United States v. Laboy-Delgado

                  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  General, Theresa
                                                                           
M.B. Van Vliet and Philip Urofsky,  Criminal Division, U.S. Dep't
                                           
of Justice  and Guillermo Gil,  United States Attorney,  on brief
                                       
for appellee.

                                             

                           May 21, 1996

                                             

          

*Of the Seventh Circuit, sitting by designation.


          SELYA, Circuit  Judge.  On November 3,  1993, a federal
                    SELYA, Circuit  Judge.
                                         

grand  jury empaneled  in the  District of  Puerto Rico  indicted

defendant-appellant Juan Laboy-Delgado  (Laboy) for conspiring to

possess cocaine with  intent to  distribute, 21 U.S.C.     841  &

846,  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.   2.  Following Laboy's conviction on

all counts  and the  district court's imposition  of a  211-month

incarcerative sentence,  Laboy prosecuted this appeal.   He finds

no safe harbor.  Determining, as  we do, that his assignments  of

error lack merit, we affirm.

I.  BACKGROUND
          I.  BACKGROUND

          We elucidate the  facts gleaned at  trial in the  light

most  flattering to  the jury's  verdict.   See United  States v.
                                                                        

Spinney, 65 F.3d 231, 233 (1st Cir. 1995).  We note at the outset
                 

that  many  of the  pivotal facts  come  from testimony  of Sonia

Figueroa  Sanchez  (Figueroa),  the  former  wife  of  a  quondam

conspirator,  Zebedo  Maisonet   Gonzalez  (Maisonet),  and  from

Maisonet himself.1

          In early 1990, certain individuals,  Maisonet included,

hatched a plan  to import cocaine from Colombia to Puerto Rico by

way of St. Maarten.  Maisonet testified that a fellow rogue, Papo

Montijo,  sponsored the  appellant for  membership in  the cabal.

                    
                              

     1Figueroa began cooperating with the authorities  during the
investigation.  Maisonet  joined her in a duet as  part of a plea
agreement  negotiated between the date of his arrest and the date
of the appellant's trial.

                                2


Maisonet discussed the venture's  prospects with the appellant in

the spring of 1990, but forged no enduring alliance.

          That  summer,  the  wind  shifted.   Customs  officials

detained a  conspirator attempting  to carry cocaine  into Puerto

Rico on a commercial  airline flight, and mechanical difficulties

thwarted a  seaborne pickup of  cocaine in St.  Maarten.   As the

gang  pondered new  strategies to  transport contraband  from St.

Maarten  to Puerto  Rico, Montijo  again floated  the appellant's

name.   This  time  the conspirators  approached  him and,  after

haggling over  the prospective  division of spoils,  enlisted his

services.

          The appellant  arranged for his  cousin, Hector  Guzman

Rivera  (Guzman),  to ferry  a  shipment of  contraband  from St.

Maarten  to  Puerto Rico.   He  (Laboy)  and Maisonet  planned to

travel  by boat to St.  Maarten to receive  the clandestine cargo

preliminary to  its transshipment.   The planning  process proved

long on bravado  and short  on security.   Figueroa attended  the

pivotal meeting at which  details of the anticipated trip  to and

from  St. Maarten were reviewed.  At the government's behest, she

also tape-recorded  telephone calls in which  she, the appellant,

and other coconspirators freely discussed the pending smuggle.

          Fueled by Figueroa's input,  a federal narcotics agent,

Victor Ayala,  placed Guzman's boat under  surveillance on August

9, 1990.   At around 11:00 a.m. on August  10, Ayala observed the

appellant and a  conspirator known  only as  "Jerry" lugging  two

heavy  suitcases  onto  the boat.    The  men  stayed aboard  for

                                3


approximately  ten   minutes  and   then  departed   without  the

suitcases.   Late  that  morning, Guzman  and  Maria Sostre  came

aboard carrying a blue  rug.  Shortly before noon,  the appellant

reappeared, remained aboard  for roughly half  an hour, and  left

carrying a  small  travel bag.    During the  afternoon,  various

persons came and went, some bringing provisions.  Near the end of

the  day the local authorities, fearing that the vessel was being

readied  for departure,  boarded her.   They  found seventy-three

kilograms  of cocaine concealed in  the ship (under  the blue rug

that Guzman  had brought aboard), and detected  traces of cocaine

in  the now-empty  suitcases.   The authorities  also found  four

individuals  aboard the  ship:   Edwin  Burgos, Fabian  Martinez,

Maria Sostre, and Miriam Garcia.  They arrested Guzman nearby.

