United States Court of Appeals
For the First Circuit
No. 10-1984
UNITED STATES,
Appellee,
v.
CARLOS RODRIGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Bernard Grossberg for appellant.
Cynthia A. Young, Assistant U.S. Attorney, with whom Carmen M.
Ortiz, United States Attorney, was on brief, for appellee.
March 28, 2012
THOMPSON, Circuit Judge. Before the ink could dry on its
verdict convicting Carlos Rodriguez of being a felon in possession
of a firearm, the trial judge learned that a pocket-sized New
Testament Bible was found in the jury deliberation room. The judge
promptly notified Rodriguez's counsel of the discovery and he
immediately filed a motion for a new trial. In his motion, counsel
argued that the Bible's presence in the jury room violated
Rodriguez's Sixth Amendment right to a trial before an impartial
jury and his Sixth Amendment right to confront the witnesses
against him. To determine what role the Bible may have played in
the jury's deliberations, Rodriguez asked the trial judge to recall
each juror for purposes of conducting an individual voir dire. The
motion was denied. Thereafter, Rodriguez filed a second motion for
a new trial, which, unlike the first, was related to the actual
trial proceedings. This time around, Rodriguez claimed that the
prosecutor made improper comments during closing and rebuttal
arguments that violated Rodriguez's Fifth Amendment rights. Again,
the motion was denied.
Before this court, Rodriguez contends the district court
erred in denying both motions. Additionally, he claims that
certain alleged errors by his defense counsel denied him his
constitutional rights to due process and effective assistance of
counsel. After careful review of the record, we discern no error
and therefore affirm.
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I. BACKGROUND
A. Facts
1. The Police Discovery of the AK-47
Late in the evening on September 24, 2006, a parked,
unattended, green Toyota Camry caught the attention of Methuen
police officer Justin Law ("Law"). He recorded the license plate
number of the car and made several observations. First, he
detected no signs of ignition damage, indicating to him that the
car had not been stolen. Second, the hood of the car was warm,
causing Law to believe that the car had been recently driven. The
car was also unlocked. Law peered inside and saw in plain view the
buttstock of an AK-47. He recognized the firearm "immediately."
Law called for backup and he and his fellow officers
removed the AK-47 from the car and looked it over -- it was loaded
with one round of ammunition in the chamber and 24 additional
rounds in the magazine. With the assistance of other responding
officers, Law searched the entire inside of the car, as well as the
trunk. Inside the car, officers discovered marijuana, a scale, a
GPS, binoculars, and a driver's license issued to William "Billy"
Ryan.1 Body armor was found in the trunk. Sometime later, Law ran
the license plate number of the car and identified Melodee Sweeney
("Sweeney") as the owner.
1
For purposes of this opinion, it will suffice to know that
"Billy" Ryan was a friend of Rodriguez's who lived at Rodriguez's
mother's house in Lawrence, Massachusetts.
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2. The Police Encounter with Rodriguez
Methuen Police Officers Jeffrey Brouck ("Brouck") and
James Gunter ("Gunter") were among those officers who responded to
Law's call for backup. Brouck said he was on patrol in the parking
lot at Morse Park, a park containing a few baseball fields and a
skateboard park, for "under ten minutes" before he was ordered by
a sergeant "to go out and look for any individuals in [the]
immediate area." As he left the park, Brouck "saw a Hispanic male
walking towards [him] wearing a red shirt, a black hat, and light
blue pants." This individual was later identified as Rodriguez.
Brouck stopped his cruiser.
Gunter, who was directly behind Brouck in a separate
police car, stopped as well and together the officers approached
Rodriguez. Gunter asked him if he had any identification, to which
Rodriguez replied that he did not. Nonetheless, he offered a name
-- "Edward Santiago" -- and a home address -- 48 Warren Street,
Lawrence, Massachusetts. He also provided a date of birth and
Social Security number. Brouck radioed this information to Methuen
dispatch who confirmed that "Santiago" had a valid driver's license
and no outstanding warrants. When asked where he had been
immediately before his contact with the officers, Rodriguez said he
had been at a nearby Dunkin' Donuts. After answering all of the
officers' questions, Rodriguez asked them to call him a taxi, which
they did. After sending Rodriguez on his way the officers split
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up. Brouck went to the Dunkin' Donuts Rodriguez said he had
visited and Gunter headed to 48 Water Street, the home address
Rodriguez had given. Come to find out, 48 Water Street did not
exist.
3. Rodriguez's phone conversation at Dunkin' Donuts
Brouck found out Rodriguez had in fact visited the nearby
Dunkin' Donuts earlier that evening. At trial, a former Dunkin'
Donuts employee, Joseph John Garofalo ("Garofalo"), testified that
on the night of September 24, 2006, a "[v]ery aggressive and mad"
customer had caught his attention. Garofalo described the customer
as a "Spanish male about five-seven," who was wearing a "red hat
[and] baggy clothes." He said the customer was "walking around,
talking," and "[j]ust [seemed] very agitated." While inside the
Dunkin' Donuts, the man -- whom Garofalo later identified as
Rodriguez -- made approximately three different phone calls from
his cell phone. Garofalo overheard one end of one of the
conversations. He heard Rodriguez say, "[t]ell the girl the car
had been stolen." He also heard Rodriguez say: "Go get the AK-47
out of the car. And there's something else in the car. Go get it.
It's in the trunk. You know what it is." Not long thereafter,
Rodriguez headed out of the Dunkin' Donuts, stopped to ask Garofalo
for a cigarette, and walked away.
