
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1863                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 JUAN LABOY-DELGADO,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                [Hon. Gilberto Gierbolini, Senior U.S. District Judge]                                           __________________________                              _________________________                                        Before                         Selya and Cummings,* Circuit Judges,                                              ______________                           and Coffin, Senior Circuit Judge.                                       ____________________                              _________________________               Jose C. Romo Matienzo on brief for appellant.               _____________________               John C. Keeney,  Acting Assistant Attorney  General, Theresa               ______________                                       _______          M.B. Van Vliet and Philip Urofsky,  Criminal Division, U.S. Dep't          ______________     ______________          of Justice  and Guillermo Gil,  United States Attorney,  on brief                          _____________          for appellee.                              _________________________                                     May 21, 1996                              _________________________          __________          *Of the Seventh Circuit, sitting by designation.                    SELYA, Circuit  Judge.  On November 3,  1993, a federal                    SELYA, Circuit  Judge.                           ______________          grand  jury empaneled  in the  District of  Puerto Rico  indicted          defendant-appellant Juan Laboy-Delgado  (Laboy) for conspiring to          possess cocaine with  intent to  distribute, 21 U.S.C.     841  &          846,  attempting to import cocaine and conspiring to that end, 21          U.S.C.    952, 960, & 963, and aiding and abetting the commission          of these  crimes, 18 U.S.C.   2.  Following Laboy's conviction on          all counts  and the  district court's imposition  of a  211-month          incarcerative sentence,  Laboy prosecuted this appeal.   He finds          no safe harbor.  Determining, as  we do, that his assignments  of          error lack merit, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    We elucidate the  facts gleaned at  trial in the  light          most  flattering to  the jury's  verdict.   See United  States v.                                                      ___ ______________          Spinney, 65 F.3d 231, 233 (1st Cir. 1995).  We note at the outset          _______          that  many  of the  pivotal facts  come  from testimony  of Sonia          Figueroa  Sanchez  (Figueroa),  the  former  wife  of  a  quondam          conspirator,  Zebedo  Maisonet   Gonzalez  (Maisonet),  and  from          Maisonet himself.1                    In early 1990, certain individuals,  Maisonet included,          hatched a plan  to import cocaine from Colombia to Puerto Rico by          way of St. Maarten.  Maisonet testified that a fellow rogue, Papo          Montijo,  sponsored the  appellant for  membership in  the cabal.                                        ____________________               1Figueroa began cooperating with the authorities  during the          investigation.  Maisonet  joined her in a duet as  part of a plea          agreement  negotiated between the date of his arrest and the date          of the appellant's trial.                                          2          Maisonet discussed the venture's  prospects with the appellant in          the spring of 1990, but forged no enduring alliance.                    That  summer,  the  wind  shifted.   Customs  officials          detained a  conspirator attempting  to carry cocaine  into Puerto          Rico on a commercial  airline flight, and mechanical difficulties          thwarted a  seaborne pickup of  cocaine in St.  Maarten.   As the          gang  pondered new  strategies to  transport contraband  from St.          Maarten  to Puerto  Rico, Montijo  again floated  the appellant's          name.   This  time  the conspirators  approached  him and,  after          haggling over  the prospective  division of spoils,  enlisted his          services.                    The appellant  arranged for his  cousin, Hector  Guzman          Rivera  (Guzman),  to ferry  a  shipment of  contraband  from St.          Maarten  to  Puerto Rico.   He  (Laboy)  and Maisonet  planned to          travel  by boat to St.  Maarten to receive  the clandestine cargo          preliminary to  its transshipment.   The planning  process proved          long on bravado  and short  on security.   Figueroa attended  the          pivotal meeting at which  details of the anticipated trip  to and          from  St. Maarten were reviewed.  At the government's behest, she          also tape-recorded  telephone calls in which  she, the appellant,          and other coconspirators freely discussed the pending smuggle.                    