          The  appellant  had  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.  SUFFICIENCY OF THE EVIDENCE
          II.  SUFFICIENCY OF THE EVIDENCE

          The appellant  challenges the sufficiency  of the proof

adduced against him  at trial, insisting that  the district court

should have granted his timely motion for judgment  of acquittal.

See Fed. R. Crim. P. 29(a).  The standard of  appellate review is
             

familiar:   like  the  trial court,  the  court of  appeals  must

determine whether  the evidence  proffered, arrayed in  the light

most favorable to  the prosecution,  enabled a  rational jury  to

find  each element of the offense beyond a reasonable doubt.  See
                                                                           

                                4


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.  522 (1995).   In  so doing, we  must draw  all reasonable

evidentiary inferences  in harmony  with the verdict,  see United
                                                                           

States v. O'Brien, 14 F.3d 703,  706 (1st Cir. 1994), and resolve
                           

all disagreement  regarding the  credibility of witnesses  to the

government's behoof, see  United States v.  Taylor, 54 F.3d  967,
                                                            

974  (1st Cir. 1995).   As long  as the totality  of the evidence

presented,  viewed  through  this   glass,  supports  the  jury's

verdict, it is legally irrelevant that a different jury,  drawing

alternative  inferences, might have  reached a  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.    The appellant  says  that  the government's  case
                    1.

falters  because the evidence  at trial did  not precisely define

his "specific role in the criminal enterprise."  To be sure, that

sort of definition is helpful in setting sentencing ranges,  see,
                                                                          

e.g., U.S.S.G.   3B1.1, 3B1.2, but to prove a defendant guilty of
              

a narcotics-related  conspiracy the  government need not  specify

and prove with  particularity the defendant's  exact role in  the

scheme.  See, e.g., United States v. Carroll, 871 F.2d 689,  692-
                                                      

93 (7th Cir.  1989).   Put another way,  the government need  not

prove  facts  beyond those  that are  necessary to  establish the

elements of the crimes  charged, see United States v.  Staula, 80
                                                                       

                                5


F.3d 596,  605 (1st  Cir. 1996), and  neither the  elements of  a

drug-conspiracy charge under  21 U.S.C.   846  nor an importation

charge  under 21 U.S.C.   952  include a definitive specification

of  the  defendant's role  in the  offense.2   See,  e.g., United
                                                                           

States  v.  Sepulveda,  15  F.3d  1161,  1173   (1st  Cir.  1993)
                               

(discussing elements of offense  under   846), cert. denied,  114
                                                                     

S.  Ct. 2714  (1994); United States  v. Nueva, 979  F.2d 880, 884
                                                       

(1st Cir.  1992) (discussing  elements of offense  under    952),

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

          2.   The appellant next  decries the fact  that much of
                    2.

the  evidence against  him  came from  a cooperating  codefendant

(Maisonet).     The   appellant   suggests  that   Maisonet   was

presumptively untrustworthy because  of his strong  motivation to

say what the government wanted to hear.   This sort of suggestion

can be  molded into a  powerful jury argument  but it has  little

potency on appeal.

          The persons most knowledgeable about the inner workings

of  criminal enterprises  tend  to be  the criminals  themselves.

Thus,  the government     which has  no choice  but  to take  its

witnesses as  it finds them   often  must rely on blackguards and

knaves, whose  testimony is admittedly tinged with self-interest,

to prove its allegations.  Such flaws do not render the testimony

inadmissible   it would  be a surreal  system of justice if  only

                    
                              

     2To  the extent  that the  appellant claims  the prosecution
misfired  by failing to show that he possessed some special skill
needed by  the  conspirators, he  has  again strayed  beyond  the
elements of the offense.  His claim is, therefore, unavailing.