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4. Sweeney's statement to police -- Take One -- and Rodriguez
and Sweeney's flight to New York
Around midnight on September 24, 2006, Lawrence police
contacted Sweeney and told her she needed to come to the station to
get her car. She did not go until approximately 5 p.m. on
September 25, 2006. At the station Lawrence and Methuen police
officers interviewed Sweeney four separate times, over the course
of four hours. During these interviews, Sweeney told police that
someone had stolen her car after she left the keys in it while
running a quick errand. This was a lie. When asked if she had
seen Rodriguez the day before, on September 24, 2006, she told the
officers no. This too was a lie.2
The police, suspicious of Sweeney's story, told her that
they did not believe her. Moreover, they let her know that they
were looking for Rodriguez, had found an AK-47 and body armor in
her car, and were planning to subpoena her phone records. After
the interviews were over, Sweeney did not stick around. She headed
to her home in Pelham, New Hampshire. According to Sweeney,
Rodriguez "showed up at [her] house late that night" and Sweeney
filled him in on the specifics of what happened at the police
2
Sweeney would later change her story to admit that Rodriguez,
Sweeney's then boyfriend whom she had known for approximately
fifteen years, had her car with her permission and had taken it "to
go handle something," and that Sweeney had been with Rodriguez most
of the day on September 24, 2006, ending up at Rodriguez's sister's
house. They stayed there together until Rodriguez left with
Sweeney's car later that evening.
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station. At trial, Sweeney said that Rodriguez acted "nervous"
upon learning that the police were looking for him and he decided
"[they] needed to get out of [Massachusetts]" for awhile.
According to Sweeney, Rodriguez felt the couple should flee to
Rochester, New York. So they did. They hung out there for
approximately three weeks at Rodriguez's uncle's house.
5. Sweeney's statement to police -- Take Two -- upon her return
to Massachusetts
Eventually, Sweeney decided to return to Massachusetts
because of her children.3 Knowing full well the police would
likely have more questions for her, she and Rodriguez concocted a
story, first to dissuade the police from looking for Rodriguez in
New York, and second, to clear Sweeney's name. The duo agreed that
Sweeney would tell the police that she and Rodriguez had taken her
car to Worcester, Massachusetts together and that it had taken her
three weeks to come back because she "was scared for [her] life."4
Sticking to their plan, Sweeney went to the Methuen Police Station
on October 30, 2006 and repeated the false story to the police. To
this fabrication, she added yet another -- that she and Rodriguez
"fought," that "[she had been] abused by him," and that he had
3
By this time, Sweeney had learned that there was a warrant
out for her arrest based on her filing a false stolen vehicle
report. She also learned that the police had questioned her
brother, a Massachusetts state trooper, and gone to the home of her
father, a Massachusetts correctional officer.
4
We are unable to discern from the record what or whom
Sweeney was supposed to be scared of.
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taken her to Worcester against her will. Additionally, she told
the police that on September 24, 2006, Rodriguez had taken her car
without her permission and then told her to report it stolen.
6. Sweeney's testimony before the Grand Jury -- Take Three --
and Sweeney's statement during the summer before trial -- Take
Four
Rodriguez stayed in New York until he was found and
arrested there around December of 20075 -- approximately 15 months
after the discovery of the AK-47 in the abandoned car.
In July of 2008, Sweeney appeared before a federal grand
jury as a witness for the government in regard to the present case.
There, she denied having seen or known anything about the AK-47,
admitted that her October 30, 2006 story to police about going to
Worcester had been a lie, and stated that Rodriguez had gone to New
York, but that she had stayed in touch with him by phone.
Changing stories one more time during the summer of 2009,
Sweeney told the prosecutor assigned to the case and a Bureau of
Alcohol, Tobacco, Firearms, and Explosives agent that she was
actually with Rodriguez in New York -- not that she had simply kept
in touch with him by phone.
7. Sweeney's testimony on the eve of trial -- Take Five
On Sunday, September 20, 2009, the night before
Rodriguez's trial, Sweeney signed a letter of immunity insulating
5
The record is devoid of any details surrounding Rodriguez's
apprehension.
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her from prosecution based on the prior, false statements she made
to police officers throughout their investigation, as well as the
false statements she made before the grand jury. She was also
granted immunity for any of the underlying criminal acts she had
admitted to. After securing this immunity agreement Sweeney told
the government for the first time that she had seen Rodriguez with
the AK-47 found in her car the day before she reported the car
stolen. Similarly, Sweeney mentioned, again for the first time,
that Rodriguez had planned to, and actually did, rob his mother's
Cuban neighbors of cocaine, wearing a bulletproof vest and carrying
an AK-47. That night, the government sent Rodriguez's counsel a
letter informing them of Sweeney's latest version of events.
8. Rodriguez's response to Sweeney's latest version of events
On the first morning of trial, Rodriguez's counsel argued
that Rodriguez was prejudiced by Sweeney's latest version of
events, which had been brought to counsel's attention for the first
time on the eve of trial. Moreover, counsel argued that given the
numerous versions offered by Sweeney, her testimony was so lacking
in credibility that it should be stricken completely.
Though the government did not concede that Rodriguez had
in fact been prejudiced by Sweeney's late disclosure, it
nonetheless asserted that it was willing to take a "middle-of-the-
road" approach and refrain from mentioning the alleged robbery as
long as it could present evidence to the jury that Sweeney: (1) saw
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Rodriguez in possession of the gun the day before it was recovered
by the police and (2) knew when Rodriguez took her car on September
24, 2006, that he was "going to do a deal." According to the
government, this would allow into evidence testimony that it felt
was crucial to making its case while at the same time alleviating
any prejudice, assuming there was prejudice, to Rodriguez.
However, the defense argued that the two recent allegations which
the government sought to introduce at trial were "inextricably
linked" to Sweeney's other numerous versions of events and,
therefore, any effort by the district court to "prune out" some of
Sweeney's testimony, but not all, would not effectively "extract
the prejudice from the situation."6
The district court denied the defense's motion to strike
Sweeney's testimony in the entirety. Instead, it limited the scope
of Sweeney's testimony regarding her latest version of events to
two days -- the day before the gun was recovered, September 23,
2006, and the day the gun was recovered, September 24, 2006.
Although the alleged robbery took place on September 23, 2006, the
district court nonetheless prohibited the prosecution from
mentioning it. Defense counsel expressed concern that this
6
Additionally, defense counsel argued that such testimony
should be excluded under Fed. R. Evid. 404(b). The district court
stated on a few different occasions that it was not sure if the
evidence defense counsel sought to exclude constituted 404(b)
evidence. While resolution of the issue is not essential for
purposes of this appeal, we nonetheless note that counsel's 404(b)
argument was weak.
