United States v. Fernandez

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1864

UNITED STATES,

Appellee,

v.

JUAN FERNANDEZ,

Defendant - Appellant.

No. 95-2067

UNITED STATES,

Appellant,

v.

JUAN FERNANDEZ,

Defendant - Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, Senior U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Cyr, Circuit Judge.

John Wall, with whom David Shaughnessy and Wall &

Shaughnessy were on brief for appellant Juan Fern ndez.

Lena Watkins, Attorney, Criminal Division, Narcotic and

Dangerous Drug Section, U.S. Department of Justice, with whom
John C. Keeney, Acting Assistant Attorney General, Theresa M.B.

Van Vliet, Chief, Criminal Division, Narcotic and Dangerous Drug

Section, U.S. Department of Justice, and Guillermo Gil, Acting

United States Attorney, were on brief for appellee United States.

AUGUST 20, 1996

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TORRUELLA, Chief Judge. A jury found appellant-
TORRUELLA, Chief Judge.

defendant Juan Fern ndez ("Fern ndez") guilty of conspiracy to

possess with intent to distribute cocaine, and the United States

District Court, District of Puerto Rico, denied his motion for a

new trial. Fern ndez now raises a series of challenges to his

conviction, and the government cross-appeals his sentence. For

the reasons stated herein, we affirm.

BACKGROUND
BACKGROUND

We begin with a basic outline of the case, and address

the particulars in more detail as they arise, as the specific

issues Fern ndez raises require that we examine the facts from

differing perspectives. Fern ndez was one of 20 co-defendants

charged in Count One of a September 1993 superseding indictment

of conspiring to possess with intent to distribute more than

1,000 kilograms of cocaine and more than 1,000 kilograms of

marijuana in violation of 21 U.S.C. 841(a)(1) & 846. Count

One alleged 56 overt acts in furtherance of the conspiracy (the

"Sardinas operation"), beginning in 1981 and continuing over

twelve years.

The central allegation regarding Fern ndez was that in

or about the month of April 1991, he entered into an association

with co-defendants Jorge Loredo-Alonso ("Loredo") and Horacio

Sardinas-Albo ("Sardinas") to use Carrier Transportation Company

("Carrier"), a transportation company which Fern ndez owned, to

ship loads of cocaine from Puerto Rico to the continental United

States. The indictment alleged that some nine loads of cocaine

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had been shipped through Carrier by early 1993.

Fern ndez was tried with co-defendant Antonio

Contreras. The evidence against Fern ndez at the jury trial was

primarily made up of the testimony of four alleged co-

conspirators: Jos Bruno ("Bruno"), Elmo De Jes s ("De Jes s"),

Michael Frame ("Frame"), and Lambert Aloisi ("Aloisi"). Bruno

testified that nine loads of cocaine were shipped through

Carrier, the first seven between April and August of 1991, and

that he visited Carrier's warehouse in New Jersey several times

in connection with those loads. Fern ndez' counsel offered

evidence indicating that Carrier did not in fact exist in April

1991, but rather was incorporated in August 1991, and began its

occupation of the warehouse Bruno identified in October of that

year. The prosecution in turn questioned defense witnesses about

Gulf Transportation1 ("Gulf"); according to the testimony, Gulf

was a shipping company at which Fern ndez had worked before he

owned Carrier. In its closing argument, the government argued

that Fern ndez had used Gulf to transport cocaine prior to using

Carrier. Fern ndez was found guilty and was sentenced to 151

months.

DISCUSSION
DISCUSSION

A. Variance
A. Variance

Fern ndez argues on appeal that there was a material

1 The defendant refers to Gulf as "Gulf Transportation," while
the government uses "Gulf Carrier Transportation." We express no
opinion as to which name is more accurate, and use "Gulf" for
convenience.

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variance between the superseding indictment and the evidence on

which the government relied at trial.2 We find a variance "when

the proof differs from the allegations in the indictment."

United States v. Vavlitis, 9 F.3d 206, 210 (1st Cir. 1993). Not

every variance mandates a new trial: reversal is only required

if the variance proves both material and prejudicial. See Fed.

R. Crim. P. 52(a); United States v. Arcadipane, 41 F.3d 1, 6 (1st

Cir. 1994). Thus, where, as here, "the government charges a

defendant with a crime . . . but the facts proven at trial vary

somewhat from those charged in the indictment . . . it is settled

law that a conviction for the crime charged will be affirmed

unless the variance as to the facts is shown to have prejudiced

the defendant." United States v. Moran, 984 F.2d 1299, 1304 (1st

Cir. 1993). Our review of whether a retrial is required is

plenary. Arcadipane, 41 F.3d at 6.

The superseding indictment specifically stated that

Fern ndez used Carrier to transport cocaine.3 The government's

case was consistent with this theory. Thus, Fern ndez maintains,

while Carrier was neither a defendant nor an object of the

2 Fern ndez' motion for a bill of particulars, which included a
request for discovery of other transportation companies utilized
by Sardinas, was denied by the court.

3 Paragraph 28 of the superseding indictment charged that "[o]n
or about the month of April, 1991, HORACIO SARDINAS-ALBO, a/k/a/
HIPPIE, and JORGE ALONSO-LOREDO [sic] associated with JUAN
FERNANDEZ to use the services of Carrier Transportation Company,
a transportation company owned by JUAN FERNANDEZ, to transport
large amounts of cocaine from Puerto Rico to the continental
United States using containers." The following paragraphs
detailed the nine alleged shipments of cocaine.

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indictment, it was nonetheless a key part of the government's

case. However, Fern ndez continues, when he offered evidence in

his defense which refuted the charges concerning Carrier by

proving that it could not have been used as alleged in the

superseding indictment, the government abruptly switched gears

and argued that Fern ndez used Gulf. The prejudice against him,

Fern ndez contends, was obvious: his trial preparations, which

had centered around Carrier, were no longer adequate, since Gulf

became the focus of the trial and the jury's deliberations.

We do not find such "obvious" prejudice; nor do we

agree that Gulf became the focus of the trial and deliberations.

We recognize that there was a variance, but do not believe it

"work[ed] a substantial interference with the defendant's right

to be informed of the charges laid at his doorstep." Arcadipane,

41 F.3d at 6. Simply put, although Carrier was repeatedly

mentioned in the indictment, the charge was against Fern ndez,

not his company. Regardless of whether Carrier or Gulf is

discussed, the charge is the same: that Fern ndez associated

with Sardinas and Loredo to transport cocaine. Fern ndez cannot

now claim that he was misinformed of the charges against him, or

that his substantial rights were somehow affected. See id. at 7.

A new trial is not required.

B. Admission of the Evidence
B. Admission of the Evidence

1. Gulf
1. Gulf

Fern ndez contends that the district court erred in

allowing evidence and argument regarding Gulf. We review a lower

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court's admission of evidence for abuse of discretion. See,

e.g., United States v. Disanto, 1996 WL 312368, *11 (1st Cir.