                                6


those who were  without sin  could offer evidence  in a  criminal

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

turning on  his erstwhile accomplices  are fair game  for defense

counsel.   The rules thus  permit the witness'  credibility to be

tested  in the crucible  of cross-examination.   In this instance

the  appellant vigorously  attacked Maisonet's motives  at trial,

and  the resultant credibility choice  was for the  jury, not for

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

          3.      Relatedly,   the  appellant   bewails   certain
                    3.

contradictions  in  Maisonet's testimony,  concluding  that these

contradictions rendered his testimony inherently unreliable.  The

asserted contradictions  are mostly of  peripheral interest;  for

example,  Maisonet  at one  point  suggested  that the  appellant

invited  Guzman to join  the conspiracy, yet  mentioned, on other

occasions, that  the conspirators had retained  Guzman's services

before  the appellant hove into view.4  Court cases, however, are

                    
                              

     3We note that the  trial judge drew the jury's  attention to
the potential  problems with testimony of  this type, instructing
the jurors,  inter alia,  that  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  example, the
jury could  have found the supposed  contradiction concerning who
first hired Guzman to be more apparent than real.   The testimony
revealed  that, during Guzman's earlier trip, he worked for a few
low-level conspirators  and had  little contact with  Maisonet or
his  principal   partner.    When  Maisonet   and  the  appellant
thereafter  discussed  ways  of  transporting  the  cocaine,  the
appellant referred to Guzman only as his cousin, and not by name.
Thus,  Maisonet could have "hired" Guzman through Laboy in a very
real  sense,  notwithstanding  Guzman's  earlier  brush  with the
enterprise.

                                7


not choreographed with the precision of a ballet.  Some degree of

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

system relies  upon devices  such as the  cross-examiner's vigor,

the  jurors'  common  sense,  and  the  trial  judge's  practiced

intuition  to  separate  grain  from  chaff.   Those  checks  and

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

think  that the  jury could  reasonably have  believed Maisonet's

testimony despite the asserted contradictions.  See, e.g., United
                                                                           

States  v. Romero, 32 F.3d  641, 646 (1st  Cir. 1994) (explaining
                           

that  the court  of  appeals  "will  not secondguess  the  jury's

decision  to credit testimony  which contains an inconsistency");

see  also United States  v. Johnson, 55  F.3d 976, 979  (4th Cir.
                                             

1995); United States v.  Jackson, 959 F.2d 81, 82-83  (8th Cir.),
                                          

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

          We  add   an  eschatocol  of  sorts.     Rejecting  the

appellant's insufficiency  challenge comes  more readily  in this

case because  the  evidence  against  him  went  far  beyond  the

fingerpointing of  a turncoat.   Figueroa's testimony  was little

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

conversations  in  which the  appellant  and  others spelled  out

aspects  of  the  scheme.   Appellant  himself  made  inculpatory

statements when arrested.   Then, too,  Agent Ayala observed  the

appellant  delivering suitcases  later  found  to have  contained

cocaine.   In  similar situations,  where the  government offered

circumstantial  evidence of  defendants'  participation  in  drug

crimes,  combined with trace  elements of drugs  found in objects

                                8


carried by those defendants, our sister circuits have had  little

difficulty  in  sustaining   convictions  against   insufficiency

challenges.   See,  e.g.,  United States  v. Rodriguez,  993 F.2d
                                                                

1170,  1175-76 (5th  Cir. 1993),  cert. denied,  114 S.  Ct. 1547
                                                        

(1994); United States  v. Arango,  853 F.2d 818,  826 (11th  Cir.
                                          

1988).  So it is here.

III.  LIMITATION OF CROSS-EXAMINATION
          III.  LIMITATION OF CROSS-EXAMINATION

          The appellant  complains that the district  court erred

in circumscribing his cross-examination  of a government witness.

Under the  Confrontation Clause,  every criminal defendant  has a

right  "to be confronted with  the witnesses against  him."  U.S.

