                   Not for Publication in West’s Federal Reporter
                  Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

             United States Court of Appeals
                           For the First Circuit

No. 02-1391

                         UNITED STATES OF AMERICA,

                                    Appellee,

                                         v.

                                   SEAN AHERN,

                            Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF NEW HAMPSHIRE

            [Hon. Steven J. McAuliffe, U.S. District Judge]



                                      Before

                            Lynch, Circuit Judge,

              Coffin and Porfilio,* Senior Circuit Judges.


     Robert D. Dimler on the brief for appellant.
     Donald A. Feith, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on the brief for
the United States.



                                 July 10, 2003



     *
         Of the Tenth Circuit, sitting by designation.
     PORFILIO, Senior Circuit Judge.       Sean Ahern appeals his

conviction for the armed robbery of the Bank of New Hampshire in

Dover, New Hampshire, for which the court imposed a sentence of 294

months.    Principally challenging the sufficiency of the evidence

supporting the jury’s verdict, Ahern also contends objectionable

words from a taped telephone conversation were improperly admitted

into evidence, unfairly prejudicing his defense. Appended to these

issues are six additional claims for which he seeks plain error

review.    We affirm the conviction.

     When viewed in the light most favorable to the government,

United States v. Collazo-Aponte, 216 F.3d 163, 191 (1st Cir. 2000),

the evidence of the robbery unfolds in two stages.    In the first,

on June 9, 2000, Kyle Price drove to the Cabot Street Market in

Portsmouth, New Hampshire, leaving his black 1993 Honda Civic

running while he dashed into the store.   When he emerged, Price saw

his car vanishing down the street and noticed the man and woman who

previously had been standing by a pay station were gone.

     In the second, on the next morning, a man robbed the Bank of

New Hampshire on Central Avenue in Dover.        Bank surveillance

cameras recorded the perpetrator standing at Brenda Bailey’s teller

counter.   The man, a medium-build, white male, wore gloves, a dark

knit cap, and black ski mask which was askew, exposing a dark mark

on the side of his neck.   He held a small, black handgun and brown

paper bag.   Demanding only $50 and $100 bills from both Ms. Bailey


                                -2-
and Julie Hensen in the next teller window, the robber drove off in

a small black car with over $15,000.

      A few blocks away from the bank, Alan Bandouveres, the owner

of Janeto’s Market, noticed a small black car parked behind the

store early that morning.       He later discovered the car was still

there, left running with the driver’s window down.       Near Janeto’s,

a bystander saw a young man, clutching a paper bag to his chest,

run from behind the market and jump into a red Jeep that had pulled

up.   Dover police found the Honda Civic in Janeto’s parking lot.

Two fingerprints, pointed downward on the driver’s side door,

matched Ahern’s.

      The government textured these scenes with the testimony of

bank employees and tellers; bystanders at the bank and market; the

Honda owner; store clerks where Ahern later bought merchandise with

cash; two cell mates at the correctional facility where Ahern

awaited trial; police officers and the FBI agent who investigated

the   robbery;   and,   most     damning,   Jennifer   Wilson,   Ahern’s

girlfriend.

      Wilson, who testified before the grand jury after Ahern’s

first trial was continued, described a three-year relationship in

which the two regularly used heroin, which Ahern got from his drug

supplier, James Davis.    When Ahern’s heroin debt to Davis peaked,

Wilson explained Ahern then bought his drugs from sources in

Lawrence, Massachusetts.       According to Wilson, while calling from


                                   -3-
a pay phone at the Cabot Street Market to arrange the purchase,

Ahern abruptly hung up, hopped into a car left idling, and drove

off. Wilson testified she was “stunned.” Later, she stated, Ahern

arrived at her apartment with enough heroin to satisfy her daily

20-bag habit.

     The following afternoon, her testimony continued, Ahern met

her at a friend’s apartment in Portsmouth, greeting her with

flowers and a ring.    Eventually, other friends provided Ahern a

beat-up green truck, and the pair drove to a motel in Lawrence.               En

route, Ahern stopped to buy a newspaper.           Wilson testified Ahern

asked her if she saw the front page story about a bank robbery.