1996); United States v. Rivera-G mez, 67 F.3d 993, 997 (1st Cir.

1995).

Testimony regarding Gulf was elicited by the

government, over Fern ndez' objection, during its cross-

examination of defense witness Rosa Sanjurjo, an employee in

Carrier's collection department. She stated that she began

working for Carrier in January of 1992, prior to which she worked

for Gulf until 1990. She acknowledged that Fern ndez had also

worked for Gulf, that it did the same type of business as

Carrier, and that it closed before Carrier was created. She also

stated that Gulf did not become Carrier. On redirect, Fern ndez'

counsel elicited her testimony that Gulf was a corporation

controlled by Fern ndez and two other individuals, including

Sanjurjo's stepson. She stated on recross that Carrier and Gulf

had different offices and used different warehouses. George

Wyle, a salesman for Carrier for part of 1992, testified on cross

that he knew Fern ndez through the shipping business prior to

1992, that Fern ndez was involved with Gulf, that Gulf did

essentially the same kind of business that Carrier did, and that

Gulf's full name was Gulf Carrier.

After the first few questions to Sanjurjo about Gulf,

defense counsel objected to the cross-examination on Gulf as

being outside the scope of examination; the court allowed the

prosecution to continue, but asking questions on direct, instead

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of on cross. After a few more questions, defense counsel asked

for a sidebar, and objected that the questioning was outside the

scope of the testimony and the entire case. The prosecutor

argued that the evidence was being used for impeachment, pointing

out that since Fern ndez was arguing that it was impossible that

Carrier could have been used, the evidence on Gulf would show

that even before Carrier started Fern ndez was in the same line

of business, at a company which operated in essentially the same

fashion, offering Fern ndez access to shipping services, albeit

under a different name. The court denied Fern ndez' objection.

Before closing arguments, Fern ndez' counsel raised the

issue of whether the government should be allowed to make

reference to Gulf in its closing argument. Defense counsel

protested that the government was trying to make an inference not

based on the evidence, since there was no evidence regarding

whether Gulf and Carrier had a similar identity, or when

Fern ndez was involved with Gulf. Indeed, counsel noted, the

testimony indicated no continuity of ownership between the

companies, and that they used different facilities. The court,

however, rejected the defense's argument and allowed the

government to discuss Gulf in its closing argument.

Fern ndez now argues that the district court erred in

allowing evidence and argument regarding Gulf. He does not

specify his reasons, however. Rather, he simply refers us to the

reasons stated in his additional arguments, leaving us to

speculate as to which reasons would apply in this context, and

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running the risk of waiver. As we address those contentions

where they are made, we add only a few comments here.

Briefly stated, while it could have decided the issue

several different ways, we find that the district court did not

abuse its discretion in choosing to allow the government to

elicit and use the evidence regarding Gulf. While not detailed,

the evidence was certainly relevant, for the very reasons the

government outlined. See Fed. R. Evid. 401; United States v.

Griffin, 818 F.2d 97, 101-02 (1st Cir.), cert. denied, 484 U.S.

844 (1987) (noting the broad discretion district courts enjoy in

determining relevance). Allowing the line of questioning and

argument was neither unfairly prejudicial, see Fed. R. Evid. 403,

nor constituted an unfair surprise: Fern ndez' defense was that

it was impossible for him to have used Carrier to ship cocaine

because Carrier was not in operation -- a line of reasoning

fairly inviting the question of what other companies Fern ndez

had access to during the relevant time period, and whether he

could have used them in a similar manner.

2. Sixth Amendment Claims
2. Sixth Amendment Claims

Fern ndez contends that his Sixth Amendment right of

confrontation has been violated, in that he did not have a full

and effective opportunity to cross-examine the witnesses. See

Olden v. Kentucky, 488 U.S. 227, 231 (1988) (per curiam) (noting

that the right of confrontation "includes the right to conduct

reasonable cross-examination"). As we find no error on the part

of the district court, we need not enter into a harmless error

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analysis. See id. at 232; Delaware v. Van Arsdall, 475 U.S. 673,

680-81 (1986).

First, Bruno and two other witnesses testified that a

Puerto Rico senator was implicated in the conspiracy: they

alleged that in 1990, when other members of the conspiracy were

arrested in Tortola, the senator attempted to gain their release.

Bruno testified that the senator received close to two hundred

fifty thousand dollars in order to bribe the magistrate handling

the case in the British Virgin Islands, as well as other

individuals. Another witness testified that he believed the

senator had met with representatives of the Sardinas operation in

the Puerto Rico Senate -- the witness claimed that he waited in

the car outside while they met.

At trial, the court ruled in limine that counsel could

not mention the senator's name. Fern ndez argues that this

constituted error requiring a new trial. First, he contends that

identification of the senator's name could have "tipped the

balance" in the impeachment of Bruno by showing that he would go

to any lengths to obstruct justice, and thus should not be

believed in his testimony at trial. Second, he posits that

identification could have led the jury to believe that the

account of the senator's involvement in the Tortola events was

fabricated by witnesses in order to gain leniency from the

government, because of the prominence and importance of the

particular senator. Thus, the argument goes, the identification

would have added to the evidence that the witnesses were

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fabricating stories in a desperate attempt to obtain leniency.

Finally, Fern ndez maintains that members of the jury could have

felt that the failure to prosecute the senator was unfair

selective prosecution.

We do not find any of these arguments convincing.

There can be no question that the Sixth Amendment entails a right

to cross examine a witness; nonetheless, "trial judges retain

wide latitude insofar as the Confrontation Clause is concerned to

impose reasonable limits on such cross-examination [regarding

potential bias] based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness'

safety, or interrogation that is repetitive or only marginally

relevant." Van Arsdall, 475 U.S. at 679; see Delaware v.

Fensterer, 474 U.S. 15, 20 (1985) (per curiam) ("Generally

speaking, the 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."). The court informed the jury that it had ruled

that the name of the senator "would not be mentioned in order to

protect an ongoing investigation with respect to activities that

he may have been engaged in." Tr. at 515. The jury was also

informed that the parties stipulated that the senator was

"prominent." Further, as noted above, the scope of the senator's

alleged actions was explored through testimony from several

witnesses: the sole element the court ordered be left out was

the senator's name. Certainly the jury had enough information in

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front of it to be able to weigh the impeachment value of the

alleged plot: it had "the facts from which jurors, as the sole

triers of fact and credibility, could appropriately draw

inferences relating to the reliability of the witness." Davis v.

Alaska, 415 U.S. 308, 318 (1974). As for the selective

prosecution claim, we note that the court told the jury there was

an ongoing investigation: the implication that the senator had

not been charged is clear. We do not find any error in the

district court's ruling.

