March 2, 1993
                    [NOT FOR PUBLICATION]

                United States Court of Appeals
                    For the First Circuit
                                         

No. 92-2123

                        UNITED STATES,

                          Appellee,

                              v.

                     BARRY L. WEINSTEIN,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Rya W. Zobel, U.S. District Judge]
                                                  

                                         

                            Before

                   Torruella, Circuit Judge,
                                           
               Campbell, Senior Circuit Judge,
                                             
                  and Stahl, Circuit Judge. 
                                          

                                         

Joseph J.  Balliro with  whom Balliro,  Mondano &amp;  Balliro was  on
                                                          
brief for appellant.
Despena  Fillios Billings, Assistant  United States Attorney, with
                         
whom  A. John  Pappalardo, United  States Attorney,  was on  brief for
                     
appellee.

                                         

                                         

          STAHL, Circuit Judge.   In  this appeal,  defendant
                              

Barry L.  Weinstein  challenges his  conviction  for  knowing

receipt of stolen property, and for conspiracy to commit that

crime.   Specifically,  defendant argues  that his  trial was

unfairly  prejudiced   by  certain   comments  made  by   the

government  in  its closing  argument,  and  by the  district

court's  charge  to  the  jury.    Finding  the  government's

comments  to be  harmless  error, and  the jury  instructions

proper, we affirm.

                              I.
                                

                      FACTUAL BACKGROUND
                                        

          The government's evidence in  this case shows  that

in February of 1991, Michael Flatt, accompanied by a  friend,

broke into  a safe in  a private  home in Dallas,  Texas, and

stole approximately 26 items of jewelry.  The purloined items

had a total resale value between $85,000 and $134,000.  Flatt

packaged  the pieces and sent them via Federal Express to his

home in  Boston, Massachusetts.   Upon his return  to Boston,

Flatt sought to have  some of the jewelry appraised.  He took

three examples of the loot to "Roy K. Eyges, Inc.," a jewelry

store  in Boston,  where he  was introduced  to defendant,  a

jewelry appraiser employed at the store. 

          Flatt told  defendant  that he  had  inherited  the

jewelry  and that  he was interested  in selling it.   In the

privacy  of defendant's  office, defendant indicated  that he

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was interested in helping Flatt sell the jewelry, but that he

wanted to do  so independently  of his employer,  so that  he

could  obtain  a  commission on  the  sale.    At this  first

meeting, defendant suggested that he and Flatt transact their

business in cash.   

          The  following weekend,  defendant met  with Flatt,

and was given several  pieces of the  jewelry to sell.   Some

days later, by arrangement,  the two met in a  public parking

garage,  where defendant  gave Flatt  a paper  bag containing

between $7,000 and $9,000  in cash obtained from the  sale of

unspecified pieces of the stolen jewelry.  

          At this meeting, defendant  asked about the  source

of the jewelry.   Flatt advised defendant that he  had stolen

the jewelry from Texas.  Defendant said that he had suspected

that the jewelry was stolen.   He also told Flatt that he had

checked to see if  the jewelry had been reported  stolen, and

that it had not been so reported.  

          Several days later, again by arrangement, defendant

and  Flatt met in defendant's  car on a  designated street in

Boston.    Defendant  informed  Flatt that  defendant  and  a

partner,  co-defendant  Eric  Bleiler,1  were  attempting  to

raise  money in order to purchase some of the pieces outright

from  Flatt.     At   that  meeting,  Flatt   gave  defendant

                    

1.  At trial,  Bleiler was  acquitted of all  charges against
him.

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                              3

approximately  ten  additional pieces  of  stolen  jewelry to

sell.

          In  the course  of subsequent  phone conversations,

defendant told  Flatt that his partner Bleiler  had more cash

for  Flatt from  the sale  of some  of the jewelry,  and that

defendant could pick up the cash at Bleiler's shop in Newton,

Massachusetts, outside  of Boston.   Flatt went  to Bleiler's

shop  and  was given  a  paper  bag containing  approximately

$9,000 in cash.  

          Shortly after  his visit to  Bleiler's shop,  Flatt

left Boston  to live  in San Francisco.   Defendant  notified

Flatt by  phone that  he was  interested in  doing additional

business with Flatt, and that he had $15,000 more in cash for

Flatt  from  the sale  of  additional  pieces of  the  stolen

jewelry.  Flatt requested that defendant send him the cash in

San Francisco  via Federal  Express.  Before  receiving these

last proceeds from the sale  of the purloined jewelry,  Flatt

was arrested in San  Francisco in connection with the  Dallas

burglary.2  After his arrest, Flatt  signed a written consent

form allowing the San Francisco Police Department to open his

mail.    On   April  24,  1991,  the   San  Francisco  Police

intercepted  and opened  a  package addressed  to Flatt  from

defendant which contained $15,100 in cash.