Fueled by Figueroa's input,  a federal narcotics agent,          Victor Ayala,  placed Guzman's boat under  surveillance on August          9, 1990.   At around 11:00 a.m. on August  10, Ayala observed the          appellant and a  conspirator known  only as  "Jerry" lugging  two          heavy  suitcases  onto  the boat.    The  men  stayed aboard  for                                          3          approximately  ten   minutes  and   then  departed   without  the          suitcases.   Late  that  morning, Guzman  and  Maria Sostre  came          aboard carrying a blue  rug.  Shortly before noon,  the appellant          reappeared, remained aboard  for roughly half  an hour, and  left          carrying a  small  travel bag.    During the  afternoon,  various          persons came and went, some bringing provisions.  Near the end of          the  day the local authorities, fearing that the vessel was being          readied  for departure,  boarded her.   They  found seventy-three          kilograms  of cocaine concealed in  the ship (under  the blue rug          that Guzman  had brought aboard), and detected  traces of cocaine          in  the now-empty  suitcases.   The authorities  also found  four          individuals  aboard the  ship:   Edwin  Burgos, Fabian  Martinez,          Maria Sostre, and Miriam Garcia.  They arrested Guzman nearby.                    The  appellant  had  flown  to  Puerto  Rico  that  day          (sometime after delivering the suitcases) and was arrested there.          Indictment,  trial,  conviction, and  sentencing  followed apace.          This appeal ensued.          II.  SUFFICIENCY OF THE EVIDENCE          II.  SUFFICIENCY OF THE EVIDENCE                    The appellant  challenges the sufficiency  of the proof          adduced against him  at trial, insisting that  the district court          should have granted his timely motion for judgment  of acquittal.          See Fed. R. Crim. P. 29(a).  The standard of  appellate review is          ___          familiar:   like  the  trial court,  the  court of  appeals  must          determine whether  the evidence  proffered, arrayed in  the light          most favorable to  the prosecution,  enabled a  rational jury  to          find  each element of the offense beyond a reasonable doubt.  See                                                                        ___                                          4          United States v. Valle, 72 F.3d 210, 217 (1st Cir. 1995);  United          _____________    _____                                     ______          States v. Olbres, 61  F.3d 967, 970 (1st Cir.), cert. denied, 116          ______    ______                                _____ ______          S. Ct.  522 (1995).   In  so doing, we  must draw  all reasonable          evidentiary inferences  in harmony  with the verdict,  see United                                                                 ___ ______          States v. O'Brien, 14 F.3d 703,  706 (1st Cir. 1994), and resolve          ______    _______          all disagreement  regarding the  credibility of witnesses  to the          government's behoof, see  United States v.  Taylor, 54 F.3d  967,                               ___  _____________     ______          974  (1st Cir. 1995).   As long  as the totality  of the evidence          presented,  viewed  through  this   glass,  supports  the  jury's          verdict, it is legally irrelevant that a different jury,  drawing          alternative  inferences, might have  reached a  different result.          See United States v. Gifford, 17 F.3d 462, 467 (1st Cir. 1994).          ___ _____________    _______                    The   appellant  tries   to  place   his  insufficiency          challenge into bold relief by emphasizing three points.  None has          force.                    1.    The appellant  says  that  the government's  case                    1.          falters  because the evidence  at trial did  not precisely define          his "specific role in the criminal enterprise."  To be sure, that          sort of definition is helpful in setting sentencing ranges,  see,                                                                       ___          e.g., U.S.S.G.   3B1.1, 3B1.2, but to prove a defendant guilty of          ____          a narcotics-related  conspiracy the  government need not  specify          and prove with  particularity the defendant's  exact role in  the          scheme.  See, e.g., United States v. Carroll, 871 F.2d 689,  692-                   ___  ____  _____________    _______          93 (7th Cir.  1989).   Put another way,  the government need  not          prove  facts  beyond those  that are  necessary to  establish the          elements of the crimes  charged, see United States v.  