
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1381                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   TERRENCE TAYLOR,                                Defendant, Appellant.                              __________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                [Hon. Walter Jay Skinner, Senior U.S. District Judge]                                          __________________________                              __________________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                              __________________________               Judith  H.   Mizner,  by  appointment  of   the  court,  for               ___________________          appellant.               Kimberly  S.  Budd, Assistant  United States  Attorney, with               __________________          whom Donald K. Stern,  United States Attorney, was on  brief, for               _______________          the United States.                              _________________________                                     May 17, 1995                               _________________________                               SELYA,  Circuit Judge.    A  jury convicted  defendant-                    SELYA,  Circuit Judge.                            _____________          appellant Terrence  Taylor on  charges that  he twice  had robbed          federally  insured banks, and had carried a firearm during and in          relation  to  the second  robbery.1    Deterrating no  reversible          error, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    Following  accepted practice  in  criminal  cases  that          involve questions  of evidentiary sufficiency, see,  e.g., United                                                         ___   ____  ______          States  v. Echeverri, 982 F.2d  675, 676 (1st  Cir. 1993); United          ______     _________                                       ______          States  v. Maraj, 947 F.2d 520, 522  (1st Cir. 1991), we limn the          ______     _____                                        ____________________               1The applicable statutes provide in pertinent part:                    Whoever,   by  force  and   violence,  or  by                    intimidation,  takes,  or  attempts to  take,                    from the person or presence  of another . . .                    any property  or money or any  other thing of                    value belonging to, or in the  care, custody,                    control,  management,  or possession  of, any                    [federally  insured] bank  .  . .  [shall  be                    punished as provided by law].          18 U.S.C.   2113(a) (1988).                    Whoever, in  committing, or in  attempting to                    commit,  any offense defined  in [  2113(a)],                    assaults any person, or puts in jeopardy  the                    life of  any person by the use of a dangerous                    weapon  or  device,  shall  be  [punished  as                    provided by law].          18 U.S.C.   2113(d) (1988).                    Whoever, during and in relation to any  crime                    of  violence  .  .  .  for  which he  may  be                    prosecuted in a  court of the  United States,                    uses  or carries  a firearm,  shall . .  . be                    [subjected to additional punishment].          18 U.S.C.   924(c)(1) (1988).                                          2          facts in the light most congenial to the government.                    Appellant and Arnett Lynch,  an inveterate bank robber,          often used drugs at a hangout in Boston, known euphemistically as          "the Spot."   On several occasions appellant, emphasizing that he          "wanted  to learn the ropes," expressed the hope that Lynch would          provide tutelage in how to rob banks.                      The  problem with  wishes is  that they  sometimes come          true.    Cf. Aesop,  The  Old  Man  and  Death (circa  550  B.C.)                   ___         _________________________          (predicting  that "[w]e would often  be sorry if  our wishes were          gratified").    On  January  29,  1992,  appellant  restated  his          aspirations and  mentioned  the availability  of  transportation,          telling  Lynch that his friend, Lucille  Aulmond, had agreed (for          ten dollars) to drive him to the downtown area.  Lynch and Taylor          entered  Aulmond's  automobile.    During the  trip,  Lynch  told          appellant that they were  going to "do bizank" [a  slang term for          "bank," according to Lynch's trial testimony]  and "rob the 2T's"          [a reference to two tellers].                    After  dropping  off  a  friend,  Aulmond,  on  Lynch's          instructions,  drove  to  downtown  Boston and  parked  near  the          intersection of Clarendon St. and Newbury St. Lynch walked to the          corner to check a branch office of Bank of Boston, but found that          it had closed for the day.2  When Lynch returned  to the vicinity          of the parked car, appellant joined him on the sidewalk.  The two          men then entered a  nearby branch of United States  Trust Company                                        ____________________               2That  bank had been robbed several  days earlier by Lynch's          compatriot, William  Corgain, who  told Lynch that  the bank  was          easy pickings because only two tellers were on duty.                                          3          (UST).                    Appellant remained hard by  the entrance, watching both          the bank's interior and  the street.  Meanwhile, Lynch  strode to          the center of the  lobby.  The manager, Elizabeth  Nentwig, asked          Lynch if he needed  assistance.  Lynch proved capable  of helping          himself; he  drew a gun  and advised Nentwig  that a  robbery had          begun.  Lynch then  grabbed a customer's briefcase,  approached a          teller (Helen Huppoch),  and demanded money.  He  received $2,748          from  Huppoch and  inserted  it into  the  briefcase.   Appellant          yelled,  "come on,  let's  go,"  and  the  two  men  sprinted  to          Aulmond's car.                    Once  inside the  automobile,  Aulmond asked  what  had          happened, and appellant responded:  "I hit  a guy in the face.  I          punched a  guy in the face."   Lynch screamed at  Aulmond to stop          talking and start driving.   She complied.  After  Aulmond made a          wrong  turn, the men grew impatient, bolted from her vehicle, and          completed their  escape in a  taxi.  They then  split the spoils,          but, there being scant honor among thieves, four men later mugged          Lynch and stole his share of the proceeds.                    The  next  day,   a  man  subsequently   identified  by          percipient witnesses  as Taylor entered a  BayBank branch located          at 285 Huntington Ave. in Boston.   The man approached a teller's          station, shoved aside a customer, Alaina Gurski, and, threatening          to  shoot Gurski, demanded that the teller, Raya Aruin, hand over          her  money.   