United States Court of Appeals
For the First Circuit
No. 06-1288
UNITED STATES,
Appellee,
v.
JOSÉ R. ANDÚJAR-BASCO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Circuit Judge,
Lipez, Circuit Judge,
and DiClerico, Jr.,* District Judge.
Rafael F. Castro-Lang for appellant.
G. Andrew Massucco-LaTaif, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
were on brief for appellee.
June 6, 2007
*
Of the District of New Hampshire, sitting by designation.
DICLERICO, District Judge. A jury convicted José R.
Andújar-Basco of conspiring and aiding and abetting the possession
with intent to distribute five or more kilograms of cocaine.
Andújar seeks a new trial, arguing that the district court erred by
not declaring a mistrial (1) after a government witness testified
regarding Andújar’s election to exercise his Fifth Amendment rights
to remain silent and to request an attorney, and (2) after the
government made unrelated improper remarks in closing arguments.
I.
Andújar was ensnared in a Drug Enforcement Agency (DEA)
sting operation. In September 2004, the DEA paid a confidential
informant to make purchases of controlled substances. At the
behest of DEA Agents Carlos Galloza and Roberto Bryan, the
confidential informant contacted Freddy Cancel-Camacho, an
acquaintance he had known for twenty years, to inquire about the
purchase of ten kilograms of cocaine. Prior to the purchase, the
informant and Cancel met on multiple occasions and also had several
telephone conversations. The DEA recorded many of these
conversations and played them for the jury at trial.
On September 20, Cancel told the informant that the only
person he knew who could acquire ten kilograms of cocaine was
Andújar. The informant was also familiar with Andújar because
Cancel had introduced the two a few years earlier. The next day,
September 21, the informant went to Cancel’s house to discuss the
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transaction. While the informant was present with a recording
device, Cancel talked to Andújar on the phone. Andújar confirmed
that he would sell cocaine to the informant, but he lowered the
quantity from ten kilograms to five kilograms and set the purchase
price at $85,000. The three agreed to meet the next day to
complete the transaction.
The September 22 meeting did not go as planned. When
Andújar and Cancel did not arrive at the arranged meeting location
at the appointed time, the informant left. While driving home, he
received a call from Cancel on his mobile phone. At one point in
the conversation, Andújar took the phone from Cancel and told the
informant that he had the five kilograms and was ready to go
forward with the deal. It was subsequently agreed that Andújar
would give the cocaine to Cancel who would then give it to the
informant and that Cancel would thereafter bring the $85,000 from
the informant to Andújar.
On the morning of September 23, Cancel called the
informant and told him that Andújar had given him the cocaine.
Cancel instructed the informant to come to his house to exchange
the money for the cocaine. The informant and Agent Galloza, posing
undercover as the drug buyer financing the purchase, drove to
Cancel’s house. The informant went inside Cancel’s house, took
possession of the bag of cocaine, and lead Cancel out to his truck
to retrieve the money. After the informant put the cocaine in the
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back of the truck, local police and federal agents converged on the
scene and arrested the informant, Cancel, and Agent Galloza. A
forensic chemist testified that the substance seized that day was
cocaine weighing just over five kilograms.
Cancel subsequently agreed to call Andújar to arrange for
Andújar’s payment. Eddie Vidal, a Puerto Rico police officer
assigned to the DEA, recorded and listened to Cancel’s three phone
conversations with Andújar. In those conversations, Andújar
instructed Cancel to meet him at a shopping center parking lot.
Cancel, Galloza, Vidal, and other law enforcement personnel drove
to the shopping center and waited. Andújar arrived driving a white
BMW with two passengers. After Andújar got out of the car and
approached a fast food truck, Cancel identified him, and he was
arrested. DEA agents also arrested the two other individuals in
the white BMW, and conducted a search of the car’s interior. Under
the driver’s seat the agents found a white plastic bag containing
110 individually wrapped clear plastic bags containing a white
powdery substance. A forensic chemist testified that the bags
contained approximately seventy grams of cocaine.