Staula, 80                                           ___ _____________     ______                                          5          F.3d 596,  605 (1st  Cir. 1996), and  neither the  elements of  a          drug-conspiracy charge under  21 U.S.C.   846  nor an importation          charge  under 21 U.S.C.   952  include a definitive specification          of  the  defendant's role  in the  offense.2   See,  e.g., United                                                         ___   ____  ______          States  v.  Sepulveda,  15  F.3d  1161,  1173   (1st  Cir.  1993)          ______      _________          (discussing elements of offense  under   846), cert. denied,  114                                                         _____ ______          S.  Ct. 2714  (1994); United States  v. Nueva, 979  F.2d 880, 884                                _____________     _____          (1st Cir.  1992) (discussing  elements of offense  under    952),          cert. denied, 507 U.S. 997 (1993).          _____ ______                    2.   The appellant next  decries the fact  that much of                    2.          the  evidence against  him  came from  a cooperating  codefendant          (Maisonet).     The   appellant   suggests  that   Maisonet   was          presumptively untrustworthy because  of his strong  motivation to          say what the government wanted to hear.   This sort of suggestion          can be  molded into a  powerful jury argument  but it has  little          potency on appeal.                    The persons most knowledgeable about the inner workings          of  criminal enterprises  tend  to be  the criminals  themselves.          Thus,  the government     which has  no choice  but  to take  its          witnesses as  it finds them   often  must rely on blackguards and          knaves, whose  testimony is admittedly tinged with self-interest,          to prove its allegations.  Such flaws do not render the testimony          inadmissible   it would  be a surreal  system of justice if  only                                        ____________________               2To  the extent  that the  appellant claims  the prosecution          misfired  by failing to show that he possessed some special skill          needed by  the  conspirators, he  has  again strayed  beyond  the          elements of the offense.  His claim is, therefore, unavailing.                                          6          those who were  without sin  could offer evidence  in a  criminal          case   but a witness' involvement in the crime and his motive for          turning on  his erstwhile accomplices  are fair game  for defense          counsel.   The rules thus  permit the witness'  credibility to be          tested  in the crucible  of cross-examination.   In this instance          the  appellant vigorously  attacked Maisonet's motives  at trial,          and  the resultant credibility choice  was for the  jury, not for          this court.3  See, e.g., O'Brien, 14 F.3d at 706.                        ___  ____  _______                    3.      Relatedly,   the  appellant   bewails   certain                    3.          contradictions  in  Maisonet's testimony,  concluding  that these          contradictions rendered his testimony inherently unreliable.  The          asserted contradictions  are mostly of  peripheral interest;  for          example,  Maisonet  at one  point  suggested  that the  appellant          invited  Guzman to join  the conspiracy, yet  mentioned, on other          occasions, that  the conspirators had retained  Guzman's services          before  the appellant hove into view.4  Court cases, however, are                                        ____________________               3We note that the  trial judge drew the jury's  attention to          the potential  problems with testimony of  this type, instructing          the jurors,  inter alia,  that  the testimony  of informants  and                       _____ ____          accomplices cooperating with the government "must be examined and          weighed by [you] with greater care and caution than the testimony          of ordinary witnesses."               4We say "asserted contradictions" because, for  example, the          jury could  have found the supposed  contradiction concerning who          first hired Guzman to be more apparent than real.   The testimony          revealed  that, during Guzman's earlier trip, he worked for a few          low-level conspirators  and had  little contact with  Maisonet or          his  principal   partner.    When  Maisonet   and  the  appellant          thereafter  discussed  ways  of  transporting  the  cocaine,  the          appellant referred to Guzman only as his cousin, and not by name.          Thus,  Maisonet could have "hired" Guzman through Laboy in a very          real  sense,  notwithstanding  Guzman's  earlier  brush  with the          enterprise.                                          7          not choreographed with the precision of a ballet.  