The man held  an object  that both  Aruin and Ellen          Clavin,  a customer  service representative  working at  a nearby                                          4          teller  station, described at  trial as a  gun.  The  robber fled          after receiving $2,458 from Aruin.                    In due season, a  federal grand jury indicted appellant          for  his role in the  two robberies.   The superseding indictment          contained  three counts:  count  1 charged Taylor  and Lynch with          committing  the   UST  robbery;  count  2   charged  Taylor  with          committing the BayBank robbery;  and count 3 charged  Taylor with          carrying a firearm during and in relation to the BayBank robbery.          Lynch entered into a plea agreement and Taylor stood trial alone.          The  jury  found  him guilty  on  all  three  counts.   Following          imposition of sentence, Taylor filed this timely appeal.                    Taylor's brief  contains seven distinct  assignments of          error.   Six of these asseverations   relating, vacuously, to the          joinder  of  counts  arising  from two  separate  robberies,  the          sufficiency of the evidence,  and the jury instructions    do not          necessitate exegetic treatment.   We dispose of these  six claims          in a decurtate fashion (see  infra Parts III - V).   We then turn                                  ___  _____          to  appellant's  most  vexing  point:   his  complaint  that  the          prosecutor's  closing argument contained improper and prejudicial          misstatements,  including impermissible comments  on his election          not to testify.  See infra Part VI.                           ___ _____          II.  THE RAISE-OR-WAIVE RULE          II.  THE RAISE-OR-WAIVE RULE                    Because many of the  assigned errors were not preserved          for  appeal by timely objections,  we pause first  to discuss the          raise-or-waive  rule.    In general,  the  law  ministers to  the          vigilant,  not  to  those  who  sleep  upon  perceptible  rights.                                          5          Consequently, a  litigant who deems himself aggrieved  by what he          considers to be an  improper occurrence in the course of trial or          an erroneous  ruling by the  trial judge  ordinarily must  object          then and there, or forfeit any right to complain at a later time.          The policy reasons behind the raise-or-waive rule are rock solid:          calling a looming error to the trial court's attention affords an          opportunity  to  correct  the  problem  before  irreparable  harm          occurs.  Then, too, the raise-or-waive rule prevents sandbagging;          for  instance,  it  precludes  a party  from  making  a  tactical          decision to refrain from  objecting, and subsequently, should the          case  turn sour,  assigning error  (or, even  worse, planting  an          error and nurturing the seed as insurance against an infelicitous          result).     So  viewed,  the  requirement   that  parties  raise          contemporaneous  objections to improper  questions, comments, and          the like serves an  important purpose in promoting "the  balanced          and orderly  functioning of  our adversarial system  of justice."          United  States v. Griffin, 818 F.2d 97, 99-100 (1st. Cir.), cert.          ______________    _______                                   _____          denied, 484 U.S.  844 (1987); accord United  States v. Holmquist,          ______                        ______ ______________    _________          36 F.3d  154, 168 (1st Cir.  1994), cert. denied, 115  S. Ct. ___                                              _____ ______          (1995).                    Despite its  strength and salience,  the raise-or-waive          rule is not absolute.  But, rescue missions are restricted to the          correction of "plain" errors.  See United States v. Olano, 113 S.                                         ___ _____________    _____          Ct. 1770,  1776 (1993); United  States v. Mejia-Lozano,  829 F.2d                                  ______________    ____________          268, 273 (1st Cir. 1987); Griffin, 818 F.2d at 100; see generally                                    _______                   ___ _________          Fed. R. Crim. P. 52(b).                                          6                    The    plain    error    doctrine    concentrates    on          "blockbusters," to the exclusion of "the ordinary backfires . . .          which may mar a trial record."  Griffin, 818 F.2d at  100.  Under                                          _______          it,  appellate courts will notice  unpreserved errors only in the          most  egregious circumstances.    At a  bare minimum,  therefore,          bevues not seasonably brought to the attention of the trial court          must,  in order  to  command  appellate  intervention,  "affect[]          substantial rights."  Fed. R. Crim. P. 52(b).                    An unpreserved  error is deemed plain  (and, therefore,          to affect  substantial rights) only if the  reviewing court finds          that it skewed the fundamental fairness or basic integrity of the          proceeding below in some major respect.  See Griffin, 818 F.2d at                                                   ___ _______          100.  As the  Supreme Court itself has  written, the plain  error          doctrine  applies  in  those   circumstances  in  which,   absent          appellate intervention, "a miscarriage of justice would otherwise          result."  United States v. Frady,  456 U.S. 152, 163 n.14 (1982).                    _____________    _____          Given   these  parameters,   it  is   not  surprising   that  the          jurisprudence  of plain error  invests substantial  discretion in          the  court of appeals.  See Olano,  113 S. Ct. at 1776 (observing                                  ___ _____          that "the decision to correct  the forfeited error [rests] within          the  sound discretion of the Court of Appeals"); United States v.                                                           _____________          Whiting,  28 F.3d 1296, 1308 (1st Cir.) (same), cert. denied, 115          _______                                         _____ ______          S. Ct.  378 (1994).   Even when  faced with  an apparently  plain          error, an appellate court "has authority to order correction, but          is not required to do  so."  Olano, 113 S. Ct. at 1778.   For the                                       _____          most  part, this  discretion should  be exercised  sparingly, and                                          7          should  be reserved for the  correction of those  few errors that          "`seriously affect  the fairness, integrity or  public reputation          of  the judicial proceedings.'"  United States v. Young, 470 U.S.                                           _____________    _____          1,  15 (1985) (quoting United  States v. Atkinson,  297 U.S. 157,                                 ______________    ________          160 (1936)).          