When she asked if he did it, Ahern grinned, Wilson disclosed, and

told her he gave the money to Davis.         Wilson described their two

days in Lawrence, getting high and paying for meals and the hotel

with cash.

     On their return to Portsmouth, Wilson testified Ahern detoured

into an   apartment   area   where    he   said   he   had   to   get   rid   of

something.   Ahern then showed her a flat black gun and told her he

wanted to hide it somewhere. When that area proved unsatisfactory,

Ahern drove to a McDonald’s where, he later said, he hid the gun

behind a ceiling tile in the men’s bathroom.

     The pair continued to the Portsmouth District Court where

Ahern got out for an appointment with his probation officer.

Before leaving, Ahern handed Wilson shopping bags and a “wad of


                                     -4-
money,” more than she had ever seen him carry.                  Within an hour,

Portsmouth police summoned Wilson for questioning.

       Wilson testified Special Agent Laura Hanlon interrogated her,

and,       although   she   cooperated,   she   admitted   lying     initially,

frightened by the combination of her drug history, the robbery, and

gun. She acknowledged her grand jury testimony was offered shortly

after she was released from serving a jail sentence related to her

hospitalization for a heroin overdose during the Lawrence weekend.

                       I.   Sufficiency of the Evidence

       Ahern contends “the stack of unreasonable, insupportable,

and/or       overly   speculative    inferences   from    the    circumstantial

evidence”       is    insufficient   to   sustain   his    conviction.       In

particular, he underscores that Wilson, the only eyewitness to

testify about his stealing the Honda, never explicitly stated he

admitted robbing the bank, and was a drug addict who lied to

investigators.        Similarly deconstructing each witness’s testimony

to reveal the absence of a direct link to his involvement or its

divergence from other evidence, Ahern maintains the sum of the

forensic and testimonial evidence falls short.

       We disagree.         Although the government must establish each

element of 18 U.S.C. § 2113(a)1 and 18 U.S.C. § 924(c)2 under which


       1
           18 U.S.C. § 2113(a) provides:
               Whoever, by force and violence, or by
               intimidation, takes, or attempts to take, from
               the person or presence of another, or obtains
                                                         (continued...)

                                       -5-
Ahern     was   charged,   in   doing   so,   it   need   not   dispel   “every

hypothesis consistent with the defendant’s innocence.”                   United

States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995)(citation

omitted). Moreover, given the nature of proof in the criminal law,

the use of indirect, circumstantial evidence, woven together in

“[c]hains of inference,” is permissible and commonplace.                   Id.

(citing United States v. O’Brien, 14 F.3d 703, 706 (1st Cir.

1994)).     Whatever inferences arise from conflicting testimony then


     1
         (...continued)
             or attempts to obtain by extortion any
             property or money or any other thing of value
             belonging to, or in the care, custody,
             control, management, or possession of, any
             bank, credit union, or any savings and loan
             association; or ...
             Shall be fined under this title or imprisoned
             not more than twenty years.
     2
         18 U.S.C. § 924(c)(1)(A) states:
             Except to the extent that a greater minimum
             sentence is otherwise provided by this
             subsection or by any other provision of law,
             any person who, during and in relation to any
             crime of violence or drug trafficking crime
             (including a crime of violence or drug
             trafficking crime that provides for an
             enhanced punishment if committed by the use of
             a deadly or dangerous weapon or device) for
             which the person may be prosecuted in a court
             of the United States, uses or carries a
             firearm, or who, in furtherance of any such
             crime, possesses a firearm, shall, in addition
             to the punishment provided for such crime of
             violence or drug trafficking crime–
                       ...
                  (ii) if the firearm is brandished,
                  be   sentenced    to   a   term   of
                  imprisonment of not less than 7
                  years.

                                        -6-
fall       to   the   jury,   which   alone    assesses   witness   credibility.

