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<pre>                 UNITED STATES COURT OF APPEALS<br>                      FOR THE FIRST CIRCUIT<br><br>                          ____________<br><br>No. 91-1508<br><br>                         UNITED STATES,<br>                            Appellee,<br><br>                               v.<br><br>             SAVER HODGE-BALWING a/k/a BALWIN HODGE,<br>                      Defendant, Appellant.<br><br><br>                          ____________<br><br><br>                          ERRATA SHEET<br><br><br>     The opinion of this court issued on December 30, 1991, is<br>amended as follows:<br>     Page 2, paragraph 2, line 4 - delete the word "that" after<br>"(3)."<br>     Page 6, lines 3 and 2 from the bottom - insert a parenthesis<br>before the word "quoting," delete the underlining of "quoting" and<br>insert a parenthesis after the parenthesis following "1966."<br>     Page 9, lines 8 and 7 from the bottom - delete the comma after<br>the parenthesis following "1991," insert a parenthesis prior to the<br>word "quoting," delete the underlining of "quoting," and on line 7<br>from the bottom, insert a parenthesis after the figure "100."<br>     Page 10, lines 4 and 5 - delete the comma after "1985," insert<br>a parenthesis before the word "quoting," delete the underlining of<br>the word "quoting" and insert a parenthesis after the parenthesis<br>that follows "1982."<br>                         ____________________<br><br>No. 91-1508<br><br>                            UNITED STATES,<br><br>                               Appellee,<br><br>                                  v.<br><br>                SAVER HODGE-BALWING a/k/a BALWIN HODGE,<br><br>                         Defendant, Appellant.<br><br>                         ____________________<br><br><br>             APPEAL FROM THE UNITED STATES DISTRICT COURT<br><br>                    FOR THE DISTRICT OF PUERTO RICO<br><br>            [Hon. Hector M. Laffitte, U.S. District Judge]<br><br>                         ____________________<br><br>                                Before<br><br>                        Campbell, Circuit Judge,<br>                     Bownes, Senior Circuit Judge,<br>                     and Torruella, Circuit Judge.<br><br>                         ____________________<br><br>     Ardin Teron for appellant.<br>     Jose A. Quiles-Espinira, Assistant United States Attorney, with whom<br>Daniel F. Lopez-Romo, United States Attorney, and Ernesto Hernandez-<br>Milan, Assistant United States Attorney, were on brief for appellee.<br><br><br>                         ____________________<br><br><br>                         ____________________

     BOWNES, Senior Circuit Judge.  This appeal arises from the<br>arrest of the defendant/appellant, Baldwin Farver Hodge, at the<br>Luis Muoz Marn Airport in Puerto Rico.  A jury trial<br>convicted Hodge for possession with intent to distribute<br>cocaine, in violation of 21 U.S.C.  841(a), importation of<br>cocaine, in violation of 21 U.S.C.  952(a), and failure to<br>register the cocaine on the cargo manifest or supply list of<br>the aircraft, in violation of 21 U.S.C.  955.  <br>     On appeal, Hodge raises five issues that are actually<br>three.  He, in essence, alleges that (1) the prosecutor<br>violated discovery rules; (2) the prosecutor's closing argument<br>resulted in prejudice to the defendant; and (3) the above<br>improprieties resulted in the violation of his due process<br>rights to a fair trial.  We affirm his convictions.<br>                         BACKGROUND<br>     Hodge was en route from Trinidad to New York when his<br>plane, American Airlines Flight 755, made a scheduled stop in<br>San Juan, Puerto Rico on December 3, 1990.  After disembarking<br>from the aircraft, instead of walking toward the secondary<br>inspection area, Hodge went in the other direction.  His<br>behavior drew the attention of a United States Customs<br>official, Enrique Carbonell, who stopped and questioned him. <br>Carbonell conducted a search of Hodge's suitcase and found six<br>boxes of Breeze brand detergent.  He asked Hodge why he was<br>carrying so many detergent boxes and Hodge answered that he was<br>allergic to other detergents.  Upon inspection of one of the<br>boxes, Carbonell found a plastic bag with white powder in it. <br>A sample of the white powder was field tested which indicated<br>that it was cocaine.  <br>     Approximately 1,994 grams (gross weight) of cocaine were<br>found in the boxes.  A forensic chemist of the U.S. Customs<br>Service analyzed the substance on December 7, 1990 and found a<br>purity of 90% cocaine hydrochloride.  Hodge was indicted on<br>December 3, 1990.<br>                     DISCOVERY VIOLATIONS<br>     Hodge contends that the district court committed<br>reversible error by allowing the prosecutor to question<br>Carbonell about Hodge's allergy statement.  He argues that the<br>prosecutor violated rule 16 of the Federal Rules of Criminal<br>Procedure in failing to disclose that Carbonell would testify<br>as to what Hodge told him when asked why he had so many boxes<br>of detergent.  