
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1864                                    UNITED STATES,                                      Appellee,                                          v.                                   JUAN FERNANDEZ,                                Defendant - Appellant.                                 ____________________          No. 95-2067                                    UNITED STATES,                                      Appellant,                                          v.                                   JUAN FERNANDEZ,                                Defendant - Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               John  Wall,   with  whom   David  Shaughnessy  and   Wall  &               __________                 __________________        _______          Shaughnessy were on brief for appellant Juan Fern ndez.          ___________               Lena  Watkins,  Attorney,  Criminal  Division,  Narcotic and               _____________          Dangerous  Drug Section,  U.S. Department  of Justice,  with whom          John C. Keeney, Acting  Assistant Attorney General, Theresa  M.B.          ______________                                      _____________          Van Vliet, Chief, Criminal  Division, Narcotic and Dangerous Drug          _________          Section, U.S.  Department of  Justice, and Guillermo  Gil, Acting                                                     ______________          United States Attorney, were on brief for appellee United States.                                 ____________________                                   AUGUST 20, 1996                                 ____________________                                         -2-                    TORRUELLA,  Chief  Judge.    A  jury  found  appellant-                    TORRUELLA,  Chief  Judge.                                ____________          defendant Juan  Fern ndez ("Fern ndez")  guilty of  conspiracy to          possess with intent to distribute cocaine, and the  United States          District  Court, District of Puerto Rico, denied his motion for a          new trial.   Fern ndez now raises  a series of challenges  to his          conviction, and  the government cross-appeals his  sentence.  For          the reasons stated herein, we affirm.                                      BACKGROUND                                      BACKGROUND                    We  begin with a basic outline of the case, and address          the particulars in  more detail  as they arise,  as the  specific          issues Fern ndez  raises require that  we examine the  facts from          differing perspectives.   Fern ndez  was one of  20 co-defendants          charged  in Count One of  a September 1993 superseding indictment          of conspiring  to  possess with  intent to  distribute more  than          1,000  kilograms of  cocaine  and more  than  1,000 kilograms  of          marijuana in  violation of 21 U.S.C.     841(a)(1) & 846.   Count          One alleged 56 overt  acts in furtherance of the  conspiracy (the          "Sardinas operation"),  beginning  in 1981  and  continuing  over          twelve years.                      The  central allegation regarding Fern ndez was that in          or about the  month of April 1991, he entered into an association          with  co-defendants  Jorge Loredo-Alonso  ("Loredo")  and Horacio          Sardinas-Albo ("Sardinas") to use Carrier  Transportation Company          ("Carrier"), a transportation  company which Fern ndez owned,  to          ship  loads of cocaine from Puerto Rico to the continental United          States.  The indictment  alleged that some nine loads  of cocaine                                         -3-          had been shipped through Carrier by early 1993.                    Fern ndez   was   tried   with   co-defendant   Antonio          Contreras.   The evidence against Fern ndez at the jury trial was          primarily   made  up  of  the   testimony  of  four  alleged  co-          conspirators:  Jos  Bruno ("Bruno"), Elmo De  Jes s ("De Jes s"),          Michael Frame  ("Frame"), and  Lambert Aloisi ("Aloisi").   Bruno          testified  that  nine  loads  of  cocaine  were  shipped  through          Carrier,  the first seven between  April and August  of 1991, and          that he visited  Carrier's warehouse in New  Jersey several times          in  connection  with those  loads.    Fern ndez' counsel  offered          evidence indicating that Carrier  did not in fact exist  in April          1991, but rather was  incorporated in August 1991, and  began its          occupation  of the warehouse Bruno  identified in October of that          year.  The prosecution in turn questioned defense witnesses about          Gulf Transportation1  ("Gulf"); according to the  testimony, Gulf          was  a shipping company at  which Fern ndez had  worked before he          owned  Carrier.  In  its closing argument,  the government argued          that  Fern ndez had used Gulf to transport cocaine prior to using          Carrier.  Fern ndez  was found  guilty and was  sentenced to  151          months.                                       DISCUSSION                                      DISCUSSION                                     A. Variance                                     A. Variance                                        ________                    Fern ndez argues  on appeal  that there was  a material                                        ____________________          1  The defendant  refers to Gulf as "Gulf  Transportation," while          the government uses "Gulf Carrier Transportation."  We express no          opinion as  to which name  is more accurate,  and use "Gulf"  for          convenience.                                         -4-          variance between  the superseding indictment and  the evidence on          which the government relied  at trial.2  We find a variance "when          the  proof  differs  from  the allegations  in  the  indictment."          United States v. Vavlitis, 9 F.3d 206, 210 (1st Cir.  1993).  Not          _____________    ________          every variance mandates a  new trial:  reversal is  only required          if the variance proves  both material and prejudicial.   See Fed.                                                                   ___          R. Crim. P. 52(a); United States v. Arcadipane, 41 F.3d 1, 6 (1st                             _____________    __________          Cir.  1994).   Thus, where,  as here,  "the government  charges a          defendant with a crime  . . . but the facts  proven at trial vary          somewhat from those charged in the indictment . . . it is settled          law  that a  conviction for  the crime  charged will  be affirmed          unless the variance  as to the facts is  shown to have prejudiced          the defendant."  United States v. Moran, 984 F.2d 1299, 1304 (1st                           _____________    _____          Cir. 1993).    Our review  of whether  a retrial  is required  is          plenary.  Arcadipane, 41 F.3d at 6.                    __________                    The  superseding  indictment  specifically stated  that          Fern ndez used  Carrier to transport cocaine.3   The government's          case was consistent with this theory.  Thus, Fern ndez maintains,          while  Carrier was  neither  a defendant  nor  an object  of  the                                        ____________________          2  Fern ndez'  motion for a bill of particulars, which included a          request for discovery of other transportation  companies utilized          by Sardinas, was denied by the court.          3   Paragraph 28 of the superseding indictment charged that "[o]n          or about the month of April, 1991,  HORACIO SARDINAS-ALBO, a/k/a/          HIPPIE,  and  JORGE  ALONSO-LOREDO  [sic]  associated  with  JUAN          FERNANDEZ to use the  services of Carrier Transportation Company,          a transportation  company owned  by JUAN FERNANDEZ,  to transport          large  amounts of  cocaine  from Puerto  Rico to  the continental          United  States  using  containers."    The  following  paragraphs          detailed the nine alleged shipments of cocaine.                                         -5-          indictment,  it was  nonetheless a key  part of  the government's          case.  However, Fern ndez continues,  when he offered evidence in          his  defense  which refuted  the  charges  concerning Carrier  by          proving  that it  could  not have  been  used as  alleged  in the          superseding  indictment, the  government abruptly  switched gears          and  argued that Fern ndez used Gulf.  The prejudice against him,          Fern ndez contends,  was obvious:  his  trial preparations, which          had  centered around Carrier, were no longer adequate, since Gulf          became the focus of the trial and the jury's deliberations.                    We do  not find  such  "obvious" prejudice;  nor do  we          agree  that Gulf became the focus of the trial and deliberations.          We  recognize that there  was a variance,  but do not  believe it          "work[ed] a substantial  interference with the  defendant's right          to be informed of the charges laid at his doorstep."  Arcadipane,                                                                __________          41  F.3d at  6.   Simply  put,  although Carrier  was  repeatedly          mentioned in  the indictment,  the charge was  against Fern ndez,          not  his company.    Regardless of  whether  Carrier or  Gulf  is          discussed, the  charge is  the same:   that  Fern ndez associated          with Sardinas and Loredo to transport cocaine.  Fern ndez  cannot          now claim that he was misinformed of the charges against  him, or          that his substantial rights were somehow affected.  See id. at 7.                                                              ___ ___          A new trial is not required.                            B.  Admission of the Evidence                            B.  Admission of the Evidence                                _________________________                                       1.  Gulf                                       1.  Gulf                                           ____                    Fern ndez contends  that  the district  court erred  in          allowing evidence and argument regarding Gulf.  We review a lower                                         -6-          court's admission  of evidence  for  abuse of  discretion.   See,                                                                       ___          e.g., United States  v. Disanto,  1996 WL 312368,  *11 (1st  Cir.          ____  _____________     _______          1996);  United States v. Rivera-G mez, 67 F.3d 993, 997 (1st Cir.                  _____________    ____________          1995).                    Testimony   regarding   Gulf   was   elicited   by  the          government,   over  Fern ndez'   objection,  during   its  cross-          examination  of defense  witness  Rosa Sanjurjo,  an employee  in          Carrier's  collection  department.   She  stated  that she  began          working for Carrier in January of 1992, prior to which she worked          for  Gulf until 1990.   