Const. amend. VI.  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.  See
                                                                           

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

v.  Boylan, 898 F.2d 230, 254  (1st Cir.), cert. denied, 498 U.S.
                                                                 

449 (1990).  In defining  the scope of this guarantee,  the Court

has  "recognized that  the exposure of  a witness'  motivation in

testifying   is  a   proper   and  important   function  of   the

constitutionally protected  right of cross-examination."   Davis,
                                                                          

415 U.S. at 316-17.

          While the right to  test witnesses by cross-examination

is fundamental, it is not unbridled.  See, e.g., Boylan, 898 F.2d
                                                                 

at  254; United States  v. Chaudhry, 850 F.2d  851, 856 (1st Cir.
                                             

1988); see also  Delaware v.  Fensterer, 474 U.S.  15, 20  (1984)
                                                 

                                9


(per  curiam)  (explaining   that  "[t]he  Confrontation   Clause

guarantees  an opportunity  for effective  cross-examination, not
                                    

cross-examination  that  is effective  in  whatever  way, and  to

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

When  a witness'  credibility is  in issue,  the trial  court may

impose limits  on cross-examination as  long as the  court grants

the  defendant  sufficient  leeway  to  establish  "a  reasonably

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

Boylan,  898  F.2d at  254.   If  the  trial  court imposes  such
                

limitations  and  the  defendant  thereafter challenges  them  on

appeal, we review  the record  de novo to  ascertain whether  the

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

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

(7th Cir. 1994).   If we find that the core concerns of the Sixth

Amendment  have been  satisfied, we  "will grant relief  from the

shackling  of  cross-examination  only   for  manifest  abuse  of

discretion."  Boylan, 898 F.2d at 254.
                              

          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.  In the first iteration, the district judge directed
                    1.

defense  counsel  to  pursue  new avenues  of  examination  after

counsel  queried Maisonet as to  the chronology of  events in St.

Maarten on  the day the  drugs were seized.   But this was  not a

pathbreaking  expedition;  counsel  had  thrice   previously  led

                                10


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

a  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  to a fourth time, and,  accordingly, we

detect  no  hint  of  either  constitutional  error  or  abuse of

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

F.2d at 856.

          2.    In  the  second  iteration,  the  district  court
                    2.

prevented  defense counsel  from questioning  Maisonet  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  belies  the appellant's  protest.   Defense

counsel thoroughly  examined Maisonet anent  the charges  brought

against him and the benefits that he expected to derive  from his

plea  agreement.    Most  importantly,  the  court  admitted  the

agreement  itself   into  evidence,  and  defense   counsel  made

profitable use of it.   No more was exigible.  See  United States
                                                                           

v. Ovalle-Marquez,  36 F.3d  212, 219  (1st  Cir. 1994)  (holding
                           

that,  where cross examination informed the jury of the benefit a

witness  garnered from a plea agreement, the district court could

                                11


properly limit  further cross-examination on the  subject), cert.
                                                                           

denied,  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.  PROSECUTORIAL MISCONDUCT
          IV.  PROSECUTORIAL MISCONDUCT

          The appellant calumnizes several statements made during

the  government's  closing argument.    He  maintains that  these

improper statements  tainted his  trial and,  concomitantly, that

the lower court improvidently denied his motions for mistrial.

          In regard to  the first two statements  attacked by the

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

novo and will  set aside the  verdict only if  we find that  "the

prosecutor's  remarks  were  both  inappropriate   and  harmful."

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

United  States  v. Levy-Cordero,  67  F.3d 1002,  1008  (1st Cir.
                                         

1995), cert. denied, 64  U.S.L.W. 3708 (U.S. Apr. 22,  1996) (No.
                             

95-8398).   Challenged  statements are  considered harmful  when,

evaluated  in  the  totality  of the  circumstances,  they  would

probably have affected the outcome of the trial.  See  Wihbey, 75
                                                                       

F.3d at 771.  In assessing  harm, courts frequently look to  such

factors  as the severity of  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.:  whether the statement was willful or

inadvertent).  See  id. at  772; Sepulveda, 15  F.3d at  1187-88;
                                                    

                                12


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

Above  all,   courts  must  refrain  from   examining  challenged

statements in a  vacuum, but,  rather, must look  to context  for

assistance in  determining both  their meaning and  their effect.