III.  JOINDER AND SEVERANCE          III.  JOINDER AND SEVERANCE                    Appellant  excoriates the  government  for  bringing  a          single indictment that joined a count relating to the UST robbery          with two  counts relating to the BayBank  robbery.3  In a similar          vein,  he calumnizes the district court for refusing to sever the          ostensibly incompatible counts.  The chastisement is unwarranted.                    Although appellant  now maintains that  the counts were          improperly joined, he raises this objection for the first time on          appeal.  Thus, we afford  plain error review.  See United  States                                                         ___ ______________          v. Stackpole, 811 F.2d 689, 693 (1st Cir. 1987).             _________                    Separate offenses may be  joined in the same indictment          if the charges are "of the same or similar character or are based          on  the  same act  or  transaction  or on  two  or  more acts  or          transactions connected together or constituting parts of a common          scheme or  plan."  Fed. R. Crim. P. 8(a).  In determining whether          counts  are properly  combined  for trial,  we historically  have          considered  whether the charges are  laid under the same statute,          whether  they involve similar  victims, locations,  or   modes of                                        ____________________               3Appellant does  not argue  that linking the  firearms count          with the robbery counts formed a basis for a claim of misjoinder.          Accordingly, we deem any such argument waived.  At any  rate, the          firearms  charge was  inextricably  intertwined with  the  second          robbery, and could hardly be separated from it.                                          8          operation,  and the  time  frame  in  which the  charged  conduct          occurred.  See, e.g., United States v. Chambers, 964 F.2d 1250-51                     ___  ____  _____________    ________          (1st Cir. 1992); United States v.  Gray, 958 F.2d 9, 14 (1st Cir.                           _____________     ____          1992).  Under the present circumstances, joining the three counts          lodged against appellant does not constitute plain error.                    The  two robberies  involved the  same type  of victims          (federally  insured  banks).   They were  charged under  the same          statute  (18  U.S.C.    2113),  took  place  in  the same  locale          (downtown  Boston),   and  occurred   in  the  same   time  frame          (successive days).   Such similarities have  routinely been found          to justify joinder.   See,  e.g., Chambers, 964  F.2d at  1250-51                                ___   ____  ________          (finding  joinder proper  when  robberies all  involved federally          insured  banks in the greater  Boston area and  occurred within a          ten-week period); Gray, 958 F.2d  at 14 (similar).   Furthermore,                            ____          the evidence here suggests that the first robbery was, in effect,          a training mission for the second.  Therefore, we do not think it          would  be plain  error to  conclude that  the two  robberies were          parts of  "a common scheme or plan" as  that term is used in Rule          8(a).                    Appellant's contention that the district court erred in          refusing to sever the  robbery counts, while arguably preserved,4          also  lacks force.   Though  the Criminal  Rules  empower federal                                        ____________________               4It is unclear whether appellant's severance motion   which,          in terms,  did not request  that the  two bank robbery  counts be          tried  separately    properly preserved  the severance  issue for          review.   Because  severance was  not required  in any  event, we          assume for argument's sake that the issue was sufficiently raised          in the court below.                                          9          courts to  grant relief  from  prejudicial joinder  of counts  in          criminal  cases, see Fed. R. Crim. P. 14, severance decisions are                           ___          ordinarily won or lost in the  trial court.  We will overturn the          denial of  a motion  for severance  only  for a  patent abuse  of          discretion.  See  United States v. Pierro, 32 F.3d  611, 616 (1st                       ___  _____________    ______          Cir. 1994), cert. denied, 115 S. Ct. 919 (1995); United States v.                      _____ ______                         _____________          Natanel, 938 F.2d  302, 308  (1st Cir. 1991),  cert. denied,  502          _______                                        _____ ______          U.S. 1079 (1992).   This discretion applies to refusals  to sever          counts as well as to refusals to separate defendants for purposes          of trial.  See, e.g., Chambers,  964 F.2d at 1251.   Establishing                     ___  ____  ________          an abuse of discretion usually entails a showing that improper or          prejudicial  joinder likely  "deprived  the defendant  of a  fair          trial."  United States v. Nason, 9 F.3d 155, 158 (1st Cir. 1993),                   _____________    _____          cert. denied, 114 S. Ct. 1331 (1994).          _____ ______                    Appellant faces  a high  hurdle, given  Chambers, Gray,                                                            ________  ____          and other cases in which we have upheld the trial court's refusal          to sever counts involving multiple bank robberies.  He strives to          distinguish these  cases on  the ground  that they  involved more          than two  robberies, and, thus, yielded telltale  patterns.  This          argument fails  for two reasons.   First, common  sense indicates          that  the greater the number of robberies, the greater the danger          of prejudice that joinder poses.  Second, there is no shortage of          sound precedent upholding the joint trial of two   and only two            robbery  counts in a single indictment.  See, e.g., United States                                                   ___  ____  _____________          v.  L'Allier, 838 F.2d 234, 240-41 (7th Cir. 1988); United States              ________                                        _____________          v. Shearer, 606 F.2d 819, 820 (8th Cir. 1979).             _______                                          10                    Apart  from  this  curious   slant  on  the  number  of          incidents,  appellant  offers  no   basis  for  suspecting  undue          prejudice.  His bare allegation that, if the jury were to believe          that  he was  involved in  one bank robbery,  then it  might also          (improperly) be led  to believe from that fact alone  that he was          involved  in the  other,  is simply  not  enough.   This type  of          spillover  is standard  fare whenever  counts  involving discrete          incidents  are linked in a single indictment.  