United States v. Rodríguez-Vélez

United States Court of Appeals
For the First Circuit

No. 07-2813

UNITED STATES OF AMERICA,

Appellee,

v.

EDUARDO RODRÍGUEZ-VÉLEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Lynch, Chief Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.

Stephen J. Weymouth and Law Offices of Stephen J. Weymouth on
brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney (Appellate Chief), and
Luke Cass, Assistant United States Attorney, on brief for appellee.

March 1, 2010

*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
 SELYA, Circuit Judge. On May 4, 2005, a federal grand

jury sitting in the District of Puerto Rico charged defendant-

appellant Eduardo Rodríguez-Vélez and seven codefendants with,

inter alia, conspiracy to possess with intent to distribute 50

grams or more of cocaine base (crack) and a detectable amount of

marijuana. See 21 U.S.C. §§ 841(a)(1), 846. All of the other

defendants admitted their guilt and, in October of 2006, the

appellant stood trial alone. The jury found him guilty on the

conspiracy count, and the district court, relying in part on an

information filed by the government in pursuance of 21 U.S.C.

§ 851(a), sentenced him to life imprisonment.

Before us, the appellant claims that the district court

committed a litany of errors in (i) denying his motion for judgment

of acquittal; (ii) making erroneous evidentiary rulings; (iii)

denying his motion for a mistrial based on the appellant's outburst

at trial; (iv) denying his motion for a mistrial based on

prosecutorial misconduct; and (v) improperly enhancing his

sentence. We reject this entire asseverational array and,

accordingly, affirm the judgment below.

I. BACKGROUND

The government presented its case through four witnesses.

The appellant neither testified nor proffered any evidence. We

rehearse the facts elicited at trial to the extent necessary to

place this appeal into a workable perspective.

-2-
 The government's first witness was José Luís Vélez

(Vélez), a confidential informant for the federal Drug Enforcement

Administration (DEA) and a former retail drug customer. Vélez

testified that Callejón de Los Locos was an "active" drug point in

Cabo Rojo, Puerto Rico. Members of the Graniela-Lugo (Graniela)

family operated the drug point and, from at least as early as 1996,

sold marijuana, cocaine, and crack to "selected people." Vélez was

one of these people; he bought marijuana two to three times per

week from roughly 1997 to 2003. He also made occasional purchases

of cocaine from the drug point.

Vélez began working with the DEA in 2003 and made two

recorded purchases of crack from the drug point.1 The first

purchase involved four bags; the second involved ten bags. With

the ten-bag purchase, Vélez received a free bonus bag of crack — a

fringe benefit that, he testified, was consistent with customary

practice at the drug point.

David Ulises Martínez-Camacho (Martínez), a confidential

informant and a former retail drug customer, testified that he

visited the drug point nearly every day from 1996 to 2000. His

last visit took place in 2004. He purchased marijuana and,

starting in 2000 or 2001, crack.

Martínez dated one of the Graniela sisters. That

romantic entanglement allowed him to enter the Granielas' residence

1
These recordings had both audio and video components.

-3-
on an average of twice a week. At times, the Granielas pressed him

into service; he "cooked" crack (i.e., manufactured crack from

cocaine) for them at the drug point on two or three occasions.

Martínez outlined the logistics of marketing at the drug

point, which was open year-round. Its hours of operation were from

noon to midnight on Saturday to Thursday, and noon to 1 a.m. on

Friday. Patrons had the option of purchasing drugs on foot or by

drive-through. To avail himself of the latter option, a customer

would drive up to a seller, place his order, drive down a dirt

road, turn around, and park next to a fence. At that locus, the

drugs were exchanged for cash.

Retail sales often involved an encoded language, couched

in terms more commonly associated with haberdasheries than with

criminal enterprises. In this argot, "shoe" meant crack, "shirt"

meant cocaine, and "pants" meant marijuana.