Some degree of          contradiction is commonplace and, for the most part, the judicial          system relies  upon devices  such as the  cross-examiner's vigor,          the  jurors'  common  sense,  and  the  trial  judge's  practiced          intuition  to  separate  grain  from  chaff.   Those  checks  and          balances were fully in play here and, on this scumbled record, we          think  that the  jury could  reasonably have  believed Maisonet's          testimony despite the asserted contradictions.  See, e.g., United                                                          ___  ____  ______          States  v. Romero, 32 F.3d  641, 646 (1st  Cir. 1994) (explaining          ______     ______          that  the court  of  appeals  "will  not secondguess  the  jury's          decision  to credit testimony  which contains an inconsistency");          see  also United States  v. Johnson, 55  F.3d 976, 979  (4th Cir.          ___  ____ _____________     _______          1995); United States v.  Jackson, 959 F.2d 81, 82-83  (8th Cir.),                 _____________     _______          cert. denied, 506 U.S. 852 (1992).          _____ ______                    We  add   an  eschatocol  of  sorts.     Rejecting  the          appellant's insufficiency  challenge comes  more readily  in this          case because  the  evidence  against  him  went  far  beyond  the          fingerpointing of  a turncoat.   Figueroa's testimony  was little          short of damning, and, moreover, the jury heard the tape-recorded          conversations  in  which the  appellant  and  others spelled  out          aspects  of  the  scheme.   Appellant  himself  made  inculpatory          statements when arrested.   Then, too,  Agent Ayala observed  the          appellant  delivering suitcases  later  found  to have  contained          cocaine.   In  similar situations,  where the  government offered          circumstantial  evidence of  defendants'  participation  in  drug          crimes,  combined with trace  elements of drugs  found in objects                                          8          carried by those defendants, our sister circuits have had  little          difficulty  in  sustaining   convictions  against   insufficiency          challenges.   See,  e.g.,  United States  v. Rodriguez,  993 F.2d                        ___   ____   _____________     _________          1170,  1175-76 (5th  Cir. 1993),  cert. denied,  114 S.  Ct. 1547                                            _____ ______          (1994); United States  v. Arango,  853 F.2d 818,  826 (11th  Cir.                  _____________     ______          1988).  So it is here.          III.  LIMITATION OF CROSS-EXAMINATION          III.  LIMITATION OF CROSS-EXAMINATION                    The appellant  complains that the district  court erred          in circumscribing his cross-examination  of a government witness.          Under the  Confrontation Clause,  every criminal defendant  has a          right  "to be confronted with  the witnesses against  him."  U.S.          Const. amend. VI.  This protection "means more than being allowed          to confront the witness  physically."  Davis v. Alaska,  415 U.S.                                                 _____    ______          308, 315 (1974).  Rather, its primary purpose is to ensure that a          defendant has a fair opportunity to cross-examine witnesses.  See                                                                        ___          Delaware  v. Van Arsdall, 475 U.S. 673, 678 (1986); United States          ________     ___________                            _____________          v.  Boylan, 898 F.2d 230, 254  (1st Cir.), cert. denied, 498 U.S.              ______                                 _____ ______          449 (1990).  In defining  the scope of this guarantee,  the Court          has  "recognized that  the exposure of  a witness'  motivation in          testifying   is  a   proper   and  important   function  of   the          constitutionally protected  right of cross-examination."   Davis,                                                                     _____          415 U.S. at 316-17.                    While the right to  test witnesses by cross-examination          is fundamental, it is not unbridled.  See, e.g., Boylan, 898 F.2d                                                ___  ____  ______          at  254; United States  v. Chaudhry, 850 F.2d  851, 856 (1st Cir.                   _____________     ________          1988); see also  Delaware v.  Fensterer, 474 U.S.  15, 20  (1984)                 ___ ____  ________     _________                                          9          (per  curiam)  (explaining   that  "[t]he  Confrontation   Clause          guarantees  an opportunity  for effective  cross-examination, not                         ___________          cross-examination  that  is effective  in  whatever  way, and  to          whatever extent, the defense might wish") (emphasis in original).          