We have repeatedly          held that such  a garden  variety side effect,  without more,  is          insufficient to require severance.  See United States v.  Boylan,                                              ___ _____________     ______          898 F.2d  230, 246 (1st  Cir.) (collecting cases),  cert. denied,                                                              _____ ______          498  U.S.  849  (1990).   Moreover,  the  case  for prejudice  is          especially  weak in  this instance  because the  district court's          jury instructions delineated the separateness of the three counts          and made  it clear that the  jury had to consider  each charge on          its own merits.5                    In sum,  we find no  plain error in the  joinder of the          three  counts contained  in  the superseding  indictment, and  no          misuse  of discretion  in  the  district  court's eschewal  of  a          severance.          IV.  SUFFICIENCY OF THE EVIDENCE          IV.  SUFFICIENCY OF THE EVIDENCE                    Appellant challenges the sufficiency of the evidence in          three respects.   He says that the proof did not show (1) that he                                        ____________________               5We also note that,  even if the robberies had  been charged          in separate indictments, the UST robbery would in all probability          have  been admissible  to prove  preparation, plan,  or knowledge          regarding the BayBank heist.  See Fed. R. Evid. 404(b).                                        ___                                          11          participated  in the  UST  robbery,  (2)  that he  committed  the          BayBank robbery, and/or  (3) that the perpetrator  of the BayBank          robbery  carried a real gun.   In assessing  these challenges, we          scrutinize the  evidence in  the light  most compatible with  the          verdict, resolve all credibility disputes in the verdict's favor,          and then reach  a judgment  about whether a  rational jury  could          find guilt beyond a reasonable doubt.  See Echeverri, 982 F.2d at                                                 ___ _________          677; Maraj, 947 F.2d at 522-23; Boylan, 898 F.2d at 243.               _____                      ______                    On the  sufficiency issues, a further  obstacle impedes          appellant's progress.  Where,  as here, challenges to evidentiary          sufficiency are unpreserved   the defendant moved for judgment of          acquittal at the end  of the prosecution's case, but  then failed          to renew the motion after presenting evidence on his own behalf            a special variant of  the raise-or-waive rule applies.6   In such          straitened circumstances, an appellate court should stay its hand          unless intervention is  necessary to  prevent a  clear and  gross          injustice.   See United States  v. McDowell, 918  F.2d 1004, 1010                       ___ _____________     ________          (1st Cir. 1990); United States  v. Cheung, 836 F.2d 729,  730 n.1                           _____________     ______          (1st  Cir. 1988)  (per curiam); United  States v.  Greenleaf, 692                                          ______________     _________          F.2d  182, 185  (1st  Cir. 1982),  cert.  denied, 460  U.S.  1069                                             _____  ______          (1983).                               A.  The Bank Robberies.                               A.  The Bank Robberies.                                   __________________                    Appellant's first  two  sufficiency challenges  can  be                                        ____________________               6Of  course,  if a  defendant  files  a timely  post-verdict          motion   under  Fed.  R.  Crim.  P.  29(c),  he  may  escape  the          consequences  of  his earlier  procedural  default.   See  United                                                                ___  ______          States v.  Castro-Lara, 970 F.2d  976, 980 (1st  Cir. 1992).   In          ______     ___________          this case, appellant proffered no such motion.                                          12          dispatched with  alacrity.   The government  prosecuted appellant          for  the UST  robbery on  the theory  that he  aided  and abetted          Lynch's felonious conduct.  See 18  U.S.C.   2 (1988).7  The jury                                      ___          convicted him on this basis.  Its finding is amply supported.                    Criminal intent  is an important element  of aiding and          abetting, see  United States v.  Tarr, 589 F.2d 55,  59 (1st Cir.                    ___  _____________     ____          1978), and the supposed lack of any such intent lies at the heart          of  appellant's  challenge.   Proof  of  this  element demands  a          showing  that the  defendant consciously  shared the  principal's          knowledge of the  underlying criminal act,  and intended to  help          the principal.   See United States v.  Albert, 773 F.2d 386,  390                           ___ _____________     ______          (1st Cir. 1985).   We hasten to  add, however, that this  showing          may be made wholly on the basis of circumstantial evidence.                    We believe  that  the jury  could have  reached such  a          conclusion  here.    Viewed  favorably  to  the  government,  the          evidence suggests that appellant  sought Lynch's help in learning          to  rob banks, furnished transportation so that the two men could          rob  a bank, discussed the  prospect en route,  stood watch while          Lynch  held up the teller, facilitated a joint escape, and shared          fifty-fifty  in  the  purloined   fruits.    These  facts  firmly          underbrace the  jury's finding  that appellant aided  and abetted          Lynch in the commission of the robbery.                    Appellant's   challenge  to  the   sufficiency  of  the                                        ____________________               7The  statute provides  that:   "Whoever commits  an offense          against  the United  States or  aids, abets,  counsels, commands,          induces  or   procures  its   commission,  is  punishable   as  a          principal."  18 U.S.C.   2 (1988).                                          13          evidence  that he committed the  BayBank robbery is  jejune.  Two          eyewitnesses, Aruin and  Clavin, identified him in  open court as          the   perpetrator.      Although   appellant   denigrates   their          reliability,  the  jury  was   plainly  entitled  to  accept  the          identification and to find that appellant committed the crime.                               B.  The Firearms Count.                               B.  The Firearms Count.                                   __________________                    Appellant fares equally poorly  in his final  challenge          to evidentiary sufficiency.  The statute of conviction, 18 U.S.C.             924(c), requires  proof  beyond a  reasonable  doubt that  the          person  perpetrating the predicate offense used a real gun.  