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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 97-1663 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                     JOSE ORLANDO FERNANDEZ, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>         [Hon. Daniel R. Domnguez, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>                Campbell, Senior Circuit Judge,  <br>                                 <br>                   and Stahl, Circuit Judge. <br>                                 <br>                                 <br> <br> <br>     Neal Gary Rosensweig with whom Leonard F. Baer was on brief <br>for appellant. <br>     Jose A. Ruiz, Assistant U.S. Attorney, with whom Guillermo <br>Gil, United States Attorney, was on brief for appellee. <br> <br> <br> <br> <br> <br>May 29, 1998 <br> <br> <br> <br>                                 <br>                                 <br> <br>  CAMPBELL, Senior Circuit Judge.  A jury convicted Jose <br>Orlando Fernandez of conspiring to import heroin, 21 U.S.C.  <br>841(a), 846, and of conspiring to possess heroin with intent to <br>distribute, 21 U.S.C.  952(a), 963.  He now argues that a number <br>of procedural errors deprived him of a fair trial.  Disagreeing, we <br>affirm. <br>                              FACTS <br>  In reviewing a judgment of conviction, we consider the <br>facts, as supported by the record, in the light most favorable to <br>the government.  See United States v. Pitrone, 115 F.3d 1, 3 (1st <br>Cir. 1997). <br>  On July 28, 1996, the cruise ship Seaward docked in Old <br>San Juan, Puerto Rico.  Just after 3:00 p.m., U.S. Customs agents <br>detained one of the Seaward's crew, Howard White, a Jamaican <br>national, on suspicion of drug possession.  A search revealed that <br>White was carrying heroin.  White immediately agreed to cooperate <br>with government officials.   <br>  White told the agents and testified at trial that he had <br>received the heroin from a Colombian in Curacao.  The Colombian had <br>given White a piece of paper bearing two telephone numbers and the <br>name "Miguel."  According to White, the Colombian supplier advised <br>him that the telephone numbers were Miguel's and that Miguel was <br>another Colombian living in Puerto Rico.  The supplier told White <br>to call Miguel at the numbers and turn the drugs over to him.  At <br>the time of his detention, White was carrying a piece of paper, <br>later admitted into evidence, bearing the name "Miguel" and two <br>phone numbers.  It was later found that one of the numbers was for <br>defendant Fernandez's cellular phone; the other was for a room at <br>the El San Juan Towers rented by Fernandez and used by both <br>Fernandez and Miguel Garzon.   <br>  White testified that hours before his encounter with <br>Customs officials, at around 12:30 in the afternoon, he had <br>telephoned one of the numbers and set up a meeting with a person <br>who identified himself on the phone as Miguel.  Fernandez admitted <br>at trial that he had responded to such a call and had indeed said <br>he was Miguel.  Miguel Garzon was present with Fernandez when the <br>latter spoke with White.  White testified to meeting with Miguel <br>Garzon and a second individual whom White identified as Fernandez <br>at 2:30   an hour before Customs agents found White with the <br>heroin.  According to White, Fernandez asked whether White had <br>brought the "stuff."  White told Fernandez that the drugs were <br>still aboard the Seaward.  Fernandez instructed White to retrieve <br>the drugs and bring them to a meeting later in the same place.  <br>According to one of the agents who first questioned White, White <br>had admitted that he and Fernandez agreed that Fernandez would <br>purchase the heroin at their next meeting for $3000.   <br>  It was as White was disembarking the Seaward and <br>returning to meet Fernandez that Customs agents stopped and <br>searched him.  When White offered to cooperate, the Customs <br>officials set up a "controlled buy" with White.  At 4:30 and again <br>at 6:30 the same day, they recorded two telephone calls (later <br>played to the jury) from White to Fernandez in which the two <br>arranged to meet at a nearby pier.  On each occasion, language <br>difficulties between White and Fernandez required a government <br>agent, posing as an acquaintance of White's, to serve as an <br>interpreter.  <br>  White went to the meeting place, accompanied by a <br>government agent who posed as an acquaintance of White's and served <br>as an interpreter.  Other agents secretly positioned themselves <br>around the scene.  Fernandez and Garzon then arrived.  According to <br>the government agent present with White, Fernandez stated that he <br>disliked their meeting place because it tended to be populated by <br>Customs agents.  Both Fernandez and Garzon asked White and the <br>government agent to get in the car.  