He further argues that the prosecutor's failure<br>to disclose the evidence violated his due process rights under<br>Brady v. Maryland, 373 U.S. 83 (1963).  The parties had open<br>file pre-trial discovery.  During the prosecutor's opening<br>statement, he stated that Carbonell's testimony would include<br>his questioning of Hodge regarding the detergent boxes.   The<br>prosecutor said, "When questioned as to why he was carrying six<br>boxes of detergent, the defendant answered that he was allergic<br>to other types of detergent and that he bought all those six<br>boxes in order to wash his clothes."  The defense objected to<br>this comment on the grounds that the prosecutor was commenting<br>on the silence of the defendant and that the prosecutor had not<br>provided the defense with "any statement from the defendant and<br>that's a substantial error."  The prosecutor countered that the<br>statement at issue was not discoverable but, in any event, it<br>was in a case report.  After defense counsel stated that it had<br>not been given the case report, the court ordered the<br>prosecutor to provide defense counsel with a copy of it. <br>Defendant did not move for a continuance.  Later that same day,<br>Carbonell testified, under both direct and cross-examination,<br>of questioning Hodge on the detergent boxes and Hodge's<br>response.      <br>     We review discovery violations under an abuse of<br>discretion standard and not the harmless error standard, as<br>suggested by both parties.  See United States v. Tejada, 886<br>F.2d 483, 486 (1st Cir. 1989); United States v. Samalot Perez,<br>767 F.2d 1, 4 (1st Cir. 1985).  We fail to see how the trial<br>court abused its discretion in admitting Carbonell's testimony<br>into evidence; it ordered the prosecution to hand over the case<br>report to defendant.  Hodge has failed to bear his burden of<br>demonstrating how he was prejudiced by the late delivery of the<br>case report containing Hodge's statement.  Indeed, Hodge failed<br>to ask for a continuance once specific information about<br>Carbonell's testimony was revealed during the prosecutor's<br>opening statement.  <br>     We find that Hodge's due process argument is without<br>merit.  The Supreme Court in Brady v. Maryland, 373 U.S. at 87,<br>held that suppression by the prosecution of evidence favorable<br>to the accused who has requested it violates due process where<br>the evidence is material either to guilt or to punishment.  See<br>also United States v. Peters, 732 F.2d 1004, 1008 (1st Cir.<br>1984) (finding that prosecutorial delay in handing over<br>discoverable material does not violate Brady requirements). <br>Hodge fails to explain how the evidence in question constitutes<br>exculpatory evidence.<br>     Hodge raises a second discovery error.  He contends that<br>the testimony of Dr. Prieto, the contract doctor for the United<br>States Marshal Service, should have been excluded.  Dr. Prieto<br>testified that he conducted a physical examination of Hodge and<br>that, "According to my records as the information given by the<br>patient, there is no known drug allergies."  Defendant objected<br>on the grounds that the testimony was irrelevant and also<br>violative of the physician/patient privilege.  The court<br>overruled both objections.  Hodge does not raise these<br>objections on appeal.<br>     On appeal, Hodge argues for the first time that the court<br>erred in permitting the government to introduce Dr. Prieto's<br>testimony because it violated Fed. R. Crim. P. 16(a)(1)(D). <br>In general, error may not be predicated upon the court's<br>rulings admitting or excluding evidence unless the defendant<br>preserves his rights.  See United States v. Griffin, 818 F.2d<br>97, 99 (1st Cir.), cert. denied, 484 U.S. 844 (1987).  We can<br>only conduct a plain error review.  Id. at 100.  <br>     The court admitted Dr. Prieto's testimony on the ground<br>that it was relevant to confirm that Hodge was lying when he<br>told Carbonell that he was allergic to detergents other than<br>Breeze.  On this record, we cannot say that this is one of<br>those "exceptional cases or under peculiar circumstances to<br>prevent a clear miscarriage of justice."  Id.(quoting Nimrod v.<br>Sylvester, 369 F.2d 870, 873 (1st Cir. 1966).) We conclude that<br>plain error is plainly absent.<br>     Similarly, as explained above, Hodge's contention that Dr.<br>Prieto's testimony violated Brady v. Maryland requirements is<br>without merit.  Hodge contends that his statement to Dr. Prieto<br>was a "compelled statement obtained by official government<br>medical authorities."  Because Hodge failed to raise this claim<br>at trial, we would review the claim under the plain error<br>standard.  We find, however, that there is no record support<br>for the contention that any information Hodge provided to Dr.<br>Prieto was compelled.  In any event, there was no plain error.<br>               PROSECUTION'S CLOSING ARGUMENT<br>     Hodge raises several claims on appeal as to prosecutorial<br>misconduct in the closing argument.  He has preserved for<br>appeal, however, only the objection to the prosecutor's<br>reference to Hodge's silence.  