See,                                                                       ___          e.g., United States v. Kirvan, 997 F.2d 963, 966 (1st Cir. 1993).          ____  _____________    ______          Appellant  tells us  that  the government  failed  to prove  this          essential fact.  We do not agree.                    This  court  recognized in  Kirvan  that,  in order  to                                                ______          convict  under section 924(c), the gun must be real, but it "need          not be proven to be loaded  or operable . . .  ."  Id.  While  "a                                                             ___          toy  or a  replica will  not do,"  the prosecution  satisfies its          burden  simply  by  showing  that   the  gun  is  a  gun.     Id.                                                                        ___          Furthermore, the government's proof on this point need not  reach          a  level of scientific certainty.   On the  contrary, lay opinion          testimony may be employed to propel  a finding that an object  is          in fact a  real gun.8   See, e.g., Parker  v. United States,  801                                  ___  ____  ______     _____________                                        ____________________               8Kirvan  illustrates   the  point.    There,   we  found  it                ______          sufficient to justify a  conviction that two witnesses identified          the object  as a gun, and that it  made a loud noise when dropped          (consistent with it being very  heavy).  See Kirvan, 997 F.2d  at                                                   ___ ______          966-67.                                          14          F.2d 1382, 1385  (D.C. Cir.  1986), cert. denied,  479 U.S.  1070                                              _____ ______          (1987);  United  States v.  Jones, 907  F.2d  456, 460  (4th Cir.                   ______________     _____          1990), cert. denied, 498 U.S. 1029 (1991).                  _____ ______                    Silhouetted   against    this   backdrop,   appellant's          assignment   of  error   pales   into  insignificance.      Three          eyewitnesses to  the BayBank robbery,  each of whom  observed the          object gripped by appellant at close range, testified that it was          a gun.  This evidence is enough to allow  a rational jury to find          that  appellant carried  a  real gun.   Accordingly,  appellant's          conviction under section 924(c) worked no injustice, let alone  a          clear and gross injustice.          V.  THE JURY INSTRUCTIONS          V.  THE JURY INSTRUCTIONS                    When reviewing a  district court's instructions  to the          jury,  we  look  at  the  charge  as  a whole,  not  in  isolated          fragments.  See Boylan,  898 F.2d at 244; Mejia-Lozano,  829 F.2d                      ___ ______                    ____________          at  272.  If no timely objection  has been advanced at trial, see                                                                        ___          Fed. R.  Crim. P. 30  (specifying when and how  objections to the          charge must be  taken), even an improper  instruction rarely will          justify  the reversal of a criminal conviction.  See Henderson v.                                                           ___ _________          Kibbe, 431 U.S.  145, 154  (1977); United States  v. Weston,  960          _____                              _____________     ______          F.2d 212, 216 (1st Cir. 1992).  So it is here.                     In this instance, the district court warned the jury to          take  a long, hard look at accomplice testimony.9  In appellant's                                        ____________________               9To be exact, the court told the jury that the  testimony of          an accomplice was "to be scrutinized with particular care because          there is an interest that the person had in saying something that                                          15          current view,  the instruction  should have been  more elaborate;          the  court  should have  described  the  nature of  the  witness'          interest in assuaging the government, told the jurors  that their          perscrutation of such  testimony must be more searching than that          afforded to other testimony, and reminded them in the same breath          that the government had  to prove its points beyond  a reasonable          doubt.  Putting aside  the obvious question of  whether appellant          would  have been entitled to such instructions if duly requested,          the claimed  deficiencies are  precisely the type  of fine-tuning          that is consigned to the scrap heap if not called to the district          court's  attention in a timeous manner.  No matter how critically          these alleged  shortcomings in the court's  charge are evaluated,          they cannot conceivably sink to the level of plain error.                     The  raise-or-waive  rule   also  hobbles   appellant's          remaining complaint  about the  jury instructions.   After noting          that   the   evidence   anent   eyewitness   identification   was          "straightforward," the judge told the jury:                    There are  some  four billion  people in  the                    world and in the natural course of things one                    would  expect some  of  them may  look alike.                    But, on the other hand, an experience such as                    these witnesses had, may, indeed,  make their                    observation so intense that it is reliable in                    establishing  identity  beyond  a  reasonable                    doubt.          Although  appellant   could  be  correct  in   arguing  that,  in          actuality,   an  intensely  stressful  situation  is  often  less          accurately  remembered than is a more tranquil one, he makes this                                        ____________________          would be looked on with favor by the government."                                          16          point at  the wrong  time  and to  the wrong  court.   While  the          challenged instruction may not be a textbook model, we discern no          plain error in it.          VI.  THE SUMMATION          VI.  THE SUMMATION                    Having wended  our way across  flat, easily  negotiated          territory,  we now  reach  more  problematic  turf.    Here,  the          topography features a tripartite claim of  error addressed to the          government's summation.                    We  start  with  certain   fundamental  verities.    "A          prosecutor is permitted vigorous advocacy, so long as he does not          stray into forbidden terrain."   Palmariello v. Superintendent of                                           ___________    _________________          M.C.I.-Norfolk,  873 F.2d 491, 494 (1st  Cir.), cert. denied, 493          ______________                                  _____ ______          U.S.  865 (1989).  