February 2, 1993

                United States Court of Appeals
                    For the First Circuit
                                         

No. 92-1587

                  UNITED STATES OF AMERICA,

                     Plaintiff, Appellee,

                              v.

                 MICHAEL IDOWU TUNDE AKINOLA,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Ernest C. Torres, U.S. District Judge]
                                                    

                                         

                            Before

                     Selya, Circuit Judge,
                                         
              Coffin, Senior Circuit Judge, and 
                                          
                    Stahl, Circuit Judge.
                                        

                                         

David N. Cicilline for appellant.
                  

Gerard B. Sullivan,  Assistant U.S. Attorney, with whom Lincoln C.
                                                                  
Almond, U.S. Attorney and Margaret E. Curran, Assistant U.S. Attorney,
                                        
were on brief for appellee.

                                         

                       February 2, 1993
                                         

          STAHL, Circuit Judge.   Defendant-appellant Michael
                              

Idowu  Tunde  Akinola  ("Akinola")  launches  a  five-pronged

attack  on  his conviction  for  conspiracy  to possess  with

intent  to distribute  heroin and  possession with  intent to

distribute heroin.1  We  address the following claimed errors

in detail:  1) unconstitutional denial of chosen counsel when

the Magistrate Judge denied  his desired counsel's motion for

admission pro hac vice; 2) erroneous denial of his motion for
                      

judgment  of acquittal;  3)  the impermissible  prosecutorial

comment  on  his failure  to  testify and  the  trial court's

subsequent  inadequate curative instruction; and 4) the trial

court's improper jury instruction.  For the reasons set forth

below, we affirm both counts of conviction.  

                              I.
                                

                      Factual Background
                                        

          We begin  by summarizing the evidence  in the light

most  favorable to the  government.  United  States v. Abreu,
                                                            

952 F.2d 1458, 1460  (1st Cir.), cert. denied,      U.S.    ,
                                                            

112 S. Ct. 1695 (1992).

          On June 30,  1991, Patrolman Donald L. Mong  of the

East Greenwich, Rhode Island,  Police Department, was working

a routine patrol  in a  marked cruiser.   At approximately  5

                    

1.  Akinola was  arrested, tried  and convicted along  with a
co-defendant, Joseph  Gullity, whose  appeal we  have already
decided.   United States  v. Gullity, No.  92-1586 (1st  Cir.
                                    
Dec. 14, 1992) (unpublished).

                             -2-
                              2

p.m.,  Mong  noticed  that  a  car   which  had  just  passed

perpendicular to his ("the suspect car") did not have a front

license  plate. Mong  and  Akinola made  eye  contact as  the

suspect car passed Mong.  Mong pulled out and began to follow

the  vehicle, in which Akinola was the driver and Gullity the

passenger.   When Mong positioned himself  behind the suspect

car,  it  accelerated and  began  to  pull  away  from  Mong,

eventually  reaching  a  speed of  50  miles  per  hour in  a

residential area posted for  25 miles per hour.   Mong closed

the gap sufficiently so that he could read the vehicle's rear

license   plate  number   which  he  transmitted   to  police

headquarters in order to obtain as much information about the

car as possible.