White and the agent refused; <br>Fernandez parked the vehicle and emerged, without Garzon, to meet <br>with White.   <br>  White, Fernandez, and the government agent then proceeded <br>to a nearby public restroom, with Garzon remaining in Fernandez's <br>car.  White lifted his shirt to show Fernandez what appeared to be <br>heroin, and Fernandez showed a roll of cash.  Fernandez again asked <br>that they move to the car, and again White and the agent refused.  <br>Fernandez then told White and the agent that the deal would take <br>place in the car or not at all, and turned to walk back to the car.  <br>  Government agents then arrested both Fernandez and <br>Garzon.  Fernandez was discovered to be carrying $5000 in cash.  <br>Immediately after the arrest, Garzon consented to a search of the <br>room at the El San Juan Towers.  That search revealed that Garzon <br>had leased the room; during the search, a woman called the room and <br>identified herself as Fernandez's wife.   <br>  At trial, Fernandez testified that he had unwillingly and <br>unknowingly been made a part of co-defendant Garzon's drug <br>dealings.  Fernandez explained that he made a living as a producer <br>and promoter of music groups, and that he befriended Garzon because <br>Garzon claimed also to be in the music business.  Fernandez offered <br>Garzon the use of the room at the El San Juan Towers; Fernandez had <br>initially rented the room for a foreign band that had canceled <br>plans to play in Puerto Rico.  Fernandez admitted giving Garzon the <br>keys to the apartment and the number to his cellular phone. <br>  Fernandez testified that he went to the drug buy not <br>realizing it was an illicit transaction but thinking it was an <br>opportunity to receive an honest payment of a debt owed by Garzon.  <br>Garzon owed him rent on the El San Juan Towers room, and Garzon <br>told him that his brother was sending him money that he could use <br>to satisfy the debt.  According to Fernandez, he agreed to speak to <br>White on the phone only because White and Garzon were having <br>difficulty communicating.  Fernandez went to the final meeting <br>under the impression that Garzon's acquaintance would simply pay <br>him cash.  Upon learning that White had no money, he walked away.  <br>Fernandez testified that he had no idea that drugs were involved.  <br>As for the $5,000 found on him at the time of his arrest, Fernandez <br>stated that a fellow music promoter named Cheo Cruz had given him <br>the money as payment for Fernandez's music services. <br>    On cross-examination, Fernandez contradicted several <br>statements made by government witnesses.  Specifically, Fernandez <br>denied that he met with White in the early afternoon of July 28, <br>1996, that he showed the agent a wad of money at the pier <br>encounter, and that he told the agent that he was reluctant to <br>complete the exchange at the pier because of the prevalence of <br>Customs agents.   <br>  The jury returned a verdict of conviction on all counts, <br>and this appeal followed. <br>                            DISCUSSION <br>  Fernandez argues that the trial court made several <br>errors, the cumulative effect of which was to deny him a <br>fundamentally fair trial.  After reviewing the record, we conclude <br>that a new trial is not warranted.  We review each claim of error <br>in turn. <br>1.  Failure To Instruct the Jury Regarding Accomplice <br>    Testimony <br> <br>  Fernandez complains that the district court did not  <br>instruct the jury that it should take special care in crediting the <br>testimony of White, Fernandez's alleged co-conspirator.  "It is <br>well established that an accomplice is qualified to testify as long <br>as . . . the 'judge [gives] complete and correct instructions <br>detailing the special care the jury should take in assessing the <br>testimony.'"  United States v. Hernandez, 109 F.3d 13, 15 (1st Cir. <br>1997) (quoting United States v. Ortiz-Arrigoitia, 996 F.2d 436, <br>438-39 (1st Cir. 1993)).   <br>  As Fernandez at no time asked for a "special care" <br>instruction at trial, our review is for plain error.  See Fed. R. <br>Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993).  <br>We have held that it is not plain error for the district court not <br>"to give an unrequested cautionary instruction where the <br>government's case largely depends on uncorroborated informant or <br>accomplice testimony, so long as such testimony looks internally <br>consistent and credible."  United States v. House, 471 F.2d 886, <br>888-89 (1st Cir. 1973).  This standard was met here, as White's <br>version of events was neither inconsistent nor incredible.   <br>  White's testimony was, moreover, corroborated by other <br>evidence.  When White was found with the heroin, he was carrying a <br>piece of paper bearing two phone numbers registered in Fernandez's <br>name.  Upon being called at one of the numbers, Fernandez agreed to <br>meet with White and was arrested at the prearranged place carrying <br>$5,000.  