ayala,

9, 1990.

placed Guzman's boat under

surveillance on August

At around 11:00 a.m. on August

10, Ayala observed the

appellant and a

heavy

a federal narcotics agent,

suitcases

conspirator known

onto

the boat.

only as

The

men

"Jerry" lugging

two

stayed aboard

for

approximately

suitcases.

ten

Late

minutes

that

aboard carrying a blue

small

then

morning, Guzman

rug.

reappeared, remained aboard

carrying a

and

departed

and

Maria Sostre

Shortly before noon,

for roughly half

travel bag.

During the

came

afternoon,

left

various

Near the end of

day the local authorities, fearing that the vessel was being

readied

for departure,

kilograms

boarded her.

of cocaine concealed in

that Guzman

in

the

the appellant

an hour, and

persons came and went, some bringing provisions.

the

without

suitcases.

the ship (under

aboard the

The authorities

ship:

Edwin

Maria Sostre, and Miriam Garcia.

The

found seventy-three

had brought aboard), and detected

the now-empty

individuals

They

appellant

had

the blue rug

traces of cocaine

also found

Burgos, Fabian

four

Martinez,

They arrested Guzman nearby.

flown

to

Puerto

Rico

that

day

(sometime after delivering the suitcases) and was arrested there.

Indictment,

trial,

conviction, and

sentencing

followed apace.

This appeal ensued.

II.
II.

SUFFICIENCY OF THE EVIDENCE

SUFFICIENCY OF THE EVIDENCE

The appellant

adduced against him

challenges the sufficiency

at trial, insisting that

the district court

should have granted his timely motion for judgment

See Fed. R. Crim. P. 29(a).

___

familiar:

like

the

The standard of

trial court,

determine whether

the evidence

most favorable to

the prosecution,

find

the

of the proof

of acquittal.

appellate review is

court of

appeals

proffered, arrayed in

enabled a

must

the light

rational jury

each element of the offense beyond a reasonable doubt.

to

See
___

United States v. Valle, 72 F.3d 210, 217 (1st Cir. 1995);

_____________
_____

United
______

States v. Olbres, 61
______
______

F.3d 967, 970 (1st Cir.), cert. denied, 116

_____ ______

S. Ct.

In

522 (1995).

evidentiary inferences

so doing, we

in harmony

States v. O'Brien, 14 F.3d 703,

______
_______

must draw

all reasonable

with the verdict,

see United
___ ______

706 (1st Cir. 1994), and resolve

all disagreement

regarding the

government's behoof, see

___

974

(1st Cir. 1995).

presented,

viewed

credibility of witnesses

United States v.
_____________

As long

through

Taylor, 54 F.3d
______

as the totality

this

glass,

inferences, might have

supports

reached a

967,

of the evidence

the

verdict, it is legally irrelevant that a different jury,

alternative

to the

jury's

drawing

different result.

See United States v. Gifford, 17 F.3d 462, 467 (1st Cir. 1994).
___ _____________
_______

The

appellant

tries

to

place

his

insufficiency

challenge into bold relief by emphasizing three points.

None has

force.

1.
1.

falters

The appellant

because the evidence

says

that

at trial did

the government's

case

not precisely define

his "specific role in the criminal enterprise."

To be sure, that

sort of definition is helpful in setting sentencing ranges,

e.g., U.S.S.G.
____

3B1.1, 3B1.2, but to prove a defendant guilty of

a narcotics-related

and prove with

scheme.

conspiracy the

government need not

particularity the defendant's

specify

exact role in

See, e.g., United States v. Carroll, 871 F.2d 689,

___ ____ _____________
_______

93 (7th Cir.

1989).

prove

beyond those

facts

see,
___

elements of the crimes

Put another way,

that are

the government need

necessary to

692-

not

establish the

charged, see United States v.

___ _____________

the

Staula, 80
______

F.3d 596,

605 (1st

Cir. 1996), and

drug-conspiracy charge under

charge

of

under 21 U.S.C.

the

States
______

v.

Sepulveda,
_________

21 U.S.C.

952

defendant's role

Ct. 2714

(1st Cir.

offense.2

F.3d

(discussing elements of offense

S.

1161,

under

(1994); United States

_____________

1992) (discussing

846

elements of

nor an importation

include a definitive specification

in the

15

neither the

1173

See,
___

(1st

Cir.

