
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1350                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                    RODRIGO BRAND,                                Defendant, Appellant.                                _____________________        No. 94-1351                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                               FELIX APONTE-VELAZQUEZ,                                Defendant, Appellant.                                _____________________        No. 94-1352                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                               CARMELO PULLIZA-DELGADO,                                Defendant, Appellant.                                 ____________________                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                      Aldrich and Coffin, Senior Circuit Judges.                                          _____________________                                 ____________________            Peter Goldberger with whom James H.  Feldman, Jr., Pamela A. Wilk,            ________________           ______________________  ______________        Alan  Ellis and  Law Offices  of Alan  Ellis, P.C.  were on  brief for        ___________      _________________________________        appellant Felix Aponte-Velazquez.            Graham  A. Castillo  Pagan with  whom  Luis  Rafael Rivera  was on            __________________________             ___________________        brief for appellants Rodrigo Brand and Carmelo Pulliza-Delgado.            Luis  Rafael Rivera  with whom  Graham  A.  Castillo Pagan  was on            ___________________             __________________________        brief for appellants Rodrigo Brand and Carmelo Pulliza-Delgado.            Jose  A. Quiles-Espinosa,  Senior  Litigation  Counsel, with  whom            ________________________        Guillermo  Gil, United  States  Attorney, Juan  A. Pedrosa,  Assistant        ______________  ________________________  ________________        United States Attorney, and Nelson Perez-Sosa, Assistant United States                                    _________________        Attorney, were on brief for appellee.                                 ____________________                                    March 26, 1996                                 ____________________                      ALDRICH,  Senior Circuit Judge.  Appellants Aponte,                                ____________________            Pulliza, and Brand raise several claims of error on appeal of            their  convictions   for  various  substantive   offenses  in            connection   with  a  cocaine  importation  and  distribution            scheme.  Finding none meritorious, we affirm.                          I.  Reconstruction of Trial Record                          __________________________________                      After  persistent efforts  by appellate  counsel to            obtain  a  complete   trial  transcript,   the  trial   court            determined that certain portions -- closing arguments and the            court's jury charge -- had been permanently lost.  Appellants            then moved this  court for summary reversal, which  we denied            without prejudice in an order requesting the court to attempt            a recreation adequate for appeal, or, if unable, to determine            whether appellants  were prejudiced as a  result of remaining            gaps.  The  court recreated  its jury charge,  and located  a            transcript containing the complete closing argument on behalf            of  Pulliza  and  a  "substantial  portion"  of  the  closing            argument for Aponte.  It received from Brand's trial attorney            some incomplete  notes prepared  for his closing,  along with            assurances that it would be impossible to recreate the actual            argument.   The government filed what the parties agreed is a            "reasonable recreation" of its main closing argument, as well            as a  recreation of  its rebuttal,  which appellants  view as            inadequate.   All agreed that  no contemporaneous  objections            had                                          -3-            been  raised during these segments  of the trial.   The court            then certified that the record had been reconstructed                      as  best as  the  court and  the  parties                      could.  The defendants have not shown any                      specific   prejudice  arising   from  the                      absence  of  the  trial transcript  other                      than the inconvenience of not  having the                      precise  text  . . .   for  purposes   of                      developing  argument  on  appeal  on  the                      basis of clear error.1                      Appellants  contend  adequate  appellate review  of            their  convictions is  impossible because  the court  did not            produce a reasonable recreation  of the missing transcripts,2            entitling them to  reversal and  a new trial.   They  concede            that due process does not automatically require reversal when            a defendant is denied a full verbatim  trial transcript, see,                                                                     ___            e.g., Bundy v. Wilson,  815 F.2d 125, 135 (1st Cir. 1987) (an            ____  _____    ______            "adequate   substitute"  may  suffice)  (citing  cases),  but            contend that  non-compliance with the Court  Reporter Act, 28            U.S.C.   753(b)(1), alone requires  reversal and a new trial.            