Martínez vouchsafed that he knew the appellant by the

sobriquet "El Barbero" and knew him to be a brother-in-law of the

Granielas. Martínez added that on an occasion when the quality of

crack available at the drug point seemed sub par, one of the

Granielas told him that, if he waited, the appellant would bring a

new supply of cocaine to be manufactured into crack. On other

occasions, a Graniela brother, Iván, told Martínez that when the

appellant arrived, the drug point would have "new material." On

still other occasions when the supply of drugs was running low,

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either Iván Graniela or his brother Papotin would make a telephone

call to order more drugs and mention the appellant's name. Once,

Martínez saw Iván Graniela give the appellant a wad of bills three

to four inches thick.

José Luna, a DEA agent who worked undercover and

surveilled the drug point over one hundred times between 1995 and

2005, was the government's next witness. He described the overall

nature of the government's investigation. From his personal

observations, sales of approximately 840-1000 grams of crack each

week were made at the drug point.

The DEA made five separate undercover purchases of crack

at the drug point (including the two made by Vélez) from 2003 to

2005. One of these was videotaped from a lamp-post video camera,

and Luna described the activity taking place at the drug point as

shown in the videotape.

The government's final witness was Francisco Vega

Montalvo (Vega), who served as a confidential informant for the DEA

since approximately 2003. Vega testified that he lived in Cabo

Rojo for about six years and was "very close" to the appellant.

The two men sold drugs together from 1998 to 2001. They

participated jointly in at least seven deals aimed at procuring

cocaine or marijuana for the drug point. We sketch Vega's accounts

of these seven incidents.

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 The first incident occurred in September of 1998. The

appellant expressed concern that the drug point had exhausted its

supply of crack and enlisted Vega's help. Vega arranged for the

purchase of one kilogram of cocaine and ten pounds of marijuana.

Vega, the appellant, and Jorman (whom Vega identified as the

appellant's "runner") then proceeded to an apartment complex and

bought the drugs for $28,000. The appellant directed Jorman to

deliver the goods to the drug point.

The second incident occurred in May of 1999. The

appellant, Jorman, and another man went to Vega's store and paid

$18,000 to a man named Chaka for a kilogram of cocaine. Vega saw

not only the cocaine but also a cash-filled briefcase. After the

transaction was consummated, the appellant instructed Jorman to

take the cocaine to the drug point and inform "the guys" that he

(the appellant) would tell them the price later.

The third incident took place in September of 2000. It

involved a purchase of ten pounds of marijuana. Vega, the

appellant, Jorman, and a man named Freddie Camacho were in

attendance. Camacho went into an apartment and returned with the

drugs. The appellant gave one pound to Vega, priced the remainder

at $1,900 per pound, and directed Jorman to take it to the drug

point.

The fourth incident occurred in October of 2000. Vega

met with the appellant at the home of the appellant's mother to

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discuss replenishing the drug point. There, two hangers-on, Chapi

and Amarillo, mentioned a fisherman who had found twenty kilograms

of cocaine and was willing to sell it for $10,000 per kilogram.

The appellant stated that twenty kilograms would be enough to

supply the drug point for two weeks and hatched a plot to steal the

drugs. Vega declined to take part in the plot and never learned

what happened next.

The fifth incident occurred in November of 2000. Vega,

Jorman, Camacho, and the appellant went to a car wash to buy one

kilogram of cocaine for $20,000. The appellant emphasized that he

wanted cocaine of the "BMW" brand because that was the best brand

for processing into crack. After the transaction was completed,

Vega and Jorman used the appellant's car to drive to a street near

the drug point. There, a runner met them. Jorman told the runner

that "this is going to the Callejón and tell those nuts to square

off the money that I'm owed."

The sixth incident occurred in December of 2000. Vega,

the appellant, Jorman, and another man purchased one kilogram of

BMW brand cocaine from a man in a truck. After completing the

transaction, the appellant ordered Jorman to deliver the cocaine

for "Cabo Rojo" and to inform "the guys" that he would tell them

the price later.

The final incident occurred in early 2001. Vega and the

appellant purchased one kilogram of cocaine at a bakery in exchange

-7-
for some heroin. The appellant directed Jorman to take the cocaine

to the drug point.