See Sepulveda, 15 F.3d at 1187.
                       

          1.    The  appellant's  first  complaint  is  with  the
                    1.

prosecutor's  statement that  "in the  case at  bar, there  is no

doubt  and  I  believe my  Brother  Counsel  would  agree that  a

conspiracy existed."  When the  statement was made, the appellant

objected  and  the district  court  interrupted  the prosecutor's

summation with  an admonition to  the jury that  "[t]he objection

was  sustained so  the statement  is stricken  and should  not be

taken in consideration by  you."  We have consistently  held that

an  immediate  curative  instruction dilutes  (and  usually fully

dissipates) the  potential prejudice from an  improper statement.

See, e.g., United States  v. Rivera-Gomez, 67 F.3d 993,  998 (1st
                                                   

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

          Viewing  this statement in  context, see  Sepulveda, 15
                                                                       

F.3d at  1187, we see no  reason why the usual  praxis should not

apply.   The appellant's theory of the  case, as expressed in his

opening  statement, was that he  was "not part  of [the] criminal

organization."   By like token, defense  counsel acknowledged the

conspiracy  and referred to  it in  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"  or "harmful."   And,  moreover, the  lower court

cured any  reasonable possibility of prejudice  when it sustained

the appellant's contemporaneous objection and instructed the jury

to ignore the offending statement.  See, e.g., id. at 1185.
                                                            

          2.  At trial, Figueroa stated that she left Puerto Rico
                    2.

for  Milwaukee "because [she] found  out that on  August 10th the

crew  and  the  boat  had been  arrested  in  St.  Maarten."   In

summation,  the  prosecutor  put   a  twist  on  this  testimony,

suggesting  that  Figueroa,  after betraying  the  conspiracy  by

giving information to Agent Ayala, fled to Milwaukee "to  protect

herself."   The  appellant objected,  arguing that  the statement

implied  that Figueroa  feared that  those conspirators  still at

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

court  sustained the objection  and cautioned  the jury  that the

"statement   is  stricken   and  you   should  not  take   it  in

consideration   for  anything   in   this  case."     The   court

simultaneously denied the appellant's motion for a mistrial.

          Viewed in light  of the copious evidence  of guilt that

permeates  the record,  we cannot say  that this  remark warrants

reversal.   Though the  prosecutor's statement was  untoward, its

impact  could  not  have been  great.    The  phrase "to  protect

herself"  is inherently  ambiguous, and  there was  no intimation

that  the witness feared that  the defendant might  try to injure

her.5    We  think that,  on  balance,  the  objectionable phrase
                    
                              

     5On appeal, Laboy attempts  to link the prosecutor's comment
with Maisonet's  testimony  that he  was  attacked at  one  point
because  he was  suspected of  being an  informant.  There  is no

                                14


represents no more  than an isolated  comment, unlikely to  smear

the  appellant with facts not  in evidence, and  that the judge's

curative  instruction  sufficed  to  quell  any  prejudice.    We

therefore reject the appellant's  plaint that the wayward comment

requires us to set aside  his conviction.  On the same  basis, we

likewise  reject his  plaint  that the  district  court erred  in

failing to grant his motion for a mistrial.  See United States v.
                                                                        

Pierro, 32 F.3d 611, 617 (1st  Cir. 1994) (explaining that "it is
                

only  rarely      and  in extremely  compelling circumstances    

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

to  reverse  a  trial   judge's  on-the-spot  decision  that  the

interests of justice do not require aborting an  ongoing trial"),

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

          3.    The  appellant also  criticizes  the prosecutor's
                    3.

underscoring   of  the   paucity  of   evidence  supporting   the

appellant's theory of the  case.  He objects particularly  to the

prosecutor  pointing out  that his  character witnesses  were not

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

the  production  of  a  percipient  witness  who  could  offer an

alternative  explanation  of  the  events  of  August  10.    The

appellant's  point is  that  the  prosecutor  impermissibly  drew

attention  to the  appellant's silence.6   See  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  about   the  two
          reputation witnesses and that  I asked him an

                                15


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

Fifth Amendment  prohibits a prosecutor, directly  or indirectly,

from  asking the  jury  to  draw  a  negative  inference  from  a

defendant's silence).  