A grand jury returned a two-count indictment charging
Andújar and Cancel with conspiring to possess with intent to
distribute five or more kilograms of cocaine, see 21 U.S.C. §§
841(a)(1) and 846, and aiding and abetting the possession with
intent to distribute five or more kilograms of cocaine, see 21
-4-
U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Cancel pled guilty to both
charges before trial and was sentenced to seventy-eight months
imprisonment. A five-day jury trial ensued on the charges against
Andújar in which the government elicited testimony from the
confidential informant, Officer Vidal, Agent Bryan, and two
forensic chemists. The government also presented several recorded
conversations, and testimony and documentary evidence concerning
Andújar’s and Cancel’s phone records. The jury found Andújar
guilty on both counts and the district court sentenced him to 121
months in prison. Andújar filed a timely notice of appeal.
II.
Andújar argues that two errors necessitate a new trial.
First, he contends that the district court erred by not granting a
mistrial after the government infringed his Fifth Amendment
privilege against self-incrimination by eliciting testimony
concerning his election to remain silent and to request an attorney
while being questioned by DEA agents. See U.S. Const. amend. V
(“No person shall . . . be compelled in any criminal case to be a
witness against himself . . .”); Miranda v. Arizona, 384 U.S. 436,
468 n.37 (1966) (holding that a defendant’s exercise of his right
to remain silent may not be used against him at trial). Andújar
argues that this testimony resulted from “intentional government
misconduct which was geared to impressing on the [jury] that [he
had] refused to talk about the 5 kilo[grams] and wanted a lawyer
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because he was guilty.” Second, he contends that his right to a
fair trial was “further violated when the prosecutor made repeated,
unprovoked[,] improper closing argument[s] to the jury.” Andújar
argues that the district court should have declared a mistrial
after the prosecutor impermissibly interjected his personal opinion
and then compounded the error by telling the jurors that it was
their “duty” to “uphold the law” and find Andújar guilty.
A. Improper Testimony
We begin with Andújar’s contention that the government
elicited improper testimony regarding his election to remain silent
and to request an attorney. On the third day of the trial, the
government called Agent Bryan who testified about Andújar’s arrest
and booking. According to Bryan, Andújar was advised of his
Miranda rights and indicated his understanding of those rights.
Because Andújar did not initially invoke his right to silence,
Bryan began questioning him. Bryan testified as follows concerning
that interrogation:
Q. Can you tell the ladies and gentlemen of
the jury what, if anything, the defendant told
you?
A. Basically we explained the seriousness of
the charge that he was looking at and advised
him that you know, we have evidence regarding
that, and trying to seek his cooperation
regarding the next level. . . . At that time
we tried to explain to Mr. Andújar the
seriousness of the charges, and explain to him
this was the particular time that was for him,
to be beneficial for him to get on board, what
we say, to go ahead and see if we could seek
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the person that he received the five kilograms
of cocaine from.
Q. Did he tell you any information pertaining
to any of the cocaine that you seized on that
day?
A. Before we went straight to the five
kilograms, what I initially started with was
regarding the cocaine found in the vehicle.
At that time he admitted to the fact that he
said they, they had just purchased that
particular cocaine.
Q. When he said they, who did you take they
to be?
A. Himself and the other individuals in the
vehicle.
Q. What happened after that?
A. In addition, as I tried to ascertain
further information as far as who he actually
received the cocaine from, he then changed the
statement and said that it was his cocaine and
no one else had anything to do with it.
Q. His cocaine being the five kilograms or
the 70 grams?
A. At the time we were specifically talking
about the cocaine in the vehicle. When
attempting to go further or get further
details regarding the five kilograms, and also
where was the cocaine ascertained from, at
that time he didn’t want to speak any further,
he advised he wanted his lawyer and invoked
his Miranda warnings and we stopped.
Q. Did you question him any further after
that?
A. No, sir.
Day Three Tr. at 100-03 (emphasis added). Andújar did not object
at any point during this line of questioning.
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On the fourth day of the trial, the government recalled
Agent Bryan to testify about a phone call DEA agents had made using
Andújar’s mobile phone the evening after he was arrested. The
following colloquy took place:
Q. Did Richard Andújar have his cellphone
with him at the time?
A. No, sir, we had it with us, sir.
Q. Did you have occasion to use his cellphone
any time later in the night of September 23,
2004?