In the phone conversations recorded by government agents <br>and played for the jury, Fernandez never indicated that, as he <br>later testified, he expected to be receiving money, not drugs.  At <br>the last meeting between White and Fernandez, a government agent <br>testified that Fernandez was shown the sham heroin and that he <br>displayed his cash to White.  The agent testified that Fernandez <br>voiced concern about the presence of Customs agents in the area of <br>the aborted transaction, a concern inconsistent with innocent <br>activity.  Each of these items belied Fernandez's claim to have <br>been unaware of the illicit nature of the meeting, and supported <br>White's testimony that Fernandez was a party to an attempted drug <br>transaction. <br>2.  Admission of the Government's Version of the Facts <br>  Fernandez complains that when a copy of White's plea <br>agreement was placed in evidence it improperly included a statement <br>of the government's version of the facts.  While on appeal <br>Fernandez takes no exception to admission of the plea agreement <br>itself, he strenuously contends that the failure to eliminate from <br>it the government's version of the facts was a serious and very <br>prejudicial error.  However, at trial, Fernandez's counsel made no <br>objection to admission of the government's version of the facts.  <br>Rather he objected to admitting the plea agreement, asserting it to <br>be irrelevant, and disclaiming any other basis for exclusion.  We <br>accordingly review his present objection for plain error alone.  <br>For an error to be such, it must indeed be "plain," or "obvious," <br>see Olano, 507 U.S. at 734, and it must "affect substantial <br>rights," Fed. R. Crim. P. 52(b), that is, "[i]t must have affected <br>the outcome of the district court proceedings," Olano, 507 U.S. at <br>734.  Additionally, a Court of Appeals will remedy such an error <br>only if it appears that it "seriously affect[ed] the fairness, <br>integrity or public reputation of judicial proceedings."  Id., 507 <br>U.S. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160 <br>(1936)). <br>  In the present circumstances it is debatable whether <br>submission of the government's version of the facts along with the <br>plea agreement was, if error, error that was plain or obvious.  It <br>does not appear that the judge even knew that the government's <br>version of facts was being submitted with the plea.  See United <br>States  v. Binker, 795 F.2d 1218, 1227 (5th Cir. 1986) (finding no <br>plain error in admission of plea agreement containing improper <br>vouching where error "was something all concerned wholly <br>overlooked").  Apart from this, however, no sufficient showing of <br>prejudice has been made out.  Fernandez's appellate brief points to <br>no specific prejudice, discussing this issue only in a paragraph so <br>cursory as to be disregarded.  See United States v. Zannino, 895 <br>F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory <br>manner, unaccompanied by some effort at developed argumentation, <br>are deemed waived.").  While the government's factual version <br>attached to White's plea agreement contained hearsay implicating <br>Fernandez in the conspiracy, its narrative was little different <br>from White's in-court testimony and the other evidence presented at <br>Fernandez's trial.  We do not find plain error. <br>3.  Improper Cross-Examination  <br>  Fernandez next claims that the district court erred in <br>allowing the government to ask Fernandez whether prosecution <br>witnesses were lying.  During the prosecution's case-in-chief, <br>Officer Juan Rivera testified that Fernandez showed him a roll of <br>cash at the scene of the aborted drug sale, and that Fernandez had <br>complained that the area was known to be patrolled by Customs <br>agents.  When Fernandez contradicted Rivera's testimony, the <br>prosecutor asked him three times whether Agent Rivera was lying.            <br>                    The prosecutor also asked Fernandez whether White was lying when he <br>                    testified that he and Fernandez had met at noon on the day of the <br>                    arrest. <br>                         We have recently emphasized that "counsel should not ask <br>                    one witness to comment on the veracity of the testimony of another <br>                    witness."  United States v. Sullivan, 85 F.3d 743, 750 (1st Cir. <br>                    1996); see also United States v. Akitoye, 923 F.2d 221, 224 (1st <br>                    Cir. 1991).  "[This] rule reserves to the jury questions of <br>                    credibility and thus makes it improper to induce a witness to say <br>                    another witness lied on the stand."  Sullivan, 85 F.3d at 750.  <br>                    Again, as Fernandez failed to object, we review only for plain <br>                    error. <br>                         Here, the government asked Fernandez to impugn the <br>                    veracity of a government agent.  