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"sanitized version" of events surrounding Sweeney's last minute
disclosures would prevent them from cross-examining Sweeney
regarding the "outrageousness" of her robbery story. Acknowledging
defense counsel's "dilemma," the district court stated that it
would give counsel "huge latitude in trying to figure out what to
do with that." Ultimately, defense counsel introduced the alleged
robbery during cross-examination of Sweeney in an attempt to
illustrate her history of lying and lack of credibility.
B. Procedural History
On October 2, 2009, a jury found Rodriguez guilty of
being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. § 922(g)(1). Shortly thereafter, the trial
judge informed Rodriguez's counsel, by letter, that her law clerks
had seen a "pocket-sized New Testament on top of a juror notebook
on the table in the jury room." In the letter, the trial judge
explained that she was "bring[ing] this matter to [counsel's]
attention for whatever steps, if any, [defense counsel] think[s]
are appropriate."
On October 7, 2009, Rodriguez filed a motion for a new
trial, claiming that the presence of the Bible in the jury room had
tainted the jury thereby violating two separate Sixth Amendment
constitutional rights -- his right to confrontation and his right
to a trial before an impartial jury. After holding a hearing on
the motion, approximately three weeks after the jury had been
discharged, at which the jury foreperson testified that the Bible
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was not discussed during jury deliberations, the court was
satisfied that the jury had not been improperly influenced by the
Bible's presence and therefore denied the motion. It also denied
Rodriguez's alternative request that the court recall each juror
for an individual voir dire.7 Rodriguez filed a second motion for
a new trial on October 13, 2009 -- this time arguing that the
government violated his constitutional right against self-
incrimination when it stated in its closing that Rodriguez "acted
like a guilty man" and further arguing that the government
improperly vouched for its witnesses in rebuttal. Again, the
district court denied the motion. On September 29, 2010, Rodriguez
was sentenced to fifteen years' imprisonment and five years of
supervised release. This appeal followed.
II. Discussion
A. Ineffective Assistance of Counsel8
Before getting into the merits of Rodriguez’s claim, we
must first address a preliminary matter dealing with the procedural
posture of this case.
7
The district court failed to mention Rodriguez's Sixth
Amendment Confrontation Clause argument in its Order and
Memorandum, though Rodriguez did present the argument in his motion
for a new trial, in fact, the same exact argument, word for word,
that he presents on appeal.
8
In his brief, Rodriguez also states, without explanation,
that his right to due process was violated. Thus, this issue is
deemed waived. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) (holding that issues raised in a perfunctory manner with
no attempt at developed argumentation are deemed waived).
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Rodriguez failed to present his ineffective assistance of
counsel claim to the district court and is instead raising it now,
for the first time on this direct appeal. "We have held with a
regularity bordering on the monotonous" that ineffective assistance
of counsel claims, which require a showing of deficient attorney
performance and prejudice to the defendant, "must originally be
presented to, and acted upon by, the trial court."9 United States
v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993). "This is because an
appellate court usually is ill-equipped to handle the fact-specific
inquiry that such claims often require." United States v. Ofray-
Campos, 534 F.3d 1, 34 (1st Cir. 2008). "In addition, the insights
of the trier, who has seen and heard the witnesses at first hand
and watched the dynamics of the trial unfold, are often of great
assistance." United States v. Moran, 393 F.3d 1, 10 (1st Cir.
2004). It is only in exceptional cases when there are no
"critical" facts in dispute and the record has been sufficiently
developed that we will address an ineffective assistance of counsel
claim on direct appeal. Ofray-Campos, 534 F.3d at 34; United
States v. Torres-Rosario, 447 F.3d 61, 64 (1st Cir. 2006).
Though Rodriguez failed to present his ineffective
assistance of counsel claim to the district court both parties
9
Our general practice is to deny an appellant's ineffective
assistance of counsel claim without prejudice to his right to renew
it, if he chooses, by means of a petition under 28 U.S.C. § 2255.
See United States v. Fornia-Castillo, 408 F.3d 52, 65 (1st Cir.
2005).
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agree that this is one of those "case[s] that presents an exception
to the well-settled rule," and warrants our review of the claim.
Ofray-Campos, 534 F.3d at 34. While we are not bound by the
parties' agreement and reaffirm our position that such claims are
better suited for the district court in the first instance, we
nonetheless agree with the parties that the record is sufficiently
developed and the claimed errors sufficiently clear to address
Rodriguez's deficient counsel contentions. See United States v.
Gonzalez-Arimont, 268 F.3d 8, 13 (1st Cir. 2001) (finding that
defendant's ineffective assistance of counsel claim fell "squarely
within" the exception to the preference for resolving such claims
by means of collateral attack); cf. Ofray-Campos, 534 F.3d at 34
("We cannot tell from the record whether [counsel's] decision
. . . was a legitimate tactical decision at the time that it was
made or deficient performance in violation of [the defendant's]
right to effective assistance of counsel."). With that settled, we
now move to the merits.
Rodriguez alleges that his trial counsel was ineffective
for two reasons: (1) counsel elicited testimony from Sweeney, which
the trial court had precluded the government from doing,
specifically, the information regarding the alleged Cuban robbery
and (2) counsel failed to object to the prosecutor's questions to
Sweeney regarding her immunity agreement with the government.
For Rodriguez to succeed on his ineffective assistance of
counsel claim he "must show both deficient performance by counsel
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and resulting prejudice." Tevlin v. Spencer, 621 F.3d 59, 66 (1st
Cir. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)).
"In order to satisfy the 'deficient performance' prong,
[Rodriguez] must show that his trial counsel's representation 'fell
below an objective standard of reasonableness.'" Id. (quoting
Strickland, 466 U.S. at 688). "Judicial scrutiny of counsel's
performance must be highly deferential" to avoid "the distorting
effects of hindsight" and allow us "to evaluate the conduct from
counsel's perspective at the time." Strickland, 466 U.S. at 689.