          As appellant's car slowed for intersection traffic,

Mong shortened  the distance between  the two  vehicles.   He

then   observed  Akinola  and   Gullity  having   a  spirited

conversation in which he could see Akinola's  head moving and

his lips  moving fast "as though  he was trying to  get out a

lot  of information  quickly."   After  traffic cleared,  the

suspect  car turned  left  at the  intersection, followed  by

Mong.  Again, the  suspect car began pulling away  from Mong,

despite the  latter's speed of  50 miles  per hour.   At that

time, the two vehicles were travelling in a 35  mile per hour

zone.  The  suspect car  soon approached the  vicinity of  an

entrance ramp for interstate route 95.  Although Mong had yet

                             -3-
                              3

to receive any information  on the suspect car, he  wanted to

avoid following  it onto  the interstate, and  thus activated

his car's emergency overhead lights.  The suspect car did not

enter the  interstate, nor, however, did it  stop in response

to  the  emergency  lights.   Mong  then  flashed  his  car's

headlights  and  turned on  his  siren,  after which  Akinola

appeared  to   glance  into   his  rear-view   mirror.  After

travelling approximately 200  yards further,  and passing  at

least two  areas suitable for pulling over, Akinola entered a

movie  theater parking  lot,  stopping the  vehicle near  the

front of  the theater  entrance.  Between  Mong radioing  for

information  and  the  suspect  car  stopping,  the  vehicles

covered about one and one-half miles.

          As  Mong was  informing  his  dispatcher that  both

vehicles had  stopped, Akinola  exited his vehicle  and began

yelling  at Mong in an  "agitated" manner.   Mong then exited

his vehicle,  while Akinola continued toward  him, yelling at

Mong and  toward Gullity--who was still seated in the car--in

English to Mong and to Gullity in another language which Mong

did  not understand, which later turned out to be the African

dialect Yoruba.   Although Mong ordered Akinola  to return to

his  car,  Akinola  continued  towards   him,  still  yelling

bilingually.   Akinola then began  shoving Mong, but  after a

scuffle, Mong was able to pin Akinola on the ground, handcuff

him, and then lock him in the rear of his cruiser.

                             -4-
                              4

     Meanwhile,  during  the Mong-Akinola  imbroglio, Gullity

walked  into the theater lobby.  After securing Akinola, Mong

brought Gullity back to the  parking lot, whereupon a citizen

bystander,  Michael Melchor,  directed Mong's attention  to a

nearby  vehicle,  under which  Melchor  claimed  he had  seen

Gullity  kick an object he had removed from his shirt pocket.

Mong  retrieved the object, which  turned out to  be a tissue

containing 46.5  grams of  heroin.  Akinola  was subsequently

indicted and  convicted on  charges of conspiracy  to possess

with intent to distribute  heroin, in violation of  21 U.S.C.

   841(a)(1),  (b)(1)(c) and 846, and  possession with intent

to distribute heroin, in violation  of 21 U.S.C.   841(a)(1),

(b)(1)(c).   Following his conviction, he was  sentenced to a

term of 46 months imprisonment.

                             II.
                                

                     Pretrial Proceedings
                                         

          Akinola initially  appeared  in district  court  on

July  15, 1991,  at  which time  attorney  John F.  Cicilline

entered an appearance on Akinola's behalf.   A probable cause

and detention hearing  was then scheduled for July  18, 1991.

On the scheduled date, attorney John M. Cicilline appeared on

behalf of Gullity, and  attorney David N. Cicilline attempted

to represent Akinola.   John F. Cicilline was not  present at

the hearing.  Magistrate Judge Boudewyns did not permit David

N. Cicilline to represent Akinola because he was not a member

                             -5-
                              5

of Rhode Island's District bar and  because John F. Cicilline

was still listed as  counsel of record and had  not withdrawn

from  the case.   The  Magistrate Judge  also denied  John M.

Cicilline's motion to admit David N. Cicilline pro hac  vice,
                                                            

but  scheduled  a  hearing  for July  23,  1991,  to  further

consider the matter.

          John F.  Cicilline appeared  at the July  23, 1991,

hearing and requested the  Magistrate Judge to reconsider his

denial of the pro hac  vice motion.  That request was  denied
                           

for  several   reasons,  which  appellant   now  argues  were

erroneous.  We need not address the merits of this particular

claim, however, because appellant's  failure to preserve  the

issue leaves us without  jurisdiction to consider the matter.

A brief explanation follows.