The second claim focuses on the De Jes s cross-

examination. He testified that he assisted in the transportation

of more than 1,000 kilograms of cocaine, yet his plea agreement

stated that he was responsible for only 3.5 to 5 kilograms. The

prosecution objected to defense's questioning on this

discrepancy, and the court sustained the objection. The court

ruled that the defense could not cross-examine De Jes s regarding

the quantity of cocaine for which he was held accountable in his

plea agreement, but could question him on the difference the

agreement made in his sentence. De Jes s duly testified that

without the plea he faced from thirty years to life, and that

with it, he was facing seven years. He agreed that by testifying

in this case, he was hoping to have the sentence further reduced

so as to not have to spend any time in jail.

Fern ndez argues that the court erred, since any proof

of false, self-serving statements by a government witness -- such

as the plea agreement figure -- would aid the defense in showing

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the witnesses' untrustworthiness. Thus, Fern ndez contends, his

Sixth Amendment right of confrontation was violated. See Olden,

488 U.S. at 231. We disagree. First, defense counsel was able

to impeach De Jes s through eliciting his testimony on the impact

the plea agreement had on his sentence and his hopes for a

reduced sentence based on his participation in this trial.

Second, the court's ruling seems to have been based on the

concern that the jury understand that De Jes s was not actually

lying in his plea agreement, but rather that the figure used was

a mechanism of convenience in order to get to a specific

sentence: "I think the whole concept is to show . . . [that it

was a] deal, a wow deal, but not to show that he's a liar because

that's not the real facts." Tr. at 1879. We do not find that

the district court erred in striking a balance between this

concern and the importance of impeachment through limiting the

testimony to the sentence obtained. Indeed, we agree with the

court's comment to the effect that to do otherwise would run the

risk of having defense counsel impeach the government, not De

Jes s.

Fern ndez' reliance on United States v. Lynn, 856 F.2d

430 (1st Cir. 1988), is misplaced. There, we found that the

trial court erred in restricting cross-examination into the

circumstances underlying a witness' plea bargain. The witness'

agreement with the government required that he take and

"successfully complete" a polygraph examination. He took the

test, twice, and the examiner labeled some of his answers as

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"inconclusive." The defense sought to impeach the witness by

implying that the witness had not "successfully completed" the

test, and so had motive to lie on the stand to please the

government. The court cut off all questioning about the test,

and informed the jury that such tests yielded inherently

unreliable results. Id. at 432. We held that the district court

abused its discretion by cutting off all cross-examination into a

"relevant and not fully explored area." Id. at 434. The same is

not true here. The district court did not cut off all

examination in the area of De Jes s' credibility: rather, it set

limits on the examination so as to permit the introduction of the

information in a manner which would not mislead the jury yet

provide it "with 'sufficient information concerning formative

events to make a "discriminating appraisal" of [De Jes s']

motives and bias.'" Id. at 433 (quoting United States v. Twomey,

806 F.2d 1136, 1140 (1st Cir. 1986) (quoting United States v.

Campbell, 426 F.2d 547, 550 (2d Cir. 1970))).

C. The Sufficiency and Weight of the Evidence
C. The Sufficiency and Weight of the Evidence

1. Sufficiency of the Evidence
1. Sufficiency of the Evidence

At the end of the presentation of evidence, Fern ndez

moved for a judgment of acquittal, which motion the trial court

denied. Fern ndez now argues anew that the evidence was

insufficient to support his conspiracy conviction.

We are cognizant of the government's burden in this

case: "In order to win a conspiracy conviction the government

was required to establish, by direct or circumstantial evidence

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and beyond a reasonable doubt, that the defendant and one or more

coconspirators 'intended to agree and . . . to commit the

substantive criminal offense which was the object of their

unlawful agreement.'" United States v. L pez, 944 F.2d 33, 39

(1st Cir. 1991) (quoting United States v. S nchez, 917 F.2d 607,

610 (1st Cir. 1990), cert. denied, 499 U.S. 977 (1991)). In our

review, we evaluate the sufficiency of the evidence as a whole,

and "resolve credibility issues and draw inferences in the

government's favor, since the issue is whether a jury could

reasonably have arrived at the verdict." United States v.

Morrow, 39 F.3d 1228, 1233 (1st Cir. 1994), cert. denied, U.S.

, 115 S. Ct. 1421 (1995).

Fern ndez contends that the evidence in this case was

insufficient to prove his guilt, since there was no direct

testimony of any agreement. However, the government need not

prove a formal agreement existed: as it points out, "the illegal

agreement may be either 'express or tacit.'" United States v.

S nchez, 917 F.2d 607, 610 (1st Cir. 1990). Indeed, "'[t]he

evidence may be entirely circumstantial and need not exclude

every reasonable hypothesis of innocence; that is, the factfinder

may decide among reasonable interpretations of the evidence.'"

L pez, 944 F.2d at 39 (quoting United States v. Batista-Polanco,

927 F.2d 14, 17 (1st Cir. 1991)).

We agree with the government that, under our standard

of review, Bruno's testimony, and that of other government

witnesses, suffices to show that a tacit agreement existed.

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Bruno testified that Sardinas and Loredo each paid $80,000 to buy

into Carrier in order to ship cocaine; he stated that he saw them

collect the money to make a payment to Fern ndez, and heard them

discussing the use of Carrier. Bruno testified about sending the

nine shipments of cocaine, and about Fern ndez' personal

participation in the operation, including telephone calls and

meetings. He stated that he went to the Carrier warehouse in New

Jersey, his first visit being in July 1991, and that Fern ndez

was there on at least one occasion. Aloisi's testimony generally

corroborated Bruno's statements. De Jes s testified that he

participated in at least four shipments of cocaine, including

deliveries of cocaine to Fern ndez at a warehouse in Carolina,

Puerto Rico, and retrieval from the New Jersey warehouse. His

testimony contradicted Bruno's on several points, regarding the

amount of cocaine in particular loads and who participated in

specific meetings and loads.4 Our review of this record leads us

to conclude that, "having heard the evidence, including nuances

and intimations that a cold record cannot capture, a rational

jury could find beyond a reasonable doubt that [Fern ndez] was

guilty of conspiracy." Mor n, 984 F.2d at 1301-02.

Fern ndez also argues that this court must reverse the

verdict below because it was physically impossible that Carrier

was the company used to transport cocaine in 1991: he presented

4 Frame testified that Fern ndez was already active in the
operation in 1989 or 1990 and that he was instructed to
communicate with Fern ndez whenever he needed to contact
Sardinas, which he did several times. These allegations were not
in the superseding indictment.

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evidence that Carrier did not exist until after April 1991, and

that it did not occupy the New Jersey warehouse until October of

that year. Since the chief government witnesses testified that

Carrier was used, the argument continues, there is no reason to

credit the witnesses' testimony as to this point, or any other.

Thus, Fern ndez concludes that the trial court erred in not

granting his motion for acquittal.

While there were inconsistencies in the witnesses'

testimony, and while they all had an incentive to please the

government, these aspects of the evidence were pointed out to the

jury by defense counsel. As the government notes, Bruno and De

Jes s did not go to any warehouse for the first loads -- indeed,

Bruno testified that Carrier had previously had a different

address -- and the evidence regarding Gulf suggests that

Fern ndez had knowledge of and access to shipping facilities

during the relevant time frame. It was within the province of

the jury to disregard some of the inconsistencies and to accept

aspects of the witnesses' testimony as credible. "The force of

the evidence as a whole, including all reasonable inferences

favorable to the verdict, was sufficient to support a rational

jury finding: that defendant was guilty." L pez, 944 F.2d at

40.