We disagree.                      The Act  provides, inter alia, that  all open court                                         __________            proceedings  in criminal cases  "shall be recorded verbatim."            28 U.S.C.    753(b)(1) (1982).  This  provision is mandatory,            United States  v.  Andiarena, 823  F.2d  673, 676  (1st  Cir.            _____________      _________                                            ____________________            1.  Appellants  concede  plain error  is their  sole recourse            with respect to the incomplete portions of the transcript.            2.  We limit  our consideration to the  closing arguments and            jury charge, as any other alleged breaches in the record were            not brought to the attention of the district court.                                         -4-            1987), and concededly  not complied  with in  this case,  yet            nothing  prescribes  automatic  reversal  of   a  defendant's            convictions for non-compliance, and we  are aware of no cases            which so hold.   Appellants cite Hardy v. United  States, 375                                             _____    ______________            U.S.  277 (1964),  for the  proposition that  new counsel  on            appeal3 cannot  properly represent  their clients  without an            "entire  transcript."   Id. at  279-80.   Hardy held  that an                                    ___               _____            indigent federal defendant is  entitled to a trial transcript            free of charge in order to  perfect an appeal; we do not read            it  to have created a rule mandating reversal for less than a            verbatim account.                      Alternatively,  appellants  suggest  we follow  the            Fifth Circuit's view  that new counsel  on appeal may  obtain            reversal for lack of  a verbatim transcript under   753(b)(1)            merely  by showing  the missing  portion is  "substantial and            significant,"  United States  v. Selva,  559 F.2d  1303, 1306                           _____________     _____            (5th Cir. 1977), and that any reconstruction  thereof is less            than  "substantially verbatim."   United  States v.  Pace, 10                                              ______________     ____            F.3d 1106, 1124-25  (5th Cir. 1993),  cert. denied, ___  U.S.                                                  ____________            ___, 114 S.Ct. 2180, 128 L.Ed.2d 899 (1994).   True, in Hardy                                                                    _____            the Court observed that the right established by Federal Rule            of Criminal Procedure 52(b) to have "plain errors or defects"            noticed  by  the  court  "is illusory  if  no  transcript  is            available at least to  one whose lawyer on appeal  enters the                                            ____________________            3.  Appellants have all obtained new counsel for this appeal.                                         -5-            case after the trial is ended."   375 U.S. at 280.  Yet  this            was in  the  context of  deciding  whether or  not  appellant            should be afforded a transcript at  all.  We do not take this                                            _______            statement to mean that if no verbatim transcript is available                                         ________            that an effective appeal is not possible.                      The  majority  of  circuits construing    753(b)(1)            have held that to obtain reversal and a new trial, whether or            not  there  is new  appellate  counsel,  defendant must  show            specific  prejudice  to his  ability  to  perfect an  appeal,            beyond mere non-compliance with  the act.  See  United States                                                       ___  _____________            v.  Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985), cert. denied,                _____                                       ____________            474  U.S.  1068,  and  cert. denied,  474  U.S.  1069  (1986)                                   ____________            (disagreeing with  Selva); United States v.  Sierra, 981 F.2d                               _____   _____________     ______            123,  126-27 (3rd Cir. 1992), cert. denied, ___ U.S. ___, 113                                          ____________            S.Ct.  2949, 124 L.Ed.2d 696 (1993)  (same); United States v.                                                         _____________            Antoine, 906 F.2d  1379, 1381 (9th  Cir.), cert. denied,  498            _______                                    ____________            U.S. 963 (1990) (same).   But see United States  v. Preciado-                                      ___ ___ _____________     _________            Cordobas, 981  F.2d 1206, 1212 (11th Cir. 1993) (as successor            ________            court  to former  Fifth Circuit,  bound by  Selva).   We have                                                        _____            indicated preference  for the majority view,  see Sabatier v.                                                          ___ ________            Dabrowski, 586 F.2d 866, 869 (1st Cir. 1978) (holding that if            _________              753(b)(1) applied to  extradition proceedings, reversal  on            account  of  non-compliance  would  require  showing specific            prejudice), and explicitly adopt it today.                      