Given the faith a jury may place <br>                    in the word of a law enforcement officer, it is unfair to force a <br>                    criminal defendant to choose between recanting and calling a law <br>                    officer a liar.  See Sullivan, 85 F.3d at 750 n.4 ("Whether a <br>                    witness is a government agent may be relevant in determining <br>                    whether there is prejudice or a miscarriage of justice); United <br>                    States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995) ("It is . . . <br>                    error for a prosecutor to induce a witness to testify that another <br>                    witness, and in particular a government agent, has lied on the <br>                    stand."); United States v. Scanio, 900 F.2d 485, 493 (2d Cir. 1990) <br>                    ("[W]e have shown special concern with prosecutors utilizing what <br>                    some persons perceive as the heightened credibility of government <br>                    agents." (internal citations omitted)), overruled on other grounds, <br>                    Ratzlaf v. United States, 510 U.S. 135 (1994).   <br>                         Hence, the prosecutor's questions should not have been <br>                    phrased as they were.  However, to constitute plain error they must <br>                    potentially have affected the outcome of the district court <br>                    proceedings.  See Olano, 507 U.S. at 734-35 (explaining defendant <br>                    must demonstrate prejudicial error, defined as having "affected the <br>                    outcome of [the trial]"); see also United States v. Gonzalez- <br>                    Torres, 980 F.2d 788, 791 (1st Cir. 1992).  We see no way that <br>                    these few miscast questions could have so tainted the trial as to <br>                    affect its outcome.  Much of the case against Fernandez rested on <br>                    undisputed evidence:  White, the courier/seller,  was arrested with <br>                    drugs on his person and with Fernandez's phone numbers.  Calls to <br>                    these numbers reached Fernandez, who responded to the name "Miguel" <br>                    shown in the writing carried by White.  Fernandez unhesitatingly <br>                    arranged to meet with White for some kind of clandestine <br>                    transaction.  When arrested at the meeting place he had $5,000 in <br>                    cash on his person.  On top of these uncontested facts there was <br>                    further incriminating testimony by government agents, such as that <br>                    Fernandez saw the fake heroin, displayed his money, and objected to <br>                    the particular locale because of the prevalence of Customs agents.  <br>                         Fernandez's defense to the above was to deny the agent's <br>                    version of his behavior just before arrest, and explain his <br>                    conceded willingness to meet with White as part of an innocent <br>                    bill-paying scam set up by his associate, Miguel Garzon.  Fernandez <br>                    testified he had purportedly become Garzon's creditor on a whim, <br>                    giving him the use of his apartment and cellular phone because "I <br>                    [Fernandez] could trust him . . . even though I didn't know him <br>                    very well, I would do this favor for him because he was a music <br>                    colleague of mine."  None of this story was corroborated on the <br>                    telephone tapes, much less by the other witnesses's testimony.  <br>                    Fernandez's explanation failed to account reasonably for White's <br>                    possession of Fernandez's phone numbers, nor did it explain <br>                    plausibly why Fernandez identified himself as Miguel on the phone, <br>                    nor why he never mentioned the alleged debt he was owed, instead <br>                    telling White "you have work for me."  Given the strength of the <br>                    government's case, it stretches credulity to believe that the <br>                    improper framing of these unobjected-to questions affected the <br>                    outcome of the trial.  <br>                    4.   Improper Prosecutorial Comments <br>                         Fernandez also urges that we reverse his conviction based <br>                    on the prosecution's reference before the jury to an unproven  <br>                    document never put in evidence.  This was a lease agreement <br>                    supposedly made by Garzon to rent the same apartment later rented <br>                    by Fernandez.  