United States v. Watson

United States Court of Appeals
For the First Circuit

No. 11-1294

UNITED STATES OF AMERICA,

Appellee,

v.

TREVOR A. WATSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.

Kevin L. Barron for appellant.
Zachary R. Hafer, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

September 25, 2012
 HOWARD, Circuit Judge. Trevor Watson was convicted,

after a four-day jury trial, of attempting to kill a federal

witness with intent to prevent testimony and communication with law

enforcement, see 18 U.S.C. § 1512(a)(1)(A), (C), for which he was

sentenced to 360 months' imprisonment. He appeals the conviction,

challenging several of the district court's evidentiary rulings and

asserting that the prosecution's allegedly improper closing

argument severely prejudiced his case. We affirm.

I.

A brief summary of the facts suffices for now, although

we will engage in a more detailed discussion of certain facts and

evidence in our analysis of the claims presented on appeal.

In mid-2008, Curtis Best, his associate Antonio Narvaez,

and their purported ringleader John Camacho were among those

indicted for participating in a substantial Massachusetts-based

cocaine conspiracy (the "Camacho conspiracy"). Best agreed to

cooperate, and he assisted federal authorities in identifying

additional co-conspirators, including the appellant Trevor Watson.

Based on this and other evidence, Watson was indicted in April 2010

for his personal involvement in the illicit operation.

On February 27, 2010 -- roughly two months prior to his

indictment -- Watson, accompanied by his friend Jonathan Ace,

approached Best and mutual acquaintance Al Rue outside of Ann

Jackson's Barbershop in Boston's South End. While Ace and Rue

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engaged in casual conversation, Watson and Best slowly walked and

talked, lamenting their recent lack of communication. A short

distance from the barbershop, Watson stopped, enveloped Best in a

faux embrace, and stabbed him ten times in the kidney, chest, arms,

and hands while stating "So you talking? So you telling, huh?" At

the time, Best was still actively cooperating with law enforcement

on the Camacho case.

Ace and Rue separated the two, whereupon Best was

transported to the hospital for emergency surgery. During his

initial police interview the following day, Best described his

assailant as a "light to medium skinned, short, stocky male that

spoke with a Hispanic accent," and "a Spanish guy with an accent,"

neither of which fit the appellant. Several days later, Best

recanted those descriptions, and with the assistance of a police-

arranged photo array, identified Watson as his attacker.

Shortly thereafter, a federal grand jury in the District

of Massachusetts indicted Watson on one count of attempting to kill

a federal witness with intent to prevent testimony and

communication with law enforcement, 18 U.S.C. § 1512(a)(1)(A), (C),

and one count of using physical force against a federal witness

with intent to prevent the same, see 18 U.S.C. § 1512(a)(2)(A),

(C). Watson's first trial ended in a hung jury in November 2010.

He was convicted after a second trial less than a month later, and

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the district court imposed a 360-month incarcerative sentence.

This timely appeal ensued.

II.

Watson challenges only his conviction, alleging that:

(1) the district court erred in admitting certain documents and

testimony at trial, and (2) an improper inference drawn by the

prosecutor during closing argument irreversibly prejudiced his

case. We address each of these claims in turn.

A. Evidentiary Issues

Although the admissibility of evidence is ordinarily

reviewed for abuse of discretion, United States v. Barrow, 448 F.3d

37, 42 (1st Cir. 2006), where, as here, the appellant failed to

interpose any contemporaneous objections at trial, a district

court's evidentiary determinations are subject only to plain error

review, Udemba v. Nicoli, 237 F.3d 8, 16 (1st Cir. 2001). To

prevail under this exacting standard, Watson must demonstrate that

the district court's decision to admit any of the challenged

evidence constituted (1) an error which was (2) clear or obvious,

and which not only (3) affected his substantial rights, but also

(4) seriously affected the fairness, integrity, or public

reputation of the judicial proceedings. United States v. Savarese,

686 F.3d 1, 12 (1st Cir. 2012).1

1
The appellant directs our attention to certain general
objections made by trial counsel, which, if interpreted broadly, he
argues, might have preserved some of his evidentiary claims for