She acknowledged that  Fern ndez had also          worked  for  Gulf, that  it  did  the same  type  of  business as          Carrier, and that it closed before Carrier was created.  She also          stated that Gulf did not become Carrier.  On redirect, Fern ndez'          counsel  elicited  her  testimony  that Gulf  was  a  corporation          controlled  by Fern ndez  and  two  other individuals,  including          Sanjurjo's  stepson.  She stated on recross that Carrier and Gulf          had  different offices  and  used different  warehouses.   George          Wyle, a salesman for Carrier for part of 1992, testified on cross          that  he knew  Fern ndez through the  shipping business  prior to          1992,  that  Fern ndez was  involved  with  Gulf, that  Gulf  did          essentially  the same kind of business that Carrier did, and that          Gulf's full name was Gulf Carrier.                    After the  first few questions to  Sanjurjo about Gulf,          defense  counsel objected  to  the cross-examination  on Gulf  as          being outside the  scope of  examination; the  court allowed  the          prosecution to continue, but  asking questions on direct, instead                                         -7-          of on cross.   After a few more  questions, defense counsel asked          for  a sidebar, and objected that the questioning was outside the          scope  of  the testimony  and the  entire  case.   The prosecutor          argued that the evidence was being used for impeachment, pointing          out  that since Fern ndez was arguing that it was impossible that          Carrier could have  been used,  the evidence on  Gulf would  show          that even before Carrier  started Fern ndez was in the  same line          of  business, at a company which operated in essentially the same          fashion, offering  Fern ndez access to shipping  services, albeit          under a different name.  The court denied Fern ndez' objection.                    Before closing arguments, Fern ndez' counsel raised the          issue  of  whether  the  government  should  be  allowed to  make          reference  to  Gulf in  its  closing argument.    Defense counsel          protested that the government was trying to make an inference not          based on  the evidence,  since there  was  no evidence  regarding          whether  Gulf  and  Carrier  had  a  similar  identity,  or  when          Fern ndez was  involved with  Gulf.  Indeed,  counsel noted,  the          testimony  indicated  no  continuity  of  ownership  between  the          companies, and  that they used different facilities.   The court,          however,  rejected  the   defense's  argument  and   allowed  the          government to discuss Gulf in its closing argument.                    Fern ndez now  argues that the district  court erred in          allowing evidence  and  argument regarding  Gulf.   He  does  not          specify his reasons, however.  Rather, he simply refers us to the          reasons  stated  in  his  additional  arguments,  leaving  us  to          speculate  as to which reasons  would apply in  this context, and                                         -8-          running  the risk  of waiver.   As  we address  those contentions          where they are made, we add only a few comments here.                    Briefly stated,  while it could have  decided the issue          several different ways, we  find that the district court  did not          abuse its  discretion  in choosing  to  allow the  government  to          elicit  and use the evidence regarding Gulf.  While not detailed,          the evidence was  certainly relevant,  for the  very reasons  the          government outlined.   See Fed.  R. Evid. 401;  United States  v.                                 ___                      _____________          Griffin, 818 F.2d 97,  101-02 (1st Cir.), cert. denied,  484 U.S.          _______                                   ____________          844 (1987) (noting the broad discretion district courts enjoy  in          determining  relevance).   Allowing the  line of  questioning and          argument was neither unfairly prejudicial, see Fed. R. Evid. 403,                                                     ___          nor constituted an  unfair surprise:  Fern ndez' defense was that          it  was impossible for  him to have used  Carrier to ship cocaine          because  Carrier  was not  in operation  --  a line  of reasoning          fairly inviting  the question  of what other  companies Fern ndez          had access to  during the  relevant time period,  and whether  he          could have used them in a similar manner.                              2.  Sixth Amendment Claims                              2.  Sixth Amendment Claims                                  ______________________                    Fern ndez  contends that  his Sixth Amendment  right of          confrontation has been violated, in that  he did not have a  full          and effective  opportunity to  cross-examine the witnesses.   See                                                                        ___          Olden  v. Kentucky, 488 U.S. 227, 231 (1988) (per curiam) (noting          _____     ________          that the  right of confrontation  "includes the right  to conduct          reasonable  cross-examination").  As we find no error on the part          of  the district court, we  need not enter  into a harmless error                                         -9-          analysis.  See id. at 232; Delaware v. Van Arsdall, 475 U.S. 673,                     ___ ___         ________    ___________          680-81 (1986).                    First, Bruno  and two other witnesses  testified that a          Puerto  Rico  senator was  implicated  in the  conspiracy:   they          alleged that in 1990,  when other members of the  conspiracy were          arrested in Tortola, the senator attempted to gain their release.          Bruno testified that  the senator received  close to two  hundred          fifty  thousand dollars in order to bribe the magistrate handling          the  case in  the  British  Virgin  Islands,  as  well  as  other          individuals.  Another  witness  testified  that he  believed  the          senator had met with representatives of the Sardinas operation in          the Puerto Rico  Senate -- the witness claimed  that he waited in          the car outside while they met.                    At trial, the court ruled in limine  that counsel could                                              _________          not  mention the  senator's  name.   Fern ndez  argues that  this          constituted error requiring a new trial.  First, he contends that          identification  of  the senator's  name  could  have "tipped  the          balance" in  the impeachment of Bruno by showing that he would go          to  any lengths  to  obstruct justice,  and  thus should  not  be          believed  in  his testimony  at trial.    Second, he  posits that          identification could  have  led  the  jury to  believe  that  the          account of the  senator's involvement in  the Tortola events  was          fabricated  by  witnesses  in  order to  gain  leniency  from the          government,  because  of the  prominence  and  importance of  the          particular senator.  Thus,  the argument goes, the identification          would  have  added  to  the  evidence  that  the  witnesses  were                                         -10-          fabricating stories  in a  desperate attempt to  obtain leniency.          Finally, Fern ndez maintains that members  of the jury could have          felt  that  the  failure  to  prosecute  the  senator was  unfair          selective prosecution.                    We  do  not find  any  of  these arguments  convincing.          There can be no question that the Sixth Amendment entails a right          to  cross examine  a witness;  nonetheless, "trial  judges retain          wide latitude insofar as the Confrontation Clause is concerned to          impose  reasonable limits  on  such cross-examination  [regarding          potential  bias] based  on  concerns about,  among other  things,          harassment, prejudice,  confusion  of the  issues,  the  witness'          safety, or  interrogation that  is repetitive or  only marginally          relevant."    Van  Arsdall, 475  U.S.  at  679;  see Delaware  v.                        ____________                       ___ ________          Fensterer,  474  U.S.  15,  20 (1985)  (per  curiam)  ("Generally          _________          speaking, the 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.").  The  court informed  the jury  that it  had ruled          that the name of the senator "would not be mentioned  in order to          protect an ongoing investigation  with respect to activities that          he may have been  engaged in."   Tr. at 515.   The jury was  also          informed  that  the  parties  stipulated  that  the  senator  was          "prominent."  Further, as noted above, the scope of the senator's          alleged  actions  was  explored  through testimony  from  several          witnesses:   the sole  element the court ordered  be left out was          the senator's name.  Certainly the jury had enough information in                                         -11-          front  of it  to be able  to weigh  the impeachment  value of the          alleged plot:  it had  "the facts from which jurors, as  the sole          triers  of  fact   and  credibility,  could  appropriately   draw          inferences relating to the reliability of the witness."  Davis v.                                                                   _____          Alaska,  415  U.S.  308,  318  (1974).    As  for  the  selective          ______          prosecution claim, we note that the court told the jury there was          an ongoing investigation:   the implication that the  senator had          not  been charged is  clear.   We do  not find  any error  in the          district court's ruling.                    The  second  claim  focuses  on  the  De  Jes s  cross-          examination.  He testified that he assisted in the transportation          of more than 1,000  kilograms of cocaine, yet his  plea agreement          stated that he was responsible for only 3.5 to 5  kilograms.  The          prosecution   objected   to   defense's   questioning   on   this          discrepancy, and  the court sustained  the objection.   The court          ruled that the defense could not cross-examine De Jes s regarding          the quantity of cocaine for which he was held  accountable in his          plea  agreement, but  could question  him on  the difference  the          agreement made in  his sentence.   De Jes s  duly testified  that          without the plea  he faced from  thirty years to  life, and  that          with it, he was facing seven years.  He agreed that by testifying          in this case, he was hoping to  have the sentence further reduced          so as to not have to spend any time in jail.                    Fern ndez argues that the  court erred, since any proof          of false, self-serving statements by a government witness -- such          as  the plea agreement figure -- would aid the defense in showing                                         -12-          the witnesses' untrustworthiness.   