Interrogating Fernandez, the prosecutor asked, <br>                    "[s]ir, this is a contract made by Mr. Miguel Garzon, on rental <br>                    unit number 268 at ESJ Towers, the same rental unit that you rented <br>                    on July 1996?"  After defense counsel objected, the court  <br>                    instructed the prosecutor to make no further reference to the <br>                    unidentified agreement.  The prosecutor then revised the inquiry to <br>                    ask, "[s]ir, would you be surprised that Mr. Miguel Garzon rented <br>                    this same apartment you rented in July, approximately one year <br>                    before?"  The court at first allowed this, but later sustained <br>                    defense counsel's objection and ordered the government not to <br>                    proceed with any questions as to contents of the alleged document.  <br>                         An earlier Garzon lease, had one been proven, would tend <br>                    to impeach Fernandez's testimony that he had met Garzon only a few <br>                    days before their arrest.  While it is reprehensible, in the jury's <br>                    presence, to frame questions so as to suggest matters not in <br>                    evidence, the court's sustaining of the objections limited the <br>                    damage in large measure.  We would have preferred the court to have <br>                    instructed the jury then and there to disregard any suggestion of <br>                    a prior Garzon lease.  At least, however, the issue was abandoned <br>                    and was not mentioned during closing argument.  Moreover, the judge <br>                    told the jury in closing instructions that "[s]tatements and <br>                    arguments of counsel are not evidence in the case, unless made as <br>                    an admission or stipulation."  Defense counsel never moved to <br>                    strike nor did he seek a mistrial or a more pointed curative <br>                    instruction.  We find insufficient prejudice in the circumstances  <br>                    to warrant a new trial.  <br>                    5.   Questions from the Bench <br>                         Defendant urges that we find a major error in the court's <br>                    close questioning of Fernandez.  After the prosecution finished <br>                    cross-examining Fernandez, the court questioned him at length in <br>                    the presence of the jury.  The court's examination occupied some <br>                    eighteen pages of trial transcript, covering several areas of <br>                    Fernandez's previous testimony.  The first and lengthiest line of <br>                    questioning dealt with the timing of Fernandez's meetings with <br>                    White on the day of the arrest.  The judge also asked Fernandez to <br>                    explain several of his statements, including his telling White, in <br>                    a taped telephone conversation, that "you [i.e., White] have work <br>                    for me."  The judge then covered three issues in brief, asking <br>                    Fernandez about the amount of money he was carrying at the time of <br>                    his arrest, his job as a music producer, and the rental of the room <br>                    at the El San Juan Towers.  Following the judge's questioning, <br>                    Fernandez answered questions on redirect and recross-examination. <br>                         "Because [Fernandez] did not object to the judge's <br>                    questioning during trial, the conduct complained of will be <br>          considered under the plain error doctrine."            Gonzalez-Torres, 980 <br>                    F.2d at 791.  See supra.  After a careful review of the record, we <br>                    cannot say that the judge's questioning constituted plain error. <br>                         As a general matter, a trial judge "has a perfect right <br>                      albeit a right that should be exercised with care   to <br>                    participate actively in the trial."  Logue v. Dore, 103 F.3d 1040, <br>                    1045 (1st Cir. 1997) (citing Quercia v. United States, 289 U.S. <br>                    466, 469 (1933)); see also Fed. R. Evid. 614(b).  Judicial <br>                    questioning is welcome "to throw light upon testimony," Logue, 103 <br>                    F.3d at 1045, or "to provide a clear presentation of the issues, so <br>                    long as an attitude of impartiality is preserved," Gonzalez-Torres, <br>                    980 F.2d at 792. <br>                         Here,  Fernandez claims that the "inquiry could have had <br>                    no other effect on the jury than to persuade it of the existence of <br>                    a conspiracy to import drugs" and that much of Fernandez's <br>                    testimony was untruthful.  