2. Weight of the Evidence
2. Weight of the Evidence

Fern ndez also contends that the jury verdict was

against the weight of the evidence, and that the district court

erred in denying his motion for a new trial. Fern ndez argues

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that the government's case here was wholly circumstantial and

rested solely on the testimony of blatantly untrustworthy

witnesses, as demonstrated by the many contradictions between

their stories and Fern ndez' evidence that Carrier had not

occupied a warehouse until October 1991. The evidence regarding

Gulf, he continues, is insufficient to support the eleventh-hour

claim that Fern ndez used it.

We review for abuse of discretion, see, e.g., United

States v. Rogers, 41 F.3d 25, 34 (1st Cir. 1994), cert. denied,

U.S. , 115 S. Ct. 2287 (1995), and reject Fern ndez'

argument. The evidence against Fern ndez, briefly outlined

above, was neither unbelievable nor implausible, as he contends.

Simply put, the witnesses' testimony was not "so inherently

implausible that it could not be believed by a reasonable juror."

United States v. Garc a, 978 F.2d 746, 748 (1st Cir. 1992) (per

curiam). We accordingly find that the district court did not

abuse its discretion in denying Fern ndez' motion for a new

trial, and refuse to take the issue of the witnesses' credibility

out of the jury's hands. The jurors were entitled to weigh the

witnesses' contradictions and incentives and still accept the

substance of their testimony. See id.

D. Prosecutorial Misconduct
D. Prosecutorial Misconduct

1. The Legal Framework
1. The Legal Framework

Fern ndez' primary argument is that the prosecutor

violated his due process rights by making improper statements to

the jury during the government's closing argument and rebuttal.

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See Berger v. United States, 295 U.S. 78, 88-89 (1935). He

contends that any one of the statements he now points to as

improper could have prejudiced the jury so as to have prevented a

fair trial, and that the cumulative effect of the statements was

to deny him a fair trial under the Fifth Amendment. See United

States v. Santana-Camacho, 833 F.2d 371, 373 (1st Cir. 1987)

(noting that, while a statement on its own may not have been

harmful, it is "more troublesome" when viewed in conjunction with

other prosecutorial statements). For the reasons we discuss

below, we disagree.

When faced with a claim of prosecutorial misconduct, we

first weigh whether a statement was improper. If it was, we then

determine "whether prosecutorial misconduct has '"so poisoned the

well"' that a new trial is required." United States v. Manning,

23 F.3d 570, 574 (1st Cir. 1994) (quoting United States v. Hodge-

Balwing, 952 F.2d 607, 610 (1st Cir. 1991) (quoting United States

v. Capone, 683 F.2d 582, 586-87 (1st Cir. 1982))). This circuit

has laid out a series of factors for guidance in making that

determination:

(1) the severity of the misconduct; (2)
the context in which it occurred; (3)
whether the judge gave any curative
instructions and the likely effect of
such instructions; and (4) the strength
of the evidence against the defendant.

Id.; see, e.g., United States v. Hardy, 37 F.3d 753, 757-58 (1st

Cir. 1994). In this analysis,

[w]e do not . . . take the evidence in
the light most favorable to the
government or assume that credibility

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issues were resolved in its favor. The
jury may well have decided the issues in
favor of the government, but that jury
decision may itself be tainted by the
improper remarks. Thus we will look at
the evidence as a whole . . . .

Arrieta-Agressot v. United States, 3 F.3d 525, 528 (1st Cir.

1993); see Hardy, 37 F.3d at 755.

We review the sole statement Fern ndez objected to at

trial de novo. Hardy, 37 F.3d at 756. He did not object to the

majority of statements he now points to as violating his due

process rights: we review those for plain error, as "[r]eviewing

courts are very reluctant to reverse for unobjected-to errors

that could have been corrected or ameliorated by timely

objection." United States v. Procopio, Nos. 95-1549, -1559, -

1550, slip op. at 25 (1st Cir. July 9, 1996); see Arrieta-

Agressot, 3 F.3d at 528 (explaining rationale behind applying

plain error review). "[T]he plain-error exception is to be 'used

sparingly, solely in those circumstances in which a miscarriage

of justice would otherwise result.'" United States v. Young, 470

U.S. 1, 15 (1985) (quoting United States v. Frady, 456 U.S. 152,

163 n.14 (1982), reh'g denied, 456 U.S. 1001 (1982)).

With our test and standard of review thus established,

we turn to Fern ndez' specific contentions.

2. Statements Objected to at Trial
2. Statements Objected to at Trial

(1) During trial, a lease application filled out by

Loredo in November, 1991, which stated that he had worked for

Carrier for six years -- well before the time the defense argued

Carrier began to exist -- was admitted for the limited purpose of

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showing that Loredo claimed he worked for Carrier, not for the

truth of the matters in the document. Fern ndez now contends

that the prosecutor went beyond that limited purpose in his

closing argument. Referring to the application, the prosecutor

stated:

You remember, as you look at it here,
there is a part . . . where he's supposed
to or he has to list his employer. His
list what [sic]? Carrier Transportation.
Just Carrier Transportation as his
employer. . . .

And most importantly, he said he was
working for that company for six years.
Six years. The phone numbers are right.
The address is right. Working for the
company, he says, for six years. This is
proof that there was a Carrier
Transportation that operated before the
date that counsel --

Tr. at 2472. The prosecutor was cut off by the defense's

objection.

We agree with Fern ndez that the prosecutor was moving

beyond the stipulation to assert that the lease application was

"proof that there was a Carrier Transportation that operated

before the date" the defense alleged it began business. Thus, we

turn to our four-factor test. We note that the misconduct,

though disingenuous, was not severe, and occurred only once, in

relative isolation. More importantly, the court gave immediate

curative instructions, admonishing the jury that the lease did

not come in as anything more than a claim by Loredo to have

worked for Carrier, and reminding them of its earlier

instruction, made when the lease application was entered.

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Indeed, in its closing, the defense also reminded the jury of the

limited use of the lease. On balance, we find that "the curative

instruction sufficed to dispel any prejudice from the improper

comment." United States v. Boldt, 929 F.2d 35, 41 (1st Cir.

1991); see United States v. Savarese, 649 F.2d 83, 88 (1st Cir.

1981).

(2) Fern ndez objects to other references the

prosecution made to Gulf on the basis that they encouraged

speculation and attempted to argue facts not presented in the

evidence.5 First, the prosecutor stated:

we had to wait for cross-examination by
[co-counsel for the government] to find
out that there was a previous company
before 1992, in fact from 1986 it had
started, which did the exact same type of
job. It had -- it was a shipping company
that did transportation in the same
manner, through the containers and
Mr. Juan Fern ndez was also one of the
owners or partners in the operation.

