
USCA1 Opinion

	




          February 2, 1993                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1587                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                             MICHAEL IDOWU TUNDE AKINOLA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                          Coffin, Senior Circuit Judge, and                                   ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            David N. Cicilline for appellant.            __________________            Gerard B. Sullivan,  Assistant U.S. Attorney, with whom Lincoln C.            __________________                                      __________        Almond, U.S. Attorney and Margaret E. Curran, Assistant U.S. Attorney,        ______                    __________________        were on brief for appellee.                                 ____________________                                   February 2, 1993                                 ____________________                      STAHL, Circuit Judge.   Defendant-appellant Michael                             _____________            Idowu  Tunde  Akinola  ("Akinola")  launches  a  five-pronged            attack  on  his conviction  for  conspiracy  to possess  with            intent  to distribute  heroin and  possession with  intent to            distribute heroin.1  We  address the following claimed errors            in detail:  1) unconstitutional denial of chosen counsel when            the Magistrate Judge denied  his desired counsel's motion for            admission pro hac vice; 2) erroneous denial of his motion for                      ___ ___ ____            judgment  of acquittal;  3)  the impermissible  prosecutorial            comment  on  his failure  to  testify and  the  trial court's            subsequent  inadequate curative instruction; and 4) the trial            court's improper jury instruction.  For the reasons set forth            below, we affirm both counts of conviction.                                            I.                                          I.                                          __                                  Factual Background                                  Factual Background                                  __________________                      We begin  by summarizing the evidence  in the light            most  favorable to the  government.  United  States v. Abreu,                                                 ______________    _____            952 F.2d 1458, 1460  (1st Cir.), cert. denied,      U.S.    ,                                             _____ ______  ___       ___            112 S. Ct. 1695 (1992).                      On June 30,  1991, Patrolman Donald L. Mong  of the            East Greenwich, Rhode Island,  Police Department, was working            a routine patrol  in a  marked cruiser.   At approximately  5                                            ____________________            1.  Akinola was  arrested, tried  and convicted along  with a            co-defendant, Joseph  Gullity, whose  appeal we  have already            decided.   United States  v. Gullity, No.  92-1586 (1st  Cir.                       _____________     _______            Dec. 14, 1992) (unpublished).                                         -2-                                          2            p.m.,  Mong  noticed  that  a  car   which  had  just  passed            perpendicular to his ("the suspect car") did not have a front            license  plate. Mong  and  Akinola made  eye  contact as  the            suspect car passed Mong.  Mong pulled out and began to follow            the  vehicle, in which Akinola was the driver and Gullity the            passenger.   When Mong positioned himself  behind the suspect            car,  it  accelerated and  began  to  pull  away  from  Mong,            eventually  reaching  a  speed of  50  miles  per  hour in  a            residential area posted for  25 miles per hour.   Mong closed            the gap sufficiently so that he could read the vehicle's rear            license   plate  number   which  he  transmitted   to  police            headquarters in order to obtain as much information about the            car as possible.                      As appellant's car slowed for intersection traffic,            Mong shortened  the distance between  the two  vehicles.   He            then   observed  Akinola  and   Gullity  having   a  spirited            conversation in which he could see Akinola's  head moving and            his lips  moving fast "as though  he was trying to  get out a            lot  of information  quickly."   After  traffic cleared,  the            suspect  car turned  left  at the  intersection, followed  by            Mong.  Again, the  suspect car began pulling away  from Mong,            despite the  latter's speed of  50 miles  per hour.   At that            time, the two vehicles were travelling in a 35  mile per hour            zone.  The  suspect car  soon approached the  vicinity of  an            entrance ramp for interstate route 95.  Although Mong had yet                                         -3-                                          3            to receive any information  on the suspect car, he  wanted to            avoid following  it onto  the interstate, and  thus activated            his car's emergency overhead lights.  The suspect car did not            enter the  interstate, nor, however, did it  stop in response            to  the  emergency  lights.   