Vega stopped dealing drugs in 2001 and agreed to

cooperate with the DEA roughly two years later. He succeeded in

recording five conversations with the appellant. We summarize the

material aspects of two such conversations:

1. On May 10, 2004, the appellant told Vega
that the drug point was "too hot" and that
everyone there was going to get arrested.

2. On June 15, 2004, the appellant stated
that he had stopped doing business with the
Granielas on credit. He added that he made
his livelihood from the Granielas and that he
was being more cautious because of how "hot"
the drug point had become. He also claimed to
have started the drug point.

II. ANALYSIS

We address the appellant's five claims of error

sequentially.

A. Sufficiency of the Evidence.

We begin with the appellant's claim that his motion for

judgment of acquittal, Fed. R. Crim. P. 29, should have been

granted for lack of evidence. We review this sufficiency of the

evidence claim de novo, appraising the proof in the light most

favorable to the verdict. United States v. Stierhoff, 549 F.3d 19,

26 (1st Cir. 2008). This appraisal must take into account both

direct and circumstantial evidence. Id. The verdict must stand

unless the evidence is so scant that a rational factfinder could

-8-
not conclude that the government proved all the essential elements

of the charged crime beyond a reasonable doubt. United States v.

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

The essential elements of the crime of conspiracy are

"the existence of a conspiracy, the defendant's knowledge of the

conspiracy, and the defendant's voluntary participation in the

conspiracy." United States v. Bristol-Mártir, 570 F.3d 29, 39 (1st

Cir. 2009). To establish a defendant's willing participation, the

government must show "two kinds of intent: intent to agree and

intent to commit the substantive offense." Id. (citations and

internal quotation marks omitted). But the government need not

offer proof of an express agreement; criminal conspiracies are by

their very nature clandestine, and a tacit agreement inferred from

the surrounding circumstances can — and often does — suffice to

ground a finding of willing participation. United States v.

Boylan, 898 F.2d 230, 243 (1st Cir. 1990).

In this instance, we need not tarry. The government

adduced compelling evidence of each element of the charged

conspiracy, and a rational jury easily could find beyond a

reasonable doubt — as this jury did — that the appellant was guilty

of conspiracy to possess with intent to distribute 50 grams or more

of crack and a detectable amount of marijuana.

To begin, the existence of a conspiracy was plainly

inferable from the testimony recounted above. Vélez vouchsafed

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that the drug point sold crack, marijuana, and other drugs from

1996 to 2003. This was consistent with the testimony of Martínez,

who also described the drug point's hours and methods of operation.

Luna conservatively estimated that at least fifteen drug sales (ten

of crack) were consummated hourly, totaling about 840-1000 grams of

crack per week. Vega related that the appellant had on several

occasions ordered Jorman to deliver cocaine (much of which was

slated to be used for the manufacture of crack) and marijuana to

the drug point.

This testimony adequately evinced the existence of a

highly organized drug-trafficking enterprise that required the

efforts of multiple participants. Surely, then, a rational juror

could conclude that a conspiracy of the type and kind charged

operated at the drug point for many years.

The appellant's knowledge of the conspiracy hardly can be

doubted. That knowledge was vividly illustrated by his

conversations with Vega. For example, he discussed how he started

the drug point, how its notoriety had spread, and how the drug

point had become "too hot." He also remarked that he earned his

livelihood from the Granielas. These self-incriminating statements

were corroborated by Vega's and Martínez's testimony that the

appellant supplied the drug point with both cocaine (much of which

was slated to be used for the manufacture of crack) and marijuana.

-10-
 Finally, there was ample evidence from which a rational

juror could find that the appellant willingly participated in the

conspiracy. Vega testified to the appellant's role in no fewer

than five drug deals, each involving the purchase of at least one

kilogram of cocaine. Similarly, he testified about the appellant's

part in two deals involving the purchase of marijuana. Vega

likewise testified that, after the consummation of each

transaction, the appellant gave instructions to a subordinate to

bring the contraband to the drug point. In one instance, the

appellant specifically asked for a particular brand of cocaine

because of its superiority as a raw material for manufacturing

crack. This testimony fits hand in glove with Martínez's testimony

that, on multiple occasions, the Graniela brothers told him that

the appellant was bringing new inventory to the drug point.