                    

2.  In  separate proceedings,  Flatt was  convicted on  state
charges  of burglary  and  on federal  charges of  interstate
transportation of stolen property.

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                              4

          Shortly  thereafter,  defendant  was  arrested  and

charged  with one count of knowing receipt of stolen property

in  violation  of  18  U.S.C.     2315,3  and  one  count  of

conspiracy to commit that  crime in violation of 18  U.S.C.  

371.4  After  a five-day jury trial,  defendant was convicted

on  both  counts.    From these  convictions,  defendant  now

appeals.  

                             II.
                                

                          DISCUSSION
                                    

          On  appeal, defendant  argues  that certain  of the

government's  comments during closing  argument were unfairly

prejudicial.   Defendant also  challenges one of  the court's

instructions  to the jury.  We address each argument in turn.

                    

3.  18 U.S.C.   2315 states in relevant part:

     Whoever  receives,   possesses,  conceals,  stores,
     barters, sells, or disposes of any goods, wares, or
     merchandise, securities,  or money of  the value of
     $5,000 or more . . . which have  crossed a State or
     United   States   boundary   after  being   stolen,
     unlawfully converted, or taken, knowing the same to
     have been  stolen, unlawfully converted, or taken .
     . .  [s]hall  be fined  not  more than  $10,000  or
     imprisoned not more than ten years, or both.

4.  18 U.S.C.   371 states in relevant part:

     If two or more persons conspire . . . to commit any
     offense  against the United States . . . and one or
     more  of  such persons  do  any act  to  effect the
     object of  the conspiracy, each shall  be fined not
     more than $10,000 or  imprisoned not more than five
     years, or both. 

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                              5

A.  Government's Comments During Closing Argument
                                                 

          The  following  colloquy  took  place   during  the

government's closing argument:

          Government:    [Defendants]  are not,  as
          [defense  counsel] argued  to you  in his
          opening,  sitting  the[re]  clothed in  a
          mant[le] of innocence and I am asking you
          --

          The Court:  Oh, yes, they are.

          Defendant's counsel:  Objection.

          Co-defendant's counsel:  Objection.

          The Court:  They  are indeed clothed in a
          mant[le] of innocence.  They stand before
          you  now -- sit before you now absolutely
          and  totally  innocent.     They   remain
          innocent until the government proves them
          guilty beyond a reasonable doubt.  

Defendant  argues that  the  government's statement  had  the

effect of denying him the presumption  of innocence, and that

the  comment was  sufficiently prejudicial  to warrant  a new

trial.  We disagree.

          The prejudicial statements of a prosecutor at trial

are subject to a  harmless error analysis.  United  States v.
                                                          

Hasting,  461  U.S. 499,  507-509  (1983);  United States  v.
                                                         

Brown, 938 F.2d 1482,  1489 (1st Cir.), cert. denied,  112 S.
                                                    

Ct.  611 (1991).  Convictions will therefore not be set aside

"for  small  errors  or defects  that  have  little,  if any,

likelihood  of  having changed  the  result  of the  trial.'"

Hasting,  461 U.S. at 508 (quoting Chapman v. California, 386
                                                        

U.S. 18, 22 (1967)).  

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                              6

          In  determining  whether  prosecutorial  misconduct

rises  above the level  of harmless error,  "`we consider the

severity  of the  misconduct,  whether it  was deliberate  or

accidental,  the likely  effect of the  curative instruction,

and  the strength  of  the  evidence  against  appellant[].'"

Brown,  938 F.2d at 1489  (quoting United States  v. Cox, 752
                                                        

F.2d 741, 745 (1st Cir. 1985)).  

          Having carefully considered all of  the factors set

forth in Brown, it is  our opinion that the likely effect  of
              

the  district court's  strong,  correct  and  contemporaneous

curative  instruction, when  combined with the  court's final

charge,5 was that the jury  remained properly apprised of the

presumption   of   innocence,   despite    the   government's

improvident  statement.    Accordingly,   we  rule  that  the

prosecutor's comment, although  improper, was harmless error.

See, e.g., United States  v. Lilly, No. 91-2192, slip  op. at
                                  

                    

5.  Along with its sua sponte correction, which literally cut
                             
off the  government in mid-sentence, the  district court also
gave  the following  instruction in  its final charge  to the
jury: 
          Now,  we  have  talked  a lot  about  the
          presumption of innocence.   It is a  rule
          of law  in this country, indeed,  it is a
          constitutional rule, that a  defendant is
          presumed to be innocent.  And that means,
          very   simply   that  the   defendant  is
          innocent.    He  is  innocent  until  the
          government  proves  him   guilty.     And
          because he  is innocent, he does not have
          to  prove  his  innocence.    He  has  no
          obligation to offer  any evidence, he has
          no obligation to  offer any  explanation,
          hehas no obligation to take the stand.   