Appellants conceded  to the  trial  court that  the                                         -6-            government's reconstruction of  its main closing argument  is            substantially accurate.  This should enable  effective review            for plain error, yet  appellants make no particularized claim            that such error  occurred.  Nor  do they make any  claim that            plain error could have  occurred during the closing arguments            of  one  of  their  own  attorneys.    With  respect  to  the            government's rebuttal,  we are hard-pressed to  conceive what            sort  of illegitimate  argument could  have been  made during            these  few moments that might have "so poisoned the well that            the trial's outcome was likely affected," Arrieta-Agressot v.                                                      ________________            United States,  3  F.3d 525,  528  (1st Cir.  1993)  (quoting            _____________            United States  v. Mejia-Lozano, 829  F.2d 268, 274  (1st Cir.            _____________     ____________            1987)),  nor   do  appellants   suggest  any  based   on  the            reconstruction that was  submitted.  In any  event, given the            quantity  and  strength of  the  evidence  against all  three            appellants  from the testimony  of several co-conspirators --            eye-witnesses   to   their   involvement   in   the   various            preparations, possessions  and transactions amounting  to the            offenses charged -- we are not  persuaded that any deficiency            could have risen to  a miscarriage of justice; i.e.,  even if            the rebuttal was  tainted by some imaginable  error, we would            not find "a substantial chance that absent the error the jury            would have acquitted."  Id.  We therefore uphold the district                                    ___            court's  conclusion that  appellants'  ability to  perfect an            appeal  was not  prejudiced, and  turn now  to the  merits of                                         -7-            their claims.                                         -8-                             II.  Motion for Continuance                             ___________________________                      On  the morning of  trial the defense  made a final            request for continuance based on  the last minute decision of            Jorge Hernandez  Miller, the  lead  co-conspirator, to  plead            guilty and become the  government's chief witness.  Remaining            defendants argued this necessitated more time to adjust trial            strategy  and  gather  information  to impeach  him.    After            thorough exploration, the  court, though sympathetic, saw  no            justification for delay:                      [Y]ou  had  the opportunity  to interview                      him . . . as you told me in chambers that                      this has  been done and now  that all the                      Jencks  Act  [material]  has been  turned                      over . . . the latest bits of information                      that were generated  like the  interviews                      [of  the witness]  with the  agents . . .                      are  going  to  be  turned  over  to  you                      including rough notes, . . .  I will  not                      continue this case.                      A  trial court has wide discretion to grant or deny            a request  for continuance.   United States v.  Saccoccia, 58                                          _____________     _________            F.3d  754, 770  (1st Cir.  1995).   "Only an  unreasoning and            arbitrary insistence  upon expeditiousness  in the face  of a            justifiable  request  for delay  violates  the  right to  the            assistance  of counsel," and would amount to an abuse of that            discretion.   Morris  v. Slappy,  461  U.S. 1,  11-12  (1983)                          ______     ______            (internal quotations omitted).  We assess appellants' special            reasons, plus relevant  factors such  as the  amount of  time            needed  for effective  preparation  and  the amount  actually            available, diligence  in preparing for trial  and whether the                                         -9-            defense contributed to its perceived  predicament, the likely            utility  of  a  continuance,  inconvenience  to   the  court,            opposing  party,  and  witnesses,  and  any  unfair prejudice            caused by the denial.   Saccoccia, 58 F.3d at  770 (citations                                    _________            omitted).                      Appellants  allege  the  court  failed  to  address            "special  circumstances of  an emergent  nature beyond  their            control."  They claim that after Miller's change of plea they            suddenly  faced  an  unexpected  need  to gather  impeachment            material  and  to  do  additional preparation,  as  they  had            divided   responsibilities  among   themselves  due   to  the            considerable   volume  of   trial  material   involved,4  and            Miller's  defection  overburdened  the remaining  defendants.            They contend they "could not  have been more diligent," would            have   found  valuable   impeachment   material  if   granted            additional  time,  and  were  prejudiced  in  cross-examining            Miller  because of  the denial;  inconvenience to  others, by            comparison, was minimal.                      Appellants'  accusations  against  the   court  are            unfounded.  