When  a witness'  credibility is  in issue,  the trial  court may          impose limits  on cross-examination as  long as the  court grants          the  defendant  sufficient  leeway  to  establish  "a  reasonably          complete picture of the witness' veracity, bias, and motivation."          Boylan,  898  F.2d at  254.   If  the  trial  court imposes  such          ______          limitations  and  the  defendant  thereafter challenges  them  on          appeal, we review  the record  de novo to  ascertain whether  the          court, overall, gave the defendant a reasonable chance to develop          the whole picture.  See United States v. Nelson, 39 F.3d 705, 708                              ___ _____________    ______          (7th Cir. 1994).   If we find that the core concerns of the Sixth          Amendment  have been  satisfied, we  "will grant relief  from the          shackling  of  cross-examination  only   for  manifest  abuse  of          discretion."  Boylan, 898 F.2d at 254.                        ______                    In   this  case,  the   appellant  cites  two  specific          instances in which the trial court cut off cross-examination, and          avers  that these  rulings are  insupportable.   We examine  each          instance.                    1.  In the first iteration, the district judge directed                    1.          defense  counsel  to  pursue  new avenues  of  examination  after          counsel  queried Maisonet as to  the chronology of  events in St.          Maarten on  the day the  drugs were seized.   But this was  not a          pathbreaking  expedition;  counsel  had  thrice   previously  led                                          10          Maisonet  down  the  same  road  and  Maisonet  had  consistently          answered that he returned to Puerto Rico that morning but that he          could  not remember the precise time.   Cross-examiners should be          given reasonable latitude, especially in criminal cases, but they          are not  at  liberty endlessly  to repastinate  the same  terrain          (whether or not they are satisfied with the answers elicited from          a  particular witness).  In this instance we discern no prejudice          in the district court's refusal to let counsel go to the well for          what would have amounted  to a fourth time, and,  accordingly, we          detect  no  hint  of  either  constitutional  error  or  abuse of          discretion.  See, e.g., Boylan, 898 F.2d at 254-55; Chaudhry, 850                       ___  ____  ______                      ________          F.2d at 856.                    2.    In  the  second  iteration,  the  district  court                    2.          prevented  defense counsel  from questioning  Maisonet  in detail          regarding the terms and conditions of his plea agreement with the          government.     The  appellant  protests  that   this  limitation          prevented his counsel from fully impeaching Maisonet's veracity.                    The record  belies  the appellant's  protest.   Defense          counsel thoroughly  examined Maisonet anent  the charges  brought          against him and the benefits that he expected to derive  from his          plea  agreement.    Most  importantly,  the  court  admitted  the          agreement  itself   into  evidence,  and  defense   counsel  made          profitable use of it.   No more was exigible.  See  United States                                                         ___  _____________          v. Ovalle-Marquez,  36 F.3d  212, 219  (1st  Cir. 1994)  (holding             ______________          that,  where cross examination informed the jury of the benefit a          witness  garnered from a plea agreement, the district court could                                          11          properly limit  further cross-examination on the  subject), cert.                                                                      _____          denied,  115 S. Ct. 947 (1995); United  States v. Maceo, 947 F.2d          ______                          ______________    _____          1191,  1200 (5th Cir. 1991) (similar), cert. denied, 503 U.S. 949                                                 _____ ______          (1992); United States v. Twomey, 806 F.2d 1136, 1139-40 (1st Cir.                  _____________    ______          1986) (similar).          IV.  PROSECUTORIAL MISCONDUCT          IV.  PROSECUTORIAL MISCONDUCT                    The appellant calumnizes several statements made during          the  government's  closing argument.    He  maintains that  these          improper statements  tainted his  trial and,  concomitantly, that          the lower court improvidently denied his motions for mistrial.                    In regard to  the first two statements  attacked by the          appellant,  we conduct our review of the trial court's rulings de          novo and will  set aside the  verdict only if  we find that  "the          prosecutor's  remarks  were  both  inappropriate   and  harmful."          