Tr. at 2475. Like Fern ndez, we can find no evidence in the

record stating that Gulf began in 1986. The offer of this fact

is harmless, however, since the pertinent time period is 1991,

and Sanjurjo testified that Gulf was in operation in 1990. The

reference leaves open the crucial question, which is, when Gulf

5 Fern ndez objected to the prosecution's being allowed to use
Gulf in its closing. However, his counsel did not object when
the court held that the prosecution could "tell it to the jury."
Tr. at 2438. The government points out that Fern ndez did not
make specific objections to these references to Gulf during
closing
argument, presumably asking us to review them under the more
lenient plain error standard. As we find no error under either
standard, we need not determine here whether the objection was
preserved.

-22-

ceased operation. As for the form in which the prosecutor made

his statement, it is consistent with the framework the government

used for its argument, discussed in (1), above.

Fern ndez objects to the cited passage and four others

for asserting that Carrier and Gulf were essentially the same

thing, doing the exact same job:

[O]ur argument is that before, when the
company was operating as Gulf Carrier
Transportation he used another warehouse
in New Jersey.

. . . [It] was known as Gulf Carrier,
also. Gulf Carrier just like -- the same
name, just slightly different wording and
same owners, same business, same thing.

Tr. at 2476. These statements, he contends, urged the jury to

speculate in a manner unsupported and contradicted by the actual

evidence regarding Gulf. There was evidence that they were both

transportation companies, but not that they did the exact same

job. Indeed, the owners were not the same: Fern ndez was part

owner of Gulf, and the sole owner of Carrier. Finally, there was

no evidence that Gulf was actually in business in 1991.

On balance, we cannot find that this line of argument

so poisoned the trial well that a new trial is required. See

Manning, 23 F.3d at 574. The government made an argument based

on the limited evidence regarding Gulf. The defense was able to

argue the counter position, pointing out the lack of evidence,

and did so.

3. Statements Not Objected to at Trial
3. Statements Not Objected to at Trial

We examine the statements which Fern ndez did not

-23-

object to at trial in the order in which he raised them. We find

that most are not improper; of the few that are, none of them

prove so serious that the district court plainly erred in

allowing them.

(1) Fern ndez first argues that the prosecutor erred

by trying to "secure the empathy of the jury" through asking it

to step into the government's shoes and align itself with the

prosecution team through statements like the following.

Now, the way I would like to discuss the
evidence with you is in the order that we
received it. Okay. The way we were
interviewing these witnesses, in that
order, to give you a feel for what we
went through as you determine whether we
have proven, as we submit to you we have,
beyond a reasonable doubt the existence
of the conspiracy and their participation
. . . .

Tr. at 2443. The prosecutor made a series of comments such as

"[w]e seek [co-conspirators or drug traffickers] out and we go

out and corroborate them." Tr. at 2442. We agree with the

government, however, that, read in context, the statements

Fern ndez points to were simply establishing a framework for the

presentation of the government's argument. They also served to

point out that even though the government's witnesses were drug

traffickers with a motive to fabricate evidence -- as defense

counsel had emphasized in opening argument -- their testimony was

corroborated. Indeed, in the first passage quoted above, the

prosecution reminded the jury that it carried the duty of

determining whether the government proved its case. While we do

not necessarily recommend this framework for argument as an ideal

-24-

one, we do not find that the statements were improper.

(2) Fern ndez' second argument is that the prosecutor

misstated the law on proof of conspiracy in making the following

statements:

the only way we can prove a conspiracy is
through the testimony of the very co-
conspirators who were members of that
conspiracy.

Tr. at 2441.

you're always going to need the testimony
of the co-conspirator to prove a
conspiracy because of the secrecy of the
conspiracy.

Tr. at 2442.

You're never going to find a decent
person testifying to a drug deal. That's
what we got to deal with. That's what we
got to do.

Tr. 2571-72. Contrary to appellant's assertion, these are

arguments, not statements of fact, and are thus permissible.

Even if they were improper, they would not require a

new trial. For, viewed in context, it is clear that they did not

poison the trial proceeding. In his opening statement,

Fern ndez' counsel had emphasized the fact that no actual drugs

were offered in evidence: the challenged comments were

apparently designed to counter those statements with an

explanation of why the government relied so heavily on witness

testimony. The first two statements are addressed to the

practical difficulties of proving a conspiracy. The prosecutor

followed the first with an explanation of why the government did

not introduce any actual drugs. Further, the prosecutor followed

-25-

up these comments with a discussion of the importance of

documentary evidence in corroborating witnesses' testimony,

belying his own comments. As for the "decent person" comment,

its logical flaws are obvious. Moreover, defense counsel had

emphasized the witnesses' dishonesty in his opening,6 to which

this is apparently a response. These statements do not warrant a

new trial.

(3) The prosecutor made two statements to the jury to

the effect that "[t]o acquit, you would have to find that

everybody was lying in this case." Tr. at 2590-91. Fern ndez

argues, and the government seems to agree, that these were

improper. To the contrary, we feel they amounted to nothing more

than argument, and were not improper.

(4) Fern ndez' fourth contention is that the

prosecutor made statements without evidentiary support. See

Santana-Camacho, 833 F.2d at 373 (reversing conviction on basis

6 For example, in his opening statement, Fern ndez' counsel
stated:

And the evidence is that these drug
pushers have consistently taken the easy
way out of everything that is meaningful
in life. . . .

. . . [T]he evidence will show that
they have no conscious [sic] that will
prevent them -- the kind of consciousness
that would prevent most people from
accusing an innocent man. They simply
only care about themselves . . . . They
always have and they always will.
Leopards don't change their spots.

Tr. at 105-06.

-26-

of major and prejudicial misstatement of evidence in closing

argument). The prosecutor erroneously stated that the testifying

drug traffickers were "either in jail or go to [sic] jail," Tr.

at 2442, and that Bruno specifically would be going to jail when,

in fact, Aloisi had a non-prosecution agreement, and Bruno was

not incarcerated at the time of trial. Again, the government

acknowledges that the statements were not factually true. We

agree with the government, however, that any error in admitting

these statements does not rise to the level of plain error. The

agreements between the government and the witnesses were in

evidence, each of the four witnesses against Fern ndez testified

about his agreement with the government, defense counsel reminded

the jury of their agreements in his closing argument, and the

judge instructed the jurors that counsel's argument did not

constitute evidence, but that their recollection of the facts

controlled. Cf. United States v. Innamorati, 996 F.2d 456, 482

(1st Cir.) (finding no clear error where prosecution stated "that

the trial judge alone would determine the sentences for each of

the cooperating witnesses, and that the jury therefore should not

think that the witnesses were getting 'a walk'" where, in fact,

the government had dismissed charges against many of the

witnesses and had promised to make motions for downward

departures), cert. denied sub nom. DeMarco v. United States, 510

U.S. 955 (1993).