Thus, prosecutors need not pull their punches;          they may   indeed, they should   present  their cases to criminal          juries zealously.  Forcefulness  in the pursuit of justice  is to          be admired rather than  condemned.  Yet, while a  prosecutor "may          strike hard  blows, he is  not at liberty  to strike  foul ones."          Berger v. United  States, 295 U.S. 78, 88 (1935).   This maxim is          ______    ______________          particularly relevant  to closing arguments,  for such  arguments          come at an  especially delicate  point in the  trial process  and          represent the parties' last, best chance to marshal  the evidence          and persuade the jurors of its import.   See, e.g., United States                                                   ___  ____  _____________          v. Manning, 23 F.3d 570, 575 (1st Cir. 1994).             _______                    Of course, a prosecutor's obligation to stay within the          pale does not exist in a vacuum.  A defendant has a corresponding          obligation  to  protect his  own  interests.    When a  defendant                                          17          defaults on this obligation by failing to make a  contemporaneous          objection to  questionable comments in the  prosecution's closing          argument, the raise-or-waive  rule applies.  Afterthought  claims          of improprieties  allegedly  occurring during  the summation  are          reviewed  under  the  notably  ungenerous  plain  error standard.          Consequently,  reversal  is justified  only  if the  illegitimate          portion  of the closing argument  "so poisoned the  well that the          trial's  outcome was likely affected."  Mejia-Lozano, 829 F.2d at                                                  ____________          274.                    In determining whether a prosecutor's  miscues in final          argument  require reversal  under this  hard-to-satisfy standard,          this  court considers  all  the attendant  circumstances,  paying          special  heed to  factors such  as (1)  the extent  to  which the          prosecutor's  conduct  is  recurrent and/or  deliberate;  (2) the          extent to which the trial judge's instructions insulated the jury          against, or  palliated, the possibility of  unfair prejudice; and          (3)  the  overall  strength   of  the  prosecution's  case,  with          particular regard to the likelihood that any prejudice might have          affected the jury's judgment.  See id.; see also United States v.                                         ___ ___  ___ ____ _____________          Giry, 818 F.2d  120, 133 (1st  Cir.), cert. denied, 484  U.S. 855          ____                                  _____ ______          (1987).    Using  these  criteria,  we  conclude  that   none  of          appellant's claimed errors requires reversal.                            A.  Matters Dehors the Record.                            A.  Matters Dehors the Record.                                _________________________                    Appellant  maintains that,  during  the summation,  the          prosecutor referred  to matters  not in evidence.   Specifically,          the  prosecutor gave a  less than completely  accurate account of                                          18          the prefatory conversation between appellant and Lynch on January          29.    Appellant  greeted  Lynch,  so  the  prosecutor  said,  by          imploring:  "Maestro,  show me  how it's done."   The  prosecutor          added:   "We  know that  Maestro is Mr.  Lynch's nickname.   Why?          Because he plays  the organ in his father's church."   Warming to          this theme, the  prosecutor reiterated  the point.   He told  the          jury that, as the two  men walked into the UST  branch, appellant          again said:  "Maestro . . . show me the ropes."                    There was, in fact, no evidence of Lynch's nickname and          no evidence that appellant made a  request to be shown the  ropes          as   the  robbers  entered  the  bank.    Withal,  there  was  no          _____________________________________          contemporaneous  objection, and  these  canards scarcely  justify          reversal under  the  plain  error doctrine.    Given  that  Lynch          admitted  to  his vocation  as a  bank  robber, his  nickname was          wholly  irrelevant to the case.  Moreover, the prosecutor gave an          innocent explanation  of the  moniker and appellant's  own lawyer          ________          twice referred to Lynch in front of the jury as "Maestro."  As to          the second  misstatement, there was evidence  that appellant made          the request  ("show me the ropes")  previously on the day  of the          robbery and on  at least one  earlier occasion.  In  other words,          the substance  of the  prosecutor's statement was  true (although          the timing was awry).                    On whole-record  review,  we conclude  without  serious          question  that the  allusions to  matters dehors the  record were          benign.  Reversal is totally unwarranted.                            B.  The Prosecutor's Rebuttal.                            B.  The Prosecutor's Rebuttal.                                _________________________                                          19                    Next,  appellant  assails  the  prosecutor's  rebuttal,          which,  he  says,  contained  a minimum  of  three  peccadilloes,          namely, (1)  an implication that  appellant had alerted  the four          people who mugged  Lynch and  stole his booty,  (2) a  suggestion          that  Lynch should be  believed because he  suffered from sickle-          cell  anemia  and  had  tested  positive  for  HIV,  and  (3)  an          intimation that  Clavin, during her testimony,  lowered her voice          "out of fear."                    These  accusations  do  not withstand  scrutiny.    The          prosecutor made the first of the cited comments without objection          and in direct  response to defense counsel's  argument that Lynch          had turned against Taylor because the latter did not come to  his          aid  during  the mugging.    We  have  previously  expressed  our          reluctance  to find plain  error when a  prosecutor's remarks are          made  to rebut  specific statements  by defense counsel,  and are          proportionate to that end.  See  Whiting, 28 F.3d at 1302; Mejia-                                      ___  _______                   ______          Lozano,  829 F.2d  at  274.   Here,  our reluctance  ripens  into          ______          outright  unwillingness.    Similarly, the  prosecutor's  remarks          about Lynch's  health drew  no contemporaneous objection.   Those          remarks  were obviously  designed to  rebut the  defense argument          that  Lynch was hoping to  earn a reduced  sentence by testifying          against  Taylor.  The statement  recounted facts in evidence, and          did not constitute either  vouching or an improper appeal  to the          jury's sympathies.   