Thus, Fern ndez contends, his          Sixth Amendment right of confrontation  was violated.  See Olden,                                                                 ___ _____          488 U.S. at  231.  We disagree.  First,  defense counsel was able          to impeach De Jes s through eliciting his testimony on the impact          the  plea agreement  had  on his  sentence and  his  hopes for  a          reduced  sentence  based  on  his participation  in  this  trial.          Second,  the court's  ruling  seems to  have  been based  on  the          concern that the jury  understand that De Jes s was  not actually          lying in his plea agreement, but rather that the figure  used was          a  mechanism of  convenience  in  order  to  get  to  a  specific          sentence:  "I think the whole  concept is to show . . .  [that it          was a] deal, a wow deal, but not to show that he's a liar because          that's not  the real facts."  Tr.  at 1879.  We  do not find that          the district  court  erred in  striking  a balance  between  this          concern and  the importance  of impeachment through  limiting the          testimony  to the sentence obtained.   Indeed, we  agree with the          court's comment to the effect that to do otherwise  would run the          risk of  having defense  counsel impeach  the government,  not De          Jes s.                    Fern ndez' reliance on United  States v. Lynn, 856 F.2d                                           ______________    ____          430  (1st Cir.  1988), is  misplaced.   There, we found  that the          trial  court  erred  in restricting  cross-examination  into  the          circumstances underlying  a witness' plea bargain.   The witness'          agreement  with   the  government  required  that   he  take  and          "successfully  complete" a  polygraph examination.   He  took the          test,  twice, and  the examiner  labeled some  of his  answers as                                         -13-          "inconclusive."   The  defense sought to  impeach the  witness by          implying that  the witness  had not "successfully  completed" the          test,  and so  had  motive to  lie  on the  stand  to please  the          government.   The court cut  off all questioning  about the test,          and  informed  the  jury   that  such  tests  yielded  inherently          unreliable results.  Id. at 432.  We held that the district court                               ___          abused its discretion by cutting off all cross-examination into a          "relevant and not fully explored area."  Id. at 434.  The same is                                                   ___          not  true  here.    The  district  court  did  not  cut  off  all          examination in the area of De Jes s' credibility:  rather, it set          limits on the examination so as to permit the introduction of the          information  in a  manner which  would not  mislead the  jury yet          provide  it  "with 'sufficient  information  concerning formative          events  to  make  a  "discriminating appraisal"  of  [De  Jes s']          motives and bias.'"  Id. at 433 (quoting United States v. Twomey,                               ___         _______ _____________    ______          806 F.2d 1136,  1140 (1st  Cir. 1986) (quoting  United States  v.                                                 _______  _____________          Campbell, 426 F.2d 547, 550 (2d Cir. 1970))).          ________                    C.  The Sufficiency and Weight of the Evidence                    C.  The Sufficiency and Weight of the Evidence                        __________________________________________                           1.  Sufficiency of the Evidence                           1.  Sufficiency of the Evidence                               ___________________________                    At the  end of the presentation  of evidence, Fern ndez          moved for a judgment  of acquittal, which motion the  trial court          denied.    Fern ndez  now  argues  anew  that  the  evidence  was          insufficient to support his conspiracy conviction.                      We  are cognizant  of the  government's burden  in this          case:   "In order to  win a conspiracy  conviction the government          was required  to establish, by direct  or circumstantial evidence                                         -14-          and beyond a reasonable doubt, that the defendant and one or more          coconspirators  'intended  to  agree and  .  .  .  to commit  the          substantive  criminal  offense  which  was the  object  of  their          unlawful  agreement.'"  United States  v. L pez, 944  F.2d 33, 39                                  _____________     _____          (1st  Cir. 1991) (quoting United States v. S nchez, 917 F.2d 607,                                    _____________    _______          610 (1st Cir. 1990), cert. denied,  499 U.S. 977 (1991)).  In our                               ____________          review, we evaluate the  sufficiency of the evidence as  a whole,          and  "resolve  credibility  issues  and draw  inferences  in  the          government's  favor, since  the  issue is  whether  a jury  could          reasonably  have arrived  at  the  verdict."   United  States  v.                                                         ______________          Morrow, 39 F.3d 1228, 1233 (1st Cir. 1994), cert. denied, __ U.S.          ______                                      ____________          __, 115 S. Ct. 1421 (1995).                      Fern ndez contends  that the evidence in  this case was          insufficient  to  prove  his  guilt, since  there  was  no direct          testimony  of any  agreement.   However, the government  need not          prove a formal agreement existed:  as it points out, "the illegal          agreement  may be either 'express  or tacit.'"   United States v.                                                           _____________          S nchez,  917 F.2d  607, 610  (1st Cir.  1990).   Indeed, "'[t]he          _______          evidence  may be  entirely  circumstantial and  need not  exclude          every reasonable hypothesis of innocence; that is, the factfinder          may decide  among reasonable  interpretations of the  evidence.'"          L pez, 944 F.2d  at 39 (quoting United States v. Batista-Polanco,          _____                           _____________    _______________          927 F.2d 14, 17 (1st Cir. 1991)).                    We agree  with the government that,  under our standard          of  review,  Bruno's  testimony,  and that  of  other  government          witnesses,  suffices  to show  that  a  tacit agreement  existed.                                         -15-          Bruno testified that Sardinas and Loredo each paid $80,000 to buy          into Carrier in order to ship cocaine; he stated that he saw them          collect the money to make a payment to  Fern ndez, and heard them          discussing the use of Carrier.  Bruno testified about sending the          nine  shipments   of  cocaine,  and   about  Fern ndez'  personal          participation in  the operation,  including  telephone calls  and          meetings.  He stated that he went to the Carrier warehouse in New          Jersey,  his first visit being  in July 1991,  and that Fern ndez          was there on at least one occasion.  Aloisi's testimony generally          corroborated  Bruno's statements.    De Jes s  testified that  he          participated  in at  least four  shipments of  cocaine, including          deliveries of  cocaine to Fern ndez  at a warehouse  in Carolina,          Puerto  Rico, and retrieval from  the New Jersey  warehouse.  His          testimony contradicted Bruno's on  several points, regarding  the          amount  of cocaine  in particular  loads and who  participated in          specific meetings and loads.4  Our review of this record leads us          to conclude  that, "having heard the  evidence, including nuances          and intimations  that a  cold record  cannot capture,  a rational          jury could find  beyond a reasonable  doubt that [Fern ndez]  was          guilty of conspiracy."  Mor n, 984 F.2d at 1301-02.                                  _____                    Fern ndez also argues that  this court must reverse the          verdict below  because it was physically  impossible that Carrier          was the company used to transport cocaine in 1991:  he  presented                                        ____________________          4    Frame testified  that Fern ndez  was  already active  in the          operation  in  1989  or  1990  and  that  he  was  instructed  to          communicate  with   Fern ndez  whenever  he  needed   to  contact          Sardinas, which he did several times.  These allegations were not          in the superseding indictment.                                         -16-          evidence that Carrier did  not exist until after April  1991, and          that it did not  occupy the New Jersey warehouse until October of          that  year.  Since the chief  government witnesses testified that          Carrier was used, the  argument continues, there is no  reason to          credit the witnesses' testimony  as to this point, or  any other.          Thus,  Fern ndez concludes  that  the trial  court  erred in  not          granting his motion for acquittal.                    While  there  were  inconsistencies  in  the witnesses'          testimony,  and while  they all  had an  incentive to  please the          government, these aspects of the evidence were pointed out to the          jury by defense counsel.   As the government notes, Bruno  and De          Jes s did not go to any  warehouse for the first loads -- indeed,          Bruno  testified  that Carrier  had  previously  had a  different          address  --  and  the   evidence  regarding  Gulf  suggests  that          Fern ndez  had knowledge  of  and access  to shipping  facilities          during the  relevant time frame.   It was within the  province of          the jury to disregard  some of the inconsistencies and  to accept          aspects of the witnesses'  testimony as credible.  "The  force of          the  evidence as  a  whole, including  all reasonable  inferences          favorable to  the verdict, was  sufficient to support  a rational          jury finding:   that defendant was guilty."   L pez, 944  F.2d at                                                        _____          40.                              2.  Weight of the Evidence                              2.  Weight of the Evidence                                  ______________________                    Fern ndez  also  contends  that  the jury  verdict  was          against the weight of  the evidence, and that the  district court          erred  in denying his motion  for a new  trial.  Fern ndez argues                                         -17-          that  the government's  case here  was wholly  circumstantial and          rested  solely  on  the   testimony  of  blatantly  untrustworthy          witnesses,  as  demonstrated by  the many  contradictions between          their  stories  and  Fern ndez'  evidence that  Carrier  had  not          occupied a warehouse until October 1991.   