846), cert. denied,

_____ ______

v. Nueva, 979
_____

elements of offense

cert. denied, 507 U.S. 997 (1993).

_____ ______

e.g., United
____ ______

1993)

114

F.2d 880, 884

under

952),

2.
2.

the

The appellant next

evidence against

(Maisonet).

The

him

decries the fact

came from

appellant

a cooperating

suggests

presumptively untrustworthy because

molded into a

that

codefendant

Maisonet

of his strong

say what the government wanted to hear.

can be

that much of

was

motivation to

This sort of suggestion

powerful jury argument

but it has

little

potency on appeal.

The persons most knowledgeable about the inner workings

of

criminal enterprises

Thus,

the government

witnesses as

knaves, whose

to be

which has

it finds them

often

the criminals

no choice

but

themselves.

to take

its

must rely on blackguards and

testimony is admittedly tinged with self-interest,

to prove its allegations.

inadmissible

tend

it would

Such flaws do not render the testimony

be a surreal

system of justice if

only

____________________

2To
misfired
needed by

the extent

that the

appellant claims

the prosecution

by failing to show that he possessed some special skill

the

conspirators, he

elements of the offense.

has

again strayed

beyond

the

His claim is, therefore, unavailing.

those who were

case

without sin

could offer evidence

in a

criminal

but a witness' involvement in the crime and his motive for

turning on

counsel.

tested

his erstwhile accomplices

The rules thus

in the crucible

for defense

permit the witness'

credibility to be

of cross-examination.

In this instance

the

appellant vigorously

and

the resultant credibility choice

this court.3

are fair game

attacked Maisonet's motives

was for the

at trial,

jury, not for

See, e.g., O'Brien, 14 F.3d at 706.

___ ____ _______

3.
3.

contradictions

Relatedly,

in

the

appellant

Maisonet's testimony,

bewails

concluding

certain

that these

contradictions rendered his testimony inherently unreliable.

The

asserted contradictions

for

example,

invited

Maisonet

at one

Guzman to join

occasions, that

are mostly of

point

peripheral interest;

suggested

the conspiracy, yet

the conspirators had retained

that the

appellant

mentioned, on other

Guzman's services

before

the appellant hove into view.4

Court cases, however, are

____________________

3We note that the

the potential
the jurors,

trial judge drew the jury's

problems with testimony of

inter alia,
_____ ____

that

attention to

this type, instructing

the testimony

of informants

and

accomplices cooperating with the government "must be examined and

weighed by [you] with greater care and caution than the testimony
of ordinary witnesses."

4We say "asserted contradictions" because, for

jury could

have found the supposed

example, the

contradiction concerning who

first hired Guzman to be more apparent than real.

revealed

that, during Guzman's earlier trip, he worked for a few

low-level conspirators
his

The testimony

principal

thereafter

and had

partner.

discussed

ways

little contact with

When
of

Maisonet
transporting

and
the

Maisonet or

the

appellant

cocaine,

the

appellant referred to Guzman only as his cousin, and not by name.

Thus,
real

Maisonet could have "hired" Guzman through Laboy in a very

sense,

notwithstanding

Guzman's

enterprise.

earlier

brush

with the

not choreographed with the precision of a ballet.

Some degree of

contradiction is commonplace and, for the most part, the judicial

system relies

the

jurors'

intuition

upon devices

common

to

such as the

sense,

separate

and

grain

the

from

cross-examiner's vigor,

trial

chaff.

judge's

Those

practiced

checks

and

balances were fully in play here and, on this scumbled record, we

think

that the

jury could

reasonably have

testimony despite the asserted contradictions.

believed Maisonet's

See, e.g., United

___ ____ ______

States
______

that

v. Romero, 32 F.3d
______

the court

decision

see
___

of

641, 646 (1st

appeals

"will

to credit testimony

also United States

____ _____________

not secondguess

the

jury's

which contains an inconsistency");

v. Johnson, 55
_______

1995); United States v.

_____________

Cir. 1994) (explaining

F.3d 976, 979

Jackson, 959 F.2d 81, 82-83

_______

(4th Cir.

(8th Cir.),

cert. denied, 506 U.S. 852 (1992).

_____ ______

We

add

an

eschatocol

appellant's insufficiency

case because

the

fingerpointing of

of

sorts.

challenge comes

evidence

against

a turncoat.

him

Rejecting

more readily

went

far

Figueroa's testimony

the

in this

beyond

the

was little

short of damning, and, moreover, the jury heard the tape-recorded

conversations

aspects

of

in

the

which the

scheme.

appellant

Appellant

and

himself

others spelled

made

out

inculpatory

statements when arrested.