          The  courts  of   appeals  have  jurisdiction  over

appeals  "from all final decisions  of the district courts of

the  United  States."   28 U.S.C.     1291; United  States v.
                                                          

Ecker, 923 F.2d 7, 8 (1st Cir. 1991).  Furthermore, "[t]o  be
     

a final order  of the  district court within  the meaning  of

section  1291,  the  magistrate's  decision  must  have  been

reviewed  by  the  district  court,  which  retains  ultimate

decision-making power." Id.  (quoting Siers  v. Morrash,  700
                                                       

F.2d  113,  115  (3d  Cir. 1983)  and  cases  cited  therein)

(internal quotes  omitted).   See generally Pagano  v. Frank,
                                                            

No. 92-1952,  slip op. at 4-7  (1st Cir. Jan. 13,  1993).  In

                             -6-
                              6

the  case at  bar, there  is no  dispute that  the Magistrate

Judge's order was  not brought before the district  court via

either of the two methods  countenanced in Ecker.2  Appellant
                                                

seeks  to  bypass this  apparent  jurisdictional blockage  by

arguing  that   his  apparent  default  is   excused  by  the

Magistrate  Judge's  lack  of  warning, in  his  order,  that

failure to seek  district court relief would result in waiver

of  appellate rights.  It is true, as appellant asserts, that

United States  v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986)
                                 

mandated such notice in  certain cases to protect  the rights

of  pro se litigants.   But here, Akinola  was represented by
          

experienced  counsel at  the time  of the  Magistrate Judge's

ruling.  Moreover,  as we pointed  out during oral  argument,

even when such a warning is required, it is necessary only as

part of a Magistrate Judge's report and recommendation to the

district  judge, 28 U.S.C.    636(b)(1)(B), (C), and not when

the  Magistrate Judge  issues  a non-dispositive  order.   28

U.S.C.   636(b)(1)(A); See,  e.g., M.S. Chambers &amp; Son,  Inc.
                                                             

v.  Tambrands,  Inc., 118  F.R.D.  274, 279  (D.  Mass. 1987)
                    

(giving waiver notice only "to the extent that [Magistrate's]

                    

2.  In  Ecker we  noted the  existence of  two categories  of
             
magistrate's    orders--"self-operating"    and    "non-self-
operating."  The  former  type,   pursuant  to  28  U.S.C.   
636(b)(1)(A),  which  cover   most  pre-trial  and  discovery
matters,  are valid when entered  and can be  challenged by a
motion  for reconsideration directed  to the  district court.
Non-self-operating orders  are not  valid until  the district
court accepts the magistrate's report and recommendation  and
enters an order or judgment.  28 U.S.C.   636(b)(1)(A), (B).

                             -7-
                              7

ruling  may  be  considered  a report  and  recommendation").

Therefore, the lack of such notice in this case is of no help

to  appellant,  and  thus  we  are  without  jurisdiction  to

consider the Magistrate's pro hac vice ruling.
                                      

                             III.
                                 

                     Alleged Trial Errors
                                         

A.  Denial of Rule 29 Motion for Acquittal 
A.  Denial of Rule 29 Motion for Acquittal
                                           

          As  we  have  recently  reiterated, we  review  the

district court's  denial of a Rule 29 motion by "scrutinizing

the record in the light most favorable to the prosecution and

drawing all  reasonable inferences in favor  of the verdict."

United States v. Gonzalez-Torres, No.  91-2140, slip op. at 5
                                

(1st Cir. Nov. 20, 1992) (citing United States v. Amparo, 961
                                                        

F.2d 288,  290 (1st Cir.), cert. denied,     U.S.    , 113 S.
                                                     

Ct. 224 (1992)).   If, upon such a reading  of the record, we

conclude that a  rational jury could have found the defendant
                                    

guilty  beyond a reasonable  doubt, then  we must  affirm the

district court.   Id.;  United States  v.  Plummer, 964  F.2d
                                                  

1251, 1254 (1st Cir.), cert. denied,     U.S.    , 113 S. Ct.
                                                 

350 (1992).  Moreover, the prosecution need not exclude every

reasonable hypothesis  of innocence and may  prove its entire

case through  the use of circumstantial evidence,  so long as

the totality  of the evidence  permits a conclusion  of guilt

beyond a reasonable doubt. Gonzalez-Torres, No. 91-2140, slip
                                          

op. at 5 (citations omitted).