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 1. Evidence Concerning the 2002 Paul Pierce Trial

While Watson awaited trial for the subject offense,

authorities seized from his prison cell three seemingly

incriminating documents. The first, a letter to his friend Ricky

Knight, included the following pertinent excerpt:

I am charged with intimidating a federal
witness that has been working since 2007, and
assault with intent to murder an informant in
front of a barber shop. The police report
says it[']s a male 30-35 years old with a
Spanish accent. The police report also says
[Best] identified me by putting both thumbs up
at my picture . . . in the photo [a]rray.
. . . I had introduced my lawyer to the fact
that if [Best] was to sign an aff[i]davit
saying I'm not the guy who stabbed him it was
some Spanish guy about 30, which I am not
either, I'll be alright, so please holla at
[Al Rue] and let's end this [stuff]."

In a second letter addressed to his friend Keith McCarthy, Watson

wrote:

I am charged with assault with intent to
murder an[d] intimidat[e] federal informant
. . . Curtis Jason Best . . . . The incident
happened at Ann's barbershop by Slades. The
barber that was there is a good friend Ricky
Knight [phone number redacted] he also is good
friends with [Best], so he could be very
helpful. I need you to find out if Ann the
[barbershop] owner made a statement to help me
or not. The police report said it was a 30-35
year old man with a Spanish [a]ccent that
assaulted [Best]. The Boston Police said

appeal. After carefully reviewing the record, we conclude that any
such objections were insufficient to put the district court on
notice of the specific arguments that he now attempts to advance.
See United States v. Hernández, 218 F.3d 58, 69 n.9 (1st Cir.
2000).

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 [Best] picked out my picture 4 or 5 days later
as his attacker. The Paul Pierce [case] was
the same way, but at trial, he changed his
statements and I got found not guilty of
[attempted murder]. . . . Barber Rick -
[phone number redacted]. I need [Best] to let
those people know that it was a Spanish
unknown person around 30 in a aff[i]davit.
. . . I hear [Best] confronted the Spanish
guy & cut him first, then the tables turned
real ugly. I'll be here for a while, stay in
touch, I'll look forward to your return
letter.

(Emphasis added). Finally, in what appears to be a personal pre-

trial checklist, Watson scribed the following:

(1) Have the Barber, TrueC, Bum, or someone
have [Best] sign an aff[i]davit saying it[']s
a 30 year old Spanish [g]uy.
(2) I had no knowledge of the Camacho case and
no contact with anyone involved.
(3) Shara can put 10 witnesses at the scene
saying it was a 30 year old Spanish [g]uy.
(4) Please have [Best] in court on the stand
with my barber present, TrueC, Bum, Fred,
Keith, & [a] host of others.
(5) . . . Turned myself in [for the] Paul
Pierce case and this one.

(Emphasis added).

The potential evidentiary import of these documents is

plain: they may fairly be viewed as evidence of a plan to solicit

false or misleading eyewitness testimony. Less transparent,

however -- at least without additional context -- is the

significance of Watson's analogies to the "Paul Pierce case."

Thus, after properly admitting the documents at trial as admissions

by a party opponent, see Fed. R. Evid. 801(d)(2)(A), the court took

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judicial notice, to which both parties expressly stipulated, of the

following facts:

I'm taking judicial notice of certain
facts related to a 2002 Paul Pierce trial.
Trevor A. Watson and two other individuals
were charged with assault with intent to
murder, assault and battery by means of a
dangerous weapon, and assault and battery in
relation to the stabbing of Paul Pierce at the
Buzz Club in Boston, Massachusetts, on
September 25th, 2000.
Mr. Watson was found not guilty of each
of the charges which charged assault with
intent to murder, assault by means of a
dangerous weapon. Those are the stabbing
charges. But he was found guilty of assault
and battery. That means an unlawful push,
shove, punch, kneeing someone. But not the
stabbing charges.
Prior to the trial of the Paul Pierce
case, Krystal Bostick told the Providence
Police Department that on September 25th,
2000, she saw a man known to her as Trevor
stab Paul Pierce in the back at the Buzz Club
. . . Bostick also identified a photograph of
Trevor Watson in an array. In grand jury
proceedings before trial, Bostick, under oath,
described Watson as attacking Pierce from
behind trying to pull him down from the neck,
and during this attack wielding a smooth edged
knife attached to brass knuckles.
. . . After her interview with the
Providence Police, and her testimony in the
grand jury, but prior to trial, Krystal
Bostick reached out to Mr. Watson's defense
counsel, met with defense counsel, and signed
an affidavit during that meeting in which she
recanted her prior testimony.
. . . When called as [a] witness at
trial, Bostick gave nonresponsive answers to
the prosecutor's questions, including
testifying that she did not remember the
events at the Buzz Club, and at one point
testified that she had no memory of where she
was on September 25, 2000.

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 Throughout her testimony, Bostick
repeatedly recanted her prior statements and
identifications. Specifically, with respect
to Trevor Watson, Bostick acknowledged only
that she had seen Watson on the night in
question at the Buzz club and denied that she
had seen Watson involved in any aspect of an
altercation or possession of a knife.
Now, those are matters as to which I
have taken judicial notice of another case,
not our case. I tell you that those matters
are undisputed and clear from the transcript
of that other case. Beyond that, I say
nothing further.

See Fed. R. Evid. 201 (permitting judicial notice of adjudicative

facts). Watson now argues that despite his prior stipulation, the

judicially noticed facts constitute inadmissible "prior bad acts"

evidence pursuant to Federal Rules of Evidence 404(b) and 403. We

disagree.2

It is common ground that evidence of prior bad acts,

including a defendant's antecedent criminal activities, may not be

introduced to prove subsequent "action in conformity therewith."

Fed. R. Evid. 404(b). Nevertheless, such evidence may be

admissible if it holds special relevance -- that is, if it tends to

prove a material fact apart from a mere propensity to behave in a

certain way -- as long as its probative value is not substantially

outweighed by any unfairly prejudicial effect. United States v.

2
In stipulating to the trial judge's notice, Watson arguably
relinquished his right to pursue this claim on appeal at all. See
United States v. Carrasco-de-Jesús, 589 F.3d 22, 26 (1st Cir. 2009)
(defining waiver as the "intentional relinquishment of a known
right"). Even if the claim was not waived, we reject the argument
on its own terms in any event.

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Mare, 668 F.3d 35, 38-39 (1st Cir. 2012). Here, Watson's abstract

references to the "Paul Pierce case" -- in which he was acquitted,

in part due to multiple eyewitness abjurations -- are specially

relevant in that they evince a clear consciousness of guilt, the

full weight of which would be lost on the jury absent the

introduction of some limited factual foundation. See United States

v. Gilbert, 229 F.3d 15, 20 n.3 (1st Cir. 2000) (recognizing

consciousness of guilt as a basis for special relevance under Rule

404(b)); cf. United States v. Charles, 456 F.3d 249, 256 (1st Cir.

2006) (affirming admission of prior bad acts evidence, in part

because it was "highly relevant to the narrative of the [subject

offense]").

Nor were these facts excludable under Rule 403, which is

designed to filter "unfair" prejudice to the defendant -- the

possibility that the jury will draw inferences that were not

warranted by the evidence or permitted by the rules. See United

States v. Taylor, 284 F.3d 95, 104 (1st Cir. 2002). Watson's

association with an attack on a local sports celebrity is unusually

conspicuous, and probably adverse to him -- but not unfairly

prejudicial. The Pierce comparisons were originally invoked not by

the government, but by the appellant himself, and the court's

corresponding notice was narrowly confined to the material

necessary for an understanding of their gravity. Indeed, the judge

explicitly forbade the government from intimating the motivation

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for Krystal Bostick's recantation (that is, her fear of Watson).