          These statements  did  not transgress  the  appellant's

Fifth  Amendment  rights.7   When  a  defendant  suggests  that a

prosecutor  adverted   to  his  silence,  we   must  examine  the

challenged statement in context.  See id. at 307.  The key to our
                                                   

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

the  language  used  was  manifestly  intended  or  was  of  such

character that the  jury would naturally and  necessarily take it

to be a comment on the failure  of the accused to testify."   Id.
                                                                           

(citations  omitted).     We  will  not  "lightly  infer  that  a

prosecutor intends an ambiguous remark to have  its most damaging
                    
                              

          unfair   question.     Those   aren't  unfair
          questions.  I asked him, "Were you there.  He
          wasn't  there so  he can't tell  us anything.
          You see, the issue  is what happened that day
          and they are bringing  witnesses to tell  you
          about other things.  Well, bring me a witness
          to tell me what happened there.

               What  is a  reputation witness  going to
          say, He  is a good  friend.  The  person that
          says he was like my brother and that man that
          came  here is a very  good man and  so is the
          other one  but see, he didn't  know what Juan
          Laboy Delgado was doing  in August of 1990 in
          St. Maarten  because he  was not there  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.  In point of fact, no contemporaneous objection was
raised.   However, the appellant  advanced an  objection to  this
line  of argument  at the  end of  the prosecutor's  rebuttal and
simultaneously moved for a mistrial.

                                16


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

draw   that  meaning   from   the  plethora   of  less   damaging

interpretations."   Donnelly v. DeChristoforo, 416  U.S. 637, 647
                                                       

(1974).

          Applying these  principles, we are  satisfied that  the

comments did not cross the line.  The fairest characterization of

the   prosecutor's  argument      indeed,   the   only  plausible

characterization    is as  an attempt to  accentuate the  general

lack of testimony supporting the  appellant's position.  No fewer

than six individuals,  not including the  appellant, were on  the

vessel on August  10, so the prosecutor's  allusion logically and

naturally  referred to  this  cadre of  individuals,  not to  the

appellant himself.  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  (1986).   And  in  all  events,  the district  court's

forceful  instructions regarding  the  appellant's  right not  to

testify resolved any conceivable ambiguity.8

V.  USE OF SELF-INCRIMINATING STATEMENTS
          V.  USE OF SELF-INCRIMINATING STATEMENTS

          The  appellant complains  that  he was  not  adequately

advised of his  rights when  arrested, and that  the court  below

should  have  prohibited  the  government  from  introducing  the

statements  that he made into  evidence.  This  argument need not

detain  us.    The  appellant  neither  moved   to  suppress  the
                    
                              

     8Since  we  find that  the  prosecutor's  statement did  not
prejudicially  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.  See Pierro, 32  F.3d at 617;
                                                         
Sepulveda, 15 F.3d at 1185.
                   

                                17


statements nor objected to their introduction at trial.  At best,

then, the  standard of  review is  for plain  error.  See  United
                                                                           

States v.  Olano,  507 U.S.  725, 730  (1993).   The plain  error
                          

hurdle is high:   the appellant  must show (1)  an error, id.  at
                                                                       

732, that (2)  is "obvious" or "clear under current  law," id. at
                                                                        

734, and that (3) "affect[ed] substantial rights."  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.   Thus, the court below had  a solid

foundation  on  which  to  rest  the  admission  of the  disputed

evidence.

VI.  CONCLUSION
          VI.  CONCLUSION

          We  need go no further.   From aught  that appears, the

appellant was  fairly tried and justly  convicted.  Consequently,

the judgment of the district court must be 

Affirmed.
          Affirmed.
                  

                    
                              

     9Even if  these elements are  present, the court  of appeals
retains  discretion to decide whether  to take notice  of a plain
error.  See Olano, 507 U.S. at 736.   We are inclined to exercise
                           
that discretion sparingly, generally  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