(5) Fern ndez points out that the government made a

second misstatement of the evidence by arguing that the payment

-27-

which the two lead conspirators were alleged to have given

Fern ndez in order to buy into Carrier was "not an over the

counter deal" but rather "a criminal association. It [was] a

paper bag with eighty thousand dollars." Tr. at 2575. The

government acknowledges that the paper bag details pertain to a

different transaction, not involving Fern ndez. The misstatement

is troublesome in its characterization of the transaction, the

details of which were not in evidence. However, between the

brevity and isolation of the misstatement, the court's later

instruction to the jury that their memory controlled, and defense

counsel's failure to make a timely objection, Fern ndez cannot

clear the plain error hurdle.

(6) Next, Fern ndez alleges that in his rebuttal

argument the prosecutor provided information to contradict the

testimony of a witness at trial. Without specifying what that

information is, he cites the following passage discussing the

testimony of Enrique Nieves ("Nieves"), Special Agent with the

Drug Enforcement Administration.

Now, the other thing with Mr. Nieves.
He said that there was a search warrant
served on or about the time Mr. Fern ndez
was indicted. And that's false. You
recall the testimony, that was the search
warrant was at an unrelated warehouse of
Mr. Velasco before we had any knowledge
of the fact that they were using Carrier
Transportation at the time of the first
indictment. That's when that search
warrant was served and that's when we
were going after Mr. Velasco who was in
the first indictment. So the fact that
that search warrant was served and
nothing was found, we were not after Mr.
Juan Fern ndez's business at the time

-28-

because we didn't know about it.

Tr. at 2578.

Examination of the record sheds some light on the

passage. First, the depiction of Nieves' testimony is correct:

the warrant was for an unrelated warehouse, prior to any

suspicion that the warehouse Carrier used was involved, and was

served following the first indictment, which did not name

Fern ndez. Second, the "he" of "he said that there was a search

warrant served" seems to refer not to Nieves, but to Fern ndez'

counsel. The latter had stated in his closing that Nieves

testified that in September 1993 -- the time of the first

indictment -- he had testified at a bond hearing that a specific

warehouse used by Carrier was not involved with the Sardinas

operation. Defense counsel also referred to the search warrant

for a different warehouse. It would seem that the prosecution

blurred the line between the reference to the bond hearing and

the search warrant and attributed the date given for the first to

the second. While perhaps an error, it does not constitute the

presentation of information to contradict the testimony of a

witness at trial. Since Fern ndez did not see fit to actually

specify what element of the passage presented new information,

and we see none ourselves, we find no plain error on the part of

the district court in allowing the statement.

(7) The prosecutor's statement that "[t]hey could be

doing additional loads besides the ones that Mr. Bruno was

aware," Tr. at 2465-66, was not improper speculation, since it

-29-

was made in the context of the prosecutor noting that De Jes s'

testimony was that Bruno was not always involved in the

transportation of loads of cocaine, and so the government was not

always sure what number a load was: "they probably skipped the

fifth and this is the sixth load, or it could be a totally

different load. We don't know." Tr. at 2465. Even if the

statement could be construed as improper speculation, Fern ndez

again fails to clear the hurdle of the four factors and prove

that there was plain error on the part of the district court.

(8) Similarly, Fern ndez contends that the prosecutor

improperly generalized about his experiences in stating that

even on some minor details there is a lot
of corroboration in this case, which is
unusual. You will usually have little
corroboration in that aspect, but even on
details, as I go through the evidence
I'll mention them, there is
corroboration.

Tr. at 2444. See United States v. Rosa, 705 F.2d 1375, 1379 (1st

Cir. 1983) ("It is settled law in this circuit that a prosecutor

may not inject into his jury argument his personal opinions about

conclusions to be drawn from the evidence."). The prosecutor

made this statement in the context of encouraging the jury to

recognize that the presence of some inconsistencies in witness

testimony does not preclude granting them credence. This

statement falls somewhere on the spectrum between proper and

improper argument. However, even assuming it was improper, we

cannot find that it is so severe as to warrant a mistrial. In

truth, the prosecutor was telling the jury what it probably

-30-

already knows: that there will likely be differences in the

stories told by two people recounting an event that occurred

years earlier.

Fern ndez makes the similar contention that the

prosecution twice vouched for the credibility of prosecution

witnesses by telling the jury that the witnesses were telling the

truth because they did not get together to concoct a totally

consistent story; the fact that their story was not totally

consistent, the prosecution argued, reveals that "the only other

alternative is that . . . they were telling the truth and that

the impeachment that they have been able to make to you is, I

submit, as to details." Tr. at 2591. We agree with the

government that these remarks amount to asking the jury to make

common sense conclusions from the evidence.

The line between the legitimate argument
that a witness's testimony is credible
and improper "vouching" is often a hazy
one, to be policed by the trial court in
the first instance. . . . Here, at worst
the challenged remarks . . . fell in the
grey area. [Defendant] did not object to
the remarks at trial when a curative
instruction might have been given, and we
think that is the end of the matter.

Innamorati, 996 F.2d at 483 (dismissing challenge to prosecution

statements that the testimony was well corroborated and "as a

result, you know that the witness's testimony is true").

(9) There, is, however, no question that the

prosecutor improperly injected himself into the argument in the

next statement Fern ndez challenges:

And who wrote the statement of facts? We

-31-

wrote the statements of facts. So, the
big mistake about Panama. You know who
made it? I made it. Does that mean that
they're not guilty? Does that mean that
it wasn't from Venezuela that the SEA
SEARCH came[?] No, it's a mistake I
made. So, I should carry it.

Tr. at 2576. The prosecutor apparently made this statement in

direct rebuttal to co-defendant's counsel, who highlighted --

literally -- a statement in De Jes s' plea agreement which

indicated that the shipload of cocaine with which the co-

defendant was allegedly involved came from Panama, while the

indictment maintained it was Venezuela, without mentioning

Panama. Given this context, the relative isolation of the

statement, and the judge's instructions to the jury that their

memory of the testimony controlled, this misconduct does not

require a new trial, especially in light of our standard of

review. See Young, 470 U.S. at 11-14 (discussing the "invited

response" rule).

(10) We also dismiss Fern ndez' contention that four

statements made by the prosecution were generalizing about drug

traffickers without evidentiary support. Each of these

statements was to the effect of "that's the way drug dealers

think." The statements were argument, and did not rise to plain

error.

(11) Fern ndez next challenges the prosecutor's

reference to Fern ndez' purported motive -- greed and need for

money -- and argues that there was no evidence in the case on

this point. Nonetheless, the statement is clearly proper: as

-32-

the government notes, it is essentially a viable interpretation

of the evidence. Indeed, the prosecutor followed the statements

Fern ndez now challenges by pointing to the testimony that, at

least initially, Fern ndez received two hundred dollars for each

kilogram of cocaine transported -- a clear financial incentive.

Cf. United States v. Tajeddini, 996 F.2d 1278, 1285-86 (1st Cir.