Moreover, we must assess counsel's reasonableness in light of
"prevailing professional norms." Id. at 688-89. That said, there
is "a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." Id. at 689.
Therefore, Rodriguez "must overcome the presumption that . . . the
challenged action 'might be considered sound trial strategy.'" Id.
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). "[T]his
court has held that a lawyer's performance is deficient under
Strickland 'only where, given the facts known at the time,
counsel's choice was so patently unreasonable that no competent
attorney would have made it.'" Tevlin, 621 F.3d at 66 (quoting
Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)).
To demonstrate "prejudice," Rodriguez must show "a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
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Porter v. McCollum, 130 S. Ct. 447, 453 (2009) (internal quotation
marks and citation omitted); see also Moreno-Espada v. United
States, 666 F.3d 60, 64 (1st Cir. 2012). This does not require
Rodriguez to show "that counsel's deficient conduct more likely
than not altered the outcome" of his trial, but it does require "a
probability sufficient to undermine confidence in [that] outcome."
Porter, 130 S. Ct. at 455-56 (internal quotation marks and citation
omitted).
Rodriguez first argues that he received ineffective
assistance of counsel because trial counsel elicited testimony from
Sweeney regarding Rodriguez's participation in the robbery of his
mother's neighbors, which the trial judge had prohibited the
government from introducing. Rodriguez contends that his trial
counsel made an unreasonable strategic decision when, despite the
district court's ruling, counsel nonetheless introduced the
excluded evidence during cross-examination of Sweeney.
After careful consideration of the record, it is clear
that trial counsel mentioned Rodriguez's alleged participation in
the robbery of his mother's neighbors as a matter of trial
strategy. Counsel sought to portray Sweeney's robbery story as
outrageous -- indeed, a made up fabrication -- and if the jury
found this portion of her testimony unbelievable, then doubt would
be cast on all of her testimony. Discrediting Sweeney's testimony
was crucial to the defendant's case, particularly because Sweeney
was the only witness who placed Rodriguez in the car with the AK-47
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and the bulletproof vest. With the veracity of Sweeney's testimony
already at issue due to her various false statements and multiple
versions of events to the police and government, all of which were
hammered on cross-examination, if the trial strategy had been
accepted, defense counsel could have convinced the jury that
Rodriguez never had the AK-47 in his possession. While defense
counsel's strategy ultimately proved unconvincing to the jury, it
was not "so patently unreasonable that no competent attorney would
have made it." Knight, 447 F.3d at 15 (internal quotation marks
omitted).
Rodriguez next argues that his trial counsel was
deficient because counsel failed to object to the prosecutor's
questions regarding Sweeney's immunity. On direct examination the
prosecutor asked Sweeney:
What . . . is your obligation . . . under this
immunity agreement?
. . .
What do you understand the U.S. Attorney's
office has promised in exchange for your
cooperation and truthful testimony?
. . .
[W]hat is your understanding as to what
happens to you if you don't cooperate or
testify truthfully in this case?
In response to the prosecutor's questions, Sweeney testified that
her understanding of her immunity agreement was that she had to
tell the truth or she would be prosecuted for perjury. Defense
counsel did not object. Rodriguez claims that trial counsel's
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failure to object allowed her testimony to be bolstered as being
truthful. We are unconvinced.
It is well-established that introducing into evidence an
immunity agreement during direct examination is not automatically
impermissible bolstering. See United States v. McNeil, 728 F.2d 5,
14 (1st Cir. 1984) (stating that the need for immunity undercuts
any bolstering of the witness's veracity); see also United States
v. Gentles, 619 F.3d 75, 86 (1st Cir. 2010) (holding that the
government "properly may admit a witness's plea agreement into
evidence, discuss the details of the plea during closing arguments,
and comment upon a witness's incentive to testify truthfully"
(quoting United States v. Bey, 188 F.3d 1, 7 (1st Cir. 1999)));
United States v. Martin, 815 F.2d 818, 821-22 (1st Cir. 1987)
(holding that the admission of a plea agreement does not constitute
bolstering). Therefore, even if trial counsel had objected, an
objection on the ground of bolstering would not have been properly
sustained. Consequently, the failure to make such an objection
could not have been deficient.
This brings us to the end of our discussion of
Rodriguez's ineffective assistance of counsel claim.10 Under
10
Rodriguez also argues that defense counsel's failure to
request a continuance when he learned of Sweeney's new testimony on
the eve of trial and counsel's failure to conduct further
investigation of her new testimony constituted a constructive
denial of Rodriguez's right to counsel. However, Rodriguez
provides no support for his argument nor does he develop his
argument under the Strickland standard for ineffective assistance
of counsel. Strickland, 466 U.S. at 687. Thus, this argument is
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Strickland, Rodriguez has the burden of showing both deficient
performance and prejudice. 466 U.S. at 687. Because Rodriguez has
failed to show his trial counsel performed deficiently, his
ineffective assistance of counsel claim fails. See Tevlin, 621
F.3d at 66 ("A defendant’s failure to satisfy one prong of the
Strickland analysis obviates the need for a court to consider the
remaining prong.").
B. Rodriguez's First Motion for a New Trial -- Jury Taint
1. Standard of Review
We review the district court's denial of a motion for a
new trial for an abuse of discretion. See United States v. Boylan,
898 F.2d 230, 262 (1st Cir. 1990).
We review the district court's response to allegations of
improper influence upon the jury under the same standard -- abuse
of discretion. See id. While the "district court is obliged to
investigate plausible allegations of improper influence on a jury
verdict," the court nonetheless "has broad discretion to determine
the type of investigation which must be mounted." United States v.
Meader, 118 F.3d 876, 880 (1st Cir. 1997) (internal quotation marks
omitted); see Mahoney v. Vondergritt, 938 F.2d 1490, 1492 (1st Cir.
1991); see also United States v. Corbin, 590 F.2d 398, 400 (1st
deemed waived. Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st
Cir. 1988) ("a litigant has an obligation 'to spell out its
argument squarely and distinctly,' or else forever hold its peace")
(quoting Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840
F.2d 985, 990 (1st Cir. 1988) (internal citation omitted)).