A. Yes, I did.
Q. Can you tell the ladies and gentlemen of
the jury how you used his cellphone and for
what purpose?
A. Yes, sir, after Mr. Andújar was arrested
we were attempting to have Mr. Andújar
basically what we call get on board, and in
order to also keep the other cooperators cool
at that particular time–
Day Four Tr. at 5 (emphasis added). At that point, Andújar
objected to the testimony concerning “the other cooperators.”
Andújar requested a mistrial, arguing that the government violated
an earlier court order that government witnesses should refrain
from suggesting that co-defendant Cancel had cooperated with law
enforcement.1 The court offered to instruct the jury that Cancel
1
Citing Federal Rule of Evidence 403, the court had ruled that
any testimony referring to co-defendant Cancel’s “cooperation” with
law enforcement was overly prejudicial and misleading because
Cancel ultimately chose not to cooperate and not to testify at
Andújar’s trial. The government was ordered to instruct its
witnesses not to characterize Cancel as a “cooperator.”
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did not cooperate. Andújar then argued that Bryan’s testimony
concerning the DEA’s attempt to get Andújar “on board” “seems like
. . . he is making a comment on Mr. Andújar’s choice to remain
silent.” The court did not “read that into this testimony” and
denied Andújar’s request for a mistrial. The court nonetheless
struck the testimony from the record.
At the start of the fifth and final day of trial, Andújar
again moved, both orally and in a written submission, for a
mistrial based on Bryan’s testimony that the DEA had attempted to
get Andújar “on board.” Andújar noted that, although he had
objected only once, Bryan had twice testified about the attempt to
get Andújar “on board.” Andújar did not refer or object to the
testimony describing Andújar’s termination of the interrogation.
The court denied the motion for a mistrial but offered to deliver
a curative instruction to the jury. Andújar objected to a specific
instruction, which he feared would draw attention to the stricken
testimony. Therefore, with the assent of both parties, the court
simply delivered an instruction emphasizing that the jury could not
consider any testimony that had been stricken from the record.
Andújar now challenges three portions of Bryan’s
testimony: (1) the day three testimony about attempting to get
Andújar “on board,” (2) the day three testimony regarding Andújar’s
explicit invocation of his Fifth Amendment rights, and (3) the day
four testimony again mentioning the attempt to get Andújar “on
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board.” We begin our analysis with consideration of the day three
testimony specifically mentioning Andújar’s Miranda assertion.
Because Andújar did not raise a contemporaneous objection
to this testimony, our review is for plain error only. See United
States v. Gabriele, 63 F.3d 61, 70 & n.13 (1st Cir. 1995). For
Andújar to prevail under this standard, he must demonstrate that
there was an error, that was clear or obvious, and that affected
his substantial rights. United States v. Olano, 507 U.S. 725, 732-
34 (1993) (citing Fed. R. Crim. P. 52(b)). If these three
conditions are satisfied, the court may reverse to prevent a
miscarriage of justice. Id. at 734-35.
The Fifth Amendment forbids the use of a defendant’s
custodial silence as substantive evidence of his guilt. Miranda,
384 U.S. at 468 n.37. In Doyle v. Ohio, the Supreme Court held
that, under the Fourteenth Amendment, where a defendant exercises
his right to remain silent after being informed of his Miranda
rights, the government may not use that silence to impeach an
explanation offered by the defendant at trial. See 426 U.S. 610,
618-19 (1976). In so holding, the Court recognized that allowing
the government to use a defendant’s silence against him at trial,
after having implicitly encouraged that silence through delivery of
the Miranda warning, would be “fundamentally unfair and a
deprivation of due process.” Id. at 618. This court has further
held that a defendant’s actual statement asserting his Miranda
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rights, even when uttered before a Miranda warning has been
delivered, is not admissible as substantive evidence of the
defendant’s guilt. See Coppola v. Powell, 878 F.2d 1562, 1567 (1st
Cir. 1989) (“[T]he disclosure of the words [the defendant] used to
claim his privilege results in the same dilemma addressed” in the
Supreme Court cases dealing with prosecutorial reference to a
defendant’s silence).