1993) (finding that, where the prosecutor did not deliberately

misrepresent defendant's financial situation, where there was a

financial incentive, and where defendant did not object at trial,

prosecution statement that crime was motivated by payment was

proper).

(12) Fern ndez points to two references to the lease

application discussed in section (2), above, as error. The

first, when read in context, appears to be citing to other

evidence to support the conclusion that Fern ndez sought to

conceal the earlier existence of Carrier:

I submit to [sic] as a fact that
[Sanjurjo] should have known [whether
Loredo started working after she started
working] and the fact that she did not
want to answer to you should be proof
that Mr. Loredo was in fact working
before that, as he claimed on his
application.

Tr. at 2475. The prosecutor is offering Sanjurjo's testimony as

proof, not the application.

The prosecution also referred to the application in its

rebuttal.

[Defense Counsel] tells you that Jorge
Loredo was looking for a part time job
with Carrier Transportation Services.

-33-

Well, look at the lease agreement. Look
at the cars he list[s] as his property.
In 1991 red Ferrari . . . [and] a 1990
Range Rover. Black one. Is that a car
of somebody who needs a second job to
make ends meet [?] No, ladies and
gentlemen of the jury, he wasn't looking
for any part time job. He had a full
time job and that was trafficking drugs,
trafficking cocaine. With who? With his
partner Juan Fern ndez.

Tr. at 2575. On balance, we do not find that the lease

application was submitted for the proposition that Carrier

existed prior to when the defense asserted it began. Rather, the

cited passage suggests that Loredo had no need for a part-time

job, but that he already had one with Carrier. The evidence

indicated that in November, 1991, the date of the lease

agreement, Carrier had already been incorporated and had leased a

warehouse in New Jersey. The reference to Carrier seems to have

been to the November 1991 status, not Loredo's claim to have held

a position there for 6 years.7 Even if this reading is

incorrect, however, and this was an improper reference, its

admission was simply not plain error.

(13) Fern ndez contends that on three occasions the

government improperly alluded to the fact that he did not

testify. "A prosecutor's comment is improper where, under the

circumstances of the case, 'the language used was manifestly

7 Indeed, the lease application may have been cited for a reason
wholly unrelated to the Carrier employment claim: in it, Loredo
reported that he owned a home in Puerto Rico, which would support
the prosecution's contention that Loredo's material possessions -
- a house, two expensive cars -- did not indicate that he needed
a second job to make ends meet. The prosecution made no direct
reference to that claim, however.

-34-

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.'" Hardy, 37 F.3d at 757 (quoting United

States v. Glantz, 810 F.2d 316, 322 (1st Cir.), cert. denied, 482

U.S. 929 (1987)). None of the statements Fern ndez points to in

this context meet this test.

First, in his rebuttal, the prosecutor referred to Gulf

as the "other company that we didn't know they had, which at the

beginning they didn't tell us about." Tr. at 2580. Read in

context, it is clear that the jury would not "naturally and

necessarily" take this as a comment on Fern ndez' failure to

testify, because the prosecutor is in fact referring to the

premise that the evidence introduced about Carrier does not prove

anything about Gulf. We note that the statement does not

indicate that Fern ndez did not tell the government about Gulf,

rather, that "they" -- the witnesses -- did not tell it about

Gulf. Second, the prosecutor argued that there was "no other

explanation" for the fact that three witnesses had Fern ndez'

phone number "except that they were involved with him." Tr. at

2472. Third, the prosecution argued against the defense position

that Fern ndez' association with Loredo and Frame was an innocent

one, positing that knowing three drug traffickers could hardly be

a coincidence, and that "the only explanation" presented before

the jury was a criminal association between the men.

We find that neither statement meets the "naturally and

necessarily" criteria. Although Fern ndez would presumably have

-35-

been able to testify as to these things, so would the other

witnesses. "Where arguably favorable evidence other than the

defendant's own testimony is available to him, comment upon his

failure to produce it may be justified." United States v.

Sardelli, 813 F.2d 654, 657 (5th Cir. 1987). Indeed, defense

counsel argued in his closing that the dissemination of

Fern ndez' phone numbers and his associations with co-defendants

were innocent. We find no plain error in the court's allowance

of these statements. See Procopio, slip. op. at 23-25.

(14) Fern ndez also contends that the government

improperly tried to shift the burden of proof to the defense.

The first cited statement asked: "Why would the defense be

hiding the fact or they to portray [sic] the fact that Mr. Loredo

started working for Carrier after 1992, if he started before[?]"

Tr. at 2580. From the statement's context, it is apparent that

this is a rebuttal to defense counsel's claim that Loredo's

business card from Carrier dated from 1992: the prosecution

counters that the business card had no date. The second

statement cited pointed out that on direct examination Sanjurjo

testified that Carrier started in 1992, adding:

But then we had to wait for cross
examination by Mr. Pagel to find out that
there was a previous company before 1992,
in fact from 1986 it had started, which
did the exact same type of job . . . and
Mr. Juan Fern ndez was also one of the
owners or partners in the corporation.

[Sanjurjo] denied at that point that
the corporation was named Gulf Carrier or
had Carrier in its name. We found that
out through another witness at a later

-36-

time.

Tr. at 2474-75. These comments are in keeping with the general

structure of the prosecution's argument, discussed above,

pointing out who testified what about Carrier and Gulf.

We find that these statements did not shift the burden

of proof onto the defendant. On balance, any subtle implication

that the burden of proof had shifted would have been mitigated by

the court's instructions -- as well as those of the prosecution

and defense -- regarding the burden of proof. While not

necessarily ideal, the cited statements did not amount to

reversible error under our standard of review.

(15) Fern ndez points to four statements made in the

government's rebuttal which are more troubling:

The second reason [why the prosecution
has an opportunity for rebuttal] is, to
help you see through this smoke screen
that the defense always tries to raise to
confuse you.

Tr. at 2574.

look how desperate [the defense is], look
at the argument they're making to try to
escape what is obvious to everybody.

Tr. at 2577.

The fact is, we do have enough evidence.
The evidence beyond a reasonable doubt.
They're just trying to confuse you.
Don't allow them to be confusing.

Tr. at 2585. Finally:

Their argument, really is that we
cannot use these drug traffickers, the
witnesses who were their friends and
their associates, to convict. That's
what they're saying. Well, ladies and

-37-

gentlemen, that is an important weapon,
an important tool in law enforcement, to
deprive of us the ability to do that is
[sic] to deal a hard blow to law
enforcement. . . .
. . .
Now, these criminals, drug traffickers
in general, think that they commit the
crime and nobody catches them at that
time, or the people who saw them were
other drug traffickers that then they're
home free. But unfortunately, for all
these drug traffickers, including
Mr. Contreras and Mr. Juan Fern ndez,
that's not the way it works. Because we
in the law enforcement community, the
people who you see sitting [at] this
table, the agents that you saw testifying
before you, they didn't give up. They
kept on investigating and they didn't
catch them when it happened, but they
kept investigating and they kept catching
other criminals and they were able to
build a case around them. Because we
have other means, other methods in which
to investigate and to present cases to
you.