Finally, the remark  about Clavin's demeanor          was not out of line.  The  jury saw and heard her testimony,  and                                          20          could  determine  for itself  her state  of  mind.10   See, e.g.,                                                                 ___  ____          United  States  v.  Mount, 896  F.2d  612,  625  (1st Cir.  1990)          ______________      _____          ("Although  it is  the jury's  job to  draw inferences,  there is          nothing improper in the Government's suggesting  which inferences          should be drawn.").                            C.  The Fifth Amendment Issue.                            C.  The Fifth Amendment Issue.                                _________________________                    The capstone of appellant's asseverational array is his          anguished assertion  that  the prosecutor's  summation  contained          comments on appellant's election not to testify, in derogation of          rights  secured to appellant under the Fifth Amendment.  We quote          the disputed portion of the prosecutor's summation:                         Is  there any  evidence that  Mr. Taylor                    said, "Oh, my God, I've been misled.  This is                    not going to  be money from his father.  I've                    got to get out of here.   I've got to warn my                    friend, Lucille Aulmond.   She gave me  rides                    in   the  past,   but   this   is   something                    different."   He  stayed true  in his  anchor                    position.                         Mr.  Lynch  went   up  to  the   window,                    demanded money.   He was very  unafraid.  Mr.                    Lynch demanded money  that wasn't  his.   Did                    Mr. Taylor  say:   Oh, my  God, I'm going  to                    leave this place and warn my  friend, Lucille                    Aulmond?  No.  He stayed true  to that anchor                    position.  And, in fact, he yelled, "Come on,                    let's go."                           Lynch  points to  the door.   Mr. Taylor                    waits  there and  does  he say:   Look,  just                    because I'm here, I'm sorry what happened.  I                    didn't  know  it was  going  to  happen.   Is                    everybody  all   right?    I  know   who  was                    responsible.                                        ____________________               10While defense counsel did not  interject a contemporaneous          objection  during the  prosecutor's rebuttal,  he did  bring this          remark  to   the  court's  attention  at   a  sidebar  conference          immediately  following  the summations.    The  judge refused  to          resurrect the matter,  stating:  "I will  leave it.  It  is up to          the jury to make that determination."  We agree.                                          21                         He left with the  money. . . .   When he                    got  back  to  the  car,  you  heard  Lucille                    Aulmond, and she said, "What happened?"  Does                    he say:  Lucille, he robbed  a bank; I didn't                    know  it was going to happen;  I'm sorry.  "I                    hit  a man  in the  face"  was what  you got,                    instead.  Not the truth, just another part of                    the lie . . . .                         And  they drive  two  blocks away.   Mr.                    Lynch  gets out  of the  car.   Does Terrence                    Taylor stay with  his friend?   "Lucille, I'm                    involved in this.   You  shouldn't have  been                    involved.   I  didn't  even  know  about  it.                    Let's go  to the police and  clear this whole                    thing  up."  He went with the money.  Her job                    was done.                         He  took the money. .  . .   Did he take                    his share  of the money and  say, "Look, this                    is not  my money;  there it is,  police, look                    for  bait bills;  I'm turning  back  money; I                    have nothing to do with this."                    It is  a bedrock principle  that a  prosecutor may  not          comment  on a defendant's exercise of the right to remain silent.          See United States v. Robinson, 485 U.S. 25, 30 (1988); Griffin v.          ___ _____________    ________                          _______          California, 380 U.S. 609, 615 (1965); United States v. Sepulveda,          __________                            _____________    _________          15 F.3d 1161, 1186 (1st Cir. 1993), cert. denied, 114 S. Ct. 2714                                              _____ ______          (1994).  Even an indirect or inferential comment on a defendant's          silence can  transgress the Fifth  Amendment.  See,  e.g., United                                                         ___   ____  ______          States v. Hardy, 37 F.3d 753,  757 (1st Cir. 1994); United States          ______    _____                                     _____________          v. Lavoie,  721 F.2d 407, 408 (1st  Cir. 1983), cert. denied, 465             ______                                       _____ ______          U.S. 1069 (1984).                    Because  "[t]here   is  no  bright  line   marking  the          precipice between  a legitimate  assessment of  defense witnesses          and an impermissible  encroachment upon  the accused's  silence,"          Sepulveda, 15 F.3d at  1186, prosecutors must tread  carefully on          _________          this terrain.  A  prosecutor who "attempts to define  exactly the                                          22          edge  of  the precipice  approaches  at his  peril."   Rodriguez-                                                                 __________          Sandoval v. United States, 409 F.2d 529, 531 (1st Cir. 1969).  In          ________    _____________          evaluating whether a  prosecutor has  gone too far,  we must  ask          whether, in  the particular  circumstances of  a given case,  the          language  used by the prosecutor appears to have been designed to          yield  the improper inference, or, if not so designed, whether it          was  such that jurors would probably interpret it as a commentary          on the accused's  failure to take the witness stand.   See United                                                                 ___ ______          States  v. Glantz,  810  F.2d 316,  322  (1st Cir.  1987),  cert.          ______     ______                                           _____          denied,  482 U.S. 929 (1987); United States v. Monaghan, 741 F.2d          ______                        _____________    ________          1434, 1437 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085 (1985).                                       _____ ______                    Notwithstanding these constraints,  no Fifth  Amendment          violation inheres in comments on a defendant's decision to remain          silent in a context outside  the legal process.  