The question that arises here is whether the rule
announced in Miranda -- that the government may not use the
defendant’s post-arrest silence in its case-in-chief -- is
applicable here, where the defendant initially waived his Fifth
Amendment privilege only to assert his right to silence at some
later point in the midst of questioning. As a general rule, any
inculpatory or exculpatory statements made by a defendant
(including silence with regard to particular questions) are
admissible at trial insofar as they were the product of a knowing
and voluntary waiver.2 See Miranda, 384 U.S. at 475; United States
v. Goldman, 563 F.2d 501, 503 (1st Cir. 1977) (“A defendant cannot
have it both ways. If he talks, what he says or omits is to be
judged on its merits or demerits, and not on some artificial
standard that only the part that helps him can be later referred
to.”) (internal quotation marks omitted). But waiver, in this
2
Andújar does not argue that his waiver was not made knowingly
and voluntarily.
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context, is not an all-or-nothing proposition. As the Supreme
Court noted in Miranda, “where in-custody interrogation is
involved, there is no room for the contention that the privilege is
waived if the individual answers some questions or gives some
information on his own prior to invoking his right to remain silent
when interrogated.” 384 U.S. at 475-76. The Court was explicit
that a detained suspect may change his mind about talking to the
police “at any time prior to or during questioning,” and that the
“right to cut off questioning,” is essential to the privilege. Id.
at 473-74.
The government cites a line of Eighth Circuit cases that
hold that testimony regarding a defendant’s refusal to speak to the
police, following an initial Miranda waiver, is admissible against
the defendant. See United States v. Burns, 276 F.3d 439, 442 (8th
Cir. 2002) (“[W]here the accused initially waives his or her right
to remain silent and agrees to questioning, but ‘subsequently
refuses to answer further questions, the prosecution may note the
refusal because it now constitutes part of an otherwise admissible
conversation between the police and the accused.’”) (quoting United
States v. Harris, 956 F.2d 177, 181 (8th Cir. 1992), and citing
United States v. Collins, 652 F.2d 735, 739 (8th Cir. 1981)). See
also Rowan v. Owens, 752 F.2d 1186, 1190 (7th Cir. 1984) (Posner,
J.) (finding that, on the facts of that case, the government’s
testimony concerning the end of the interrogation was permissible).
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Andújar argues that his case is distinguishable from the
above cases because the challenged testimony here refers directly
to his express assertion of his constitutional rights. In the
above cases, Andújar argues, the challenged testimony mentioned
only the defendant’s refusal to answer further questions. See
Burns, 276 F.3d at 441 (federal agent testified that the defendant,
in response to one particular question, “did not respond and ‘just
looked’ at those questioning him”); Harris, 956 F.2d at 181
(prosecutor’s summation mentioned the defendant’s confession and
that the defendant thereafter “conclude[d] the interview”); Rowan,
752 F.2d at 1190 (two police officers testified that after the
defendant answered some questions he “said he didn’t want to say
anything else”); Collins, 652 F.2d at 740 (officers testified that
after making an incriminating statement, the defendant “refused to
make any other statement”). In contrast, Andújar argues, Bryan’s
testimony explicitly noted that Andújar had asked for a lawyer and
had “invoked his Miranda warnings.”
Andújar raises a meaningful distinction. It has long
been established that a witness who has been compelled to testify
may avoid a question on Fifth Amendment grounds only if the answer
would pose “some authentic danger of incrimination.” United States
v. Castro, 129 F.3d 226, 229 (1st Cir. 1997). In light of the
self-evident purpose of the privilege against self-incrimination,
a government witness’s testimony that an accused explicitly invoked
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the privilege raises a nearly irresistible inference that the
accused was hiding something incriminating. Put another way,
although silence may be interpreted in many ways, see Doyle, 426
U.S. at 617 (“every post-arrest silence is insolubly ambiguous”),
the affirmative assertion of the privilege against self-
incrimination raises a clear inference of culpability.
Accordingly, since such testimony more directly implies that the
defendant was hiding something, it is necessarily more prejudicial
than testimony that simply notes that the defendant at some point
stopped answering questions. Indeed, the distinction between an
affirmative statement and simple silence was one important factor
in Coppola. See 878 F.2d at 1566 (distinguishing from Supreme
Court precedent upholding the use of pre-arrest silence to impeach
a defendant’s credibility because, “[i]n the case at bar, we are
concerned with the use of a statement made by a suspect and used by
the prosecutor in his case in chief, not the use of silence to
impeach the defendant’s credibility”).