In an effort to blunt the force of this copious evidence,

the appellant suggests that much of it should be disregarded as

self-serving and not believable. This may have been a suitable

argument for the jury, but it is not an appropriate argument here.

On a motion for judgment of acquittal, we must resolve all

credibility issues in favor of the verdict. See United States v.

Taylor, 54 F.3d 967, 974 (1st Cir. 1995). The appellant also

argues that the evidence, even if credited, shows him to be a free-

-11-
lance entrepreneur rather than a coconspirator.2 But where, as

here, the evidence can be viewed in different ways, we must honor

the jury's evaluative choice among plausible, albeit competing,

inferences. See United States v. Olbres, 61 F.3d 978, 974-75 (1st

Cir. 1995).

To say more on this claim would be to paint the lily.

The evidence, taken as a whole, strongly supports a conclusion that

the appellant entered into a tacit accord to supply the drug point

with drugs and that he intended by his actions to further the

conspiracy's overarching drug-distribution goal. Accordingly, the

district court did not err in denying the appellant's motion for

judgment of acquittal.

B. Evidentiary Rulings.

When an appropriate objection has been made, we review a

district court's ruling admitting or excluding trial evidence for

abuse of discretion. United States v. Nguyen, 542 F.3d 275, 279

(1st Cir. 2008); United States v. DeCologero, 530 F.3d 36, 58 (1st

Cir. 2008). Here, the appellant challenges two such rulings. One

was made during Martínez's direct examination and the other during

his cross-examination. We elaborate below.

2
In particular, the appellant emphasizes Martínez's testimony
that he purchased ten bags of crack from the appellant at some time
between 2001 and 2005. When Martínez inquired about a bonus bag,
the appellant replied that he did not give bonus bags because of
the superior quality of his merchandise. This testimony, the
appellant says, indicates that he was an independent contractor.

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 1. Direct Examination. The appellant assails the

admission of Martínez's testimony that certain statements were made

to him by either Iván Graniela or Iván's brother to the effect that

the appellant would be delivering new material to the drug point.

Relatedly, the appellant challenges Martínez's testimony that, when

supplies ran low at the drug point, either Iván or Papotin Graniela

would in his presence make a telephone call to order more drugs and

mention the appellant's name. Finally, he challenges Martínez's

testimony that the appellant and two of his cohorts "had the

strongest say" about staffing the surveillance tower at the drug

point.

These challenges are meritless. The Granielas'

statements were not inadmissible as hearsay. After all, a

statement is not hearsay if it is made by a coconspirator during

the course and in furtherance of the conspiracy. Fed. R. Evid.

801(d)(2)(E). The Granielas' statements invited Martínez, who was

a regular customer, to wait until the appellant got to the drug

point and replenished its drug supply. These statements were,

therefore, made during and in furtherance of the charged

conspiracy. See, e.g., United States v. Rodríguez, 525 F.3d 85,

101 (1st Cir. 2008).

So, too, were the statements made by the Granielas while

calling to order more inventory. These statements were made in the

course of ensuring that the drug point remained up and running.

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Consequently, they came under the protective shield of Rule

801(d)(2)(E).

This leaves the comment about staffing the surveillance

tower. In that regard, the government established on Martínez's

direct examination that the tower was an integral part of the

Granielas' operation and that Martínez had personal knowledge about

who called the shots concerning its staffing. Thus, Martínez's

comment as to who "had the strongest say" was lay opinion, based on

the observations of a percipient witness. It follows that the

trial court did not err in allowing him to testify anent the

staffing decisions. See United States v. Muñoz-Franco, 487 F.3d

25, 35 (1st Cir. 2007); see also Fed. R. Evid. 701.