O’Brien, 14 F.3d at 707.

       True, no witness positively identified Ahern as the ski-masked

man holding a gun pointed at the teller or driving off in a small

black car whose licence plate was one-digit off that on the stolen

black Honda.           However, as set forth above, several witnesses

provided descriptions and details of the robber, weapon, and

sequence of events, which, taken as a whole, point plausibly and

rationally to Ahern’s guilt.           Our task, then, as a reviewing court

is not to decide if that same evidence could bear a different

interpretation.         Instead, after carefully plumbing the record, we

must ascertain whether the jury’s interpretation of the evidence is

both rational and supported.              On this basis, we cannot say no

rational jury could have convicted Ahern. United States v. Julien,

318 F.3d 316, 322 (1st Cir. 2003).

                        II.    Use of Taped Conversation

       Ahern contends the court abused its discretion in admitting

over his vigorous objection a taped telephone conversation between

David Prevost, an inmate at Concord Men’s Prison, and James Davis,

his heroin supplier.3         Although the government offered the tape for


       3
      The taped conversation, a rambling, though guarded banter
between Prevost and Davis, is interrupted twice:
          Prevost: “Oh, sounds like you’re chomping.”
          Davis: “Counting.”
          Prevost laughed and, a few minutes later, in
          mid-sentence, declared:
                                                   (continued...)

                                         -7-
the jury to hear the background sound of money being counted to

buttress Wilson’s testimony Ahern gave Davis the stolen money to

pay his debt, Ahern maintains the obvious prejudicial effect of

objectionable words that were not redacted “deprived [him] of his

right to a trial free from the damaging taint of inadmissible

evidence.”      Ahern contends because his lawyer could not cross-

examine Prevost, the words were left hanging, unfairly prejudicing

his defense.

     The government counters with the hypothesis that the words on

the tape were never admitted into evidence.       Instead, the tapes

were offered only for the clearly audible noise of riffling bills

(presumably similar to the sound of shuffling a deck of cards) in

the background of the conversation.4       Further, it maintains the

court instructed the jury specifically not to consider the words

but only to listen to the sounds, and the jury never saw a

transcript of the tape.       Because jurors are presumed to follow

instructions, United States v. Lee, 317 F.3d 26, 35 (1st Cir.

2003), the government contends the court properly admitted the

evidence after applying Fed. R. Evid. 403.

     3
         (...continued)
             “Jesus you’re peeling off something. (Noise in
             the background.).”
             Davis: “Um,”
             Prevost: (laughing) “You’re working something
             (Laughs).”
     4
      The government also questioned FBI Special Agent Hanlon about
the sound of counting money for the jury to compare the courtroom
demonstration with the tape.

                                  -8-
       Although we usually presume that a jury will follow the trial

judge’s specific, “curative instructions” in a criminal case,

United States v. Bradshaw, 281 F.3d 278, 285 (1st Cir. 2002)

(citations omitted), we remain skeptical of the jury’s acuity in

ignoring the spontaneous statements against the basso continuo of

shuffling        money.      Surely,   given        the   abundance       of    evidence

connecting the dots to Ahern, the tape appears incidental and

cumulative, at best.

       Under the circumstances our review remains limited.                      “Whether

or not a jury can be expected, under proper instructions, to

disregard particular evidence is a judgment call, and one as to

which appellate courts typically cede a high degree of deference to

the trial court.”           Id. at 284 (citations omitted).                    With that

reflection in mind, we believe the trial court did not abuse its

discretion under Rule 403 in permitting the jury to hear the

evidence.

                           III.   Issues of Plain Error

       Quoting United States v. Lopez-Pena, 912 F.2d 1542, 1546 (1st

Cir. 1989), Ahern contends five issues5 merit plain error review,

each       one   “so   shocking     that     [it]    seriously      affect[ed]       the

fundamental       fairness    and    basic       integrity   of     the   proceedings

conducted        below.”     He   maintains        the    errors,    separately      and


       5
      Because a sixth alleged plain error, whether Ahern’s mother
was excluded from the courtroom during voir dire, is not factually
developed for this appeal, we do not address it.