That restriction, and the judge's cautionary instructions

addressing the jury's ability to weigh the evidence, further

circumscribed any prejudicial impact.3 See id. (upholding

admission of 404(b) evidence in light of trial judge's cautionary

instruction).

In the end, Rule 403's balancing act "is a

quintessentially fact-sensitive enterprise, and the trial judge is

in the best position to make such factbound assessments." Udemba,

237 F.3d at 15-16. For that reason, "[o]nly rarely and in

extraordinarily compelling circumstances will we, from the vista of

a cold appellate record, reverse a district court's on-the-spot

3
Specifically, the judge noted:

So powerful, however, is your role as jurors
that once I start reading, even though I'm
saying this is undisputed . . . you as jurors
can decide whether to believe what I've read,
but you can disbelieve it and disregard it.
It's evidence. And just like the evidence
from any witness, I will tell you . . . you
may believe everything that any one of these
witnesses says to you here from the witness
stand; but equally, as you are common sense
men and women, you may disbelieve and
disregard it. . . . Now, those are matters
as to which I have taken judicial notice of
another case, not our case. . . . Beyond
that, I say nothing further.

The judge gave a similar cautionary instruction at the close of the
case, stating: "[T]he lawyers said, well, we don't dispute [those
judicially noticed facts]. That's a stipulation. But with respect
to [the Pierce case], so powerful is your role as jurors [that] you
can disbelieve that."

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judgment concerning the relative weighing of probative value and

unfair effect." Id. at 16 (quoting Freeman v. Package Mach. Co.,

865 F.2d 1331, 1340 (1st Cir. 1988)) (internal quotation marks

omitted). The circumstances here are neither extraordinary nor

compelling; the trial judge merely presented the jury with an

abbreviated context for those references, made by the appellant,

that supported the narrative and insinuated his consciousness of

guilt. From this we can discern no error, plain or otherwise.

2. Testimony Concerning the Camacho Conspiracy

In his second assignment of evidentiary error, Watson

assails the admission of all testimony related to the Camacho

conspiracy. Specifically -- or generally, given the sweeping

imprecision of his challenge -- he claims that: (1) the testimony

of Curtis Best, Best's former co-conspirator Antonio Narvaez, and

DEA Agent Dennis Barton "cast a pall of fear and loathing and

accentuated unfair prejudice"; and (2) the "repetitive and

unnecessary . . . testimony by [Narvaez and Barton does] little

more than bolster Best's testimony."

We need not tarry. We presume that the appellant's first

contention rests, once again, on Rules 404(b) and 403. The

argument is unpersuasive. Watson's participation in the Camacho

conspiracy, and Best's cooperation with authorities -- to which

Best, Narvaez, and Barton testified extensively -- had special

relevance because it demonstrated Watson's motive: to eliminate

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the snitch. See Fed. R. Evid. 404(b) (noting that "prior bad act"

evidence "may be admissible for another purpose, such as proving

motive"). Additionally, the crime with which Watson was charged

required the government to prove not only that he attempted to kill

Best, but that he did so with the specific intent to prevent Best

from testifying or communicating with law enforcement. See 18

U.S.C. § 1512(a)(1)(A), (C). The Camacho testimony was therefore

essential to prove a necessary element of the subject offense.

Given the critical nature of this evidence, its probative value was

not substantially outweighed by any unfair prejudice. See United

States v. DeCicco, 370 F.3d 206, 214 (1st Cir. 2004) (finding

danger of unfair prejudice to be minimal where 404(b) evidence was

offered "for the limited purpose of showing motive"); United States

v. Alzanki, 54 F.3d 994, 1007 (1st Cir. 1995) (where evidence is

probative of an element of a charged crime, Rule 404(b) does not

automatically preclude its admission).

As to the latter claim of improper bolstering, Watson is

unable to identify which parts of Narvaez's or Barton's testimony

might be suspect. Accordingly, we reject this argument.

