USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 95-1863
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN LABOY-DELGADO,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, Senior U.S. District Judge] __________________________
_________________________
Before
Selya and Cummings,* Circuit Judges, ______________
and Coffin, Senior Circuit Judge. ____________________
_________________________
Jose C. Romo Matienzo on brief for appellant. _____________________
John C. Keeney, Acting Assistant Attorney 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