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                              7

17  (1st  Cir. 1992)  (indicating  that  generally "a  strong

message from the bench, delivered promptly, is a satisfactory

antidote to the potentially poisonous effects of an ambiguous

comment  or  a remark  that sails  too  close to  the wind");

United States v. Maccini,  721 F.2d 840, 847 (1st  Cir. 1983)
                        

(holding that district  court's "strong curative instructions

were  sufficient  to  correct"  the  effect  of  government's

improper statements).6

                    

6.  Defendant also challenges two implications allegedly made
by the government during  its rebuttal to defendant's closing
argument.   According to  defendant, the  government unfairly
implied that  the testimony  of law enforcement  officials is
generally more credible than the testimony of laypersons, and
that  defendant's  actions had  violated  a Boston  ordinance
which requires  that large  cash transactions be  reported to
the Boston Police.    
     Even   if  the   government's  comments   carried  these
implications,  defendant  has  failed  to  argue,  let  alone
demonstrate, that either comment  "`changed the result of the
trial.'"  Hasting, 461 U.S. at 508 (quoting Chapman, 386 U.S.
                                                   
at 22).  As defendant himself concedes, the government's case
against   him  consisted  primarily   of  Flatt's  testimony.
Neither  police  credibility  nor the  Boston  ordinance were
significant issues in the case against defendant.  
     Moreover,   the   district   court  directly   addressed
defendant's concerns  regarding the statements.   With regard
to the  testimony of  law enforcement officers,  the district
court  told the  jury:   "You should  judge [law  enforcement
officials] in exactly  the same  way as  you judge  everybody
else.  Just because  they work for a law  enforcement agency,
doesn't make  them more  believable nor less  believable than
anybody  else."   With regard  to the  Boston  ordinance, the
district court instructed the jury that "neither  [defendant]
nor [co-defendant] Bleiler do business in Boston.   So, there
is no  evidence one  way  or the  other  that they  have  any
obligation  to   file  a  police  report."    We  find  these
instructions  more  than  adequate  to  dispel  any  possible
prejudice  from  the  government's  statements.   See,  e.g.,
                                                            
Lilly,  slip  op.  at   17  (strong  corrective  instructions
     
generally   sufficient   to   cure   improper   prosecutorial
comments).   To the extent, therefore,  that these statements

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                              8

B.  Jury Instructions
                     

          Defendant  also  challenges   the  following   jury

instruction  regarding  the  process  of  evaluating  witness

credibility:

          Now, th[e] process [of evaluating witness
          credibility]   is,   as  used   here,  no
          different from what you  do all the time,
          every day in  your lives.   When somebody
          tells you a  story, you  make a  judgment
          whether  you believe what the person told
          you.     You   probably   do  it   almost
          instinctively.  And I ask you to make the
          same judgment, precisely the same kind of
          judgment, as you  review the testimony of
          each of the witnesses.  

Relying  on United States v. Araujo, 539 F.2d 287, 290-91 (2d
                                   

Cir.), cert.  denied, 429 U.S. 983  (1976)), defendant argues
                    

that this  instruction was  prejudicial because  it permitted

jurors to  rely improperly  on their "instincts"  rather than

their common sense in assessing witness credibility.  We find

defendant's argument bordering on the frivolous.

          The   district  court   in  Araujo,   referring  to
                                            

particular  testimony or  evidence at  trial,  instructed the

jury  that  human  beings  have  a  tendency  or  a  "natural

                    

were improper, they too were harmless error.
     Similarly,  we are  unpersuaded by  defendant's argument
that the  two comments had the cumulative effect of rendering
the  trial unfair.  Given that the comments were unrelated to
each  other, and that each comment standing alone was at most
harmless error, there simply is no basis for  concluding that
the  comments  taken  together  influenced  the  outcome   of
defendant's trial in any way.

                             -9-
                              9

instinct" to lie  when confronted  with an  accusation.   The

Second Circuit  disapproved of the comment,  stating that "it

would be  preferable if the trial  judge avoided interjecting

his[/her]  own  personal  views  of  human  nature  into  the

charge."  Id. at 291.
             

          Plainly, the  instant case  is very  different from

Araujo.   In using  the term  "instinctively" in the  instant
      

case,  the district court, in  the context of  a complete and

correct  jury instruction  on assessing  witness credibility,

merely emphasized to jury members that their every-day manner

of  assessing credibility  could  be employed  in their  jury

deliberations.   Far  from encouraging  jury members  to cast

aside their common sense, the instruction tended to encourage

its use.   As such, the instruction does not  provide a basis

for granting defendant a new trial.

                             III.
                                 

                          CONCLUSION
                                    

          For  the  foregoing reasons,  the  judgment of  the

district court is affirmed.

          Affirmed. 
                  

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