United States v. Wihbey, 75 F.3d 761, 771 (1st Cir. 1996); accord          _____________    ______                                    ______          United  States  v. Levy-Cordero,  67  F.3d 1002,  1008  (1st Cir.          ______________     ____________          1995), cert. denied, 64  U.S.L.W. 3708 (U.S. Apr. 22,  1996) (No.                 _____ ______          95-8398).   Challenged  statements are  considered harmful  when,          evaluated  in  the  totality  of the  circumstances,  they  would          probably have affected the outcome of the trial.  See  Wihbey, 75                                                            ___  ______          F.3d at 771.  In assessing  harm, courts frequently look to  such          factors  as the severity of  the purported misconduct, the weight          of the evidence supporting the  verdict, the presence and  likely          effect of a curative instruction, and the prosecutor's purpose in          making the statement (i.e.:  whether the statement was willful or          inadvertent).  See  id. at  772; Sepulveda, 15  F.3d at  1187-88;                         ___  ___          _________                                          12          United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987).          _____________    ____________          Above  all,   courts  must  refrain  from   examining  challenged          statements in a  vacuum, but,  rather, must look  to context  for          assistance in  determining both  their meaning and  their effect.          See Sepulveda, 15 F.3d at 1187.          ___ _________                    1.    The  appellant's  first  complaint  is  with  the                    1.          prosecutor's  statement that  "in the  case at  bar, there  is no          doubt  and  I  believe my  Brother  Counsel  would  agree that  a          conspiracy existed."  When the  statement was made, the appellant          objected  and  the district  court  interrupted  the prosecutor's          summation with  an admonition to  the jury that  "[t]he objection          was  sustained so  the statement  is stricken  and should  not be          taken in consideration by  you."  We have consistently  held that          an  immediate  curative  instruction dilutes  (and  usually fully          dissipates) the  potential prejudice from an  improper statement.          See, e.g., United States  v. Rivera-Gomez, 67 F.3d 993,  998 (1st          ___  ____  _____________     ____________          Cir. 1995); Sepulveda, 15 F.3d at 1185.                      _________                    Viewing  this statement in  context, see  Sepulveda, 15                                                         ___  _________          F.3d at  1187, we see no  reason why the usual  praxis should not          apply.   The appellant's theory of the  case, as expressed in his          opening  statement, was that he  was "not part  of [the] criminal          organization."   By like token, defense  counsel acknowledged the          conspiracy  and referred to  it in  summation as  an "orchestra,"          conducted by Maisonet and others, in which appellant did not even          play second fiddle.   Given the appellant's stated theory  of the          case, the prosecutor's remark cannot easily be labelled as either                                          13          "inappropriate"  or "harmful."   And,  moreover, the  lower court          cured any  reasonable possibility of prejudice  when it sustained          the appellant's contemporaneous objection and instructed the jury          to ignore the offending statement.  See, e.g., id. at 1185.                                              ___  ____  ___                    2.  At trial, Figueroa stated that she left Puerto Rico                    2.          for  Milwaukee "because [she] found  out that on  August 10th the          crew  and  the  boat  had been  arrested  in  St.  Maarten."   In          summation,  the  prosecutor  put   a  twist  on  this  testimony,          suggesting  that  Figueroa,  after betraying  the  conspiracy  by          giving information to Agent Ayala, fled to Milwaukee "to  protect          herself."   The  appellant objected,  arguing that  the statement          implied  that Figueroa  feared that  those conspirators  still at          large (or their cohorts) might attempt to do her harm.  The trial          court  sustained the objection  and cautioned  the jury  that the          "statement   is  stricken   and  you   should  not  take   it  in          consideration   for  anything   in   this  case."     The   court          simultaneously denied the appellant's motion for a mistrial.                    Viewed in light  of the copious evidence  of guilt that          permeates  the record,  we cannot say  that this  remark warrants          reversal.   Though the  prosecutor's statement was  untoward, its          impact  could  not  have been  great.    