3. Ann Jackson's Eyewitness Testimony

Soon after the February 27, 2010 attack, Boston Police

Detective John Kelleher interviewed Ann Jackson, who owned the

barbershop where the incident occurred. According to Kelleher's

testimony, Jackson initially identified Watson as Best's assailant,

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requesting anonymity for fear of reprisal. During Watson's

subsequent trials, however, Jackson recanted her identification;

generally uncooperative, she denied any knowledge of the attack and

essentially refused to respond to questions intended to elicit the

reason for her inconsistent statements.

Although Watson broadly challenges the admission of

Jackson's testimony, he is able to offer only an oblique suggestion

that "the government wanted to convince the jury that Jackson was

afraid of Watson when it had no admissible evidence to show that

this was true." That elaboration falls short of the development

required for consideration on appeal. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in

a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived").

In any event, our review of Jackson's testimony provides

no support for this challenge. Jackson was called as an

eyewitness, albeit a reluctant and recalcitrant one, to the

critical event in the case. After she reiterated, during direct

examination, her inability to recall the events at issue, the

following colloquy ensued:

Prosecution: Do you remember telling
Detective Kelleher that you didn't want to get
involved because you were afraid that the
young people would just shoot you?

Jackson: Yes, I did.

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 Prosecution: Is that why . . . your memory's
failing you today?

Jackson: I don't understand what you mean.

Prosecution: Is that why you're saying that
you don't remember what you said previously to
the detectives because you're afraid?

Jackson: No.

Prosecution: Are you . . . denying you saw
the altercation because you're afraid for your
own safety?

Jackson: No.

At bottom, Jackson conceded that she was afraid of "neighborhood"

reprisal, and was asked whether this fear caused her about-face.

There was nothing improper about the admission of this testimony,

and without more, Watson's vague protestation to the contrary lacks

merit.

4. Inadvertent Introduction of Prior Criminal History

In his final evidentiary charge, Watson contends that the

admission of a document bearing his partial criminal history was

plainly erroneous. It was not.

The exhibit in question comprised the criminal complaint

in this case, as well as the supporting affidavit of DEA Special

Agent Brian Tomasetta. Tucked on page three of the eight-page

document, a footnote contained the following brief recitation of

the appellant's partial criminal record:

WATSON has a significant and violent criminal
history. In addition to numerous state
arrests for assault and battery and drug and

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 gun-related charges, WATSON was convicted of
the following felonies: (1) Possession of a
Class B controlled substance, Roxbury District
Court, in 2008; (2) Assault and Battery,
Suffolk Superior Court, in 2000; (3) Felon in
Possession of a Firearm, U.S. District Court,
District of Massachusetts, 1995; (4) Armed
Robbery, Suffolk Superior Court, 1986; and (5)
Robbery, Roxbury District Court, 1986.

The government acknowledges that the admission of this material

constituted clear and obvious error, but that alone is insufficient

to satisfy the plain error test. The appellant must also show that

the error affected his substantial rights, as well as the fairness,

integrity, or public reputation of the judicial proceedings. See

Savarese, 686 F.3d at 12. He has not met that burden.4

There is little question that the inclusion of the

footnote was inadvertent: the government, on at least one prior

occasion, had voluntarily declined to submit evidence on the ground

that it similarly referred to Watson's criminal history. Nor was

the challenged material called to the jury's attention, or elicited

at trial in any way beyond its inclusion in Agent Tomasetta's

affidavit. See United States v. McCallum, 584 F.3d 471, 478 (2d

4
The appellant's argument consists of the following: "[T]he
government introduced, without objection . . . a complaint
affidavit of Agent Tomasetta containing, among other hearsay, a
recital of Watson's criminal history . . . , a bolstering of
informant Best, and an extensive description of Watson's alleged
participation [in the Camacho conspiracy]." The Rule 404(b)
component has already been addressed, see supra Section II.A.2, and
the bolstering and hearsay allegations are not sufficiently
developed, see Zannino, 895 F.2d at 17; see also United States v.
Rodriguez, 675 F.3d 48, 59 (1st Cir. 2012) ("[I]t is not the job of
this court to do [appellant's] work for him.").