The evidence regarding          Gulf, he continues, is  insufficient to support the eleventh-hour          claim that Fern ndez used it.                    We review  for abuse  of discretion, see,  e.g., United                                                         ___   ____  ______          States v.  Rogers, 41 F.3d 25, 34  (1st Cir. 1994), cert. denied,          ______     ______                                   ____________          __  U.S.  __,  115 S.  Ct.  2287  (1995),  and reject  Fern ndez'          argument.    The  evidence  against  Fern ndez, briefly  outlined          above, was neither unbelievable  nor implausible, as he contends.          Simply  put,  the witnesses'  testimony  was  not "so  inherently          implausible that it could not be believed by a reasonable juror."          United States v. Garc a,  978 F.2d 746, 748 (1st  Cir. 1992) (per          _____________    ______                                       ___          curiam).  We  accordingly find  that the district  court did  not          ______          abuse its  discretion  in denying  Fern ndez'  motion for  a  new          trial, and refuse to take the issue of the witnesses' credibility          out  of the jury's hands.  The  jurors were entitled to weigh the          witnesses' contradictions  and incentives  and  still accept  the          substance of their testimony.  See id.                                         ___ ___                             D.  Prosecutorial Misconduct                             D.  Prosecutorial Misconduct                                 ________________________                               1.  The Legal Framework                               1.  The Legal Framework                                   ___________________                    Fern ndez'  primary  argument  is that  the  prosecutor          violated his due process rights by  making improper statements to          the jury  during the government's closing  argument and rebuttal.                                         -18-          See  Berger v.  United States,  295  U.S. 78,  88-89 (1935).   He          ___  ______     _____________          contends  that any  one of  the statements  he now  points  to as          improper could have prejudiced the jury so as to have prevented a          fair  trial, and that the cumulative effect of the statements was          to deny him a fair  trial under the Fifth Amendment.   See United                                                                 ___ ______          States v.  Santana-Camacho, 833  F.2d 371,  373  (1st Cir.  1987)          ______     _______________          (noting that,  while a  statement on  its own may  not have  been          harmful, it is "more troublesome" when viewed in conjunction with          other  prosecutorial statements).    For the  reasons we  discuss          below, we disagree.                    When faced with a claim of prosecutorial misconduct, we          first weigh whether a statement was improper.  If it was, we then          determine "whether prosecutorial misconduct has '"so poisoned the          well"' that a new trial is required."   United States v. Manning,                                                  _____________    _______          23 F.3d 570, 574 (1st Cir. 1994) (quoting United States v. Hodge-                                                    _____________    ______          Balwing, 952 F.2d 607, 610 (1st Cir. 1991) (quoting United States          _______                                             _____________          v. Capone, 683 F.2d 582, 586-87 (1st Cir. 1982))).   This circuit             ______          has laid  out a  series of  factors for guidance  in making  that          determination:                      (1)  the severity of  the misconduct; (2)                      the  context  in which  it  occurred; (3)                      whether  the  judge  gave   any  curative                      instructions  and  the  likely effect  of                      such instructions; and  (4) the  strength                      of the evidence against the defendant.          Id.; see,  e.g., United States v. Hardy, 37 F.3d 753, 757-58 (1st          ___  ___   ____  _____________    _____          Cir. 1994).  In this analysis,                         [w]e do  not . .  . take the  evidence in                      the   light   most   favorable   to   the                      government  or  assume  that  credibility                                         -19-                      issues were  resolved in its favor.   The                      jury may well have decided the issues  in                      favor  of the  government, but  that jury                      decision  may  itself be  tainted  by the                      improper remarks.   Thus we will look  at                      the evidence as a whole . . . .          Arrieta-Agressot  v. United  States, 3  F.3d 525,  528 (1st  Cir.          ________________     ______________          1993); see Hardy, 37 F.3d at 755.                 ___ _____                    We review  the sole statement Fern ndez  objected to at          trial de novo.  Hardy, 37 F.3d at 756.  He did not object  to the                _______   _____          majority  of statements  he now  points to  as violating  his due          process rights:  we review those for plain error, as "[r]eviewing          courts  are very  reluctant to  reverse for  unobjected-to errors          that  could   have  been  corrected  or   ameliorated  by  timely          objection."   United States  v. Procopio, Nos.  95-1549, -1559, -                        _____________     ________          1550,  slip op.  at  25 (1st  Cir. July  9,  1996); see  Arrieta-                                                              ___  ________          Agressot,  3 F.3d  at 528  (explaining rationale  behind applying          ________          plain error review).  "[T]he plain-error exception is to be 'used          sparingly, solely  in those circumstances in  which a miscarriage          of justice would otherwise result.'"  United States v. Young, 470                                                _____________    _____          U.S. 1, 15 (1985)  (quoting United States v. Frady, 456 U.S. 152,                                      _____________    _____          163 n.14 (1982), reh'g denied, 456 U.S. 1001 (1982)).                           ____________                    With our test and  standard of review thus established,          we turn to Fern ndez' specific contentions.                         2.  Statements Objected to at Trial                         2.  Statements Objected to at Trial                             _______________________________                    (1)  During  trial, a lease  application filled out  by          Loredo in November,  1991, which  stated that he  had worked  for          Carrier for six years -- well before the time the  defense argued          Carrier began to exist -- was admitted for the limited purpose of                                         -20-          showing  that Loredo claimed he  worked for Carrier,  not for the          truth of the  matters in  the document.   Fern ndez now  contends          that  the prosecutor  went  beyond that  limited  purpose in  his          closing argument.   Referring to the  application, the prosecutor          stated:                      You remember,  as you  look  at it  here,                      there is a part . . . where he's supposed                      to or he has  to list his employer.   His                      list what [sic]?  Carrier Transportation.                      Just   Carrier   Transportation  as   his                      employer. . . .                         And  most importantly, he  said he was                      working for that  company for six  years.                      Six years.   The phone numbers are right.                      The  address is right.   Working  for the                      company, he says, for six years.  This is                      proof   that   there   was    a   Carrier                      Transportation  that operated  before the                      date that counsel --          Tr. at  2472.   The  prosecutor  was  cut off  by  the  defense's          objection.                      We agree with Fern ndez  that the prosecutor was moving          beyond the stipulation  to assert that the lease  application was          "proof  that there  was  a Carrier  Transportation that  operated          before the date" the defense alleged it began business.  Thus, we          turn  to  our four-factor  test.   We  note that  the misconduct,          though  disingenuous, was not severe, and  occurred only once, in          relative isolation.   More importantly, the  court gave immediate          curative instructions,  admonishing the  jury that the  lease did          not  come in  as anything  more than  a claim  by Loredo  to have          worked   for  Carrier,   and  reminding   them  of   its  earlier          instruction,  made  when  the  lease  application  was   entered.                                         -21-          Indeed, in its closing, the defense also reminded the jury of the          limited use of the lease.  On balance, we find that "the curative          instruction sufficed  to dispel  any prejudice from  the improper          comment."   United  States v.  Boldt, 929 F.2d  35, 41  (1st Cir.                      ______________     _____          1991); see United  States v. Savarese, 649 F.2d 83,  88 (1st Cir.                 ___ ______________    ________          1981).                    (2)    Fern ndez  objects   to  other  references   the          prosecution  made  to Gulf  on  the  basis  that they  encouraged          speculation and  attempted to  argue facts  not presented  in the          evidence.5  First, the prosecutor stated:                      we  had to wait  for cross-examination by                      [co-counsel for the  government] to  find                      out  that there  was  a previous  company                      before  1992, in  fact from  1986 it  had                      started, which did the exact same type of                      job.  It had -- it was a shipping company                      that  did  transportation  in   the  same                      manner,   through   the  containers   and                      Mr. Juan  Fern ndez was  also one  of the                      owners or partners in the operation.          Tr. at  2475.   Like Fern ndez,  we can find  no evidence  in the          record  stating that Gulf began in 1986.   The offer of this fact          is  harmless, however, since  the pertinent time  period is 1991,          and Sanjurjo testified that Gulf  was in operation in 1990.   The          reference leaves open the  crucial question, which is,  when Gulf                                        ____________________          5  Fern ndez objected  to the prosecution's being allowed  to use          Gulf in  its closing.   However, his counsel did  not object when          the court held that the prosecution could "tell it to the  jury."          