                             -8-
                              8

     1. Possession with Intent to Distribute
                                            

          In  order to  convict  Akinola of  possession  with

intent to  distribute heroin, the government  must prove that

he knowingly and intentionally  possessed the heroin and that

he did so with the intent to  distribute it. Unites States v.
                                                          

Barnes,  890 F.2d 545, 549 (1st Cir. 1989), cert. denied, 494
                                                        

U.S.  1019 (1990); United States v. Latham, 874 F.2d 852, 863
                                          

(1st Cir. 1989).  In addition, and especially relevant to the

case  at  bar, the  government  need not  prove  that Akinola

actually   possessed   the  heroin.      Instead,  proof   of

constructive   possession   is   sufficient  to   support   a

conviction. United States v. Martinez, 922 F.2d 914, 923 (1st
                                     

Cir.  1991);    Latham,  874   F.2d  at  861.    Constructive
                      

possession may be  proved by demonstrating defendant's  power

and intent  to exercise ownership, dominion,  or control over

the  contraband  itself,  or  over  the  area  in  which  the

contraband was  concealed.   Constructive  possession may  be

sole or joint and may be achieved directly or through others.

United  States v. Ocampo-Guarin, 968 F.2d  1406, 1409-10 (1st
                               

Cir. 1992) (citations and  quotations omitted); United States
                                                             

v.  Vargas,  945 F.2d  426,  428 (1st  Cir.  1991) (citations
          

omitted). 

          The  government  concedes  that  it  has  no direct

evidence  of  Akinola's  actual  possession  of  the  heroin.

                             -9-
                              9

Instead, the case against Akinola is  based on an inferential

chain of circumstantial evidence.  The government argues that

Akinola's actions  after he  became aware of  Mong's presence

all  support  the conclusion  that  he had  knowledge  of the

heroin  in Gullity's  pocket.   Specifically,  the government

relies on Mong's testimony  that Akinola suddenly accelerated

after he and  Mong made initial eye contact, speeding through

a residential neighborhood at twice the speed  limit.  Later,

when Akinola was forced  to slow for traffic, he  and Gullity

were seen  in an animated conversation,  which the government

claims related  to the heroin and  what to do in  the face of

Mong's presence.   Next,  the government points  to Akinola's

failure to yield after Mong activated his lights and  sirens,

passing at  least two  suitable turnoffs before  pulling into

the  movie  theater  parking  lot,  as  further  evidence  of

evasion.   In addition, the government  argues that Akinola's

physical  assault  on  Mong  was  an  attempt at  creating  a

diversion  so  that  Gullity  could dispose  of  the  heroin.

Finally, the  government claims that Akinola  was shouting to

Gullity in  the  Yoruba language  in  order to  give  Gullity

instructions which Mong  would be unable to  understand.  The

government  argues  that Akinola  was instructing  Gullity to

dispose   of   the   heroin,   which   Gullity  did,   albeit

unsuccessfully.

                             -10-
                              10

          Appellant  contends  that any  inference  of either

knowledge  or  dominion  and  control drawn  from  the  above

described  events  is  nothing  more  than  rank speculation,

resulting  from the  government's attempt to  "pile inference

upon  inference."  Although this  is a close  case, we reject

appellant's exhortations.

          Based on the evidence  of Akinola's evasive actions

following the initial contact with Mong, the jury could infer

that he knew of the heroin in Gullity's pocket.  Further, the

jury could conclude that the pair's animated conversation was

a  reflection   of  Akinola's   knowledge   of  the   heroin.