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Cir. 2009) (noting as relevant to the 404(b) analysis that "the

government did not draw undue attention to the prior convictions").

Indeed, to the extent that the jurors might have been aware of the

information, it revealed little more than the fact that Watson had

an extensive history of violent crime -- a fact of which they were

already cognizant, given the proper admission of evidence

concerning the Paul Pierce and Camacho cases. Cf. United States v.

Harrington, 370 F. App'x. 216, 219 (2d Cir. 2010) (affirming the

admission of 404(b) evidence, in part because "the jury was already

aware . . . that the defendant had committed a prior felony").

To be sure, the footnote should have been redacted, and

its admission was improper. See Fed. R. Evid. 404(b). It would

appear, however, that the impropriety was simply an oversight by

all parties involved, and in light of the otherwise overwhelming

evidence of Watson's guilt, we do not think that this isolated

reference to his partial criminal record warrants a new trial. Cf.

United States v. Allen, 425 F.3d 1231, 1236 (9th Cir. 2005)

(finding no error, given overwhelming evidence of guilt, in

district court's denial of motion for mistrial where witness had

inadvertently referred to criminal defendant's previous

incarceration).

B. Prosecution's Closing Argument

Watson's remaining challenge is also readily dispatched.

Specifically, he posits that the following statements, made by the

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prosecutor in rebuttal to his counsel's closing argument, created

a threat of unfair prejudice:

Don't discount the importance of the testimony
of Ann Jackson which at first may not have
seemed that significant. But if you look
closely at what she said, and you remember
what Detective Kelleher and Special Agent
Barton told you that when they talked to her
she was scared and nervous and apprehensive,
and remember her own testimony to the effect
of kids these days will just shoot you.
. . . And I ask you particularly to think
about her testimony in light of the judicial
notice Judge Young took at the beginning of
this case regarding the Paul Pierce matter and
Krystal Bostick and how she initially saw a
knife in Trevor Watson's hands, and by the
time the trial came around she didn't remember
that anymore.

Because defense counsel did not object to these statements during

trial, our review is, once more, for plain error only. United

States v. Allen, 469 F.3d 11, 16 (1st Cir. 2006). Thus, the

prosecutor's remarks, even if erroneous, will necessitate reversal

of the verdict only if Watson shows, at the very least, that they

affected the outcome of his trial. See United States v. Van Anh,

523 F.3d 43, 55 (1st Cir. 2008). He falls short of doing so.

In light of the strong evidence of Watson's guilt, it is

clear that these remarks did not affect his substantial rights. As

such, we need not analyze whether the allegedly improper assertions

were a mere fair commentary or a skirting of the trial judge's

effort to cabin propensity evidence. The overwhelming evidence of

Watson's guilt -- including, inter alia, the testimony of several

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eyewitnesses, which was largely corroborated by the content of

Watson's self-incriminating letters -- significantly reduced the

likelihood that the remarks unfairly prejudiced the jury's

deliberations, and Watson has not proffered evidence remotely

sufficient to potentially refute this conclusion. See United

States v. Verrecchia, 196 F.3d 294, 302 (1st Cir. 1999)

(inappropriate statements in prosecution's closing argument did not

amount to plain error where evidence was otherwise overwhelming);

United States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994) (same).

The chance that these statements, excessive though they may have

been, affected the outcome of the trial was negligible.

In all events, the district court limited the risk of any

residual prejudice by strongly cautioning the jury that counsel's

closing arguments were not evidence, and directing the jurors to

base their verdict solely on the evidence as they remembered it.

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

1987) (finding that similar instructions mitigated the prejudicial

effect of misstatements made during closing argument). Thus,

counterbalanced by a mountain of evidence, and couched by the

district court's timely (and presumably followed) jury

instructions, see United States v. Gonzalez-Vazquez, 219 F.3d 37,

48 (1st Cir. 2000), the remarks by the prosecutor in rebuttal,

though perhaps improper, did not amount to plain error.

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 III.

For the reasons elucidated above, we affirm the

appellant's conviction.

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