Mong  then  flashed  his  car's            headlights  and  turned on  his  siren,  after which  Akinola            appeared  to   glance  into   his  rear-view   mirror.  After            travelling approximately 200  yards further,  and passing  at            least two  areas suitable for pulling over, Akinola entered a            movie  theater parking  lot,  stopping the  vehicle near  the            front of  the theater  entrance.  Between  Mong radioing  for            information  and  the  suspect  car  stopping,  the  vehicles            covered about one and one-half miles.                      As  Mong was  informing  his  dispatcher that  both            vehicles had  stopped, Akinola  exited his vehicle  and began            yelling  at Mong in an  "agitated" manner.   Mong then exited            his vehicle,  while Akinola continued toward  him, yelling at            Mong and  toward Gullity--who was still seated in the car--in            English to Mong and to Gullity in another language which Mong            did  not understand, which later turned out to be the African            dialect Yoruba.   Although Mong ordered Akinola  to return to            his  car,  Akinola  continued  towards   him,  still  yelling            bilingually.   Akinola then began  shoving Mong, but  after a            scuffle, Mong was able to pin Akinola on the ground, handcuff            him, and then lock him in the rear of his cruiser.                                         -4-                                          4                 Meanwhile,  during  the Mong-Akinola  imbroglio, Gullity            walked  into the theater lobby.  After securing Akinola, Mong            brought Gullity back to the  parking lot, whereupon a citizen            bystander,  Michael Melchor,  directed Mong's attention  to a            nearby  vehicle,  under which  Melchor  claimed  he had  seen            Gullity  kick an object he had removed from his shirt pocket.            Mong  retrieved the object, which  turned out to  be a tissue            containing 46.5  grams of  heroin.  Akinola  was subsequently            indicted and  convicted on  charges of conspiracy  to possess            with intent to distribute  heroin, in violation of  21 U.S.C.               841(a)(1),  (b)(1)(c) and 846, and  possession with intent            to distribute heroin, in violation  of 21 U.S.C.   841(a)(1),            (b)(1)(c).   Following his conviction, he was  sentenced to a            term of 46 months imprisonment.                                         II.                                         II.                                         ___                                 Pretrial Proceedings                                 Pretrial Proceedings                                 ____________________                      Akinola initially  appeared  in district  court  on            July  15, 1991,  at  which time  attorney  John F.  Cicilline            entered an appearance on Akinola's behalf.   A probable cause            and detention hearing  was then scheduled for July  18, 1991.            On the scheduled date, attorney John M. Cicilline appeared on            behalf of Gullity, and  attorney David N. Cicilline attempted            to represent Akinola.   John F. Cicilline was not  present at            the hearing.  Magistrate Judge Boudewyns did not permit David            N. Cicilline to represent Akinola because he was not a member                                         -5-                                          5            of Rhode Island's District bar and  because John F. Cicilline            was still listed as  counsel of record and had  not withdrawn            from  the case.   The  Magistrate Judge  also denied  John M.            Cicilline's motion to admit David N. Cicilline pro hac  vice,                                                           ___ ___  ____            but  scheduled  a  hearing  for July  23,  1991,  to  further            consider the matter.                      John F.  Cicilline appeared  at the July  23, 1991,            hearing and requested the  Magistrate Judge to reconsider his            denial of the pro hac  vice motion.  That request was  denied                          ___ ___  ____            for  several   reasons,  which  appellant   now  argues  were            erroneous.  We need not address the merits of this particular            claim, however, because appellant's  failure to preserve  the            issue leaves us without  jurisdiction to consider the matter.            A brief explanation follows.                      The  courts  of   appeals  have  jurisdiction  over            appeals  "from all final decisions  of the district courts of            the  United  States."   28 U.S.C.     1291; United  States v.                                                        ______________            Ecker, 923 F.2d 7, 8 (1st Cir. 1991).  Furthermore, "[t]o  be            _____            a final order  of the  district court within  the meaning  of            section  1291,  the  magistrate's  decision  must  have  been            reviewed  by  the  district  court,  which  retains  ultimate            decision-making power." Id.  (quoting Siers  v. Morrash,  700                                    ___           _____     _______            F.2d  113,  115  (3d  Cir. 1983)  and  cases  cited  therein)            (internal quotes  omitted).   See generally Pagano  v. Frank,                                          ___ _________ ______     _____            No. 92-1952,  slip op. at 4-7  (1st Cir. Jan. 13,  1993).  