As  the court  pointed out, the  defense had  had            ample  time  and substantial  assistance  from  the court  to            prepare for trial, and although more might have helped,  that            is always true.  Defense  counsel could have anticipated that                                            ____________________            4.  Aponte  points out  that  discovery involved  "some  1453            documents totaling over 5000 pages."                                         -10-            a division  of labor strategy  might leave them in  a bind if            one dropped  out,  especially since  the original  indictment            included some 31 co-defendants who had been pleading out on a            regular basis up  to and even  during trial.   The court  was            very careful to elicit from  counsel precisely what more they            thought  they needed and hoped to find to impeach Miller, and            why.  It  gave a thoroughly reasoned response, observing that            the  defense had been  given unlimited access  to the witness            for four  days  prior to  the  start of  trial and  at  least            several  more afterward until he took the stand, a "dream for            a defense attorney,"  as well as notes government  agents had            taken during their interviews  of the witness.  There  was no                         _____            abuse of discretion in ruling this was sufficient.                      We  add  only  that  we   do  not  see,  even  with            hindsight, what more a continuance would have achieved.   The            defense   had  apparently  hoped   to  discredit   Miller  by            implicating  him   in  the  uncharged   murders  of   several            accomplices in  the cocaine conspiracy, and  wished more time            to  locate, interview  and subpoena  witnesses who  could tie            Miller to these crimes.   The court, however, in  a pre-trial            ruling,  had strictly  prohibited  introduction of  extrinsic            evidence of  Miller's involvement in the  murders and limited            cross-examination  in reference to  these crimes  strictly to            questioning his  motivation to enter the  plea agreement,5 in                                            ____________________            5.  This ruling has not been appealed.                                         -11-            accordance  with  Federal  Rule  of Evidence  608(b).6    See                                                                      ___            Tigges v.  Cataldo, 611 F.2d 936, 938 (1st Cir. 1979).  As to            ______     _______            this, post.                  ____                            III.  Prosecutorial Misconduct                            ______________________________                      Before  trial government  counsel had  informed the            defense  and the  court  that Miller  had stated  during plea            negotiations that he  had decided to plead guilty because "he            thought that he was  going to be imputed with some murders to            which he denies, and  . . . the reason that motivated  him is            because he wanted to clear the record that in fact he did not            participate in those murders."   During a pre-trial interview            Miller had told defense  counsel roughly the same --  that he            was  afraid  "the government  . . .  [was] going  to  bring a            massacre  against him,  a  murder against  him,  but he  also            stated to  us that  in fact he  did not do  that."   The plea            agreement was admitted in  evidence.  It made no  mention, of            course, of murders.                      During  cross-examination  defense  counsel  sought            vigorously   to  impeach  Miller's  testimony  linking  their            clients to  the  drug venture  by  attempting to  solicit  an                                            ____________________            6.        (b)    Specific  instances   of  conduct.                      Specific  instances of  the conduct  of a                      witness, for the  purpose of attacking or                      supporting   the  witness'   credibility,                      other  than conviction of crime . . . may                      not be proved by extrinsic evidence.            Fed.R.Evid. 608(b).                                         -12-            admission from Miller that he was motivated to cooperate with            the government by a  desire to "minimize the severity  of the            accusations against himself,"  specifically by avoiding being            implicated  in,  or  charged   with,  the  murders.    Miller            repeatedly denied such motivation,  professing only a  desire            to "repent" and "tell the truth."                      Appellants  now contend  this was  an outright  lie            that due process required the  government to correct.7   They            rely principally upon Napue v. Illinois, 360 U.S. 264 (1959),                                  _____    ________            which held that  a defendant's due  process rights under  the            Fourteenth  Amendment  required  reversal  of  his conviction            where the prosecutor  failed to correct a  witness' denial of            receiving promises of leniency in exchange for his testimony,            knowing  it was  false, even  though the  prosecutor had  not            himself  solicited the falsity. 360  U.S. at 269.   The Court            said  this principle,  "implicit  in any  concept of  ordered            liberty,  does not cease  to apply  merely because  the false            testimony  goes only to the credibility of the witness."  