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Cir. 1979) ("A district court has broad, though not unlimited,
discretion to determine the extent and nature of its inquiry into
allegations of juror bias."). "The trial judge may, but need not,
convene a fullblown evidentiary hearing." Boylan, 898 F.2d at 258.
Instead, the court's "primary obligation is to fashion a
responsible procedure for ascertaining whether misconduct actually
occurred and if so, whether it was prejudicial." Id.; see also
United States v. Ortiz-Arrigoitia, 996 F.2d 436, 442-43 (1st Cir.
1993).
2. Discussion
a. Confrontation Clause Argument
Rodriguez claims that the presence of the Bible in the
jury room violated his Sixth Amendment right to confront the
witnesses against him because the "Confrontation Clause requires
that a jury verdict must be based on the evidence developed at
trial." According to Rodriguez, the Confrontation Clause implies
that the evidence against him must come from the witness stand in
a public trial where there is complete judicial protection of his
constitutional rights, particularly, the right to confront the
witnesses against him. Accordingly, he contends that "these
critical components of the Sixth Amendment" require that "extrinsic
information or influences upon a jury's deliberations [be regarded]
as presumptively prejudicial."11
11
The Sixth Amendment gives all defendants in criminal
proceedings the right to trial by an impartial jury and the right
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Given Rodriguez's cursory treatment of this issue,
approximately half a page, which we note stands in sharp contrast
to his treatment of his impartial jury argument, we are unable to
discern what his exact Confrontation Clause argument is. Though he
cites a few Supreme Court cases for support, our review of those
cases does nothing to shed light on his argument. Moreover, we
note that this argument is so poorly presented, the government
fails to mention it even once in its fifty-five page brief. In any
event, it is not the job of this court to do Rodriguez's work for
him and we decline to do so. Accordingly, this argument is deemed
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) ("It is not enough merely to mention a possible argument in
the most skeletal way, leaving the court to do counsel's work,
create the ossature for the argument, and put flesh on its
bones."); see also Rivera-Gomez v. de Castro, 843 F.2d 631, 635
(1st Cir. 1988) ("Judges are not expected to be mindreaders.
Consequently, a litigant has an obligation to spell out its
arguments squarely and distinctly, or else forever hold its peace."
(internal quotation marks and citation omitted)).
b. Impartial Jury Argument
Rodriguez also argues that the presence of the Bible in
the jury room during the course of his trial was extrinsic
to be confronted with the witnesses against them. U.S. Const.
amend. VI.
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information that improperly influenced the jury in violation of his
constitutional right to a trial before an impartial jury.
According to Rodriguez, "[t]he Bible is, not just any book, as to
millions of people, it is a primary source of moral teaching and a
source of 'divine' law that surpasses all other law, including
federal criminal law." Consequently, he argues that its presence
in the jury room during deliberations necessarily impacted the
jury's impartiality because they were improperly influenced by
matters -- the scripture -- external to the trial proceedings.
According to Rodriguez, the Bible's presence in the jury room was
"presumptively prejudicial" and "requires a new trial in the
interest of justice" because an eight-day trial was followed by
almost four days of jury deliberations, including two separate
communications to the court indicating that the jury could not
reach a decision. Because the jury returned a verdict of guilty a
few hours after the court delivered an Allen charge,12 Rodriguez
argues that "[t]hese facts give rise to a strong inference that the
Bible played a role in the post-Allen charge deliberations leading
to the verdict" and that "[a] new trial is the appropriate remedy."
In further support of his argument he contends that the
district court's investigation into the amount of influence, if
any, that the Bible had on jury deliberations and the extent of any
12
An Allen charge is an instruction given to a jury that is
having difficulty agreeing on a verdict. Allen v. United States,
164 U.S. 492, 501 (1896).
-22-
taint which may have resulted was inadequate. Relying heavily on
this court's decision in United States v. Lara-Ramirez, 519 F.3d 76
(1st Cir. 2008), Rodriguez argues that (1) the trial judge erred by
refusing to conduct an individual voir dire of every juror to see
if the Bible had any influence on the jury's deliberations, and (2)
the trial judge's decision to call back only the foreperson to
testify at a hearing on the matter was insufficient to dispel any
concern that the jurors were exposed to an improper, external
influence.13 Therefore, according to Rodriguez, at the very least
"[t]he case must be remanded to the district court to recall each
juror for individual voir dire [in order] to investigate the nature
and extent of the taint." We disagree with Rodriguez's assertion
that he is entitled to a new trial, as well as his alternative
argument that he is entitled to a remand to the district court.
In Lara-Ramirez, the court reporter informed the court
that she had seen a Bible in the jury room while she was reading
the transcript to the jury -- this was in response to the jury's
letter to the court requesting the transcript of the defendant's
13
Two additional cases relied upon by Rodriguez are equally
unavailing. Unlike the facts of this case, in Oliver v.
Quarterman, 541 F.3d 329, 331-32, 339 (5th Cir. 2008), cert.
denied, 129 S. Ct. 1985 (2009), there was evidence that the jury
actually used the Bible during deliberations. Likewise, in Meader,
118 F.3d at 878-80, we held that a district court's response to an
allegation that a defense witness spoke to a juror's son, which
consisted of reviewing the voir dire transcript and interviewing
the juror, was a "textbook model of conscientiousness." We did not
require the court to go so far as to interview the son. Id. at
880-81.
-23-
testimony. Id. at 79. Thereafter, the jury sent a second letter
to the court saying it was deadlocked. Id. With counsel for both
sides present, the court questioned the jury foreperson about the
Bible and its use in the jury's deliberation. Id. at 80. The
court's questioning of the jury foreperson established that the
juror who brought the Bible into the jury room "used the Bible in
deliberations" and urged the other jury members to "hear the facts,
but also consider what God says in the Bible," or "something like
that." Id. at 80. Despite defense counsel's suggestion to conduct
individual interviews with each of the jurors and to provide a
curative instruction directing the jury to disregard anything
discussed in reference to the Bible, the court declared a
mistrial14. Id. at 80-81.