                                           -9-
cumulatively,       result     in   a    miscarriage       of     justice.         Ahern

acknowledges his burden: “to establish that the error was ‘clear,’

in the sense that it was ‘obvious,’ that it affected ‘substantial

rights,’ and that failure to vacate [the conviction] would result

in a ‘miscarriage of justice.’”               United States v. Crochiere, 129

F.3d    233,   237     (1st     Cir.     1997)(citations          omitted)(internal

quotations omitted).

                         A.     Display of Teeth and Hands

       Ahern   deems     “clear”        and   “obvious”         the   error   in    the

government’s calling him to display his teeth and hands to the jury

after the last witness testified. The demonstration, he maintains,

while appropriate        when   a   witness        has   just    testified    about   a

particular     fact,    was    improper       because    it     occurred   after    the

particular witnesses were questioned and could not be cross-

examined.

       Earlier in the government’s case, Ms. Bailey, the bank teller,

and Ms. Aimee Wilson, a bank employee, described Ahern in their

testimony, the former stating the robber’s bottom teeth were

crooked; the latter, observing that he left the bank wearing tight

gloves.     Although defense counsel could have more readily cross-

examined these witnesses had Ahern been asked to stand before the

jury right after their direct examination, he was not foreclosed

from    recalling      the    witnesses       to   question      them   about      their

descriptions of the robber.


                                         -10-
        We have acknowledged that asking the defendant to display his

teeth and hands during the trial is permissible.               United States v.

Santana, 175 F.3d 57, 64 n.6 (1st Cir. 1999) (citing Holt v. United

States, 218 U.S. 245, 252 (1910)).                    The government’s timing,

standing alone, does not make this plain error.6               Thus, we fail to

grasp    how   Ahern’s     later    demonstration      seriously   affected   his

substantial rights.

                           B.   Superceding Indictment

        Ahern raises another timing issue, contending the government

punished him for “derailing” his first trial after the jury was

sworn by filing a superceding indictment and adding the § 924(c)

charge.     He maintains the government had evidence of the use of a

gun in the robbery from surveillance tapes, testimony of bank

personnel,     and,   as    early    as    February    2001,   Jennifer   Wilson.

Nonetheless, the government filed only the single charge under 18

U.S.C. § 2113(a).          Because he exercised his constitutional right

to retain new counsel of his choice, necessitating a continuance of

his first trial date, he contends the government’s filing the

additional charge is the result of a vindictive prosecution.                   He

asserts the facts will show actual vindictiveness or a sufficient

likelihood of vindictiveness.


     6
      In contrast, in United States v. Santana, 175 F.3d 57, 67
(1st Cir. 1999), defendant was asked to show his ears in response
to a jury question after the jury began its deliberations. Under
those circumstances, we held the error was not harmless, vacated
the conviction, and remanded for a new trial.

                                          -11-
     The government counters that only after Wilson was released

from Strafford County Jail and agreed to testify before the August

2001 grand jury was its proof sufficiently strengthened to charge

Ahern with violation of 18 U.S.C. § 924(c).   Wilson’s cooperation,

it states, provided new and corroborating evidence on which to base

the superceding charge.7

     Despite Ahern’s characterization, prosecutorial vindictiveness

is not a necessary inference on this record.       Ahern’s attempt to

align the circumstances to show a presumption of vindictiveness is

rebutted by the government’s presenting sufficient reasons for

bringing the second charge.   United States v. Lanoue, 137 F.3d 656,

665 (1st Cir. 1998).       That explanation is both “plausible and

unimpeached.”   United States v. Stokes, 124 F.3d 39, 45 (1st Cir.

1997).   Plain error does not attach.