More importantly, although Miranda acknowledges the
possibility of a knowing and voluntary waiver, neither Miranda, nor
any subsequent Supreme Court decision, draws a distinction between
an immediate post-arrest Fifth Amendment assertion and a delayed
mid-interrogation assertion. In either event, the assertion
triggers the privilege, the police must cease interrogation, and
the government may not use the assertion against the defendant at
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trial. See Doyle, 426 U.S. at 619; Miranda, 384 U.S. at 468 n.37
(“In accord with our decision today, it is impermissible to
penalize an individual for exercising his Fifth Amendment privilege
when he is under police custodial interrogation. The prosecution
may not, therefore, use at trial the fact that he stood mute or
claimed his privilege in the face of accusation.”). At least with
respect to clear affirmative assertions, we do not see how an
initial Miranda waiver can operate to make a subsequent Miranda
assertion admissible against the defendant, nor do we perceive a
sound rationale for cutting back the scope of Miranda’s
protections. See Coppola, 878 F.2d at 1566 (noting that the
privilege against self-incrimination is given liberal application
and cautioning against “whittl[ing] it down by the subtle
encroachments of judicial opinion”) (quoting Maffie v. United
States, 209 F.2d 225, 227 (1st Cir. 1954)); see also Castro, 129
F.3d at 229 (recognizing that the privilege against self-
incrimination is “a cornerstone of our adversarial system of
criminal justice” that “must not be given a crabbed construction”).
Whatever the merit of the reasoning of the Eighth Circuit
cases, there are limits to how far the government may go in
describing the scope of an interrogation. See Rowan, 752 F.2d at
1190 (recognizing that the police can “indicate . . . the end as
well as the beginning of the interrogation, so that the jury [will]
know that the officers’ testimony [is] complete,” “provided [that]
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they [do] not do so with undue emphasis”). Government witnesses
who testify concerning the circumstances of an interrogation that
was terminated by the defendant must proceed with caution. In the
circumstances of this case, we hold that the Fifth Amendment bars
testimony concerning a defendant’s explicit mid-interrogation
assertion of his Miranda rights, and that it was error to permit
such testimony to go to the jury.
The government argues, nevertheless, that in light of the
Eighth Circuit cases, and a case from this circuit that favorably
cites one of those cases, see United States v. Lopez-Lopez, 282
F.3d 1, 12 (1st Cir. 2002) (citing Harris, 956 F.2d at 181), the
district court’s error was not plain. As noted above, because the
Fifth Amendment privilege against self-incrimination “must be given
liberal construction,” Coppola, 878 F.2d at 1565, any exceptions
that undermine its protections should be applied narrowly.
It is important to emphasize that the Eighth Circuit
cases did not confront the precise scenario presented here. See
supra at 13-14. Neither did Lopez-Lopez. In that case, two co-
defendants were questioned together and in response to a specific
question, one co-defendant told the other “don’t answer.” Lopez-
Lopez, 282 F.3d at 11. The district court allowed the
interrogating officer to testify regarding that statement at the
defendants’ joint trial. We upheld their convictions, holding
that, after an accused knowingly and voluntarily waives his Miranda
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rights by making statements, “he may not rely on Doyle to object to
the admission of those statements simply because the statements
refer to the act of keeping silent.” Id. at 12. As in the Eighth
Circuit cases, the testimony challenged in Lopez-Lopez did not
describe the defendant expressly electing to exercise his Miranda
rights. Moreover, Lopez-Lopez is further distinguishable by the
fact that it did not involve an accused asserting his own Miranda
rights, but rather involved an accused urging his companion to
assert his rights.
In sum, Miranda draws no distinction between a mid-
interrogation assertion of the privilege against self-incrimination
and an immediate post-arrest assertion, see Miranda, 384 U.S. at
468 n.37 & 475-76, and our holding in Coppola makes it clear that
the words the defendant uses to assert the privilege are themselves
protected by it, see Coppola, 878 F.2d at 1567-68. We reject the
contention that any subsequent cases, of this circuit or of any
other circuit, can be read to have carved out an exception to this
protection where the express assertion of the privilege comes after
a previous waiver. Such an exception would run contrary to
Miranda’s plain language. Accordingly, we find that it was plain
error to allow testimony concerning Andújar’s express assertion of
his Miranda rights.