The  phrase "to  protect          herself"  is inherently  ambiguous, and  there was  no intimation          that  the witness feared that  the defendant might  try to injure          her.5    We  think that,  on  balance,  the  objectionable phrase                                        ____________________               5On appeal, Laboy attempts  to link the prosecutor's comment          with Maisonet's  testimony  that he  was  attacked at  one  point          because  he was  suspected of  being an  informant.  There  is no                                          14          represents no more  than an isolated  comment, unlikely to  smear          the  appellant with facts not  in evidence, and  that the judge's          curative  instruction  sufficed  to  quell  any  prejudice.    We          therefore reject the appellant's  plaint that the wayward comment          requires us to set aside  his conviction.  On the same  basis, we          likewise  reject his  plaint  that the  district  court erred  in          failing to grant his motion for a mistrial.  See United States v.                                                       ___ _____________          Pierro, 32 F.3d 611, 617 (1st  Cir. 1994) (explaining that "it is          ______          only  rarely      and  in extremely  compelling circumstances              that  an appellate panel, informed by a cold record, will venture          to  reverse  a  trial   judge's  on-the-spot  decision  that  the          interests of justice do not require aborting an  ongoing trial"),          cert. denied, 115 S. Ct. 919 (1995).          _____ ______                    3.    The  appellant also  criticizes  the prosecutor's                    3.          underscoring   of  the   paucity  of   evidence  supporting   the          appellant's theory of the  case.  He objects particularly  to the          prosecutor  pointing out  that his  character witnesses  were not          present in St. Maarten on the day of the denouement, and inviting          the  production  of  a  percipient  witness  who  could  offer an          alternative  explanation  of  the  events  of  August  10.    The          appellant's  point is  that  the  prosecutor  impermissibly  drew          attention  to the  appellant's silence.6   See  United  States v.                                                     ___  ______________                                        ____________________          basis either in the  record or in the prosecutor's  summation for          forging such a link.               6We quote below the criticized remarks in their entirety:                         "He   told  you   also  about   the  two                    reputation witnesses and that  I asked him an                                          15          Lilly, 983 F.2d 300, 306-07 (1st Cir. 1992) (reaffirming that the          _____          Fifth Amendment  prohibits a prosecutor, directly  or indirectly,          from  asking the  jury  to  draw  a  negative  inference  from  a          defendant's silence).                      These statements  did  not transgress  the  appellant's          Fifth  Amendment  rights.7   When  a  defendant  suggests  that a          prosecutor  adverted   to  his  silence,  we   must  examine  the          challenged statement in context.  See id. at 307.  The key to our                                            ___ ___          inquiry is "whether, in the circumstances of the particular case,          the  language  used  was  manifestly  intended  or  was  of  such          character that the  jury would naturally and  necessarily take it          to be a comment on the failure  of the accused to testify."   Id.                                                                        ___          (citations  omitted).     We  will  not  "lightly  infer  that  a          prosecutor intends an ambiguous remark to have  its most damaging                                        ____________________                    unfair   question.     Those   aren't  unfair                    questions.  I asked him, "Were you there.  He                    wasn't  there so  he can't tell  us anything.                    You see, the issue  is what happened that day                    and they are bringing  witnesses to tell  you                    about other things.  Well, bring me a witness                    to tell me what happened there.                         What  is a  reputation witness  going to                    say, He  is a good  friend.  The  person that                    says he was like my brother and that man that                    came  here is a very  good man and  so is the                    other one  but see, he didn't  know what Juan                    Laboy Delgado was doing  in August of 1990 in                    St. Maarten  because he  was not there  so he                    can't testify as to that."               7In undertaking this analysis we assume arguendo, but do not                                                       ________          decide, that the appellant lodged a timely objection to this line          of  argument.  