                   C.   Three Evidentiary Issues

     First, Ahern contends it was plain error for the trial court

to permit Wilson, who had drug charges pending against her in New

Hampshire, to testify when her court-appointed attorney was unable

to be present to instruct her on invoking her Fifth Amendment

privilege.   The error, he asserts, infringed his right to a fair

trial free from improper judicial interference.


     7
      When she testified before the grand jury in August 2001,
Wilson stated she previously did not tell investigators about the
money and her conversation with Ahern while driving to Lawrence.
She also provided descriptions of the gun and its apparent disposal
by Ahern.

                                 -12-
     The government explains it informed the trial court about the

absence of Wilson’s attorney, and the court asked her if she would

invoke    the   privilege.       Wilson    stated      she   wanted   to   testify.

Although Ahern failed to specify the precise harm he suffered,8 the

government suggests the impact on its case had Wilson not testified

remains speculative.

     Under the plain error rubric, Ahern’s conclusory allegations

of judicial interference violating his due process rights ring

hollow.    The trial court inquired in a hearing to assure Wilson

chose to proceed.

     Second, Ahern contends the government’s inclusion of facts not

in evidence in its closing argument – whether the stolen Honda was

driven towards downtown Portsmouth, the owner’s version, or, in the

opposite direction, Wilson’s testimony – was a “deliberate attempt

to mischaracterize the facts”             and    bolster Wilson’s testimony.

Despite his trial counsel’s failure to object or request a limiting

instruction, he insists this prosecutorial misconduct amounts to

plain error.

     The jury heard each version of the Honda’s disappearance, and,

in essence, decided which one it believed.              United States v. Lopez-

Lopez,    282   F.3d   1,   17   n.9   (1st     Cir.   2002).    Again,    Ahern’s

contention falls short of establishing a plain error.



     8
      Indeed, the need to protect Wilson’s Fifth Amendment right as
a rudiment of Ahern’s Due Process right stands unexplained.

                                       -13-
     Third, Ahern claims the government’s introduction of a $100

bill found in a dresser in James Ryan’s vacated apartment violated

his Fourth Amendment rights.    Ahern maintains his privacy rights

arise from his status as Ryan’s “de facto roommate,” in which he

could come and go to the apartment under “an open agreement with

Ryan to use a window for entry.”    Although he concedes Ryan moved

out of the apartment, he argues that his abandonment does not

trigger “consent to a search into the former tenant’s personal

effects.”   Thus, having established his standing to raise a Fourth

Amendment challenge, he urges the admission into evidence of the

$100 bill was plain error.

     After previously visiting Ryan’s apartment, Detective Thomas

Stinglen returned and with permission from a maintenance worker

entered the apartment.    Although no one was living there, some

furniture was left behind.     In one of the drawers he opened, he

found the $100 bill.

     Not only does Ahern lack a privacy interest in the abandoned

property, United States v. Kelly, 329 F.3d 624 (8th Cir. 2003), but

also he cannot bootstrap any expectation of privacy to an apartment

rented by another who has vacated it.       See, e.g., Abel v. United

States, 362 U.S. 217, 241 (1960).      His argument is fatuous.

     Finally, Ahern maintains the cumulative effect of each of these

errors undermines his due process and necessitates a new trial.

This “kitchen-sink contention that the cumulative effect of the



                                -14-
putative   errors”   requires   us   to   assess   whether   the   precise

interaction of errors amounts to an unfair trial.       United States v.

Villarman-Oviedo, 325 F.3d 1, 18 (1st Cir. 2003).

     Of necessity, claims under the cumulative error doctrine
     are sui generis. A reviewing tribunal must consider each
     such claim against the background of the case as whole,
     paying particular weight to factors such as the nature
     and number of errors committed; their interrelationship,
     if any, and combined effect; how the district court dealt
     with the errors as they arose (including the efficacy--or
     lack of efficacy--of any remedial efforts); and the
     strength of the government's case.

Id. (quoting United States v. Sepulveda, 15 F.3d 1161, 1196 (1st

Cir.1993)).   After such review, we conclude Ahern’s contention is

without merit.   AFFIRMED.




                                 -15-