We held that the district court committed an abuse of
discretion and remanded with instructions to vacate the defendant's
conviction.15 Id. at 89. While "we recognize[d] that the presence
of the Bible in the jury room posed an unusual situation for the
14
On appeal to this court, the defendant argued that he did not
consent to a mistrial due to the presence of a Bible during jury
deliberations in his first trial and therefore, his motion to
dismiss his second trial on double jeopardy grounds should have
been granted. Lara-Ramirez, 519 F.3d at 79.
15
Because the district court erred in declaring a mistrial, we
found that it also erred in denying the defendant's motion to
dismiss his second trial on double jeopardy grounds. Consequently,
on remand, we instructed the district court to not only vacate the
defendant's conviction, but to also dismiss the indictment. Lara-
Ramirez, 519 F.3d at 89.
-24-
district court," we nonetheless stated "that the inquiry conducted
by the court was inadequate to support a finding that a mistrial
was manifestly necessary." Id. at 86. In so holding, we noted
that "[t]he court questioned only the court reporter and the jury
foreperson," and stated that this "minimal investigation" was
insufficient to "establish[] the magnitude of the 'taint-producing
event' and the 'extent of any resultant prejudice.'" Id. (quoting
United States v. Bradshaw 281 F.3d 278, 289 (1st Cir. 2002)).
Lara-Ramirez is distinguishable from the present case.
Here, after consulting with counsel, the district court held a
hearing at which the foreperson, under oath, testified. Unlike the
foreperson's testimony in Lara-Ramirez, in response to the district
court's questions concerning the presence and use of the Bible
during jury deliberations, the foreperson in this case testified
that as far as she could remember the Bible did not come up at all
during deliberations she led, nor did she recall ever seeing it
open. Based on the foreperson's testimony, the district court
found the hearing sufficient to dispel any concern that the Bible
had been used during deliberations and that the jury had been
improperly exposed to an extraneous influence. With "no evidence
of any extraneous influence on [the] deliberations," the district
court declined to "haul" in the rest of the jury in order to
conduct an individual voir dire of each one for the sole "purpose[]
-25-
of investigating the possibility of misconduct that [was], at best,
wholly speculative." This decision was not an abuse of discretion.
Let us be clear. Lara-Ramirez does not stand for the
proposition that a judge must conduct an individual voir-dire of
each and every juror in any circumstance where a Bible or some
other extrinsic material is argued to have improperly influenced
the jury. Rather, based on the specific facts of Lara-Ramirez, we
found that the district court judge abused his discretion by not
doing more to determine the extent of any improper jury influence
on the broader panel before concluding that no curative instruction
could remove any possible jury taint. 519 F.3d at 86-89. It is
the circumstances of each case that will determine the level of
inquiry necessary. However, what is required, as was done here, is
that the judge conduct enough of an investigation to eliminate any
lingering uncertainty as to whether any extrinsic information was
used to improperly influence the jury. Id. at 86. In this
instance, the district court's decision to question only the
foreperson was adequate and well within its discretion.
Consequently, the district court's denial of Rodriguez's motion for
a new trial and its refusal to conduct an individual voir dire of
each juror was not an abuse of discretion.
-26-
C. Rodriguez’s Second Motion for a New Trial - Prosecutorial
Misconduct
As we previously stated, we review the district court's
denial of a motion for a new trial for abuse of discretion. See
Boylan, 898 F.2d at 262; see also discussion supra, Part II.B.1.
1. Closing Argument
a. Standard of Review
We review de novo whether an objected-to statement was
improper. United States v. Ayala-Garcia, 574 F.3d 5, 16 (1st Cir.
2009). If we conclude that the statement was improper we "must
then determine whether [it] resulted in prejudice to the
defendant." United States v. Azubike, 504 F.3d 30, 38-39 (1st Cir.
2007); see also United States v. Joyner, 191 F.3d 47, 53 (1st Cir.
1999) (stating that harmless error review is a review of whether
the argument resulted in adequate prejudice to warrant a new
trial).
b. Discussion
During closing argument the prosecutor argued, as the
last step in a nine step argument:
[The defendant] acted like a guilty man. What
did he do? Did he come forward and say, "You
got the wrong person. I had nothing to do
with it"? Did he come forward and say, "Look,
all right, I lied when you stopped me, but
here’s the reason why. Here’s what I was
really concerned about"? Did he do anything
like that? No.
-27-
Rodriguez argues that the prosecutor's statements
violated his Fifth Amendment right against self-incrimination by
taking the burden of proof away from the government, placing it
upon Rodriguez, and requiring him to have affirmatively "claimed
his innocence to the police, by saying 'It was not me.'" Rodriguez
further argues that the prosecutor's statements were not an
"invited reply" in response to defense counsel's argument and that
the district court's curative instruction was not enough to
"eliminate the harmful prejudice" caused by the prosecutor's
remarks. As such, Rodriguez alleges that the prosecutor's
statements were not harmless.
Assuming without deciding that the prosecutor's
statements were improper and violated Rodriguez's Fifth Amendment
rights, we still must resolve whether the error was prejudicial.
See United States v. Giorgi, 840 F.2d 1022, 1037 (1st Cir. 1988)
("Even were we to find the prosecutor's methods improper, that
alone would not suffice to reverse the conviction . . . . [A] party
must show both misconduct and resulting prejudice.") (citation
omitted). "The test is 'whether the prosecutor's misconduct so
poisoned the well that the trial's outcome was likely affected,
thus warranting a new trial.'" Azubike, 504 F.3d at 39 (quoting
Joyner, 191 F.3d at 54) (internal quotation marks omitted). To
make this determination, we apply a three part test. See Gentles,
619 F.3d at 81-82. "First, we determine whether the prosecutor's
-28-
conduct was isolated and/or deliberate; next, we consider whether
the trial court gave a strong and explicit cautionary instruction;
and finally we determine whether it is likely that any prejudice
surviving the instruction could have affected the outcome of the
case." Id. (internal quotation marks and citation removed).