Additionally,  a rational  jury could conclude that Akinola's

initiation  of physical  conflict with  Mong was  a diversion

intended  to allow Gullity to  get away with,  or dispose of,

the  heroin.  The jury  could have also  found that Akinola's

Yoruban communication to Gullity related to the heroin, given

the   temporal  proximity  between   Akinola's  actions,  his

unprovoked  assault on Mong, the communication, and Gullity's

actions.   Moreover,  the same  events could  lead a  jury to

conclude  that  Akinola--through  Gullity--was attempting  to

exercise his dominion and control  over the heroin.  Finally,

evidence  indicated  that the  amount  of  heroin seized  was

equivalent  to  2,300  doses.     That  fact,  combined  with

testimony to the effect that neither Akinola nor Gullity were

                             -11-
                              11

heroin  users,  supports a  conclusion  that  the heroin  was

intended for distribution.  See Vargas, 945 F.2d at 428-29.
                                      

          With  respect to  appellant's  claim of  inference-

piling,  we recall, as we did in  a recent case, the words of

Judge Aldrich:

               The  rule is  not that  an inference,  no
          matter how reasonable, is to be rejected if it
          in  turn  depends   upon  another   reasonable
          inference; rather, the question is whether the
          total    evidence,     including    reasonable
          inferences, when put together is sufficient to
          warrant  a jury to  conclude that defendant is
          guilty beyond a reasonable doubt.

United  States v. Clifford, No.  92-1748, slip op.  at 6 (1st
                          

Cir. Nov. 20,  1992) (quoting Dirring  v. United States,  328
                                                       

F.2d 512, 515  (1st Cir. 1964)).  Based  on the foregoing, we

find the evidence of Akinola's constructive possession of the

heroin is sufficient to sustain his conviction for possession

with intent to distribute heroin.

     2. Conspiracy to Possess with Intent to Distribute
                                                       

          To support Akinola's conviction  on this count, the

government  must prove  the  existence of  a conspiracy,  the

defendant's knowledge of it, and his participation in it.  In

addition, the  government must show Akinola's  intent to both

agree with his co-conspirator,  and to commit the substantive

offense.  Clifford, slip op. at 2.  
                  

          "A  criminal  conspiracy  is a  tacit  or  explicit

agreement  to   perform  an   unlawful  act,  which   can  be

established  by  direct or  circumstantial evidence  that the

                             -12-
                              12

putative  co-conspirators agreed  and intended  to facilitate

the aims of the alleged unlawful activity."  Vargas, 945 F.2d
                                                   

at 429 (citations and internal quotations omitted).

          The  government  essentially argues  that  the same

circumstantial facts which supported  Akinola's guilt on  the

possession  count  also  support the  conspiracy  conviction.

Appellant  argues  that the  government's  case  is based  on

little  more  than Akinola's  presence  in  the vehicle  with

Gullity.  We disagree that the evidence in this case supports

a finding of  no more  than that Akinola  was merely  present

with Gullity.

          As we have already noted, the jury could have found

that Akinola  knew of  the  heroin prior  to Mong's  presence

based on  his sudden acceleration at  the sight of Mong.   In

addition, the animated conversation and  Akinola's actions in

the parking  lot, when  he first  shouted toward Gullity  and

then  attempted  to  create  a diversion  for  him,  could be

indicative  of the  existence of  an agreement  between them.

This  is  especially  true  since the  parking  lot  incident

occurred  soon  after  their  animated   conversation,  which

occurred  after  Mong  had  been  following  for  some  time.

Although this count, too, presents a close call,  we conclude

that a  rational jury  could reasonably infer  from Akinola's

actions the existence of an agreement with Gullity to possess

with intent to distribute the heroin.

                             -13-
                              13

B.  Prosecutorial Misconduct and Curative Instruction
                                                     

          During  closing argument,  the prosecutor  made the

following statement:

          We must show  you that defendant  Akinola
          knew  the heroin  was there.   And  we do
          that by  showing a  high speed chase,  an
          animated   conversation,  a   failure  to
          yield, an unprovoked physical assault and
          yelling  in a foreign  language which are
                                                   
          unexplained   by   anything  other   than
                                     
          knowledge  of  the  heroin  in  the  car.