Id.                                                                      ___            Nor  did  the fact  that the  jury  was presented  with other            grounds for questioning the witness' credibility "turn[] what            was otherwise a tainted trial into  a fair one."  Id. at 270.                                                              ___                                            ____________________            7.  Defense counsel  made no indication  to the court  at the            time that  the defense believed  the government was  under an            obligation   to   clarify  Miller's   statements   about  his            motivation to plead, and, indeed, indicated satisfaction with            coverage  of  the issue  when  the  court  inquired prior  to            allowing examination of Miller to proceed into another area.                                         -13-            Appellants  contend  defense  counsels'  equal  knowledge  of            Miller's pre-trial admissions cannot alleviate the government            of its duty in this case to bring this impeachment "evidence"            before the jury.                      There are two answers  to this.  The first  is that            the court had already ruled that testimony of murders was too            prejudicial to  be admitted.   But, more  important, although            defendant  refused  this  specific  characterization  of  his            motives, he did concede to believing the plea agreement meant            that "if I speak about things of which I have knowledge or in            which  I have taken part,  I wouldn't be  indicted for them,"            and  "would be  sentenced  to  fewer  years."    This  was  a            sufficient acknowledgment that his  claim of rebirth was less            than genuine; there  could be no question  the government had            no duty to go further.                                IV.  Jury Instructions                                ______________________                      Having raised  no objections  to any aspect  of the            jury  instructions at  trial, Aponte  now claims  plain error            both in the  court's explanation of  reasonable doubt and  in            its  failure   to  give   a  requested  instruction   on  the            defendant's  exercise of  his right  to remain  silent.   The            following  instructions (emphasis  ours) contain  the alleged            errors:                           A reasonable doubt  is a doubt based                      upon reason  and  common sense,  and  may                      arise  from  a   careful  and   impartial                      consideration  of  all  the evidence,  or                                         -14-                      from lack of  evidence.   Proof beyond  a                      reasonable doubt is proof that leaves you                      firmly  convinced  that the  defendant is                      guilty.                                         -15-                           If  after  a  careful and  impartial                           __                      consideration with your fellow  jurors of                      all  the evidence, you  are not convinced                                         ______________________                      beyond  a  reasonable   doubt  that   the                      _________________________________________                      defendant is  guilty, it is  your duty to                      _________________________________________                      find the  defendant not  guilty.   On the                      ________________________________                      other   hand,  if  after  a  careful  and                                     __                      impartial consideration  with your fellow                      jurors  of  all  the  evidence,  you  are                                                       ________                      convinced beyond a reasonable  doubt that                      _________________________________________                      the defendant is guilty,  it is your duty                      _________________________________________                      to find the defendant guilty.                      _____________________________                           . . . Each defendant is  presumed to                      be innocent and does not  have to testify                      or   present   any   evidence  to   prove                      innocence.  The government has the burden                                  _____________________________                      of  proving every  element of  the charge                      _________________________________________                      beyond a  reasonable doubt.   If it fails                      _________________________________________                      to do  so, you  must return  a not-guilty                      _________________________________________                      verdict.                      ________                                          A.                      Aponte  contends that  by the  first paragraph  the            court  permitted the  jury to  convict by  a degree  of proof            lower than constitutionally required.  He argues that "firmly            convinced"  suggests  a burden  of  proof akin  to  the civil            "clear   and   convincing"   standard,   use   of   which  is            impermissible in  a criminal case.   