                   Not for Publication in West's Federal Reporter
                  Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

             United States Court of Appeals
                           For the First Circuit
No. 02-1448

                         UNITED STATES OF AMERICA,

                                    Appellee,

                                         v.

                         ISRAEL NAVEDO-CONCEPCIÓN,

                            Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF PUERTO RICO

           [Hon. Salvadore E. Casellas, U.S. District Judge]


                                      Before

                          Boudin, Chief Judge,
                     Baldock,* Senior Circuit Judge,
                       and Howard, Circuit Judge.



     Peter Goldberger with whom Pamela A. Wilk was on brief for
appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabón,
Assistant United States Attorney, was on brief for appellee.



                                August 26, 2003




     *
         Of the Tenth Circuit, sitting by designation.
            BALDOCK, Senior Circuit Judge.    In November 1999, a

Puerto Rico grand jury returned a single-count indictment charging

Defendant, Israel Navedo-Concepción, also known as “Gallo,” and

seven other named co-defendants with conspiracy to possess with the

intent to distribute cocaine in amounts which exceed five (5)

kilograms and heroin in amounts which exceed one (1) kilogram, in

violation of 21 U.S.C. § 846.   The indictment alleged a four-year

conspiracy between the named defendants and others unknown to the

grand jury to distribute narcotics in the La Perla section of Old

San Juan.     All named co-defendants pled guilty pursuant to plea

agreements.    Defendant, however, proceeded to trial.   Following a

seven-day trial, the jury convicted Defendant of the sole count in

the indictment.     The district court sentenced Defendant to 151

months imprisonment.

            Defendant appeals, arguing (1) the district court erred

by failing to sua sponte deliver a limiting instruction on the use

of prior inconsistent statements by a witness; (2) the prosecutor’s

improper remarks during closing argument warrant a new trial; (3)

the district court plainly erred by instructing the jury about the

content of a witness’ testimony; (4) the district court erred by

not making an independent relevant conduct finding as to the drug

quantity attributable to Defendant; and (5) the district court

erred by failing to give a reason pursuant to 18 U.S.C. § 3553(c)

for imposing a sentence at the top of the guideline range.       The


                                -2-
parties are familiar with the facts of the case, and we will not

repeat them here except where necessary. We have jurisdiction

pursuant to 28 U.S.C. § 1291.          We affirm the district court on

Defendant’s first four issues.        But we remand for resentencing in

accordance with § 3553(c) due to the district court’s failure to

state in open court reasons for the selected sentence.

                                      A.

          Defendant      first    argues   the   district   court    erred   by

failing to sua sponte give a limiting instruction on how the jury

should treat a witness’ prior inconsistent statements.                   Because

defense counsel did not object, Defendant concedes we review this

issue for plain error.         Under the four-part plain error inquiry,

(1) an error must have been committed; (2) the error must be plain

or obvious; (3) the plain error must affect substantial rights,

which generally means that it must have been prejudicial; and (4)

the error must seriously affect the fairness, integrity or public

reputation     of   judicial     proceedings.      See   United     States   v.

Pena-Lora, 225 F.3d 17, 29 (1st Cir. 2000) (citing United States v.

Olano, 507 U.S. 725, 732-33 (1993)).

          On    direct   examination,      defense   witness      Luis   Mojica

Bultron (“Bultron”) testified under oath that he did not recognize

Defendant, that he did not sell drugs for Defendant, and that he

had not seen Defendant selling drugs in La Perla.            This testimony

contradicted the testimony of the Government’s witness, Catherine


                                     -3-
Rivera Valle (“Valle”), who testified she and Bultron bought drugs

from Defendant.     On cross examination, Bultron acknowledged he had

heard of a person nicknamed “Gallo”, but denied that he told FBI

agent Scott Nielson in interviews that “Gallo” sold narcotics or

that he had personally purchased heroin from Gallo.                   Bultron also

denied he    told   Sgt.    Pablo    Quiñones      or   other   law    enforcement

officials that Gallo sold “champagne”1 heroin.              Bultron admitted on

cross examination that he told agents of a meeting that a man known

as    “Sandro”   called    and   that   someone     named   “Gallo”      attended.

Bultron also admitted he had seen Defendant in a picture shown to

him by law enforcement, but stated he was unsure whether the

picture shown to him at trial was the same picture.

            In response to this testimony, the Government called

Sergeant Pablo Quiñones in rebuttal.                Quiñones testified that,

during an interview, he had shown Bultron a photograph of Defendant

and    Bultron   identified      Defendant    as   “Gallo.”      Quiñones     also

testified that Bultron told him in an interview that Gallo would

meet with others to form an enterprise and to discuss the drug

trade in La Perla.        Quiñones also testified that Bultron told him

that “Gallo” sold champagne heroin.