Then, too,

appellant

delivering suitcases

cocaine.

In

circumstantial

crimes,

later

similar situations,

evidence of

combined with trace

Agent Ayala observed

found

where the

defendants'

to have

contained

government offered

participation

elements of drugs

the

in

drug

found in objects

carried by those defendants, our sister circuits have had

little

difficulty

in

challenges.

1170,

sustaining

See,
___

e.g.,
____

1175-76 (5th

III.
III.

United States
_____________

Cir. 1993),

(1994); United States

_____________

1988).

convictions

v. Arango,
______

insufficiency

v. Rodriguez,
_________

cert. denied,
_____ ______

853 F.2d 818,

114 S.

993 F.2d

Ct. 1547

826 (11th

Cir.

So it is here.

LIMITATION OF CROSS-EXAMINATION
LIMITATION OF CROSS-EXAMINATION

The appellant

complains that the district

in circumscribing his cross-examination

Under the

right

against

Confrontation Clause,

"to be confronted with

Const. amend. VI.

court erred

of a government witness.

every criminal defendant

the witnesses against

him."

has a

U.S.

This protection "means more than being allowed

to confront the witness

physically."

Davis v. Alaska,
_____
______

415 U.S.

308, 315 (1974).

Rather, its primary purpose is to ensure that a

defendant has a fair opportunity to cross-examine witnesses.

Delaware
________

v.

v. Van Arsdall, 475 U.S. 673, 678 (1986); United States

___________
_____________

Boylan, 898 F.2d 230, 254

______

449 (1990).

has

In defining

"recognized that

testifying

See
___

is

(1st Cir.), cert. denied, 498 U.S.

_____ ______

the scope of this guarantee,

the exposure of

proper

constitutionally protected

and

a witness'

important

the Court

motivation in

function

right of cross-examination."

of

the

Davis,
_____

415 U.S. at 316-17.

While the right to

test witnesses by cross-examination

is fundamental, it is not unbridled.

at

254; United States

_____________

See, e.g., Boylan, 898 F.2d

___ ____ ______

v. Chaudhry, 850 F.2d

________

851, 856 (1st Cir.

1988); see also

___ ____

Delaware v.
________

Fensterer, 474 U.S.

_________

15, 20

(1984)

(per

curiam)

guarantees

(explaining

an opportunity
___________

cross-examination

that

that

"[t]he

for effective

is effective

in

Confrontation

Clause

cross-examination, not

whatever

way, and

to

whatever extent, the defense might wish") (emphasis in original).

When

a witness'

impose limits

the

credibility is

in issue,

on cross-examination as

defendant

sufficient

leeway

to

the trial

long as the

establish

court may

court grants

"a

reasonably

complete picture of the witness' veracity, bias, and motivation."

Boylan,
______

898

limitations

F.2d at

and

appeal, we review

the

254.

If

defendant

the record

the

trial

court imposes

thereafter challenges

de novo to

them

ascertain whether

such

on

the

court, overall, gave the defendant a reasonable chance to develop

the whole picture.

(7th Cir. 1994).

See United States v. Nelson, 39 F.3d 705, 708

___ _____________
______

If we find that the core concerns of the Sixth

Amendment

have been

shackling

of

discretion."

satisfied, we

cross-examination

"will grant relief

only

Boylan, 898 F.2d at 254.

______

for

manifest

from the

abuse

of

In

this

case,

the

appellant

cites

two

specific

instances in which the trial court cut off cross-examination, and

avers

that these

rulings are

insupportable.

We examine

each

instance.

1.
1.

In the first iteration, the district judge directed

defense

counsel

counsel

queried Maisonet as to

Maarten on

pathbreaking

to

pursue

the day the

expedition;

new avenues

of

examination

the chronology of

drugs were seized.

counsel

10

had

events in St.

But this was

thrice

after

previously

not a

led

Maisonet

down

the

same

road

and

Maisonet

had

consistently

answered that he returned to Puerto Rico that morning but that he

could

not remember the precise time.

Cross-examiners should be

given reasonable latitude, especially in criminal cases, but they

are not

at

liberty endlessly

to repastinate

the same

terrain

(whether or not they are satisfied with the answers elicited from

particular witness).