In                                         -6-                                          6            the  case at  bar, there  is no  dispute that  the Magistrate            Judge's order was  not brought before the district  court via            either of the two methods  countenanced in Ecker.2  Appellant                                                       _____            seeks  to  bypass this  apparent  jurisdictional blockage  by            arguing  that   his  apparent  default  is   excused  by  the            Magistrate  Judge's  lack  of  warning, in  his  order,  that            failure to seek  district court relief would result in waiver            of  appellate rights.  It is true, as appellant asserts, that            United States  v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986)            _____________     _______________            mandated such notice in  certain cases to protect  the rights            of  pro se litigants.   But here, Akinola  was represented by                ___ __            experienced  counsel at  the time  of the  Magistrate Judge's            ruling.  Moreover,  as we pointed  out during oral  argument,            even when such a warning is required, it is necessary only as            part of a Magistrate Judge's report and recommendation to the            district  judge, 28 U.S.C.    636(b)(1)(B), (C), and not when            the  Magistrate Judge  issues  a non-dispositive  order.   28            U.S.C.   636(b)(1)(A); See,  e.g., M.S. Chambers & Son,  Inc.                                   ___   ____  __________________________            v.  Tambrands,  Inc., 118  F.R.D.  274, 279  (D.  Mass. 1987)                ________________            (giving waiver notice only "to the extent that [Magistrate's]                                            ____________________            2.  In  Ecker we  noted the  existence of  two categories  of                    _____            magistrate's    orders--"self-operating"    and    "non-self-            operating."  The  former  type,   pursuant  to  28  U.S.C.               636(b)(1)(A),  which  cover   most  pre-trial  and  discovery            matters,  are valid when entered  and can be  challenged by a            motion  for reconsideration directed  to the  district court.            Non-self-operating orders  are not  valid until  the district            court accepts the magistrate's report and recommendation  and            enters an order or judgment.  28 U.S.C.   636(b)(1)(A), (B).                                         -7-                                          7            ruling  may  be  considered  a report  and  recommendation").            Therefore, the lack of such notice in this case is of no help            to  appellant,  and  thus  we  are  without  jurisdiction  to            consider the Magistrate's pro hac vice ruling.                                      ___ ___ ____                                         III.                                         III.                                         ____                                 Alleged Trial Errors                                 Alleged Trial Errors                                 ____________________            A.  Denial of Rule 29 Motion for Acquittal             A.  Denial of Rule 29 Motion for Acquittal            ___________________________________________                      As  we  have  recently  reiterated, we  review  the            district court's  denial of a Rule 29 motion by "scrutinizing            the record in the light most favorable to the prosecution and            drawing all  reasonable inferences in favor  of the verdict."            United States v. Gonzalez-Torres, No.  91-2140, slip op. at 5            _____________    _______________            (1st Cir. Nov. 20, 1992) (citing United States v. Amparo, 961                                             _____________    ______            F.2d 288,  290 (1st Cir.), cert. denied,     U.S.    , 113 S.                                       _____ ______  ___      ___            Ct. 224 (1992)).   If, upon such a reading  of the record, we            conclude that a  rational jury could have found the defendant                                           _____            guilty  beyond a reasonable  doubt, then  we must  affirm the            district court.   Id.;  United States  v.  Plummer, 964  F.2d                              ___   _____________      _______            1251, 1254 (1st Cir.), cert. denied,     U.S.    , 113 S. Ct.                                   _____ ______  ___      ___            350 (1992).  Moreover, the prosecution need not exclude every            reasonable hypothesis  of innocence and may  prove its entire            case through  the use of circumstantial evidence,  so long as            the totality  of the evidence  permits a conclusion  of guilt            beyond a reasonable doubt. Gonzalez-Torres, No. 91-2140, slip                                       _______________            op. at 5 (citations omitted).                                         -8-                                          8                 1. Possession with Intent to Distribute                 1. Possession with Intent to Distribute                 _______________________________________                      In  order to  convict  Akinola of  possession  with            intent to  distribute heroin, the government  must prove that            he knowingly and intentionally  possessed the heroin and that            he did so with the intent to  distribute it. Unites States v.                                                         _____________            Barnes,  890 F.2d 545, 549 (1st Cir. 1989), cert. denied, 494            ______                                      _____ ______            U.S.  1019 (1990); United States v. Latham, 874 F.2d 852, 863                               _____________    ______            (1st Cir. 1989).  In addition, and especially relevant to the            case  at  bar, the  government  need not  prove  that Akinola            actually   possessed   the  heroin.      Instead,  proof   of            constructive   possession   is   sufficient  to   support   a            conviction. United States v. Martinez, 922 F.2d 914, 923 (1st                        _____________    ________            Cir.  1991);    Latham,  874   F.2d  at  861.    Constructive                            ______            possession may be  proved by demonstrating defendant's  power            and intent  to exercise ownership, dominion,  or control over            the  contraband  itself,  or  over  the  area  in  which  the            contraband was  concealed.   Constructive  possession may  be            sole or joint and may be achieved directly or through others.            United  States v. Ocampo-Guarin, 968 F.2d  1406, 1409-10 (1st            ______________    _____________            Cir. 1992) (citations and  quotations omitted); United States                                                            _____________            v.  Vargas,  945 F.2d  426,  428 (1st  Cir.  1991) (citations                ______            omitted).                       The  government  concedes  that  it  has  no direct            evidence  of  Akinola's  actual  possession  of  the  heroin.                                         -9-                                          9            Instead, the case against Akinola is  based on an inferential            chain of circumstantial evidence.  The government argues that            Akinola's actions  after he  became aware of  Mong's presence            all  support  the conclusion  that  he had  knowledge  of the            heroin  in Gullity's  pocket.   Specifically,  the government            relies on Mong's testimony  that Akinola suddenly accelerated            after he and  Mong made initial eye contact, speeding through            a residential neighborhood at twice the speed  limit.  Later,            when Akinola was forced  to slow for traffic, he  and Gullity            were seen  in an animated conversation,  which the government            claims related  to the heroin and  what to do in  the face of            Mong's presence.   Next,  the government points  to Akinola's            failure to yield after Mong activated his lights and  sirens,            passing at  least two  suitable turnoffs before  pulling into            the  movie  theater  parking  lot,  as  further  evidence  of            evasion.   In addition, the government  argues that Akinola's            physical  assault  on  Mong  was  an  attempt at  creating  a            diversion  so  that  Gullity  could dispose  of  the  heroin.            Finally, the  government claims that Akinola  was shouting to            Gullity in  the  Yoruba language  in  order to  give  Gullity            instructions which Mong  would be unable to  understand.  The            government  argues  that Akinola  was instructing  Gullity to            dispose   of   the   heroin,   which   Gullity  did,   albeit            unsuccessfully.                                         -10-                                          10                      Appellant  contends  that any  inference  of either            knowledge  or  dominion  and  control drawn  from  the  above            described  events  is  nothing  more  than  rank speculation,            resulting  from the  government's attempt to  "pile inference            upon  inference."  Although this  is a close  case, we reject            appellant's exhortations.                      Based on the evidence  of Akinola's evasive actions            following the initial contact with Mong, the jury could infer            that he knew of the heroin in Gullity's pocket.  Further, the            jury could conclude that the pair's animated conversation was            a  reflection   of  Akinola's   knowledge   of  the   heroin.            Additionally,  a rational  jury could conclude that Akinola's            initiation  of physical  conflict with  Mong was  a diversion            intended  to allow Gullity to  get away with,  or dispose of,            the  heroin.  The jury  could have also  found that Akinola's            Yoruban communication to Gullity related to the heroin, given            the   temporal  proximity  between   Akinola's  actions,  his            unprovoked  assault on Mong, the communication, and Gullity's            actions.   Moreover,  the same  events could  lead a  jury to            conclude  that  Akinola--through  Gullity--was attempting  to            exercise his dominion and control  over the heroin.  Finally,            evidence  indicated  that the  amount  of  heroin seized  was            equivalent  to  2,300  doses.     That  fact,  combined  with            testimony to the effect that neither Akinola nor Gullity were                                         -11-                                          11            heroin  users,  supports a  conclusion  that  the heroin  was            intended for distribution.  