Such a finding, however does not end the plain error
analysis. Andújar must establish that the error affected his
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“substantial rights by altering the outcome of the trial.” United
States v. Shoup, 476 F.3d 38, 42 (1st Cir. 2007). Put another way,
he must establish that the error prejudiced him. Given the
overwhelming strength of the government’s case, we conclude that it
did not.
Although the government’s case largely hinged on the
testimony of a confidential informant, his testimony was
corroborated by several sources, including the testimony of Officer
Vidal and Agent Bryan, and the recorded conversations between the
informant and Cancel. Bryan’s and Vidal’s testimony, and the
substance of the recorded conversations, track the informant’s
testimony. Moreover, Vidal personally identified Andújar as being
on the other end of the calls Cancel made to set up the time and
the place for the seller to receive payment for the five kilograms
of cocaine. The phone records for Cancel’s and Andújar’s mobile
phones -- which show a number of calls between Cancel and Andújar
during the time period of the conspiracy -- further support the
informant’s story.
The defendant’s own actions and statements provide
further corroboration. Andújar’s very arrival at the appointed
time and place designated for the transfer of the $85,000 is strong
circumstantial evidence of his involvement in the conspiracy,
especially when viewed in context with the other evidence.
Moreover, Andújar’s post-arrest confession that he was the owner of
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the seventy grams of cocaine found in the white BMW provides
additional circumstantial evidence linking Andújar to the
conspiracy. Both the quantity and the packaging of the seventy
grams of cocaine, in 110 individual plastic bags, were consistent
with distribution. See United States v. Puckett, 405 F.3d 589, 601
(7th Cir. 2005) (noting that “63 grams [of cocaine], is in excess
of what one would possess for personal use, and is in and of itself
sufficient evidence to compel an inference that [the defendant]
intended to distribute the drug”). Andújar’s possession of the
seventy grams -- although not directly probative of his ownership
of the five kilograms -- lends credibility to the informant’s
depiction of Andújar as a drug dealer and undermines the defense
testimony aimed at establishing an innocent explanation for
Andújar’s presence at the shopping center parking lot.
Andújar argues that the credibility of the government’s
identification is in doubt because the officers who arrested
Andújar inquired whether other people at the scene were “Richard.”
But the fact that the arresting officers may not have known what
Andújar looked like hardly undermines the government’s case.
Admittedly, the DEA relied on Cancel to make a visual
identification of the seller, and he did just that. Andújar also
argues that “the short duration of calls between Cancel and
[Andújar], the lack of certainty as to what was spoken between them
during those calls, [and] that there was evidence Cancel had direct
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communication with the owners of the narcotics whom he did not
identify to the authorities at the time of arrest” further
undermines the government’s case. Again, however, it is not
readily apparent how any of these factors weaken the government’s
case. It is hardly surprising that a drug dealer would want to
minimize the length of his phone conversations concerning an
illicit transaction. Nor is the government charged with providing
the precise contents of every conversation involved in a
conspiracy. In any event, the detailed testimony of the
confidential informant, and the testimony of Officer Vidal, who
listened in on three of Cancel’s calls with Andújar, could hardly
be characterized as “uncertain.” Finally, that Cancel may have had
contact with Andújar’s source does not disprove Andújar’s
participation, especially in light of the testimony that the source
trusted only Andújar and would not work directly with anyone else.
We therefore find that Andújar has failed to establish
that the error “had [a] prejudicial impact on the jury’s
deliberations.” Olano, 507 U.S. at 734 (internal quotation marks
omitted). For the same reason, Andújar’s unpreserved challenge to
the day three “on board” testimony also fails.
Andújar did, however, object to the day four testimony.
Although not perceiving a problem, the district court sustained
Andújar’s objection, struck the offending testimony from the
record, and instructed the jury as requested by Andújar. Thus, the
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only question presented on appeal is whether the granting of
greater relief (i.e., the declaration of a mistrial) was warranted.