In regard to the first prong, the prosecutor's statements
were isolated and brief. The prosecutor's statements consisted of
only a few sentences in twenty-six pages of closing argument.
Moreover, as soon as defense counsel objected, the district court
called both parties to side-bar and asked defense counsel what
curative instruction counsel would like for the court to make.
Thereafter, the district court gave a curative instruction16 to the
jury and the prosecutor never returned to the subject.
Further, based on our review of the record, we think the
prosecutor's statements, even if improper, were not a deliberate
attempt to violate Rodriguez’s Fifth Amendment rights.17 Indeed,
16
The district court stated the following:
I am striking the line of argument that was just made. I
want to remind you that, and I'll be talking about it
again, but a defendant has a Fifth Amendment right here.
We talked about that on the first day of trial. A
defendant has no obligation whatsoever to say anything at
all, and it is improper to consider that at all in the
jury deliberation room. And so whatever he did that
night, he had no obligation to say anything or do
anything.
17
The prosecutor's statements during closing focused on the
time period following Rodriguez's identification as a suspect, but
before he had been arrested or read his rights under Miranda.
-29-
after defense counsel's objection and while at side-bar, the
prosecutor stated that he would tell the jury that Rodriguez had a
constitutional right to remain silent and that Rodriguez had no
obligation to come forward to police.18
Moving along to the second prong, though in general
prejudicial statements made during closing argument "militate in
favor of reversal," here a strong curative instruction was given
immediately after the objection. Azubike, 504 F.3d at 39 (quoting
United States v. Manning, 23 F.3d 570, 575 (1st Cir. 1994))
(internal quotation marks omitted). "This court has repeatedly
held that a strong, explicit and thorough curative instruction to
disregard improper comments by the prosecutor is sufficient to cure
any prejudice from prosecutorial misconduct." United States v.
Riccio, 529 F.3d 40, 45 (1st Cir. 2008). Moreover, "[i]t is a well
Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). We note that the
law concerning a prosecutor's use of a defendant's pre-arrest, pre-
Miranda silence is, to say the least, unsettled. See United States
v. McCann, 366 F.3d 46, 56-57 (1st Cir. 2004), vacated and remanded
on other grounds, 543 U.S. 1104 (2005), (stating that the issue of
a prosecutor's use of a defendant’s pre-arrest, pre-Miranda silence
has not been definitely resolved by this court); compare United
States v. Burson, 952 F.2d 1196, 1201 (10th Cir. 1991) (finding
plain error where court allowed admission of IRS agent's testimony
regarding the defendant's silence during a non-custodial
interrogation), with United States v. Rivera, 944 F.2d 1563, 1568
(11th Cir. 1991)("The government may comment on a defendant's
silence if it occurred prior to the time he was arrested and given
his Miranda warnings.").
18
The prosecutor never did make such a statement to the jury.
Immediately following the side-bar, the court gave a curative
instruction and the prosecutor moved on with his argument.
-30-
established tenet of our judicial system that juries are presumed
to follow such instructions." Gentles, 619 F.3d at 82; see also
United States v. Salley, 651 F.3d 159, 167 (1st Cir. 2011) ("We
assume the jury to have followed [the court's] instructions.").
Here, the district court stated:
I am striking the line of argument that was
just made. I want to remind you that, and
I'll be talking about it again, but a
defendant has a Fifth Amendment right here.
We talked about that on the first day of
trial. A defendant has no obligation
whatsoever to say anything at all, and it is
improper to consider that at all in the jury
deliberation room. And so whatever he did
that night, he had no obligation to say
anything or do anything.
Rodriguez failed to object to the instruction given. Additionally,
during the court's closing charge to the jury, it informed the jury
that the defendant had an "absolute right not to testify," that the
jury was not to draw "any inference whatsoever" from the
defendant's silence, and that "closing arguments made by the
lawyers [were] not evidence." We think these instructions were
enough to "properly account[] for possible prejudice and [that] no
reversible error was committed." United States v. Hodge-Balwing,
952 F.2d 607, 611 (1st Cir. 1991); see also Azubike, 504 F.3d at 42
(noting, in vacating and remanding, that "this would have been
quite a different case if the district court had corrected the
error in the prosecutor’s statement").
-31-
Finally, applying prong three, we think the evidence
presented at trial was strong enough to establish that any ill
effects which survived the curative instruction did not affect the
outcome of the case. To begin, Sweeney and Garofalo corroborated
each other's testimony, establishing that the defendant had
possession of the car on the night it was found. Additionally,
Sweeney's testimony indicated that the defendant had possession of
the AK-47 the day before it was found in the car. These two pieces
of evidence, coupled with the evidence of the marijuana and drug
paraphernalia in the car, and the testimony that Rodriguez had
taken the car to go sell drugs, was sufficient evidence for a jury
to find that the defendant was in possession of the AK-47 despite
the prosecutor's statements during closing arguments. When all is
said and done, "[c]onsidering the evidence in this case, the terse
character of the remarks and the thorough curative [and general]
instructions given by the court, it is unlikely that the remarks
altered the result of the trial." Riccio, 529 F.3d at 46 (internal
quotation marks and citation omitted). Consequently, the
prosecutor's statements, while arguably improper, did not so poison
the well as to require a new trial. Azubike, 504 F.3d at 39.
2. Rebuttal
a. Standard of Review
We review only for plain error any part of the
government's rebuttal argument which the defendant failed to object
-32-
to. United States v. Kinsella, 622 F.3d 75, 83. Under this
exacting standard the defendant must show that there was an error,
which was obvious, and which affected the outcome of the case. Id.
"Even if a defendant can show all of this, we have discretion not
to intervene if we conclude that the error does not distort the
fairness or integrity of the lower court proceedings in some
extreme way." Id. The "result is that plain error review tends to
afford relief . . . only for 'blockbuster' errors." Moran, 393
F.3d at 13 (quoting United States v. Griffin, 818 F.2d 97, 100 (1st
Cir. 1987)).
b. Discussion
In order to address properly whether the prosecutor's
statements were in error and affected the outcome of the case we
think it is necessary to put them in context. During closing
argument, while contesting the truthfulness and trustworthiness of
the prosecution's witnesses, the defendant's trial counsel stated:
So ask yourselves this: Would you trust either
of them to take care of your kids? Would you
trust either of them to back you up in an
important task at work? Would you trust
either of them to even, like, tell you what
your boss had instructed that you should be
doing? I think it's probably likely, isn't
it, that you probably wouldn't even trust
these people to walk your dog?