See Vargas, 945 F.2d at 428-29.                                        ___ ______                      With  respect to  appellant's  claim of  inference-            piling,  we recall, as we did in  a recent case, the words of            Judge Aldrich:                           The  rule is  not that  an inference,  no                      matter how reasonable, is to be rejected if it                      in  turn  depends   upon  another   reasonable                      inference; rather, the question is whether the                      total    evidence,     including    reasonable                      inferences, when put together is sufficient to                      warrant  a jury to  conclude that defendant is                      guilty beyond a reasonable doubt.            United  States v. Clifford, No.  92-1748, slip op.  at 6 (1st            ______________    ________            Cir. Nov. 20,  1992) (quoting Dirring  v. United States,  328                                          _______     _____________            F.2d 512, 515  (1st Cir. 1964)).  Based  on the foregoing, we            find the evidence of Akinola's constructive possession of the            heroin is sufficient to sustain his conviction for possession            with intent to distribute heroin.                 2. Conspiracy to Possess with Intent to Distribute                 2. Conspiracy to Possess with Intent to Distribute                 __________________________________________________                      To support Akinola's conviction  on this count, the            government  must prove  the  existence of  a conspiracy,  the            defendant's knowledge of it, and his participation in it.  In            addition, the  government must show Akinola's  intent to both            agree with his co-conspirator,  and to commit the substantive            offense.  Clifford, slip op. at 2.                        ________                      "A  criminal  conspiracy  is a  tacit  or  explicit            agreement  to   perform  an   unlawful  act,  which   can  be            established  by  direct or  circumstantial evidence  that the                                         -12-                                          12            putative  co-conspirators agreed  and intended  to facilitate            the aims of the alleged unlawful activity."  Vargas, 945 F.2d                                                         ______            at 429 (citations and internal quotations omitted).                      The  government  essentially argues  that  the same            circumstantial facts which supported  Akinola's guilt on  the            possession  count  also  support the  conspiracy  conviction.            Appellant  argues  that the  government's  case  is based  on            little  more  than Akinola's  presence  in  the vehicle  with            Gullity.  We disagree that the evidence in this case supports            a finding of  no more  than that Akinola  was merely  present            with Gullity.                      As we have already noted, the jury could have found            that Akinola  knew of  the  heroin prior  to Mong's  presence            based on  his sudden acceleration at  the sight of Mong.   In            addition, the animated conversation and  Akinola's actions in            the parking  lot, when  he first  shouted toward Gullity  and            then  attempted  to  create  a diversion  for  him,  could be            indicative  of the  existence of  an agreement  between them.            This  is  especially  true  since the  parking  lot  incident            occurred  soon  after  their  animated   conversation,  which            occurred  after  Mong  had  been  following  for  some  time.            Although this count, too, presents a close call,  we conclude            that a  rational jury  could reasonably infer  from Akinola's            actions the existence of an agreement with Gullity to possess            with intent to distribute the heroin.                                         -13-                                          13            B.  Prosecutorial Misconduct and Curative Instruction            B.  Prosecutorial Misconduct and Curative Instruction            _____________________________________________________                      During  closing argument,  the prosecutor  made the            following statement:                      We must show  you that defendant  Akinola                      knew  the heroin  was there.   And  we do                      that by  showing a  high speed chase,  an                      animated   conversation,  a   failure  to                      yield, an unprovoked physical assault and                      yelling  in a foreign  language which are                                                      _________                      unexplained   by   anything  other   than                      ___________________________                      knowledge  of  the  heroin  in  the  car.                      (emphasis added)            Defense counsel  objected, on  the basis that  the emphasized            portion of the argument  constituted impermissible comment on            Akinola's  failure to  testify.   The  trial court  initially            overruled  the  objection, but  then,  sua  sponte, gave  the                                                   ___  ______            following instruction to the jury:                      Excuse me.   