2. Cross-Examination. The appellant argues that the

trial court unduly limited the scope of Martínez's cross-

examination. We briefly recount the relevant background.

The appellant was married to one of the Granielas'

sisters. During Martínez's cross-examination, defense counsel

inquired whether Martínez was aware that the appellant had been

unfaithful to his wife. The government objected. At sidebar, the

district court asked defense counsel the purpose of the question.

Counsel responded:

[Defense Counsel]: It is highly relevant. If
you allow me, this witness just asked that the
Granielas family trust him with his life.

. . .

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 [Defense Counsel]: If he knows them that well,
Your Honor, he must know the particularities of
each member of the family.

[Prosecutor]: That is not true, and it is
irrelevant.

[Defense Counsel]: It goes to the credibility
of the Defendant — the credibility of the
witness.

The district court sustained the objection.

In this venue, the appellant advances two supposed

justifications as to why the inquiry into his infidelity should have

been allowed. We examine these justifications separately.

First, the appellant claims that the question was relevant

to impeach Martínez's testimony as to how well he knew the

appellant. This argument was made to and rejected by the district

court. Therefore, we review the court's ruling for abuse of

discretion.

Although the right to cross-examine an adverse witness in

a criminal case is constitutionally guaranteed, see Davis v. Alaska,

415 U.S. 308, 315 (1974), that right is not unfettered. See Boylan,

898 F.2d at 254. On the contrary, the trial judge retains wide

latitude to impose reasonable limits on cross-examination so as to

prevent, among other things, questioning on peripheral matters.

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Here, whether

Martínez knew that the appellant was unfaithful to his wife raised

an extraneous (and potentially inflammatory) issue and was at most

marginally relevant to Martínez's credibility. Thus, it was not an

-15-
abuse of discretion for the lower court to curtail this line of

inquiry. See Boylan, 898 F.2d at 255. That ruling helped to keep

the jury focused on the issues that mattered.

The second justification on which this claim of error

rests is the notion that the inquiry into infidelity should have

been permitted to impeach the Granielas (whose statements Martínez

had quoted). Because the Granielas were the appellant's brothers-

in-law, this thesis runs, his infidelity would give them a motive

to attribute criminal conduct to him.

This argument has several obvious flaws. First, the

question posed did not go to what the Granielas knew but, rather,

to what Martínez knew. What Martínez knew (or did not know) about

the putative infidelity would have no necessary bearing on what the

Granielas knew. Second, the "motive to vilify" argument does not

hold water. There is no evidence that the Granielas suspected they

were operating in the presence of one who would subsequently become

a government informant, and what they said about the appellant

tended to glorify him — that is, to exalt his role in the criminal

enterprise — not to vilify him.

To cinch matters, a searching review of the record reveals

that the appellant neither presented this argument to the district

court nor made an offer of proof as to the existence of facts that

would have allowed the court to conclude that his infidelity might

be relevant to the Granielas' motivation. There was, for example,

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no evidence that any infidelity occurred prior to the making of the

statements or that, if it did, the Granielas were aware of it.

Thus, the appellant's challenge fails. See Fed. R. Evid. 103(a)(2)

(requiring offer of proof to preserve objection to ruling excluding

evidence); see also United States v. Jadusingh, 12 F.3d 1162, 1166

(1st Cir. 1994) ("When challenging an exclusionary ruling . . . the

aggrieved party must show . . . that the 'substance of the evidence

[sought to be introduced] was made known to the court by offer or

was apparent from the context within which questions were asked.'"

(citation omitted)).3

C. Disruption of Trial.

We turn next to the appellant's plaint that the district

court abused its discretion in denying his mid-trial motion for a

mistrial premised on his own disruption of the proceedings. Before

exploring this plaint, we sketch the events that form the backdrop

for it.

After the jury entered the courtroom on the fourth day of

trial, the appellant rose and began shouting in Spanish. The

district court immediately ordered a marshal to "shut him up" and

"sit him down." The court then excused the jury for the remainder

of the day. Before doing so, it instructed the jurors that they

3
In some cases, there may still be room for plain-error
review. See Fed. R. Evid. 103(d); Jadusingh, 12 F.3d at 1166.
Here, however, the reasons alluded to above make it pellucid that
sustaining this objection was not on any level an abuse of
discretion.