Although we ordinarily review de novo the question of whether “a
statement in the presence of the jury infringed upon the privilege
against self-incrimination,” we review the “denial of a motion for
mistrial for abuse of discretion.” Gabriele, 63 F.3d at 70.
The connection between Bryan’s testimony about the DEA’s
post-arrest “attempt[] to have Mr. Andújar . . . get on board” and
Andújar’s election to remain silent is tenuous at best. The
question posed by the government -- asking Bryan how and for what
purpose he had used Andújar’s cell phone -- did not call for such
testimony. On its face, the testimony itself does not explicitly
suggest that Andújar refused to talk to police, nor does it state
whether the DEA’s “attempt” was ultimately successful. See Lopez-
Lopez, 282 F.3d at 12 (finding no Doyle violation where there “was
no testimony as to whether [the co-defendant] responded to [the
defendant’s] suggestion by remaining silent and there was no
testimony about either party remaining silent in the face of
questioning”). Nor did the government make “a point of asking the
jury to draw a negative inference from” the attempt to get Andújar
“on board.” United States v. Daoud, 741 F.2d 478, 482 (1st Cir.
1984).
Even assuming the jury made the connection Andújar fears,
viewing the totality of the circumstances, we do not perceive a
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violation of constitutional magnitude. In a recent habeas case, we
recognized that in cases involving testimony concerning a
defendant’s post-Miranda silence, where the trial court promptly
addresses the improper testimony “in an instruction to disregard
and/or strike from the record, there may not necessarily be a Doyle
violation because the government has not been permitted to ‘use’
the defendant’s silence against him.” Ellen v. Brady, 475 F.3d 5,
11 (1st Cir. 2007) (citing Greer v. Miller, 483 U.S. 756, 764-65
(1987)). In Ellen, a government witness, responding to a seemingly
innocuous question from the prosecutor, testified concerning the
defendant’s election not to speak to the police. Id. at 7. The
defendant immediately objected and the trial court sustained the
objection, struck the testimony, and delivered a curative
instruction. Id. at 8. In light of the surrounding circumstances,
we ruled that there was no constitutional violation. See id. at
12-14. Important to our consideration were the facts that the
defendant’s “post-Miranda silence was not mentioned, by either the
prosecutor or a witness, after the judge sustained the
objection[,]” the government’s questions “did not, on their face,
call for testimony in violation of Doyle,” and the court promptly
delivered curative instructions that “were proportional to the”
offensive testimony. Id. at 14.
The same factors are present here. The district court
sustained Andújar’s objection and struck the offending testimony
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from the record. Following Andújar’s objection, no further
questions or testimony alluded to his silence and the government
made no comment on his silence in closing arguments. Additionally,
the jury was instructed, both at the beginning of the trial and
after the close of evidence, that it must not consider any
testimony stricken from the record. Following closing arguments,
the court, at Andújar’s request, again emphasized this point,
reminding the jury “that any testimony that you may have seen or
heard and that I have excluded from evidence, and instructed you to
disregard, is not evidence.” The court also instructed the jury
that Andújar has a “constitutional right not to testify and no
inference of guilt or of anything else, may be drawn from the fact
that he did not testify. For any of you to draw such an inference
would be wrong, indeed it would be a violation of your oath as a
juror.” Andújar presents no sound reason to discard “the customary
presumption that juries follow their instructions.” Gabriele, 63
F.3d at 70; see also Ellen, 475 F.3d at 13.
Andújar argues that we should view the challenged day
four testimony in context with the previous improper testimony.
Andújar argues that the government purposefully elicited Bryan’s
improper testimony and the district court should have considered
the cumulative effect of all the improper testimony. First, as
noted above, we disagree that the government purposefully sought to
elicit testimony about Andújar exercising his Fifth Amendment
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privilege. Additionally, it bears emphasizing that this court
reviews alleged errors of the district court, not errors of the
prosecution, and the district court is not charged with advocating
for the defense or anticipating issues not brought to the fore by
counsel. Cf. United States v. McIntosh, 380 F.3d 548, 555 (1st
Cir. 2004). Andújar never referred the court to the most
objectionable testimony directly relating to his Miranda assertion.