Tr. at  2438.  The government  points out that  Fern ndez did not          make  specific  objections to  these  references  to Gulf  during          closing          argument,  presumably  asking us  to review  them under  the more          lenient plain  error standard.  As we  find no error under either          standard,  we need not  determine here whether  the objection was          preserved.                                         -22-          ceased operation.   As for the form in  which the prosecutor made          ______          his statement, it is consistent with the framework the government          used for its argument, discussed in (1), above.                    Fern ndez objects to the  cited passage and four others          for  asserting that Carrier  and Gulf  were essentially  the same          thing, doing the exact same job:                      [O]ur argument is  that before, when  the                      company  was  operating  as Gulf  Carrier                      Transportation he  used another warehouse                      in New Jersey.                          . . . [It]  was known as Gulf Carrier,                      also.  Gulf Carrier just like -- the same                      name, just slightly different wording and                      same owners, same business, same thing.          Tr. at 2476.   These statements, he  contends, urged the jury  to          speculate in a  manner unsupported and contradicted by the actual          evidence  regarding Gulf.  There was evidence that they were both          transportation companies,  but not that  they did the  exact same          job.   Indeed, the owners were not  the same:  Fern ndez was part          owner of Gulf, and the sole owner of Carrier.  Finally, there was          no evidence that Gulf was actually in business in 1991.                    On balance,  we cannot find that this  line of argument          so  poisoned the trial  well that a  new trial is  required.  See                                                                        ___          Manning, 23 F.3d at 574.   The government made an argument  based          _______          on the limited evidence regarding Gulf.   The defense was able to          argue  the counter position,  pointing out the  lack of evidence,          and did so.                         3.  Statements Not Objected to at Trial                       3.  Statements Not Objected to at Trial                           ___________________________________                    We  examine  the  statements  which  Fern ndez  did not                                         -23-          object to at trial in the order in which he raised them.  We find          that  most are not  improper; of the  few that are,  none of them          prove  so  serious  that  the  district  court  plainly erred  in          allowing them.                     (1)   Fern ndez first argues that  the prosecutor erred          by  trying to "secure the empathy  of the jury" through asking it          to step into  the government's  shoes and align  itself with  the          prosecution team through statements like the following.                      Now, the way I  would like to discuss the                      evidence with you is in the order that we                      received  it.   Okay.   The  way we  were                      interviewing  these  witnesses,  in  that                      order,  to give  you a  feel for  what we                      went  through as you determine whether we                      have proven, as we submit to you we have,                      beyond a reasonable  doubt the  existence                      of the conspiracy and their participation                      . . . .          Tr. at  2443.  The prosecutor  made a series of  comments such as          "[w]e seek  [co-conspirators or drug  traffickers] out and  we go          out  and corroborate  them."   Tr. at  2442.   We agree  with the          government,  however,  that,  read  in  context,  the  statements          Fern ndez points to were simply establishing a  framework for the          presentation of the government's  argument.  They also served  to          point out that even  though the government's witnesses  were drug          traffickers with  a motive  to fabricate evidence  -- as  defense          counsel had emphasized in opening argument -- their testimony was          corroborated.   Indeed,  in the first  passage quoted  above, the          prosecution  reminded  the  jury  that it  carried  the  duty  of          determining  whether the government proved its case.  While we do          not necessarily recommend this framework for argument as an ideal                                         -24-          one, we do not find that the statements were improper.                    (2)  Fern ndez' second  argument is that the prosecutor          misstated  the law on proof of conspiracy in making the following          statements:                      the only way we can prove a conspiracy is                      through  the  testimony of  the  very co-                      conspirators  who  were  members of  that                      conspiracy.          Tr. at 2441.                      you're always going to need the testimony                      of   the   co-conspirator   to  prove   a                      conspiracy because of the secrecy  of the                      conspiracy.          Tr. at 2442.                         You're  never going  to find  a decent                      person testifying to a drug deal.  That's                      what we got to deal with.  That's what we                      got to do.          Tr.  2571-72.    Contrary  to appellant's  assertion,  these  are          arguments, not statements of fact, and are thus permissible.                    Even if  they were improper,  they would not  require a          new trial.  For, viewed in context, it is clear that they did not          poison  the   trial  proceeding.    In   his  opening  statement,          Fern ndez' counsel had emphasized  the fact that no actual  drugs          were  offered   in  evidence:    the   challenged  comments  were          apparently   designed  to  counter   those  statements   with  an          explanation of  why the government  relied so heavily  on witness          testimony.    The  first  two  statements  are  addressed  to the          practical difficulties  of proving a conspiracy.   The prosecutor          followed  the first with an explanation of why the government did          not introduce any actual drugs.  Further, the prosecutor followed                                         -25-          up  these  comments  with  a  discussion  of  the  importance  of          documentary  evidence  in  corroborating   witnesses'  testimony,          belying  his own comments.   As for the  "decent person" comment,          its logical  flaws are  obvious.   Moreover, defense counsel  had          emphasized the  witnesses' dishonesty  in his opening,6  to which          this is apparently a response.  These statements do not warrant a          new trial.                      (3)   The prosecutor made two statements to the jury to          the  effect  that  "[t]o acquit,  you  would  have  to find  that          everybody was lying  in this case."   Tr. at 2590-91.   Fern ndez          argues,  and  the government  seems  to  agree, that  these  were          improper.  To the contrary, we feel they amounted to nothing more          than argument, and were not improper.                      (4)     Fern ndez'  fourth   contention  is  that   the          prosecutor  made statements  without  evidentiary  support.   See                                                                        ___          Santana-Camacho, 833  F.2d at 373 (reversing  conviction on basis          _______________                                        ____________________          6   For  example, in  his opening  statement, Fern ndez'  counsel          stated:                         And  the evidence  is that  these drug                      pushers have consistently taken  the easy                      way  out of everything that is meaningful                      in life. . . .                          . .  . [T]he  evidence will  show that                      they  have no  conscious [sic]  that will                      prevent them -- the kind of consciousness                      that  would  prevent  most   people  from                      accusing  an innocent  man.   They simply                      only care about themselves . . . .   They                      always   have   and  they   always  will.                      Leopards don't change their spots.          Tr. at 105-06.                                         -26-          of  major and  prejudicial  misstatement of  evidence in  closing          argument).  The prosecutor erroneously stated that the testifying          drug traffickers were "either in jail  or go to [sic] jail,"  Tr.          at 2442, and that Bruno specifically would be going to jail when,          in  fact, Aloisi had  a non-prosecution agreement,  and Bruno was          not incarcerated at  the time  of trial.   Again, the  government          acknowledges that the  statements were  not factually  true.   We          agree with the  government, however, that any error  in admitting          these statements does not rise to  the level of plain error.  The          agreements  between  the government  and  the  witnesses were  in          evidence, each of the  four witnesses against Fern ndez testified          about his agreement with the government, defense counsel reminded          the jury of  their agreements  in his closing  argument, and  the          judge  instructed  the jurors  that  counsel's  argument did  not          constitute  evidence, but  that their  recollection of  the facts          controlled.  Cf. United  States v. Innamorati, 996 F.2d  456, 482                       ___ ______________    __________          (1st Cir.) (finding no clear error where prosecution stated "that          the trial judge alone  would determine the sentences for  each of          the cooperating witnesses, and that the jury therefore should not          think that the witnesses  were getting 'a walk'" where,  in fact,          the  government  had  dismissed   charges  against  many  of  the          witnesses  and   had  promised  to  make   motions  for  downward          departures), cert. denied sub nom. DeMarco v.  United States, 510                       _____________________ _______     _____________          U.S. 955 (1993).                    (5)  Fern ndez  points out that  the government made  a          second misstatement of  the evidence by arguing that  the payment                                         -27-          which  the two  lead  conspirators  were  alleged to  have  given          Fern ndez  in order  to buy  into Carrier  was "not  an  over the          counter deal" but  rather "a  criminal association.   It [was]  a          paper bag  with eighty  thousand dollars."    Tr. at  2575.   The          government acknowledges that the paper  bag details pertain to  a          different transaction, not involving Fern ndez.  