-17-
were not to consider the incident or any statement made by the

appellant during his outburst.4 It also instructed the jurors to

keep their minds open about the merits of the case.

The next day, the court repeated these instructions and

conducted a voir dire in which it asked each juror whether he or she

was able to remain impartial notwithstanding the outburst. All of

the jurors responded affirmatively. The appellant moved for a

mistrial, but the court denied the motion. The appellant did not

request any further or different jury instructions.

Against this backdrop, we review the district court's

denial of the mistrial motion for abuse of discretion. See

DeCologero, 530 F.3d at 52; United States v. Bradshaw, 281 F.3d 278,

284 (1st Cir. 2002). This deferential standard of review does not

permit second-guessing for the sake of second-guessing. Only in

rare instances will we, from the vantage point of a cold appellate

record, substitute our judgment for the trial court's first-hand

determination that the interests of justice could be served without

aborting a trial already in progress. United States v. Pierro, 32

F.3d 611, 617 (1st Cir. 1994).

Although the appellant's vociferations were not entered

into the record, the court's subsequent comments (made out of the

jurors' earshot) enlighten us as to their substance: it appears that

4
It is common ground that jurors in the District of Puerto
Rico normally are fluent in Spanish, and there is no question but
that the jurors both saw and heard the appellant's outburst.

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the appellant accused a government witness, Martínez, of

prevaricating; accused the government of fabricating the case

against him; and expressed dissatisfaction with the performance of

his trial counsel. Thus, the comments themselves did not impart

information prejudicial to the defense.

For present purposes, then, the appellant's plaint centers

on the bad impression that his loss of control may have created.

Withal, the appellant is in a perilously poor position to complain

about that bad impression. When a defendant has willfully disrupted

the proceedings, a trial court ordinarily acts within its discretion

in refusing to grant a mistrial by reason of that disruption. See,

e.g., United States v. McCormac, 309 F.3d 623, 626 (9th Cir. 2002);

United States v. Harris, 2 F.3d 1452, 1456 (7th Cir. 1993); United

States v. Trevino-Rodriguez, 994 F.2d 533, 535 (8th Cir. 1993);

United States v. Bamberger, 456 F.2d 1119, 1128 (3d Cir. 1974).

Were the rule otherwise, a defendant could, in effect, ensure a

mistrial by the simple expedient of disrupting the proceedings.

This would reward bad behavior and, thus, create perverse

incentives. See Harris, 2 F.3d at 1456 ("[T]o allow a defendant by

his own misconduct to terminate his trial even temporarily would be

to allow him to profit for his own wrong." (quoting United States

v. Chaussee, 536 F.2d 637, 641 (7th Cir. 1976))).

Even so, such unruliness cannot simply be ignored. A

trial court confronted by such an outburst should take proper steps

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to neutralize any untoward effects that the outburst might have on

the jury. See, e.g., McCormac, 309 F.3d at 626. Here, the district

court's timely and repeated instructions to the jury, coupled with

its thorough vetting of the jurors to ensure that their impartiality

had not been compromised, sufficed to safeguard the appellant's

right to a fair trial. Thus, we find no abuse in the district

court's refusal to declare a mistrial because of the outburst.

D. Prosecutorial Misconduct.

The appellant again moved for a mistrial toward the end

of the trial. This second motion followed the prosecutor's thrice-

repeated reference, in summation, to the prosecution's evidence as

"unchallenged." The relevant portions of the summation follow.

And I would add that the testimony you heard
from Task Force Agent Luna, aside from the
objections from the defense, went unchallenged,
unchallenged.

. . .

Now, I state this again, you may not like
Francisco Vega or what Francisco Vega did in
the past, but his testimony was unchallenged.
His testimony was unchallenged.

. . .