          (emphasis added)

Defense counsel  objected, on  the basis that  the emphasized

portion of the argument  constituted impermissible comment on

Akinola's  failure to  testify.   The  trial court  initially

overruled  the  objection, but  then,  sua  sponte, gave  the
                                                  

following instruction to the jury:

          Excuse me.   I  don't  mean to  interpret
          (sic) you, Mr. Sullivan.  Let me make one
          thing clear to  the jury.  I am  sure Mr.
          Sullivan  says  unexplained,  what he  is
          referring to is  unexplained by the facts
          that have  been presented  to you.   As I
          told  you  before,  the defendants  don't
          have any obligation to  explain anything.
          And I'm sure that's what  Mr. Sullivan is
          referring to.

On  appeal, Akinola  reiterates  the  claim of  impermissible

comment,  and also  claims  that the  trial court's  curative

instruction was so deficient as to compound the prosecution's

error.  We disagree.

          It is beyond question that comment on a defendant's

failure  to  testify  is  violative of  the  Fifth  Amendment

                             -14-
                              14

guarantee against self-incrimination. Griffin  v. California,
                                                            

380  U.S. 609 (1965); United  States v. Lavoie,  721 F.2d 407
                                              

(1st Cir. 1983),  cert. denied,  465 U.S. 1069  (1984).   The
                              

standard by which we review potential violations is 

          whether,  in  the  circumstances  of  the
          particular  case,  the language  used was
          manifestly  intended  or   was  of   such
          character that the  jury would  naturally
          and necessarily  take it to be  a comment
          on the failure of the accused to testify.

United  States v. Glantz, 810 F.2d 316, 322 (1st Cir.), cert.
                                                             

denied,  482  U.S.  929   (1987)  (citations  and  quotations
      

omitted).   We review any such  violation for harmless error.

United  States  v.  Hasting,  461 U.S.  499,  508-12  (1983);
                           

United States v. Cox, 752 F.2d 741, 746 (1st Cir. 1985).  See
                                                             

generally United  States v. Lilly,  No. 92-2192, slip  op. at
                                 

14-16 (1st Cir. Dec. 4, 1992).

          Having read the challenged  comment in the  context

of the entire closing argument, we are satisfied that the use

of the word "unexplained", while perhaps unfortunate, did not

stray  into forbidden territory nor was it intended to do so.

Instead, consistent  with  the circumstantial  nature of  the

case, the prosecutor recounted each of the events culminating

in Akinola's arrest, and followed  each by suggesting to  the

jury   the  government-preferred   inference.3     In   using

                    

3.  Some examples include, "The  only reason Akinola did that
was  his  knowledge  of  the  heroin;"  "There  is  no  other
plausible explanation for Akinola jumping out of the car." 

                             -15-
                              15

"unexplained," the prosecutor was attempting to reinforce his

thesis that  Akinola's actions  could only be  interpreted in
                                                          

one way, and could not  logically be consistent with anything

except Akinola's guilt.

          The   prosecutor's   comments  here   are  somewhat

reminiscent  of those in United States  v. Skandier, 758 F.2d
                                                   

43  (1st  Cir.  1985),  where the  prosecutor  concluded  his

argument by saying:

          [I] will have a  chance to speak with you
          one   more  time  and   see  if  [defense
          counsel] can explain the story that would
          be  any  different  with  regard  to  the
          responsibility of the  defendant in  this
          case.  So I submit to you that he cannot.

Id. at 45.
   