The misstatement          is troublesome  in its  characterization of the  transaction, the          details  of which  were not  in evidence.   However,  between the          brevity  and isolation  of  the misstatement,  the court's  later          instruction to the jury that their memory controlled, and defense          counsel's failure  to make  a timely objection,  Fern ndez cannot          clear the plain error hurdle.                     (6)    Next, Fern ndez  alleges  that  in his  rebuttal          argument the  prosecutor provided  information to contradict  the          testimony  of a witness at  trial.  Without  specifying what that          information  is, he  cites the  following passage  discussing the          testimony of  Enrique Nieves  ("Nieves"), Special Agent  with the          Drug Enforcement Administration.                           Now,  the other thing with Mr. Nieves.                      He said  that there was a  search warrant                      served on or about the time Mr. Fern ndez                      was  indicted.   And  that's false.   You                      recall the testimony, that was the search                      warrant was at an unrelated  warehouse of                      Mr. Velasco before  we had any  knowledge                      of the fact that they were using  Carrier                      Transportation  at the time  of the first                      indictment.    That's  when  that  search                      warrant  was served  and  that's when  we                      were going after Mr.  Velasco who was  in                      the  first indictment.   So the fact that                      that  search  warrant   was  served   and                      nothing was found, we were not after  Mr.                      Juan  Fern ndez's  business  at the  time                                         -28-                      because we didn't know about it.          Tr. at 2578.                      Examination  of  the record  sheds  some  light on  the          passage.   First, the depiction  of Nieves' testimony is correct:          the  warrant  was  for  an  unrelated  warehouse,  prior  to  any          suspicion that the warehouse  Carrier used was involved, and  was          served  following  the  first  indictment,  which  did  not  name          Fern ndez.   Second, the "he" of "he said that there was a search          warrant served" seems to  refer not to Nieves, but  to Fern ndez'          counsel.   The  latter  had stated  in  his closing  that  Nieves          testified  that  in  September 1993  --  the  time  of the  first          indictment -- he had testified at a bond hearing that a  specific          warehouse  used by  Carrier was  not involved  with  the Sardinas          operation.  Defense counsel also  referred to the search  warrant          for  a different warehouse.   It would seem  that the prosecution          blurred  the line between the  reference to the  bond hearing and          the search warrant and attributed the date given for the first to          the second.  While perhaps  an error, it does not  constitute the          presentation  of information  to  contradict the  testimony of  a          witness at trial.   Since Fern ndez  did not see fit  to actually          specify what  element of  the passage presented  new information,          and we see none ourselves, we find  no plain error on the part of          the district court in allowing the statement.                    (7)   The prosecutor's statement that  "[t]hey could be          doing  additional  loads  besides the  ones  that  Mr. Bruno  was          aware,"  Tr. at 2465-66,  was not improper  speculation, since it                                         -29-          was made in  the context of the prosecutor  noting that De Jes s'          testimony  was  that  Bruno  was   not  always  involved  in  the          transportation of loads of cocaine, and so the government was not          always sure what number  a load was:  "they  probably skipped the          fifth  and  this is  the sixth  load, or  it  could be  a totally          different  load.   We don't  know."   Tr. at 2465.   Even  if the          statement could be construed  as improper speculation,  Fern ndez          again fails  to clear the  hurdle of  the four factors  and prove          that there was plain error on the part of the district court.                    (8)  Similarly, Fern ndez contends  that the prosecutor          improperly generalized about his experiences in stating that                      even on some minor details there is a lot                      of  corroboration in this  case, which is                      unusual.   You  will usually  have little                      corroboration in that aspect, but even on                      details, as  I  go through  the  evidence                      I'll     mention    them,     there    is                      corroboration.          Tr. at 2444.  See United States v. Rosa, 705 F.2d 1375, 1379 (1st                        ___ _____________    ____          Cir. 1983) ("It is settled law in this circuit  that a prosecutor          may not inject into his jury argument his personal opinions about          conclusions  to be  drawn from the  evidence.").   The prosecutor          made this statement  in the  context of encouraging  the jury  to          recognize that  the presence  of some inconsistencies  in witness          testimony  does  not  preclude  granting  them  credence.    This          statement  falls somewhere  on  the spectrum  between proper  and          improper argument.   However, even  assuming it was  improper, we          cannot  find that it is so  severe as to warrant  a mistrial.  In          truth, the  prosecutor  was telling  the  jury what  it  probably                                         -30-          already  knows:   that there  will likely  be differences  in the          stories  told by  two people  recounting an  event that  occurred          years earlier.                       Fern ndez  makes  the   similar  contention  that   the          prosecution  twice vouched  for  the credibility  of  prosecution          witnesses by telling the jury that the witnesses were telling the          truth  because they  did not  get together  to concoct  a totally          consistent story;  the  fact that  their  story was  not  totally          consistent, the prosecution argued,  reveals that "the only other          alternative is  that . . .  they were telling the  truth and that          the  impeachment that they  have been able  to make to  you is, I          submit,  as  to details."    Tr.  at 2591.    We  agree with  the          government that these remarks  amount to asking the jury  to make          common sense conclusions from the evidence.                        The line between the  legitimate argument                      that  a  witness's testimony  is credible                      and improper "vouching"  is often a  hazy                      one, to be policed  by the trial court in                      the first instance. .  . . Here, at worst                      the challenged remarks .  . . fell in the                      grey area.  [Defendant] did not object to                      the  remarks  at  trial  when  a curative                      instruction might have been given, and we                      think that is the end of the matter.          Innamorati, 996 F.2d at  483 (dismissing challenge to prosecution          __________          statements that  the testimony  was well corroborated  and "as  a          result, you know that the witness's testimony is true").                    (9)     There,  is,  however,  no   question  that  the          prosecutor improperly  injected himself into the  argument in the          next statement Fern ndez challenges:                      And who wrote the statement of facts?  We                                         -31-                      wrote the  statements of facts.   So, the                      big mistake  about Panama.   You know who                      made it?  I made it.  Does that mean that                      they're  not guilty?  Does that mean that                      it  wasn't from  Venezuela  that the  SEA                      SEARCH  came[?]    No, it's  a  mistake I                      made.  So, I should carry it.          Tr.  at 2576.  The  prosecutor apparently made  this statement in          direct rebuttal  to co-defendant's  counsel,  who highlighted  --          literally  --  a  statement in  De  Jes s'  plea agreement  which          indicated that  the  shipload  of  cocaine  with  which  the  co-          defendant  was allegedly  involved  came from  Panama, while  the          indictment   maintained  it  was  Venezuela,  without  mentioning          Panama.    Given this  context,  the  relative isolation  of  the          statement, and  the judge's instructions  to the jury  that their          memory  of the  testimony  controlled, this  misconduct does  not          require  a  new trial,  especially in  light  of our  standard of          review.   See Young, 470  U.S. at 11-14  (discussing the "invited                    ___ _____          response" rule).                    (10)   We also dismiss Fern ndez'  contention that four          statements made  by the prosecution were  generalizing about drug          traffickers  without   evidentiary  support.     Each  of   these          statements  was to  the effect  of "that's  the way  drug dealers          think."  The  statements were argument, and did not rise to plain          error.                      (11)    Fern ndez  next  challenges   the  prosecutor's          reference to  Fern ndez' purported motive  -- greed and  need for          money -- and  argues that there  was no evidence  in the case  on          this  point.  Nonetheless, the  statement is clearly  proper:  as                                         -32-          the government  notes, it is essentially  a viable interpretation          of the evidence.  Indeed,  the prosecutor followed the statements          Fern ndez now  challenges by pointing  to the testimony  that, at          least initially, Fern ndez received  two hundred dollars for each          kilogram of  cocaine transported -- a  clear financial incentive.          Cf.  United States v. Tajeddini, 996 F.2d 1278, 1285-86 (1st Cir.          ___  _____________    _________          1993) (finding  that, where  the prosecutor did  not deliberately          misrepresent defendant's  financial situation, where there  was a          financial incentive, and where defendant did not object at trial,          prosecution  statement that  crime was  motivated by  payment was          proper).                    (12)   Fern ndez points to two  references to the lease          application  discussed  in section  (2),  above, as  error.   The          first,  when read  in  context, appears  to  be citing  to  other          evidence  to  support the  conclusion  that  Fern ndez sought  to          conceal the earlier existence of Carrier:                      I  submit  to   [sic]  as  a  fact   that                      [Sanjurjo]  should  have  known  [whether                      Loredo started working after  she started                      working] and  the fact  that she  did not                      want  to answer  to  you should  be proof                      that  Mr.  