Ladies and gentlemen of the jury, that evidence
[audio recordings of the defendant conversing
with Vega], presented to you yesterday, went
unchallenged. That's the defendant's voice.

The appellant did not interpose a contemporaneous objection to the

first of these statements. He did, however, interpose

contemporaneous objections to the second and third statements.

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 The district court initially overruled these objections.

But after a sidebar conference and a recess that followed the first

round of the government's closing argument,5 the court concluded

that the prosecutor's comments were improper and vowed to give a

curative instruction. At that juncture, the appellant

unsuccessfully sought a mistrial, the court gave the promised

instruction, the closing arguments continued without any reiteration

of the challenged characterization, and the judge repeated the

curative instruction in his charge to the jury.

The question of whether the prosecutor's comments abridged

the appellant's Fifth Amendment rights is a question of law and,

thus, engenders de novo review. See United States v. Glantz, 810

F.2d 316, 321 n.2 (1st Cir. 1987). The Fifth Amendment invests a

criminal defendant with a right to remain silent and, as a corollary

of that right, prohibits the government from commenting on the

defendant's silence. Griffin v. California, 380 U.S. 609, 615

(1965). A comment on the defendant's failure to testify need not

be direct in order to cross the constitutional line: the government

infringes the defendant's Fifth Amendment rights whenever "the

language used [by the prosecutor is] manifestly intended or [is] of

such character that the jury would naturally and necessarily take

5
The district court used a familiar three-part format in
which the prosecutor initiates the closing arguments, defense
counsel responds, and the prosecutor then rebuts.

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

Glantz, 810 F.2d at 322.

The appellant asseverates that the prosecutor's comments,

quoted above, come within the Glantz proscription. But this is far

from a foregone conclusion. While the remarks can be interpreted

as comments on the appellant's failure to testify, they also can be

interpreted as a means of drawing attention to defense counsel's

decision not to cross-examine either Luna or Vega. The fact that

the prosecutor referred to the evidence as "unchallenged" only in

connection with evidence involving these witnesses makes the latter

interpretation plausible. This is a potentially important

distinction: although it is not proper for a prosecutor to comment

on a defendant's failure to testify, it is permissible (though

dangerous) for a prosecutor to comment on the defense's failure to

cross-examine a witness. See, e.g., United States v. Hooker, 541

F.2d 300, 307 (1st Cir. 1976); Goitia v. United States, 409 F.2d

524, 528 (1st Cir. 1969).

Despite the fact that the resolution of this ambiguity

ordinarily might make a dispositive difference, the circumstances

here are such that we need not grapple with that question.

Assuming, without deciding, that the prosecutor's comments were

beyond the pale, no mistrial was required. We explain briefly.

With respect to Fifth Amendment violations of this genre,

harmless error doctrine applies. United States v. Hasting, 461 U.S.

-22-
499, 507-09 (1983). Consequently, such a violation is not

automatically a basis for setting aside a conviction. If

examination shows that the violation is harmless beyond a reasonable

doubt, the conviction may stand. To this end, we must make an

inquiry into whether it is clear beyond a reasonable doubt that the

jury would have returned the same verdict absent the prosecutor's

comment. Id. at 510-11.

We have sometimes used a four-part analytic modality to

guide the inquiry into the harmlessness of such a violation. The

factors to be evaluated are the severity of the misconduct, the

context in which the misconduct occurred, the deployment and likely

impact of any curative instructions, and the strength of the

evidence against the accused. See, e.g., United States v.

Rodríguez, 215 F.3d 110, 122-23 (1st Cir. 2000); Taylor, 54 F.3d at

978-80; United States v. Hardy, 37 F.3d 753, 758-59 (1st Cir. 1994).

This evaluation should be made in the first instance by the trial

court; if that court, confronted with a comment that infringes the

defendant's Fifth Amendment rights, finds the comment harmless and

denies a motion for a mistrial, we review that decision for abuse

of discretion. Glantz, 810 F.2d at 321 n.2.