The defense objected to the<br>following part of the prosecutor's closing argument:<br>          But let's get to the -- to the case.  Why was<br>     the defendant so nervous when Carbonell saw him for<br>     the first time?  You remember that Carbonell told<br>     you that he was trying to -- he was going to the<br>     opposite direction where he was supposed to go.  Why<br>     was he so nervous?  Why was he going to the opposite<br>     direction?  You can infer from that, and that's not<br>     doing the Government's job; that's not doing the<br>     prosecutor's job.  That's part of the deliberation<br>     process, and the Court will instruct you as to that.<br>     <br><br>          You can infer from that -- from that evidence<br>     that he was nervous because he knew he was carrying<br>     cocaine and he saw the Custom inspector waiting for<br>     him there and he knew that in order to enter the<br>     United States he has to go through Customs and that<br>     he was in jeopardy of being arrested, as he was for<br>     our luck.  And that the moment that the agent<br>     detected those six boxes, the agent told him, why<br>     are you carrying so many detergent boxes?  And he<br>     answered, because I am allergic to other detergents.<br><br>          He was arrested on December the 3rd, and he was<br>     taken care of by Dr. Prieto who you heard today, and<br>     Dr. Prieto told you that in his medical history at<br>     the penitentiary there is nothing about any type of<br>     allergies in relation to the defendant, and the<br>     Breeze detergent has been under the custody of the<br>     agent since December the 3rd.<br><br>          But what is important about that comment, I am<br>     allergic, that's why I have six boxes of detergent? <br>     He never told the agent at that moment, that's not<br>     mine; that was put there.  He said, I am allergic. <br>     He wasn't surprised with the detergents in his<br>     suitcase.  He knew they were there.  That's why the<br>     evidence shows that he's guilty; that he's guilty as<br>     charged.<br>     We have fashioned a three prong test in examining whether<br>the prosecution's misconduct "so poisoned the well" that the<br>trial's outcome was likely affected.  See United States v.<br>Capone, 683 F.2d 582, 586-87 (1st Cir. 1982).  We examine (1)<br>whether the prosecutor's conduct was isolated and/or<br>deliberate; (2) whether the trial court gave a strong and<br>explicit cautionary instruction; and (3) whether it is likely<br>that any prejudice surviving the judge's instruction could have<br>affected the outcome of the case.  Id.  See also Mateos-<br>Sanchez, 864 F.2d 232, 241 (1st Cir. 1988).  <br>     The record shows that the court gave curative instructions<br>to the jury:<br>     THE COURT:  Very well.  Ladies and gentlemen of the<br>     jury, I'm going to give you what we call a curative<br>     instruction.  At some point in time the Assistant<br>     U.S. Attorney, when he was referring to that area<br>     about the defendant being interviewed about the<br>     boxes of detergent and that the -- Mr. Hernandez<br>     says why didn't he say that that's not mine, et<br>     cetera, I want to tell you very emphatically that<br>     the law does not compel a defendant to testify on<br>     his behalf and that no comment on the defendant's<br>     silence may be made and no inference then -- I'm<br>     charging you that no inference from that may be<br>     made.<br>We find that the court properly accounted for possible<br>prejudice and no reversible error was committed.<br>     As for the other claims of prosecutorial misconduct that<br>Hodge raises on appeal, defense counsel failed to object to<br>them during trial.  Hodge now claims that the prosecutor in his<br>closing argument made improper references to willful blindness<br>of the part of Hodge; vouched for its witness, customs<br>inspector Carbonell; and injected his personal feelings as to<br>Hodge's confinement.  As explained before, our only review is<br>for plain error.  "Under this standard, we review only<br>'blockbusters:  those errors so shocking that they seriously<br>affect the fundamental fairness and basic integrity of the<br>proceedings conducted below.'"  United States v. Olivo-Infante,<br>938 F.2d 1406, 1412 (1st Cir. 1991) (quoting United States v.<br>Griffin, 818 F.2d at 100.)  Accordingly, we evaluate Hodge's<br>procedurally defaulted claims against the entire record in<br>order to determine whether the plain error standard has been<br>met.  <br>     The prosecutor strayed beyond the permissible evidentiary<br>borders in his remarks on closing.  But we are unable to<br>conclude, based on the record, that these prosecutorial<br>improprieties are "'particularly egregious errors' . . . that<br>'seriously affect that fairness, integrity or public reputation<br>of judicial proceedings.'"  United States v. Young, 470 U.S. 1,<br>15 (1985), (quoting United States v. Frady, 456 U.S. 152, 163<br>(1982).)  We find that while Hodge may not have had a perfect<br>trial, it was a fair trial.  There was no denial of due<br>process.<br>     Affirmed.</pre>

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