In point of fact, no contemporaneous objection was          raised.   However, the appellant  advanced an  objection to  this          line  of argument  at the  end of  the prosecutor's  rebuttal and          simultaneously moved for a mistrial.                                          16          meaning or that a jury, sitting through lengthy exhortation, will          draw   that  meaning   from   the  plethora   of  less   damaging          interpretations."   Donnelly v. DeChristoforo, 416  U.S. 637, 647                              ________    _____________          (1974).                    Applying these  principles, we are  satisfied that  the          comments did not cross the line.  The fairest characterization of          the   prosecutor's  argument      indeed,   the   only  plausible          characterization    is as  an attempt to  accentuate the  general          lack of testimony supporting the  appellant's position.  No fewer          than six individuals,  not including the  appellant, were on  the          vessel on August  10, so the prosecutor's  allusion logically and          naturally  referred to  this  cadre of  individuals,  not to  the          appellant himself.  See, e.g., Sepulveda, 15 F.3d at 1187; United                              ___  ____  _________                   ______          States v. Collatos, 798 F.2d 18, 20 (1st Cir.), cert. denied, 479          ______    ________                              _____ ______          U.S.  993  (1986).   And  in  all  events,  the district  court's          forceful  instructions regarding  the  appellant's  right not  to          testify resolved any conceivable ambiguity.8          V.  USE OF SELF-INCRIMINATING STATEMENTS          V.  USE OF SELF-INCRIMINATING STATEMENTS                    The  appellant complains  that  he was  not  adequately          advised of his  rights when  arrested, and that  the court  below          should  have  prohibited  the  government  from  introducing  the          statements  that he made into  evidence.  This  argument need not          detain  us.    The  appellant  neither  moved   to  suppress  the                                        ____________________               8Since  we  find that  the  prosecutor's  statement did  not          prejudicially  highlight the appellant's  failure to  testify, we          find no abuse of discretion in the district judge's denial of the          concomitant motion for a  mistrial.  See Pierro, 32  F.3d at 617;                                               ___ ______          Sepulveda, 15 F.3d at 1185.          _________                                          17          statements nor objected to their introduction at trial.  At best,          then, the  standard of  review is  for plain  error.  See  United                                                                ___  ______          States v.  Olano,  507 U.S.  725, 730  (1993).   The plain  error          ______     _____          hurdle is high:   the appellant  must show (1)  an error, id.  at                                                                    ___          732, that (2)  is "obvious" or "clear under current  law," id. at                                                                     ___          734, and that (3) "affect[ed] substantial rights."  Fed. R. Crim.          P. 52(b).9                    In  this   instance  there  was  no   error,  plain  or          otherwise.  Agent Ayala testified without contradiction that both          he and his deputy advised the appellant of his rights before they          initiated any interrogation.   Thus, the court below had  a solid          foundation  on  which  to  rest  the  admission  of the  disputed          evidence.          VI.  CONCLUSION          VI.  CONCLUSION                    We  need go no further.   From aught  that appears, the          appellant was  fairly tried and justly  convicted.  Consequently,          the judgment of the district court must be           Affirmed.          Affirmed.          ________                                        ____________________               9Even if  these elements are  present, the court  of appeals          retains  discretion to decide whether  to take notice  of a plain          error.  See Olano, 507 U.S. at 736.   We are inclined to exercise                  ___ _____          that discretion sparingly, generally  limiting it to instances in          which the error, if uncorrected, would result in a miscarriage of          justice  or,  put  another  way, would  "skew[]  the  fundamental          fairness or basic integrity of the proceeding below in some major          respect."  Taylor, 54 F.3d at 973.                     ______                                          18