We think this misstates the tenor and <br>                    effect of the court's inquiry.  Rather, we think the judge sought <br>                    impartially to clarify Fernandez's testimony.  Much of Fernandez's <br>                    testimony was confused, stemming in part from the language barrier, <br>                    and in part from Fernandez's own obfuscations.  Thus, the judge <br>                    prefaced his questions with phrases like "[s]ir, so there is no <br>                    confusion," and "I don't want to confuse you.  What I want to do is <br>                    get the facts straight for the jury to be able to understand them."  <br>                    As in Logue, "the judge's questions strike us as designed to <br>                    simplify the jury's task, and . . . to clarify [the witness's] <br>                    frequently vague and confusing answers."  103 F.3d at 1045.  While <br>                    on more than one occasion the judge worded his questions sharply, <br>                    he did so only after Fernandez contradicted his own testimony and <br>                    recorded statements.  The judge's conduct, viewed as a whole, was <br>                    not indicative of bias.  His repeated responses to Fernandez's <br>                    answers (typically "all right" or "okay") were benign; virtually <br>                    all of his questions repeated earlier queries, see Logue, 103 F.3d <br>                    at 1045; and he instructed the jury that it was to assume he held <br>                    no opinion as to the facts, see id. at 1046-47 (explaining that <br>                    jury instruction helped avoid bias from judge's questioning); <br>                    Gonzalez-Torres, 980 F.2d at 792 (same).  <br>                         To the extent the court's inquiry exposed flaws in <br>                    Fernandez's defense, this was not because the questions were unfair <br>                    but because Fernandez provided answers that were themselves <br>                    evasive, incredible, and patently contradictory to his previous <br>                    statements.  Our reading of the transcript convinces us that the <br>                    judge's questioning did not transgress the court's inherent power <br>                    to participate objectively in the conduct of the trial. <br>                    6.   Cumulative Effect <br>                         Finally, Fernandez argues that the cumulative effect of  <br>                    the asserted errors was to deprive him of a fair trial.  <br>                    "Individual errors, insufficient in themselves to necessitate a new <br>                    trial, may in the aggregate have a more debilitating effect," <br>                    United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1995), <br>                    so as to deny due process.  See, e.g., United States v. Dwyer, 843 <br>                    F.2d 60, 65 (1st Cir. 1988); Dunn v. Perrin, 570 F.2d 21, 25 (1st <br>                    Cir. 1978).  In assessing the errors' cumulative effect, we are to <br>                    consider the entire record, "paying particular weight to factors <br>                    such as the nature and number of the errors committed; their <br>                    interrelationship, if any, and combined effect; how the district <br>                    court dealt with the errors as they arose (including the efficacy <br>                      or lack of efficacy   of any remedial efforts; and the strength <br>                    of the government's case."  Sepulveda, 15 F.3d at 1196.  An <br>                    additional consideration is the length of the trial:  the shorter <br>                    the proceedings, the greater the impact of even a few errors.  Seeid. <br>                         Here, only certain of the challenged conduct amounted to <br>                    error, and as to this we are unable to say that it was of such <br>                    gravity and frequency as to have deprived Fernandez of a fair <br>                    trial.  The evidence of Fernandez's conscious participation in the <br>                    attempted drug transaction was exceedingly strong.  Fernandez had <br>                    the opportunity to attempt to rebut this evidence by offering his <br>                    version of why he so readily responded to White's phone calls, <br>                    passed himself off as Miguel, and sought to meet with White bearing <br>                    $5,000 in cash.  The errors Fernandez cites, viewed individually or <br>                    cumulatively, did not seriously impede his ability to present his <br>                    defense to the jury. <br>                         The conviction is affirmed.</pre>

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