See Addington  v. Texas,                                                 ___ _________     _____            441  U.S.  418,  425  (1979)  (clear  and  convincing  is  an            "intermediate standard" between preponderance of the evidence            and proof beyond a reasonable doubt); In re Winship, 397 U.S.                                                  _____________            358, 363-64 (1970) (guilt  in a criminal case must  be proved            by  no less  a standard  than "beyond  a reasonable  doubt").            According  to  Aponte,  it  is  linguistically  impossible to            conceive how "firmly convinced"                                         -16-            could equate  with "beyond  a reasonable doubt,"  when "clear            and convincing" does not.                      Assessing the  instructions as a  whole, Victor  v.                                                               ______            Nebraska,  ___ U.S.  ___,  ___,  114  S.Ct. 1239,  1243,  127            ________            L.Ed.2d 583 (1994), we  conclude that the emphasized portions            adequately and  ultimately conveyed an  accurate, unambiguous            and comprehensible description of the government's burden and            the standard  for  acquittal.   Whether  or not  the  "firmly            convinced"   definition   alone  would   be  constitutionally            sufficient to convey the meaning of proof beyond a reasonable            doubt, the court's further exposition here left no doubt that            the jury's duty  was to convict only  upon reaching consensus            as to guilt beyond  a reasonable doubt.8  Nothing  further is            required.  United States v. Andujar, 49 F.3d 16, 23 (1st Cir.                       _____________    _______            1995).                                          B.                      As was  his right,  Aponte elected not  to testify,            and requested the following instruction be given to the jury:                                            ____________________            8.  The  "firmly  convinced" language  has  withstood similar            attack  in a  variety  of contexts.    See United  States  v.                                                   ___ ______________            Velazquez, 980 F.2d 1275, 1278 (9th Cir. 1992), cert. denied,            _________                                       ____________            ___  U.S.  ___,  113  S.Ct.  2979,  125  L.Ed.2d  677  (1993)            (upholding same pattern instruction used here); United States                                                            _____________            v.  Hunt, 794 F.2d  1095, 1100-1101 (5th  Cir. 1986) ("firmly                ____            convinced"  adequately  conveys "beyond  a  reasonable doubt"            standard); United States v. Taylor, 997 F.2d 1551, 1557 (D.C.                       _____________    ______            Cir. 1993)  (same); see  also United  States v.  Williams, 20                                _________ ______________     ________            F.3d 125, 131  (5th Cir.),  cert. denied, ___  U.S. ___,  115                                        ____________            S.Ct. 239, 130 L.Ed.2d 162 (1994); United States  v. Barrera-                                               _____________     ________            Gonzales,  952 F.2d  1269, 1272-73  (10th Cir.  1992); United            ________                                               ______            States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995).            ______    ______                                         -17-                                         -18-                      Under  the law,  a defendants  [sic] does                      not  need  to  testify, since  it  is the                      Government  who  must  prove  her  [sic]9                      guilty  beyond  a reasonable  doubt.   No                      presumption or inference  of guilt may be                      made or drawn.            The  court  declined, instructing  instead  as  quoted above.            While he did not  object, Aponte now claims violation  of his            constitutional rights.                      The Fifth Amendment guarantees a criminal defendant            both  the  right  to  remain  silent  and  that  no   adverse            inferences  may be  drawn from  his exercise  of this  right.            Carter v. Kentucky, 450 U.S. 288, 305 (1981).  Further, "when            ______    ________            the  defendant makes  a  timely request  that a  prophylactic            instruction be given . . . [the court] has the constitutional            obligation . . .  to minimize the  danger that the  jury will            give evidentiary weight to a defendant's failure to testify."            Id.10   We have not read  Carter to require use  of the exact            ___                       ______            wording  requested, however,  so  long as  the trial  court's            instructions complied with this obligation.  United States v.                                                         _____________            Ladd, 877 F.2d 1083, 1089 (1st Cir. 1989).            ____                                            ____________________            9.  The  district  court  apparently accepted  from  Aponte's            appellate counsel  a set  of proposed jury  instructions that            counsel believed  had been  submitted to  the court but  were            inexplicably  absent from  the record.   We  note that  these            instructions  were not prepared  for Aponte, but  for a Sonia            Berrios Rodriguez, but since the government did not object to            their inclusion in the appellate record as Aponte's requested            instructions, we will treat them as such.            10.  