Loredo  was  in  fact  working                      before   that,  as  he   claimed  on  his                      application.          Tr.  at 2475.  The prosecutor is offering Sanjurjo's testimony as          proof, not the application.                      The prosecution also referred to the application in its          rebuttal.                      [Defense  Counsel]  tells you  that Jorge                      Loredo was  looking for a  part time  job                      with  Carrier  Transportation   Services.                                         -33-                      Well, look at the  lease agreement.  Look                      at the  cars he list[s]  as his property.                      In 1991  red Ferrari .  . . [and]  a 1990                      Range Rover.  Black  one.  Is that  a car                      of  somebody  who needs  a second  job to                      make  ends  meet  [?]    No,  ladies  and                      gentlemen  of the jury, he wasn't looking                      for any  part time  job.   He had  a full                      time job and that was  trafficking drugs,                      trafficking cocaine.  With who?  With his                      partner Juan Fern ndez.          Tr.  at 2575.    On  balance,  we  do not  find  that  the  lease          application  was  submitted  for  the  proposition  that  Carrier          existed prior to when the defense asserted it began.  Rather, the          cited  passage suggests that Loredo  had no need  for a part-time          job, but that  he already  had one  with Carrier.   The  evidence          indicated  that  in  November,  1991,  the  date  of   the  lease          agreement, Carrier had already been incorporated and had leased a          warehouse in New Jersey.  The reference to  Carrier seems to have          been to the November 1991 status, not Loredo's claim to have held          a  position  there  for  6  years.7   Even  if  this  reading  is          incorrect,  however,  and this  was  an  improper reference,  its          admission was simply not plain error.                     (13)   Fern ndez contends  that on three  occasions the          government  improperly  alluded  to  the fact  that  he  did  not          testify.   "A prosecutor's comment  is improper where,  under the          circumstances  of the  case,  'the language  used was  manifestly                                        ____________________          7  Indeed, the lease application may have been cited for a reason          wholly  unrelated to the Carrier employment claim:  in it, Loredo          reported that he owned a home in Puerto Rico, which would support          the prosecution's contention that Loredo's material possessions -          - a house, two expensive cars  -- did not indicate that he needed          a second job to make  ends meet.  The prosecution made  no direct          reference to that claim, however.                                         -34-          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.'"   Hardy,  37 F.3d  at 757  (quoting United                                   _____                             ______          States v. Glantz, 810 F.2d 316, 322 (1st Cir.), cert. denied, 482          ______    ______                                ____________          U.S. 929 (1987)).  None of  the statements Fern ndez points to in          this context meet this test.                    First, in his rebuttal, the prosecutor referred to Gulf          as the  "other company that we didn't know they had, which at the          beginning they  didn't tell  us about."   Tr. at  2580.   Read in          context,  it  is clear  that the  jury  would not  "naturally and          necessarily"  take this  as a  comment on  Fern ndez' failure  to          testify,  because the  prosecutor  is in  fact  referring to  the          premise that the evidence introduced about Carrier does not prove          anything  about  Gulf.   We  note  that  the  statement does  not          indicate that Fern ndez did  not tell the government about  Gulf,          rather, that  "they" -- the  witnesses --  did not tell  it about                         ____          Gulf.  Second,  the prosecutor  argued that there  was "no  other          explanation"  for the  fact that  three witnesses  had Fern ndez'          phone number "except  that they were involved with him."   Tr. at          2472.  Third, the prosecution argued against the defense position          that Fern ndez' association with Loredo and Frame was an innocent          one, positing that knowing three drug traffickers could hardly be          a coincidence,  and that "the only  explanation" presented before          the jury was a criminal association between the men.                      We find that neither statement meets the "naturally and          necessarily" criteria.  Although Fern ndez would presumably  have                                         -35-          been  able to  testify as  to  these things,  so would  the other          witnesses.   "Where  arguably favorable  evidence other  than the          defendant's  own testimony is available to  him, comment upon his          failure  to produce  it  may be  justified."   United  States  v.                                                         ______________          Sardelli, 813 F.2d  654, 657  (5th Cir. 1987).   Indeed,  defense          ________          counsel  argued   in  his  closing  that   the  dissemination  of          Fern ndez' phone  numbers and his associations with co-defendants          were innocent.   We find no plain error in  the court's allowance          of these statements.  See Procopio, slip. op. at 23-25.                                 ___ ________                    (14)    Fern ndez  also  contends that  the  government          improperly tried to  shift the  burden of proof  to the  defense.          The  first  cited statement  asked:   "Why  would the  defense be          hiding the fact or they to portray [sic] the fact that Mr. Loredo          started working for Carrier after 1992, if  he started before[?]"          Tr. at 2580.   From the statement's context, it  is apparent that          this  is  a rebuttal  to  defense counsel's  claim  that Loredo's          business  card from  Carrier dated  from  1992:   the prosecution          counters  that the  business  card  had  no  date.    The  second          statement cited  pointed out that on  direct examination Sanjurjo          testified that Carrier started in 1992, adding:                      But  then   we  had  to  wait  for  cross                      examination by Mr. Pagel to find out that                      there was a previous company before 1992,                      in fact  from 1986 it  had started, which                      did  the exact same type of job . . . and                      Mr.  Juan Fern ndez  was also one  of the                      owners or partners in the corporation.                         [Sanjurjo] denied at  that point  that                      the corporation was named Gulf Carrier or                      had Carrier  in its name.   We found that                      out  through another  witness at  a later                                         -36-                      time.          Tr.  at 2474-75.  These comments are  in keeping with the general          structure  of   the  prosecution's  argument,   discussed  above,          pointing out who testified what about Carrier and Gulf.                      We find that these statements did not  shift the burden          of proof onto the defendant.   On balance, any subtle implication          that the burden of proof had shifted would have been mitigated by          the court's instructions --  as well as those of  the prosecution          and  defense --  regarding  the  burden  of  proof.    While  not          necessarily  ideal,  the  cited  statements  did  not  amount  to          reversible error under our standard of review.                      (15)   Fern ndez points to four  statements made in the          government's rebuttal which are more troubling:                      The  second  reason [why  the prosecution                      has an opportunity  for rebuttal] is,  to                      help  you see  through this  smoke screen                      that the defense always tries to raise to                      confuse you.          Tr. at 2574.                      look how desperate [the defense is], look                      at the argument they're  making to try to                      escape what is obvious to everybody.          Tr. at 2577.                      The fact  is, we do have enough evidence.                      The evidence beyond  a reasonable  doubt.                      They're  just  trying  to   confuse  you.                      Don't allow them to be confusing.          Tr. at 2585.   Finally:                         Their  argument,  really  is  that  we                      cannot  use  these drug  traffickers, the                      witnesses  who  were  their  friends  and                      their  associates,  to  convict.   That's                      what  they're saying.   Well,  ladies and                                         -37-                      gentlemen, that is  an important  weapon,                      an important tool  in law enforcement, to                      deprive of  us the ability to  do that is                      [sic]  to  deal   a  hard  blow   to  law                      enforcement. . . .                         . . .                         Now, these criminals, drug traffickers                      in  general, think  that they  commit the                      crime and  nobody  catches them  at  that                      time,  or the  people who  saw them  were                      other drug traffickers that  then they're                      home  free.   But unfortunately,  for all                      these    drug    traffickers,   including                      Mr. Contreras  and  Mr.  Juan  Fern ndez,                      that's not the way  it works.  Because we                      in  the  law  enforcement community,  the                      people  who  you  see sitting  [at]  this                      table, the agents that you saw testifying                      before you, they  didn't give  up.   They                      kept  on  investigating  and they  didn't                      catch them  when  it happened,  but  they                      kept investigating and they kept catching                      other  criminals and  they  were able  to                      build  a case  around them.   Because  we                      have  other means, other methods in which                      to  investigate and  to present  cases to                      you.                         And  I  submit  to you  that  this  is                      another way to present  the case.  