In this instance we discern no prejudice

in the district court's refusal to let counsel go to the well for

what would have amounted

detect

no

hint

of

to a fourth time, and,

either

constitutional

accordingly, we

error

or

abuse of

discretion.

See, e.g., Boylan, 898 F.2d at 254-55; Chaudhry, 850

___ ____ ______
________

F.2d at 856.

2.
2.

prevented

In

the

second

defense counsel

iteration,

the

from questioning

district

Maisonet

court

in detail

regarding the terms and conditions of his plea agreement with the

government.

The

appellant

protests

that

this

limitation

prevented his counsel from fully impeaching Maisonet's veracity.

The record

counsel thoroughly

belies

the appellant's

examined Maisonet anent

protest.

Defense

the charges

brought

against him and the benefits that he expected to derive

plea

agreement.

agreement

itself

Most

importantly,

into

evidence,

profitable use of it.

and

the

court

defense

No more was exigible.

See
___

from his

admitted

the

counsel

made

United States
_____________

v. Ovalle-Marquez,
______________

that,

witness

36 F.3d

212, 219

(1st

Cir. 1994)

(holding

where cross examination informed the jury of the benefit a

garnered from a plea agreement, the district court could

11

properly limit

denied,
______

further cross-examination on the

subject), cert.
_____

115 S. Ct. 947 (1995); United States v. Maceo, 947 F.2d

______________
_____

1191,

1200 (5th Cir. 1991) (similar), cert. denied, 503 U.S. 949
_____ ______

(1992); United States v. Twomey, 806 F.2d 1136, 1139-40 (1st Cir.
_____________
______

1986) (similar).

IV.
IV.

PROSECUTORIAL MISCONDUCT
PROSECUTORIAL MISCONDUCT

The appellant calumnizes several statements made during

the

government's

closing argument.

improper statements

tainted his

He

maintains that

trial and,

these

concomitantly, that

the lower court improvidently denied his motions for mistrial.

In regard to

appellant,

attacked by the

we conduct our review of the trial court's rulings de

novo and will

prosecutor's

the first two statements

set aside the

remarks

were

verdict only if

both

we find that

inappropriate

and

"the

harmful."

United States v. Wihbey, 75 F.3d 761, 771 (1st Cir. 1996); accord
_____________
______
______

United States
______________

v. Levy-Cordero,
____________

1995), cert. denied, 64

_____ ______

95-8398).

evaluated

Challenged

in

the

67

F.3d 1002,

factors

(1st Cir.

U.S.L.W. 3708 (U.S. Apr. 22,

statements are

totality

of the

In assessing

as the severity of

1996) (No.

considered harmful

circumstances,

probably have affected the outcome of the trial.

F.3d at 771.

1008

they

See
___

when,

would

Wihbey, 75
______

harm, courts frequently look to

such

the purported misconduct, the weight

of the evidence supporting the

verdict, the presence and

likely

effect of a curative instruction, and the prosecutor's purpose in

making the statement (i.e.:

inadvertent).

See
___

id. at
___

whether the statement was willful or

772; Sepulveda, 15
_________

12

F.3d at

1187-88;

United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987).
_____________
____________

Above

all,

courts

statements in a

assistance in

must

refrain

vacuum, but,

from

examining

rather, must look

determining both

challenged

to context

their meaning and

for

their effect.

See Sepulveda, 15 F.3d at 1187.

___ _________

1.
1.

prosecutor's

The

appellant's

statement that

first

"in the

complaint

case at

is

with

bar, there

the

is no

doubt

and

believe my

conspiracy existed."

objected

and

summation with

was

When the

the district

sustained so

immediate

the statement

curative

dissipates) the

Counsel

you."

would

interrupted

the prosecutor's

the jury that

"[t]he objection

is stricken

and should

We have consistently

instruction dilutes

potential prejudice from an

See, e.g., United States

___ ____ _____________

agree that

statement was made, the appellant

court

an admonition to

taken in consideration by

an

Brother

(and

not be

held that

usually fully

improper statement.

v. Rivera-Gomez, 67 F.3d 993,

____________

998 (1st

Cir. 1995); Sepulveda, 15 F.3d at 1185.

_________

Viewing

F.3d at

this statement in

1187, we see no

context, see
___

reason why the usual

Sepulveda, 15
_________

praxis should not

apply.