For example,  in          Lema  v. United  States, 987  F.2d 48 (1st  Cir. 1993),  we found          ____     ______________          nothing amiss  in a  prosecutor's observation that  the defendant          remained  silent during two  drug transactions.   The comment did          not  transgress  the  Fifth  Amendment  because  it  referred  to          defendant's  silence at  the scene  of the  crime rather  than at          trial.  See id. at 56; see also United States v. Ortiz,  966 F.2d                  ___ ___        ___ ____ _____________    _____          707,  714  (1st  Cir.  1992)  (holding  that  defendant's  silent          presence   at  site   of  drug   transaction  "patently   implied          participation"), cert. denied, 113 S. Ct. 1005 (1993).                           _____ ______                    In  this  case,   the  government   insists  that   the          challenged  statements  referred to  appellant's  silence before,          during, and after the  UST robbery, not to his  silence at trial.                                          23          When a  prosecutor's comments, fairly viewed,  are susceptible to          two plausible meanings,  one of which is  unexceptionable and one          of  which  is forbidden,  context frequently  determines meaning.          See  Sepulveda, 15 F.3d at 1187; United States v. Lilly, 983 F.2d          ___  _________                   _____________    _____          300,  307 (1st  Cir. 1992).   Where  feasible, a  reviewing court          should construe ambiguity in favor of a proper meaning:                    [A]  court should  not lightly  infer  that a                    prosecutor  intends  an  ambiguous remark  to                    have  its most  damaging  meaning  or that  a                    jury, sitting through a  lengthy exhortation,                    will draw  that meaning from the  plethora of                    less damaging interpretations.          Donnelly  v.  DeChristoforo, 416  U.S.  637,  647 (1974);  accord          ________      _____________                                ______          Lilly, 983 F.2d at 307.  This rule of construction has heightened          _____          desirability in  the absence of a  contemporaneous objection for,          when the target of the comments does not interrupt and register a          timely objection,  it seems  especially appropriate to  "give the          arguer  the  benefit of  every  plausible  interpretation of  her          words."  Sepulveda, 15 F.3d at 1187.  We are especially reluctant                   _________          to "fish in the pool of ambiguity" when, as now, the  complaining          party failed  to  bring a  dubious comment,  easily corrected  on          proper  notice, to  the immediate  attention of the  trial court.          Id. at 1188.          ___                    Evaluated against  this  benchmark, we  do not  believe          that the quoted remarks trespassed on appellant's Fifth Amendment          rights.   While a suspicious mind could construe what was said as          a   comment  on   appellant's  decision   not  to   testify,  the          prosecutor's words are more plausibly interpreted as a comment on          appellant's silence during  the commission of  the crime.   After                              _____________________________________                                          24          all, Taylor had labored to develop a defense based on his lack of          foreknowledge  concerning Lynch's felonious  intent.  Appellant's          silence throughout the commission of the crime tends to undermine          this defense, and  the prosecutor's comments  were most likely  a          clumsy effort to seize upon this weakness.                    We will  not paint the  lily.  Given  the absence  of a          contemporaneous  objection, we  must cede  to the  government the          benefit  of   a  legitimate,  plausible  interpretation   of  the          prosecutor's words.   On this basis, we  hold that the remarks in          question did not amount  to a constitutionally prohibited comment          on appellant's declination to testify at trial.                    We add that, even  if the prosecutor's comments crossed          the line,  our  traditional  three-part  analysis  suggests  that          reversal would be unwarranted.  First, although the comments were          repeated several times, there  is no reason to conclude  that the          prosecutor intentionally drew attention to appellant's silence at          trial.   Second, despite the  lack of an  objection, the district          judge  instructed the  jury with  painstaking care  regarding the          government's burden of proof, appellant's presumed innocence, and          his constitutional right to refrain from testifying.  Among other          things,  the judge admonished that "no adverse inference is to be          drawn from his exercise  of his election not to take  the stand."          We are confident that this explicit instruction was sufficient to          combat  any impermissible  inference that  might have  been drawn          from the prosecutor's statements.                    Last   but  far from least, see Mejia-Lozano,  829 F.2d                                                ___ ____________                                          25          at 274 (explaining that "the strength of the government's case is          an  important   factor  in  considering  the   likely  effect  of          borderline rhetoric")    the possibility that  the comments, even          if  misconstrued,  affected  appellant's  substantial  rights  is          diminished  by the potency  of the  government's proof.   Lynch's          testimony  was  unequivocal  and  corroborated  on  many  points.          Moreover, several witnesses to  the UST robbery noted appellant's          presence  and  described his  behavior  in  a  way that  strongly          suggested   his  complicity  in  the  crime.    In  view  of  the          substantial  evidence  against  appellant,  we   find  it  highly          unlikely that the jury could have been swayed by the prosecutor's          amphibolous remarks.11          VII.  CONCLUSION          VII.  CONCLUSION                    We  need  go  no  further.    For aught  that  appears,          appellant was  fairly tried and  justly convicted.   The judgment          below is, therefore,          Affirmed.          Affirmed.          ________                                        ____________________               11If this were not  enough, the general principles governing          plain error review caution us in this case against exercising our          discretion  in  Taylor's  behalf.   At  worst,  the  prosecutor's          comments were  veiled and  any impermissible implication  arising          out of them was attenuated.  We do not believe  that this line of          argument could have "seriously affect[ed] the fairness, integrity          or public reputation of judicial proceedings."  Olano, 113 S. Ct.                                                          _____          at 1776 (internal quotation marks omitted).                                          26