I  don't  mean to  interpret                      (sic) you, Mr. Sullivan.  Let me make one                      thing clear to  the jury.  I am  sure Mr.                      Sullivan  says  unexplained,  what he  is                      referring to is  unexplained by the facts                      that have  been presented  to you.   As I                      told  you  before,  the defendants  don't                      have any obligation to  explain anything.                      And I'm sure that's what  Mr. Sullivan is                      referring to.            On  appeal, Akinola  reiterates  the  claim of  impermissible            comment,  and also  claims  that the  trial court's  curative            instruction was so deficient as to compound the prosecution's            error.  We disagree.                      It is beyond question that comment on a defendant's            failure  to  testify  is  violative of  the  Fifth  Amendment                                         -14-                                          14            guarantee against self-incrimination. Griffin  v. California,                                                  _______     __________            380  U.S. 609 (1965); United  States v. Lavoie,  721 F.2d 407                                  ______________    ______            (1st Cir. 1983),  cert. denied,  465 U.S. 1069  (1984).   The                              _____ ______            standard by which we review potential violations is                       whether,  in  the  circumstances  of  the                      particular  case,  the language  used was                      manifestly  intended  or   was  of   such                      character that the  jury would  naturally                      and necessarily  take it to be  a comment                      on the failure of the accused to testify.            United  States v. Glantz, 810 F.2d 316, 322 (1st Cir.), cert.            ______________    ______                                _____            denied,  482  U.S.  929   (1987)  (citations  and  quotations            ______            omitted).   We review any such  violation for harmless error.            United  States  v.  Hasting,  461 U.S.  499,  508-12  (1983);            ______________      _______            United States v. Cox, 752 F.2d 741, 746 (1st Cir. 1985).  See            _____________    ___                                      ___            generally United  States v. Lilly,  No. 92-2192, slip  op. at            _________ ______________    _____            14-16 (1st Cir. Dec. 4, 1992).                      Having read the challenged  comment in the  context            of the entire closing argument, we are satisfied that the use            of the word "unexplained", while perhaps unfortunate, did not            stray  into forbidden territory nor was it intended to do so.            Instead, consistent  with  the circumstantial  nature of  the            case, the prosecutor recounted each of the events culminating            in Akinola's arrest, and followed  each by suggesting to  the            jury   the  government-preferred   inference.3     In   using                                            ____________________            3.  Some examples include, "The  only reason Akinola did that            was  his  knowledge  of  the  heroin;"  "There  is  no  other            plausible explanation for Akinola jumping out of the car."                                          -15-                                          15            "unexplained," the prosecutor was attempting to reinforce his            thesis that  Akinola's actions  could only be  interpreted in                                                           ___________            one way, and could not  logically be consistent with anything            except Akinola's guilt.                      The   prosecutor's   comments  here   are  somewhat            reminiscent  of those in United States  v. Skandier, 758 F.2d                                     _____________     ________            43  (1st  Cir.  1985),  where the  prosecutor  concluded  his            argument by saying:                      [I] will have a  chance to speak with you                      one   more  time  and   see  if  [defense                      counsel] can explain the story that would                      be  any  different  with  regard  to  the                      responsibility of the  defendant in  this                      case.  So I submit to you that he cannot.            Id. at 45.            ___            We concluded that such a "`how-does-he-explain'" argument was            improper  for two reasons--the Fifth Amendment transgression,            and  the apparent  shift  of  the  burden  of  proof  to  the            defendant. Id.   In  reaching that  conclusion, we  relied in                       ___            part  on United  States v.  Wilkins, 659  F.2d 769,  774 (7th                     ______________     _______            Cir.), cert. denied, 454 U.S.  1102 (1981), wherein the court                   _____ ______            held  that the prosecutor's  statements that the government's            theory was  the "only explanation" and  "[s]ee if defendant's            attorney explains ... "  were improper comment on defendant's            failure   to  testify.     Unlike   Skandier,   however,  the                                                ________            prosecutor's remark  here was clearly aimed  at the evidence,                                         -16-                                          16            rather than at the defendant.  