The appellant's theory of the

opening

statement, was that he

organization."

conspiracy

was "not part

By like token, defense

and referred to

case, as expressed in his

it in

of [the] criminal

counsel acknowledged the

summation as

an "orchestra,"

conducted by Maisonet and others, in which appellant did not even

play second fiddle.

Given the appellant's stated theory

of the

case, the prosecutor's remark cannot easily be labelled as either

13

"inappropriate"

cured any

or "harmful."

And,

moreover, the

reasonable possibility of prejudice

lower court

when it sustained

the appellant's contemporaneous objection and instructed the jury

to ignore the offending statement.

2.
2.

for

crew

See, e.g., id. at 1185.

___ ____ ___

At trial, Figueroa stated that she left Puerto Rico

Milwaukee "because [she] found

and

the

boat

had been

summation,

the

prosecutor

suggesting

that

Figueroa,

out that on

arrested

put

in

twist

after betraying

August 10th the

St.

on

Maarten."

this

the

testimony,

conspiracy

giving information to Agent Ayala, fled to Milwaukee "to

herself."

implied

The

appellant objected,

that Figueroa

feared that

arguing that

In

by

protect

the statement

those conspirators

still at

large (or their cohorts) might attempt to do her harm.

court

sustained the objection

"statement

is

consideration

stricken

for

and cautioned

and

anything

you

in

should

this

The trial

the jury

not

that the

take

case."

it

The

in

court

simultaneously denied the appellant's motion for a mistrial.

Viewed in light

permeates

the record,

reversal.

Though the

impact

could

herself"

that

her.5

not

of the copious evidence

we cannot say

prosecutor's statement was

have been

is inherently

great.

The

ambiguous, and

the witness feared that

We

that this

think that,

on

of guilt that

remark warrants

untoward, its

phrase "to

protect

there was

no intimation

the defendant might

try to injure

balance,

the

objectionable phrase

____________________

5On appeal, Laboy attempts

with Maisonet's

testimony

to link the prosecutor's comment

that he

was

attacked at

one

point

because

he was

suspected of

being an

informant.

There

is no

comment, unlikely to

smear

14

represents no more

the

than an isolated

appellant with facts not

curative

instruction

in evidence, and

sufficed

therefore reject the appellant's

requires us to set aside

likewise

reject his

to

quell

prejudice.

We

plaint that the wayward comment

his conviction.

plaint

any

that the judge's

that the

On the same

district

basis, we

court erred

in

failing to grant his motion for a mistrial.

Pierro, 32 F.3d 611, 617 (1st

______

Cir. 1994) (explaining that "it is

only

rarely

that

an appellate panel, informed by a cold record, will venture

to

reverse

and

See United States v.

___ _____________

in extremely

trial

judge's

compelling circumstances

on-the-spot

decision

interests of justice do not require aborting an

that

the

ongoing trial"),

cert. denied, 115 S. Ct. 919 (1995).

_____ ______

3.
3.

underscoring

The

of

appellant also

the

appellant's theory of the

prosecutor

pointing out

paucity

of

criticizes

evidence

the prosecutor's

supporting

case.

He objects particularly

that his

character witnesses

the

to the

were not

present in St. Maarten on the day of the denouement, and inviting

the

production

of

percipient

alternative

explanation

appellant's

point is

attention

to the

of

that

the

witness

events

the

who

of

prosecutor

appellant's silence.6

See
___

could

August

offer an

10.

impermissibly

The

drew

United States v.
______________

____________________

basis either in the

record or in the prosecutor's

summation for

forging such a link.

6We quote below the criticized remarks in their entirety:

"He

told

you

also

reputation witnesses and that

15

about

the

two

I asked him an

Lilly, 983 F.2d 300, 306-07 (1st Cir. 1992) (reaffirming that the
_____

Fifth Amendment

from

prohibits a prosecutor, directly

asking the

jury

to

draw

negative

or indirectly,

inference

from

defendant's silence).

These statements

Fifth

Amendment

prosecutor

rights.7

adverted

to

did

not transgress

When

his

challenged statement in context.

the

defendant

silence,

we

appellant's

suggests

must

See id. at 307.

___ ___

that a

examine

the

The key to our

inquiry is "whether, in the circumstances of the particular case,

the

language

used

character that the

was

manifestly

intended

jury would naturally and

or

was

of

such

necessarily take it

to be a comment on the failure

(citations

omitted).