We concluded that such a "`how-does-he-explain'" argument was

improper  for two reasons--the Fifth Amendment transgression,

and  the apparent  shift  of  the  burden  of  proof  to  the

defendant. Id.   In  reaching that  conclusion, we  relied in
              

part  on United  States v.  Wilkins, 659  F.2d 769,  774 (7th
                                   

Cir.), cert. denied, 454 U.S.  1102 (1981), wherein the court
                   

held  that the prosecutor's  statements that the government's

theory was  the "only explanation" and  "[s]ee if defendant's

attorney explains ... "  were improper comment on defendant's

failure   to  testify.     Unlike   Skandier,   however,  the
                                            

prosecutor's remark  here was clearly aimed  at the evidence,

                             -16-
                              16

rather than at the defendant.  Thus, we find that the comment

here at issue did not run roughshod over Akinola's rights.4 

C.  Final Jury Instructions
                           

          Appellant assigns two  errors to the  trial court's

final instructions.   First, appellant argues  that the trial

court  neglected   to  explain  that  while   it  might  draw

inferences  from     circumstantial  evidence,  it   was  not

permitted  to engage in  speculation or conjecture  to do so.

However, at  the close  of trial,  the  judge instructed  the

jury, inter alia, to 
                

          Bear  in mind  though, as I  said before,
          that in order  to draw such an  inference
          [from  circumstantial evidence]  you have
          to be  careful  that the  inference is  a
          reasonable  one and  that it  is directly
          based on  facts that have  been proven by
          the  direct  evidence,  the testimony  of
          witnesses or exhibits.

Having read the instructions in their entirety, including the

above-quoted section, we conclude  that while the trial court

did  not use  appellant's suggested  words, the  jury members

                    

4.  We note further that while the court's immediate curative
instruction  dealt with the burden of proof shift and made no
mention of the Fifth Amendment, the court twice gave the jury
Fifth  Amendment instructions,  including  once  just  before
deliberations.  Based on that combination of instructions, we
are satisfied that any error was rendered  harmless.  Indeed,
in a  close case such as  this, it is the  combination of the
trial judge's  instructions, and not the  "strong evidence of
defendant's  guilt"--as  described  by  the  government--that
would  render the  prosecutor's putative  violation harmless.
Cf.  Lilly, slip  op.  at 19  (strength of  government's case
          
contributed  to  rendering   harmless  potentially   improper
prosecutorial comment); Skandier, 758 F.2d at 46 (same).
                                

                             -17-
                              17

were  adequately apprised  of  the proper  legal standard  to

employ.  See, e.g., United States  v. Noone, 913  F.2d 20, 30
                                           

(1st Cir. 1990), cert. denied,      U.S.    , 111 S. Ct. 1686
                                            

(1991)  (refusal to give the particular instruction requested

is  not  error  where the  court's  instruction substantially

covers the request and the applicable law).

          Appellant next argues that the trial court erred in

its  instructions regarding  appellant's failure  to testify,

about  which    the court  said  that  the  jury "ought  not"

penalize  the  defendant  for  exercising the  right  not  to

testify, and "should not"   draw inferences from one  who has

done  so.  Appellant argues that the trial court's failure to

use "must  not" in  those circumstances is  reversible error.

We disagree.

     After  defense  counsel  objected  to the  "ought  not"-

"should-not" charge,  the  judge supplemented  his charge  by

telling  the jury, in effect, that he used the terms "ought,"

"should," and "must" interchangeably, and therefore, where he

said that something should  not be done, he meant it must not
                                                             

be done.   When  reviewing jury instructions,  we gauge  each

instruction in the  context of  the entire charge.     United
                                                             

States  v. Boylan, 898 F.2d 230 (1st  Cir.), cert. denied,   
                                                             

U.S.      , 111 S.  Ct. 139  (1990).  Again,  having read the
          

entire charge, we are satisfied that the judge's supplemental

caution to the jury cleared up any misunderstanding.

                             -18-
                              18

          Finally,  we have  considered appellant's  claim of

erroneous  admission of "bad act" evidence, and find it to be

without merit.

                             IV.
                                

                          Conclusion
                                    

          Appellant's conviction is affirmed.
                                    affirmed
                                            

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                              19