This  obligation is also imposed by  statute.  18 U.S.C.              3481  (formerly designated as 28 U.S.C.   632).  See United                                                               ___ ______            States v. Bruno, 308 U.S. 287 (1939).            ______    _____                                         -19-                      Our   question  is  whether  instructing  that  the            government  has the burden  of proof and  that defendant does            not   have  to   testify   or  present   evidence  adequately            communicates that no adverse inferences may be drawn from the            fact that he  does not testify.  The government urges that we            answered  this affirmatively  in Ladd,  where we  approved an                                             ____            instruction  that the  defendant's  silence  "cannot even  be            considered by you in arriving at your verdict."  Id.  Not so.                                                             ___            A  jury  might well  think that  a  defendant's right  not to            testify means merely that  he cannot be called as  a witness,            leaving  it to draw such  conclusions from his  silence as it            felt warranted.   An instruction not to  consider his failure            to testify  precisely forbids drawing inferences.   Ladd, 877                                                                ____            F.2d at  1089.   Here, however,  the court  mentioned nothing            beyond  the  defendant's  right  not to  testify  or  present            evidence.  Carter  v. Kentucky makes clear that, once request                       ______     ________            for a  no-adverse-presumption instruction has  been made, the            "full and free  exercise" of the  constitutionally guaranteed            privilege  against  self-incrimination  requires   more  than            instruction  on the right not  to testify and  to be presumed            innocent  until proven  guilty.   450 U.S.  at 305.  See also                                                                 ________            United  States v. Eiland, 741  F.2d 738, 743  (5th Cir. 1984)            ______________    ______            (holding   instructions   similar   to   those   given   here            constitutionally deficient under Carter).                                             ______                      We also find,  per United States v. Olano, 507 U.S.                                         _____________    _____                                         -20-            725,  ___, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993), that            the forfeited error was "plain," and  "affect[ed] substantial            rights" within the meaning of  Fed.R.Civ.P. 52(b).  See Bruno                                                                ___ _____            v.  United States,  308 U.S. 287,  293-94 (1939)  (failure to                _____________            give   requested   instruction  cautioning   against  drawing            presumptions from  defendant's failure  to testify was  not a            mere "technical  erro[r] . . . which do[es]  not affect . . .            substantial   rights  . . . .").     We   therefore  perceive            discretion  to   reverse,  but   no  obligation  to   do  so.            Fed.R.Civ.P.  52(b);  Olano, 113  S.Ct.  at 1778.    See also                                  _____                          ________            Chapman  v. California,  386 U.S.  18,  23 (1967)  (not every            _______     __________            constitutional error automatically requires reversal).                      Olano  contemplates  that we  guide  our discretion                      _____            under  Rule 52(b)  by further  determining whether  the error            "seriously  affect[ed]  the  fairness,  integrity  or  public            reputation  of the judicial proceedings."   113 S.Ct. at 1779            (internal quotations  omitted).   We have long  realized that            among  the  things  we may  consider  is  the  weight of  the            evidence of guilt or  innocence, without casting it favorably            to the  government or presuming that  credibility issues were            resolved in  its favor, Arrieta-Agressot,  3 F.3d at  528, to                                    ________________            determine whether the error could have made any difference to            the verdict.11   We do  not view Olano  as having  removed or                                             _____                                            ____________________            11.  At  this  stage  of   review  for  forfeited  error  the            assessment  is  whether  the  error was  "harmless  beyond  a            reasonable  doubt,"  and  differs  from  so-called  "harmless                                         -21-            limited   such   an   assessment   from   our   discretionary            consideration  as a general  matter.  However,  the Court has            deemed a small number of "structural defects" not amenable to            "quantitative[]  assess[ment],"  Arizona  v. Fulminante,  499                                             _______     __________            U.S.  279, 308  (1991),  including total  deprivation of  the            right to counsel at trial (Gideon v. Wainwright, 372 U.S. 335                                       ______    __________            (1963)), and lack of  an impartial judge (Tumey v.  Ohio, 273                                                      _____     ____            U.S. 510 (1927)).  Id.  at 309.  