In this case, the district court's refusal to order a

mistrial is inexpugnable. None of the four factors cuts the

appellant's way. The violation (assuming that one occurred) was not

severe, and the context does not favor jettisoning the verdict.

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After all, the comments were made in the opening portion of the

prosecutor's summation, see supra note 5, so that defense counsel

could tailor his argument accordingly.

The third factor likewise counsels against disturbing the

verdict. The district court gave timely, thorough, and repeated

curative instructions. The court specifically identified the

challenged comments, explained why they could be viewed as improper,

told the jury to disregard them, and emphasized the appellant's right

not to testify or present evidence. These instructions were

sufficient to neutralize any prejudice that might have attended the

challenged comments. See United States v. Mooney, 315 F.3d 54, 60

(1st Cir. 2002) (noting that instructions are "sometimes enough to

neutralize any prejudice from improper remarks"); see also United

States v. Smith, 145 F.3d 458, 462 (1st Cir. 1998) (explaining that

"courts must presume that jurors, conscious of the gravity of their

task, attend closely the particular language of the trial court's

instructions in a criminal case").

Last — but far from least — this was not a close case.

The able district judge characterized the proof against the

appellant as "enormous." That characterization seems apt: the

government offered overwhelming evidence on each and every element

of the charged conspiracy.

On this claim of error, all of the signposts point in the

same direction. Accordingly, we hold that, even if the prosecutor's

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comments were improper — a matter on which we take no view — the

misconduct was harmless beyond a reasonable doubt. See Chapman v.

California, 386 U.S. 18, 24 (1967). It follows inexorably that the

district court did not abuse its discretion in denying this motion

for a mistrial.

E. Increased Punishment.

The appellant's last argument implicates his sentence.

In the course of the proceedings, the government filed an

information pursuant to 21 U.S.C. § 851(a), proffering two prior

felony drug convictions as a stepping stone for increased punishment

should the appellant be found guilty. After the jury verdict, the

district court, in reliance on this filing, deemed the appellant

subject to increased punishment. See id. § 851(d). The court

thereupon imposed a life sentence, which included the increase. See

id. § 841(b)(1)(A).

The appellant contends that these rulings were erroneous

in various respects. Specifically, he contends that section 851(e)

— which forecloses a defendant from challenging the validity of

prior convictions entered more than five years before the date of

the government's section 851(a) filing — offends the Due Process and

Equal Protection Clauses of the federal Constitution and should not

have been enforced. He adds that the statute also transgresses the

rule of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Finally

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he contends that the filing of a section 851(a) information in this

case constituted impermissible prosecutorial vindictiveness.

Here, however, there is a rub. The appellant acknowledges

that, in these respects, the district court acted in strict

conformity with circuit precedent. See Appellant's Br. at 34-36.

By like token, he acknowledges that the contentions that he mounts

can prevail only if we overrule a number of this court's precedents.

See, e.g., United States v. Jenkins, 537 F.3d 1, 5 (1st Cir. 2008);

United States v. Henderson, 320 F.3d 92, 104-10 (1st Cir. 2003).

This proposition that we can overrule our own precedents

at will is untenable. With only narrow exceptions, none of which

pertain here,6 an argument panel is bound by prior panel decisions

of the court. See United States v. Rodríguez, 527 F.3d 221, 224-25

(1st Cir. 2008) ("As a general rule, newly constituted panels in a

multi-panel circuit are bound by prior panel decisions closely on

point."); United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir.

1991) (same). Because we lack authority to overrule the precedents

that the appellant targets, we reject this claim of error without

inquiry into its merits.

6
These exceptions center on situations involving supervening
authority, such as "when the holding of a previous panel is
contradicted by controlling authority, subsequently announced (say,
a decision of the authoring court en banc, a Supreme Court opinion
directly on point, or a legislative overruling)." Muskat v. United
States, 554 F.3d 188, 189 (1st Cir. 2009).

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III. CONCLUSION

We need go no further. After thorough perscrutation of

the record, we conclude that the appellant was fairly tried, justly

convicted, and appropriately sentenced.

Affirmed.

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