And it                      also shows beyond a reasonable doubt that                      these  defendants are  guilty.   So, they                      thought  they had gotten  away with their                      crimes  when  they committed  them.   The                      agents  kept, they  didn't give  up, they                      kept investigating.                         I ask you now  don't give you up [sic]                      on us now.   They thought they had gotten                      away  with  their crime.   Don't  you let                      them get away with their crime today.          Tr. at 2590-92.                      We  do  not  doubt that  these  statements  constituted          improper argument.  See, e.g., Boldt, 929 F.2d at 40 (improper to                              ___  ____  _____          comment  on  "favorite defense  tactic"); Hardy,  37 F.3d  at 757                                                    _____          (finding  prosecution  argument  that  defendants,  who  did  not                                         -38-          testify, were "still running and hiding" improper).  Thus we turn          to  our  four factors.    First,  regarding severity,  while  the          misconduct is  real, it is  not as severe  as some which  we have          previously found  improper.  See, e.g.,  Arrieta-Agressot, 3 F.3d                                       ___  ____   ________________          at  527  (holding it  improper to  argue,  inter alia,  that "the                                                     __________          defendants  are not  soldiers  in the  army  of good.   They  are          soldiers in  the army  of evil,  in the army  which only  purpose          [sic] is  to poison, to disrupt,  to corrupt").  In  terms of the          context, the government argues that these were isolated comments.          However,  the  fact that  the  prosecutor  made multiple,  albeit          brief, statements  disparaging the role of  the defense convinces          us  that they were not isolated comments.  Indeed, the prosecutor          ended his  rebuttal shortly  after finishing the  last statement,          enhancing  its impression  on the  jury.   As for  any corrective          instructions, Fern ndez  did not object to any of the statements.          Finally,  we  note  that   the  evidence  against  Fern ndez  was          adequate, but not overwhelming.                    In the end, although it is a close call, Fern ndez does          not  prevail on  this point.   Because  he made  no objection  at          trial,  Fern ndez "must  show  that the  improper remarks  likely          infected  the jury  (affected  'substantial  rights'  in  Olano's                                                                    _____          words) and mere  possibilities are not  enough."  Procopio,  slip                                                            ________          op.  at 26.   Simply  put, there  was not  much substance  to the          statements:  while they  were improper disparagement of the  role          of defense  counsel,  we do  not see  how they  alone could  have          created "'circumstances  in which a miscarriage  of justice would                                         -39-          otherwise  result.'"  Young, 470  U.S. at 15  (quoting Frady, 456                                _____                            _____          U.S. at 163 n.14);  see Procopio, slip op. at 28-29 (stating that                              ___ ________          it was "unrealistic to suggest that . . . empty cliches" that the          defense arguments were "illusions" and "smoke screens" would have          affected the jury's verdict).                              4.  The Cumulative Effect                              4.  The Cumulative Effect                                  _____________________                    There are many reasons why defense counsel would choose          not  to make  every  possible objection  during the  government's          closing argument.   However, there  is a cost  to that  strategy:          most of  the statements Fern ndez now proffers  as misconduct are          reviewed under  the deferential  plain error  standard.   We have          found,  under  that  standard,   that  although  various  of  the          statements  were indeed improper, they did not so poison the well          that a new trial is mandated.  Having reviewed the record and the          closing  arguments, we  find  the  same  is  true  as  for  their          cumulative effect.  Only the statements impugning the role of the          defense give us real pause; nonetheless, even considering all the          points where the  prosecution's argument fell below  the mark, we          do not feel that a jury would have been improperly  swayed by the          argument.  Nonetheless, we add that we are concerned by the sheer          quantity of errors, however minor, in this case.  The prosecution          should  weigh carefully  its words  when it  next  approaches the          floor for  argument. See  id. at 29  (noting that  "a pattern  of                               ___  ___          faults does suggest a failure in supervision").                               E.  Fern ndez' Sentence                               E.  Fern ndez' Sentence                                   ___________________                    At sentencing,  the court granted  Fern ndez a downward                                         -40-          adjustment  for being a minor participant in the conspiracy.  See                                                                        ___          U.S.S.G.   3B1.2(b).   The government now  argues on cross-appeal          that the  facts of the case  do not support that  adjustment.  We          review the  district  court's factual  determinations  for  clear          error, granting due deference to the trial court's application of          the guideline  to the facts.   See United States  v. Graciani, 61                                         ___ _____________     ________          F.3d 70, 75 (1st Cir.  1995); United States v. Thompson,  32 F.3d                                        _____________    ________          1, 4 (1st Cir. 1994).                    Section 3B1.2(b) offers a reduction to "any participant          who is less culpable than most other participants, but whose role          could not be  described as minimal."   U.S.S.G.   3B1.2 (comment.          n.3).   Of  course, the  mere  fact that  Fern ndez  may be  less          culpable  than  others  involved   in  the  conspiracy  does  not          automatically entitle him to  a reduction.  See United  States v.                                                      ___ ______________          Daniel, 962  F.2d 100, 103 (1st Cir. 1992).  "Role-in-the-offense          ______          adjustments depend .  . . not only on the  comparative conduct of          persons  jointly  engaged  in  criminal  activity,  but  also  on          comparing  each offender's actions  and relative culpability with          the elements of the offense."   United States v. Ocasio, 914 F.2d                                          _____________    ______          330, 333 (1st Cir. 1990).                    The district court granted  the adjustment on the basis          that Fern ndez' role was "limited in essence to looking the other          way . . . while his company was used to transport the narcotics,"          and  that he "played a part in  the overall conspiracy that makes          him  less  culpable  than   that  of  the  average  participant."          Sentencing Hearing at  29-30.   The court made  no more  detailed                                         -41-          findings.                    The  government contends  that  the  evidence does  not          support  the district court's findings.   It points  out that the          evidence indicated that Fern ndez joined the  conspiracy, secured          a  large  payment from  Sardinas and  Loredo  at the  outset, and          received   additional  payment  for  the  transportation  of  the          cocaine, albeit a payment  smaller than Sardinas'.   According to          the witnesses, he attended meetings, made his employees available          to help,  bribed a gatekeeper, and  personally handled shipments.          Additionally,  Frame's  testimony  was  that Fern ndez  acted  as          liaison  to  Sardinas  with  respect  to  marijuana  and  cocaine          shipments.  All this, topped with the district court's failure to          make   specific  factual   findings,  the   government  contends,          demonstrates  that  the  court  clearly  erred  in  finding  that          Fern ndez was  entitled to the  minor role adjustment.   Finally,          the  argument concludes, the fact that the court made no specific          findings as  to witness credibility or  Fern ndez' role precludes          reliance  on  cases  upholding  a  district  court's  credibility          determination at sentencing, see, e.g., United States v. Webster,                                       ___  ____  _____________    _______          54 F.3d  1, 5  (1st  Cir. 1995),  or Fern ndez'  argument that  a          plausible  view of  the  evidence supports  the district  court's          minor role determination.                    The  district court's  failure  to find  more than  the          basic  facts at  sentencing lends  a certain awkwardness  to this          case.   Nonetheless, we  disagree with the  government's argument          that  the  evidence presented  at  trial  precludes granting  the                                         -42-          adjustment.  Fern ndez went to meetings, accepted money, and,  if          the witnesses'  testimony is  credible, knew  what was  going on.          However,  there was no  evidence that he was  in contact with the          suppliers  and  receivers  of   the  cocaine  that  the  Sardinas          organization transported,  either  in the  New  York area  or  in          Memphis, or  that he  negotiated those  deals  or instructed  the          workers.  Bruno  testified that  Fern ndez attended  a series  of          meetings,  but did not testify that Fern ndez ran those meetings,          told Bruno what  to do, or  otherwise served as the  organizer of          the  conspiracy.     While  we  do  not   think  that  Fern ndez'          entitlement to the downward adjustment was a foregone conclusion,          we cannot, on  this record, find that it was  plain error for the          lower court to apply it.  The district court found that Fern ndez          established   that  he   was  less   culpable  than   most  other          participants  in  the  conspiracy, and  so  was  entitled  to the          adjustment.   "In this instance, it would be foolhardy to second-          guess the sentencing judge, given his superior coign of vantage."          Ocasio, 914 F.2d at 333.          ______                                      CONCLUSION                                      CONCLUSION                    For the reasons stated herein, we affirm.                                                      affirm                                                      ______                                         -43-