He only objected to the ambiguous and considerably less striking
“on board” testimony. In such circumstances, the court did not
abuse its discretion in denying Andújar’s motion for a mistrial.3
B. Improper Closing Arguments
Andújar challenges three comments made by the government
in closing arguments. First, at the end of his initial summation,
the prosecutor stated, “I feel comfortable and the United States
feels comfortable that they have proven beyond a reasonable doubt
that this man delivered five kilograms of cocaine between the 20
and 23 of September.” Day Five Tr. at 39. In rebuttal, the
3
We recognize that, unlike in Ellen, some testimony concerning
Andújar’s silence was ultimately submitted to the jury. But this
state of affairs came about only because of defense counsel’s
inattention. Once apprised of the problem, the district court
acted promptly and reasonably to correct it. We further add that,
even under the stricter form of harmless error review applicable to
constitutional errors, the government has established beyond any
reasonable doubt that the verdict was not influenced by the
references to Andújar’s Miranda election. United States v. Coker,
433 F.3d 39, 47 (1st Cir. 2005). Based on the overwhelming
evidence establishing Andújar’s guilt, we are confident that the
verdict would have been the same even in the absence of the
improper testimony. Id.; see supra at 18-20.
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prosecutor argued, inter alia, that Andújar and Cancel “conspired
to distribute five kilograms of cocaine, it does not matter where
it came from. He gave it to Freddy Cancel. That is what matters.
I have proven it, absolutely. We have met our burden.” Id. at 59.
Finally, in his last words to the jury, the prosecutor urged,
“[y]ou find him guilty, you uphold the law, your duty as jurors,
make the logical choice and come back with one answer, and telling
this man, Richard Andújar you are guilty. Thank you.” Id. at 67.
Andújar argues that the first two remarks were improper
because they amounted to “affirmations of [the prosecutor’s]
personal belief” that Andújar is guilty. See United States v.
Gonzalez Vargas, 558 F.2d 631, 632-33 (1st Cir. 1977) (vacating a
conviction where the prosecutor stated his personal belief in
summation). Further inflaming the jurors’ passions, Andújar
argues, was the prosecutor’s final exhortation to the jurors to do
“your duty.” See United States v. Mandelbaum, 803 F.2d 42, 44 (1st
Cir. 1986) (finding improper the suggestion that a jury has “a duty
to decide one way or the other” because such an appeal “can only
distract a jury from its actual duty: impartiality”). Andújar
contends that the severity of these comments warrants a new trial.
The government concedes that the comments were improper, but argues
-25-
that a new trial is unnecessary because it is not reasonably likely
these isolated remarks affected the outcome of the trial.4
Since Andújar did not object to the prosecutor’s remarks
at trial, we may only review for plain error. See United States v.
Henderson, 320 F.3d 92, 105 (1st Cir. 2003). The government
explicitly concedes error and implicitly concedes that the error
was plain. Nevertheless, as we have already noted above, see supra
18-20, 24 n.3, the record, viewed in the aggregate, presents
overwhelming evidence establishing Andújar’s guilt. In such
circumstances, we are compelled to conclude that the prosecutor’s
improper remarks did not “so poison[] the well that the trial’s
outcome was likely affected.” Henderson, 320 F.3d at 107 (internal
quotation marks omitted).5
4
The government also argues that Andújar’s counsel interjected
her own personal opinion in her summation and thereby
“neutraliz[ed] the harm flowing from the prosecutor’s remarks.”
United States v. Gallagher, 735 F.2d 641, 644 (1st Cir. 1984). We
decline to invoke the “invited response” rule here where the
government launched the “opening salvo.” United States v. Young,
470 U.S. 1, 12-13 (1985).
5
Although the lack of prejudice saves the government from a
lost conviction, we are troubled that such improper arguments
persist despite our repeated admonitions against them. See, e.g.,
United States v. Martínez-Medina, 279 F.3d 105, 120 (1st Cir.
2002); United States v. Gonzalez-Gonzalez, 136 F.3d 6, 10 (1st Cir.
1998) (collecting cases). The United States Attorney’s office in
Puerto Rico must redouble its efforts to educate its attorneys
about the ground rules for closing arguments.
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III.
For the foregoing reasons, the defendant’s convictions
are affirmed.
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