We

of the accused to testify."

will

not

"lightly

prosecutor intends an ambiguous remark to have

infer

that

Id.
___

its most damaging

____________________

unfair

question.

questions.
wasn't

Those

aren't

unfair

I asked him, "Were you there.

there so

he can't tell

You see, the issue

us anything.

is what happened that day

and they are bringing

about other things.

He

witnesses to tell

you

Well, bring me a witness

to tell me what happened there.

What
say, He

is a

reputation witness

is a good

friend.

The

going to

person that

says he was like my brother and that man that

came

here is a very

other one

good man and

but see, he didn't

so is the

know what Juan

Laboy Delgado was doing

in August of 1990 in

St. Maarten

was not there

because he

so he

can't testify as to that."

7In undertaking this analysis we assume arguendo, but do not

________

decide, that the appellant lodged a timely objection to this line

of

argument.

raised.
line

In point of fact, no contemporaneous objection was

However, the appellant

of argument

at the

advanced an

end of

objection to

the prosecutor's

this

rebuttal and

simultaneously moved for a mistrial.

16

meaning or that a jury, sitting through lengthy exhortation, will

draw

that

meaning

interpretations."

from

the

plethora

of

Donnelly v. DeChristoforo, 416

________
_____________

less

damaging

U.S. 637, 647

(1974).

Applying these

principles, we are

satisfied that

the

comments did not cross the line.

The fairest characterization of

the

indeed,

prosecutor's

characterization

argument

is as

an attempt to

lack of testimony supporting the

than six individuals,

vessel on August

naturally

appellant himself.

plausible

appellant's position.

cadre of

general

No fewer

appellant, were on

10, so the prosecutor's

this

only

accentuate the

not including the

referred to

the

the

allusion logically and

individuals,

not to

the

See, e.g., Sepulveda, 15 F.3d at 1187; United

___ ____ _________
______

States v. Collatos, 798 F.2d 18, 20 (1st Cir.), cert. denied, 479
______
________
_____ ______

U.S.

993

forceful

(1986).

And

in

all

instructions regarding

events,

the

the district

appellant's

court's

right not

to

testify resolved any conceivable ambiguity.8

V.
V.

USE OF SELF-INCRIMINATING STATEMENTS

USE OF SELF-INCRIMINATING STATEMENTS

The

appellant complains

advised of his

should

have

statements

detain

rights when

prohibited

The

he was

arrested, and that

the

that he made into

us.

that

appellant

government

evidence.

neither

from

This

moved

not

adequately

the court

introducing

below

the

argument need not

to

suppress

the

statement did

not

____________________

8Since
prejudicially

we

find that

the

prosecutor's

highlight the appellant's

failure to

testify, we

find no abuse of discretion in the district judge's denial of the

concomitant motion for a

mistrial.

Sepulveda, 15 F.3d at 1185.

_________

17

See Pierro, 32
___ ______

F.3d at 617;

statements nor objected to their introduction at trial.

then, the

standard of

States v.
______

Olano,
_____

hurdle is high:

732, that (2)

review is

507 U.S.

for plain

725, 730

the appellant

(1993).

must show (1)

error.

At best,

See
___

The plain

United
______

error

an error, id.
___

is "obvious" or "clear under current

734, and that (3) "affect[ed] substantial rights."

at

law," id. at
___

Fed. R. Crim.

P. 52(b).9

In

this

instance

there

was

no

error,

plain

or

otherwise.

Agent Ayala testified without contradiction that both

he and his deputy advised the appellant of his rights before they

initiated any interrogation.

foundation

on

which

to

Thus, the court below had

rest

the

admission

of the

a solid

disputed

evidence.

VI.
VI.

CONCLUSION
CONCLUSION

We

appellant was

need go no further.

From aught

fairly tried and justly

convicted.

the judgment of the district court must be

Affirmed.
Affirmed.
________

that appears, the

Consequently,

____________________

9Even if
retains
error.

these elements are

present, the court

discretion to decide whether

See Olano, 507 U.S. at 736.
___ _____

that discretion sparingly, generally

to take notice

of appeals

of a plain

We are inclined to exercise

limiting it to instances in

which the error, if uncorrected, would result in a miscarriage of

justice

or,

put

another

way, would

"skew[]

the

fundamental

fairness or basic integrity of the proceeding below in some major

respect."

Taylor, 54 F.3d at 973.

______

18