See also id. at  310 (citing                               ___           ________ ___            additional cases); Sullivan v.  Louisiana, 508 U.S. 275, ___,                               ________     _________            113   S.Ct.    2078,   2082,   124    L.Ed.2d   182    (1993)            (constitutionally  deficient  reasonable doubt  instruction).            The distinction these  special errors share is  that they are            "structural defects in the trial mechanism" which affect "the            entire  conduct  of the  trial  from  beginning to  end"  and            "without [which]  a criminal trial cannot  reliably serve its            function  as   a  vehicle  for  determination   of  guilt  or            innocence," rather  than being simply "error[s]  in the trial            process itself."   Fulminante,  499 U.S. at  309-10 (internal                               __________            quotations omitted).   We think failure  to give a  requested            Carter instruction falls comfortably  in the latter category.            ______            It is  not the sort of  error for which an  assessment of the            evidence  is  unsuitable precisely  because  it  concerns the            evidentiary value the jury may give to a defendant's election                                            ____________________            error"  review only in that the defendant bears the burden of            persuasion.  Olano, 113 S.Ct. at 1778.                         _____                                         -22-            not  to testify on his own behalf.   Carter, 450 U.S. at 305.                                                 ______            On   this  basis  we   are  confident  in   saying  that  the            uncontradicted   evidence   against  appellants   Aponte  and            Pulliza,   from  the  testimony  of  several  co-conspirators            involved in various aspects  of the scheme, was overwhelming,            and the verdict rendered would have ensued regardless  of the            error.   In sum, although  "the failure to  limit the jurors'            speculation on the meaning of [the defendant's] silence, when            the  defendant makes  a  timely request  that a  prophylactic            instruction  be given,  exacts an  impermissible toll  on the            full  and  free  exercise  of  [defendant's  Fifth  Amendment            privileges]," id., we do not  believe it could have seriously                          ___            affected the fairness of the proceedings.                                   V.  Double Jeopardy                                 ___________________                      Aponte  maintains that  because  the same  offenses            underlying  his convictions also formed  the basis of a civil            forfeiture  of   some  personal  assets,   pursuant  to   the            Controlled  Substances and  Money Laundering Acts,  21 U.S.C.               881(a)(6) and  (7) and 18 U.S.C.    981, respectively, his            criminal sentence constitutes a prohibited second punishment,            for the  same offenses, in  violation of the  Double Jeopardy            Clause of the Fifth  Amendment.  See, e.g., United  States v.                                             ___  ____  ______________            Dixon,  ___  U.S. ___,  ___,  113  S.Ct. 2849,  2855-56,  125            _____            L.Ed.2d 556 (1993).  The   Clause   only  becomes   relevant,            however, once a  defendant has first been placed in jeopardy,                                         -23-            and  "even then,  it is  only the  second proceeding  that is                                               ______            constitutionally  endangered."  United  States v.  Pierce, 60                                            ______________     ______            F.3d 886, 889 (1st Cir. 1995), pet. for cert. filed, Oct. 19,                                           ____________________            1995 (No. 95-6474).   Aponte contends, against all authority,            that jeopardy in the  criminal case did not attach  until his            sentencing,  well after  imposition of  the civil  penalty.12                              _____            We regard it  as beyond question that "jeopardy attaches when            the  jury is empaneled and sworn."   Crist v. Bretz, 437 U.S.                                                 _____    _____            28, 35  (1978).   Pierce, 60 F.3d  at 889.   A glance  at the                              ______            sequence  of events in this case, supra note 12, reveals that                                              _____            the criminal  sanction therefore  cannot have been  second to            the forfeiture, and thus whether or not civil sanctions under            21  U.S.C.     881(a)(6) and  (7) and  18  U.S.C.    981 even            constitute punishment for the purposes of the Double Jeopardy            Clause is a question we need not reach.                        The   convictions   of  appellants   are  therefore            affirmed.            _________                                            ____________________            12.  The following chronology is pertinent:                      Jury empaneled:           September 21, 1993                      Criminal trial began:     September 22, 1993                      Verdicts read:            October 1, 1993                      Civil action commenced:   Nov. 4, 1993                      Forfeiture stipulated:    March 9, 1994                      Forfeiture order:         March 10, 1994                      Criminal sentencing:      March 21, 1994                                         -24-