This statement was made at the very end of the defendant's closing
argument. Immediately after, the prosecutor made the following
remarks during his rebuttal:
-33-
[L]et me begin by posing a rhetorical question
that follows on what [defense counsel] just
asked of you. Would you trust me to watch
your kids? You don't know me from Adam. I may
look like a respectable person, but that
doesn't mean you're all of a sudden going to
welcome me into your household and entrust me
with things that are important to you.
The defendant argues that the prosecutor's statements
improperly vouched for the credibility of the government's case and
its witnesses by injecting the prosecutor's personal
trustworthiness into the "witness credibility equation." According
to Rodriguez, "[t]he thrust of the prosecutor's argument was that
the jurors could trust [the prosecutor] for purposes of the trial
even though they may not trust him with their children and
therefore, the jurors could trust the testimony of [the]
government's witnesses, even though the jurors may not trust the
witnesses in personal matters." Furthermore, Rodriguez contends
that the vouching was more pronounced and prejudicial because the
statements occurred during rebuttal. We disagree.
"Improper vouching occurs when the government 'place[s]
the prestige of the United States behind a witness by making
personal assurances about the credibility'" of its witnesses or
implies that its evidence should be trusted because the government
is trustworthy. United States v. Robinson, 473 F.3d 387, 396 (1st
Cir. 2007) (quoting United States v. Rosario-Diaz, 202 F.3d 54, 65
(1st Cir. 2000)). We have acknowledged that the problem with
improper vouching is that by placing the credibility of counsel at
-34-
issue, the government is given an unfair advantage. Joyner, 191
F.3d at 55; United States v. Cresta, 825 F.2d 538, 555 (1st Cir.
1987). We have held that improper statements during rebuttal
increase the likelihood of prejudice. Ayala-Garcia, 574 F.3d at
20. However, that is not the situation here.
In this case, the prosecutor's statement did not put his
personal credibility at issue. Instead, the prosecutor merely
posed a rhetorical question that mirrored, and directly responded
to, the defendant's closing argument. See United States v.
Skerret-Ortega, 529 F.3d 33, 40 (1st Cir. 2008) ("The Government's
response to statements made by defendant's counsel cannot and
should not be viewed the same way as statements made by the
Government without provocation. . . . [W]e 'typically cede
prosecutors some latitude in responding to defense counsel . . .
.'" (quoting United States v. Hansen, 434 F.3d 92, 102 (1st Cir.
2006), cert. denied, 549 U.S. 894 (2006)) (internal quotation marks
removed)). Our review of the record suggests that the prosecutor's
intention was to demonstrate the difference between trusting
someone to watch your children and finding them credible. It
appears the prosecutor, using himself only as an exemplar, was
attempting to illustrate his point by suggesting that whether the
jurors trusted a person had nothing to do with that person's
credibility and everything to do with how well the jurors knew the
-35-
person.19 Contrary to Rodriguez's claim, the prosecutor did not
imply that the government's witnesses were trustworthy because he
himself was trustworthy or because they were witnesses for the
United States. There was no improper vouching.
Before leaving this matter we note that while the
defendant objected to the prosecutor's statements during closing
argument, he failed to object to the prosecutor's statements during
rebuttal. This suggests that even the defendant "failed to regard
the comments as having a damaging effect." Gentles, 619 F.3d at
84; see United States v. Procopio, 88 F.3d 21, 31 (1st Cir. 1996)
("The fact that the defense did not object also may suggest that,
in the conditions of the courtroom, the passage in question passed
by as mere rhetoric.").
Furthermore, when a defendant fails to object at trial we
are not inclined to find improper meaning in a prosecutor's
statement if there is a plausible alternative. See United States
v. Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993) ("[I]n the absence
of a contemporaneous objection it seems fair to give the
[prosecutor] the benefit of every plausible interpretation of [his]
words."); United States v. Taylor, 54 F.3d 967, 979 (1st Cir. 1995)
(stating that when a prosecutor's comments are susceptible to more
than one meaning, context often determines meaning and that a
reviewing court should construe ambiguity in favor of the meaning
19
A practice which we discourage.
-36-
which is "unexceptionable"); see also Donnelly v. DeChristoforo,
416 U.S. 637, 647 (1974) ("[A] court should not lightly infer that
a prosecutor intends an ambiguous remark to have its most damaging
meaning or that a jury, sitting through lengthy exhortation, will
draw that meaning from the plethora of less damaging
interpretations."). Here, the plausible alternative is that the
prosecutor simply meant to illustrate the difference between
trusting someone and finding them credible. While it may have been
wiser for the prosecutor to leave any reference to himself out of
the case entirely, his statements were not improper vouching, but
instead an attempt to demonstrate a flaw in the defendant's logic.
Consequently, there was no "blockbuster" error that would warrant
reversal.20
III. Conclusion
For all of the aforementioned reasons, we affirm.
20
Rodriguez makes one final argument. He alleges that even if
all the errors he points to are not sufficient on their own for
reversal, combined, they amount to cumulative prejudicial error.
We disagree. Because none of Rodriguez's claimed errors resulted
in any substantial prejudice there was no cumulative error. See
United States v. Sampson, 486 F.3d 13, 51 (1st Cir. 2007) (holding
that where none of the district court's "individual rulings worked
any cognizable harm" to the defendant's rights, cumulative error
argument was meritless); see also United States v. DeMasi, 40 F.3d
1306, 1322 (1st Cir. 1994) ("Because we have found that none of
[the defendant's] individual complaints resulted in substantial
prejudice and that most are completely without merit, we reject the
final contention that his conviction was tainted by cumulative
error.").
-37-