And I submit to you that this is
another way to present the case. And it
also shows beyond a reasonable doubt that
these defendants are guilty. So, they
thought they had gotten away with their
crimes when they committed them. The
agents kept, they didn't give up, they
kept investigating.

I ask you now don't give you up [sic]
on us now. They thought they had gotten
away with their crime. Don't you let
them get away with their crime today.

Tr. at 2590-92.

We do not doubt that these statements constituted

improper argument. See, e.g., Boldt, 929 F.2d at 40 (improper to

comment on "favorite defense tactic"); Hardy, 37 F.3d at 757

(finding prosecution argument that defendants, who did not

-38-

testify, were "still running and hiding" improper). Thus we turn

to our four factors. First, regarding severity, while the

misconduct is real, it is not as severe as some which we have

previously found improper. See, e.g., Arrieta-Agressot, 3 F.3d

at 527 (holding it improper to argue, inter alia, that "the

defendants are not soldiers in the army of good. They are

soldiers in the army of evil, in the army which only purpose

[sic] is to poison, to disrupt, to corrupt"). In terms of the

context, the government argues that these were isolated comments.

However, the fact that the prosecutor made multiple, albeit

brief, statements disparaging the role of the defense convinces

us that they were not isolated comments. Indeed, the prosecutor

ended his rebuttal shortly after finishing the last statement,

enhancing its impression on the jury. As for any corrective

instructions, Fern ndez did not object to any of the statements.

Finally, we note that the evidence against Fern ndez was

adequate, but not overwhelming.

In the end, although it is a close call, Fern ndez does

not prevail on this point. Because he made no objection at

trial, Fern ndez "must show that the improper remarks likely

infected the jury (affected 'substantial rights' in Olano's

words) and mere possibilities are not enough." Procopio, slip

op. at 26. Simply put, there was not much substance to the

statements: while they were improper disparagement of the role

of defense counsel, we do not see how they alone could have

created "'circumstances in which a miscarriage of justice would

-39-

otherwise result.'" Young, 470 U.S. at 15 (quoting Frady, 456

U.S. at 163 n.14); see Procopio, slip op. at 28-29 (stating that

it was "unrealistic to suggest that . . . empty cliches" that the

defense arguments were "illusions" and "smoke screens" would have

affected the jury's verdict).

4. The Cumulative Effect
4. The Cumulative Effect

There are many reasons why defense counsel would choose

not to make every possible objection during the government's

closing argument. However, there is a cost to that strategy:

most of the statements Fern ndez now proffers as misconduct are

reviewed under the deferential plain error standard. We have

found, under that standard, that although various of the

statements were indeed improper, they did not so poison the well

that a new trial is mandated. Having reviewed the record and the

closing arguments, we find the same is true as for their

cumulative effect. Only the statements impugning the role of the

defense give us real pause; nonetheless, even considering all the

points where the prosecution's argument fell below the mark, we

do not feel that a jury would have been improperly swayed by the

argument. Nonetheless, we add that we are concerned by the sheer

quantity of errors, however minor, in this case. The prosecution

should weigh carefully its words when it next approaches the

floor for argument. See id. at 29 (noting that "a pattern of

faults does suggest a failure in supervision").

E. Fern ndez' Sentence
E. Fern ndez' Sentence

At sentencing, the court granted Fern ndez a downward

-40-

adjustment for being a minor participant in the conspiracy. See

U.S.S.G. 3B1.2(b). The government now argues on cross-appeal

that the facts of the case do not support that adjustment. We

review the district court's factual determinations for clear

error, granting due deference to the trial court's application of

the guideline to the facts. See United States v. Graciani, 61

F.3d 70, 75 (1st Cir. 1995); United States v. Thompson, 32 F.3d

1, 4 (1st Cir. 1994).

Section 3B1.2(b) offers a reduction to "any participant

who is less culpable than most other participants, but whose role

could not be described as minimal." U.S.S.G. 3B1.2 (comment.

n.3). Of course, the mere fact that Fern ndez may be less

culpable than others involved in the conspiracy does not

automatically entitle him to a reduction. See United States v.

Daniel, 962 F.2d 100, 103 (1st Cir. 1992). "Role-in-the-offense

adjustments depend . . . not only on the comparative conduct of

persons jointly engaged in criminal activity, but also on

comparing each offender's actions and relative culpability with

the elements of the offense." United States v. Ocasio, 914 F.2d

330, 333 (1st Cir. 1990).

The district court granted the adjustment on the basis

that Fern ndez' role was "limited in essence to looking the other

way . . . while his company was used to transport the narcotics,"

and that he "played a part in the overall conspiracy that makes

him less culpable than that of the average participant."

Sentencing Hearing at 29-30. The court made no more detailed

-41-

findings.

The government contends that the evidence does not

support the district court's findings. It points out that the

evidence indicated that Fern ndez joined the conspiracy, secured

a large payment from Sardinas and Loredo at the outset, and

received additional payment for the transportation of the

cocaine, albeit a payment smaller than Sardinas'. According to

the witnesses, he attended meetings, made his employees available

to help, bribed a gatekeeper, and personally handled shipments.

Additionally, Frame's testimony was that Fern ndez acted as

liaison to Sardinas with respect to marijuana and cocaine

shipments. All this, topped with the district court's failure to

make specific factual findings, the government contends,

demonstrates that the court clearly erred in finding that

Fern ndez was entitled to the minor role adjustment. Finally,

the argument concludes, the fact that the court made no specific

findings as to witness credibility or Fern ndez' role precludes

reliance on cases upholding a district court's credibility

determination at sentencing, see, e.g., United States v. Webster,

54 F.3d 1, 5 (1st Cir. 1995), or Fern ndez' argument that a

plausible view of the evidence supports the district court's

minor role determination.

The district court's failure to find more than the

basic facts at sentencing lends a certain awkwardness to this

case. Nonetheless, we disagree with the government's argument

that the evidence presented at trial precludes granting the

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adjustment. Fern ndez went to meetings, accepted money, and, if

the witnesses' testimony is credible, knew what was going on.

However, there was no evidence that he was in contact with the

suppliers and receivers of the cocaine that the Sardinas

organization transported, either in the New York area or in

Memphis, or that he negotiated those deals or instructed the

workers. Bruno testified that Fern ndez attended a series of

meetings, but did not testify that Fern ndez ran those meetings,

told Bruno what to do, or otherwise served as the organizer of

the conspiracy. While we do not think that Fern ndez'

entitlement to the downward adjustment was a foregone conclusion,

we cannot, on this record, find that it was plain error for the

lower court to apply it. The district court found that Fern ndez

established that he was less culpable than most other

participants in the conspiracy, and so was entitled to the

adjustment. "In this instance, it would be foolhardy to second-

guess the sentencing judge, given his superior coign of vantage."

Ocasio, 914 F.2d at 333.

CONCLUSION
CONCLUSION

For the reasons stated herein, we affirm.
affirm

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