Thus, we find that the comment            here at issue did not run roughshod over Akinola's rights.4             C.  Final Jury Instructions            C.  Final Jury Instructions            ___________________________                      Appellant assigns two  errors to the  trial court's            final instructions.   First, appellant argues  that the trial            court  neglected   to  explain  that  while   it  might  draw            inferences  from     circumstantial  evidence,  it   was  not            permitted  to engage in  speculation or conjecture  to do so.            However, at  the close  of trial,  the  judge instructed  the            jury, inter alia, to                   _____ ____                      Bear  in mind  though, as I  said before,                      that in order  to draw such an  inference                      [from  circumstantial evidence]  you have                      to be  careful  that the  inference is  a                      reasonable  one and  that it  is directly                      based on  facts that have  been proven by                      the  direct  evidence,  the testimony  of                      witnesses or exhibits.            Having read the instructions in their entirety, including the            above-quoted section, we conclude  that while the trial court            did  not use  appellant's suggested  words, the  jury members                                            ____________________            4.  We note further that while the court's immediate curative            instruction  dealt with the burden of proof shift and made no            mention of the Fifth Amendment, the court twice gave the jury            Fifth  Amendment instructions,  including  once  just  before            deliberations.  Based on that combination of instructions, we            are satisfied that any error was rendered  harmless.  Indeed,            in a  close case such as  this, it is the  combination of the            trial judge's  instructions, and not the  "strong evidence of            defendant's  guilt"--as  described  by  the  government--that            would  render the  prosecutor's putative  violation harmless.            Cf.  Lilly, slip  op.  at 19  (strength of  government's case            ___  _____            contributed  to  rendering   harmless  potentially   improper            prosecutorial comment); Skandier, 758 F.2d at 46 (same).                                    ________                                         -17-                                          17            were  adequately apprised  of  the proper  legal standard  to            employ.  See, e.g., United States  v. Noone, 913  F.2d 20, 30                     ___  ____  _____________     _____            (1st Cir. 1990), cert. denied,      U.S.    , 111 S. Ct. 1686                             _____ ______   ___      ___            (1991)  (refusal to give the particular instruction requested            is  not  error  where the  court's  instruction substantially            covers the request and the applicable law).                      Appellant next argues that the trial court erred in            its  instructions regarding  appellant's failure  to testify,            about  which    the court  said  that  the  jury "ought  not"            penalize  the  defendant  for  exercising the  right  not  to            testify, and "should not"   draw inferences from one  who has            done  so.  Appellant argues that the trial court's failure to            use "must  not" in  those circumstances is  reversible error.            We disagree.                 After  defense  counsel  objected  to the  "ought  not"-            "should-not" charge,  the  judge supplemented  his charge  by            telling  the jury, in effect, that he used the terms "ought,"            "should," and "must" interchangeably, and therefore, where he            said that something should  not be done, he meant it must not                                ___________                      ________            be done.   When  reviewing jury instructions,  we gauge  each            instruction in the  context of  the entire charge.     United                                                                   ______            States  v. Boylan, 898 F.2d 230 (1st  Cir.), cert. denied,               ______     ______                            _____ ______  __            U.S.      , 111 S.  Ct. 139  (1990).  Again,  having read the                  ____            entire charge, we are satisfied that the judge's supplemental            caution to the jury cleared up any misunderstanding.                                         -18-                                          18                      Finally,  we have  considered appellant's  claim of            erroneous  admission of "bad act" evidence, and find it to be            without merit.                                         IV.                                         IV.                                         ___                                      Conclusion                                      Conclusion                                      __________                      Appellant's conviction is affirmed.                                                affirmed                                                ________                                         -19-                                          19