            Under Fed. R. Evid. 801(d)(1)(A), a declarant’s prior

inconsistent statements are hearsay and inadmissible as substantive


       1
      “Champagne” heroin refers to the color of packaging in which
the heroin was wrapped, and champagne heroin apparently was of
superior quality.

                                        -4-
evidence unless they were made “under oath subject to the penalty

of perjury at a trial, hearing, or other proceeding, or at a

deposition.”      Fed.   R.   Evid.    801(d)(1)(A);    see    also    Finn   v.

Consolidated Rail Corp., 782 F.2d 13, 16 n.4 (1st Cir. 1986).2

Bultron’s statements to Quiñones were not made under oath at a

trial or   like    proceeding,   but    rather   in   interviews      with    law

enforcement    authorities.           Thus,   Quiñones’       testimony       was

inadmissible for the truth of the matter asserted.                    Defendant

concedes, however, the testimony was admissible as impeachment

evidence. See United States v. Winchenbach, 197 F.3d 548, 558 (1st

Cir. 1999) (concluding a witness’ prior inconsistent statement is

admissible to attack the witness’ credibility under Fed. R. Evid.

613(b)).   Despite this concession, Defendant argues the district

court had a duty to sua sponte deliver a limiting instruction

informing the jury that they could not consider Bultron’s prior

inconsistent statements for their truth, but only as they bore on

his credibility.

           We do not find plain error in the trial court’s failure

to sua sponte deliver a limiting instruction in this circumstance.

Pursuant to Fed. R. Evid. 105–


     2
      Defendant notes that under Rule 801(d)(1)(C), a prior
statement by a witness is not hearsay if it was “one of
identification of a person made after perceiving the person.”
Consequently, Defendant agrees Quiñones’ testimony that Bultron
previously identified the person in the photograph as “Gallo” was
not hearsay, and thus could be considered substantively by the
jury.

                                      -5-
          When evidence which is admissible as to one
          party or for one purpose but not admissible as
          to another party or for another purpose is
          admitted, the court, upon request, shall
          restrict the evidence to its proper scope and
          instruct the jury accordingly.

Id. (emphasis added).   Based on the Rule’s language, we previously

have concluded that the failure to request an instruction waives

the argument on appeal.    United States v. Mateos-Sanchez, 864 F.2d

232, 238 (1st Cir. 1988). Consequently, Defendant’s arguments that

the district court erred at all, or that the error was plain and

obvious, are questionable.

          But even assuming the district court plainly erred, the

alleged error does not seriously affect the fairness, integrity or

public reputation of judicial proceedings.      The jury heard both of

Bultron’s statements and was able to observe both his demeanor and

Quiñones’ demeanor.     Both witnesses were subject to direct and

cross   examination.      The   offered   testimony   did   not   concern

Defendant’s prior convictions or prior uncharged acts, and was not

highly inflammatory or so prejudicial that the district court

should have offered a limiting instruction absent a request from

the defense. Compare United States v. DeGeratto, 876 F.2d 576, 584

(7th Cir. 1989) (suggesting in dicta that even if cross examination

about uncharged prior bad acts was properly admitted under Fed. R.

Evid. 404(b), district court had a duty to sua sponte offer a

limiting instruction on highly prejudicial testimony); Dawson v.

Cowan, 531 F.2d 1374, 1377 (6th Cir. 1976) (finding plain error in

                                  -6-
the failure to give a limiting instruction regarding evidence of a

prior conviction for attempted rape where the defendant was facing

both a principal charge of attempted rape and a habitual offender

charge).    We find no special circumstances in this case that would

require    the    district    court    to    sua   sponte   offer    a     limiting

instruction.      See United States v. Malik, 928 F.2d 17, 23 (1st Cir.

1991) (finding no plain error where district court did not sua

sponte offer a limiting instruction on law enforcement agent’s

testimony that defendant made statements to agent inconsistent with

defendant’s trial testimony).

                                        B.

             Defendant   next    argues      the   prosecutor     made     improper

closing arguments by misrepresenting the evidence and vouching for

a witness.

            1.    Misrepresentation of Evidence

            Defendant first contends that, in closing argument, the

prosecutor misrepresented Bultron’s testimony.                  The prosecutor

stated that although Bultron was evasive and hesitant to answer

questions, he eventually testified that he knew Gallo, and knew

Gallo ran a drug business.             Defense counsel objected to this

characterization, to which the district court stated, “Let’s move

on.”      The    prosecutor   then    continued    and   stated     that    Bultron

testified Gallo’s product was champagne.                 The prosecutor also

stated Bultron admitted he knew that Gallo, Sandro, and the rest of


                                       -7-
the “committee” had Friday meetings in which they organized the La

Perla drug trade.

           “This    Court   has   fashioned      a   three    prong   test   for

examining whether the prosecution’s misconduct ‘so poisoned the

well’ that the trial’s outcome was likely affected, thus warranting

a new trial.”      United States v. Joyner, 191 F.3d 47, 54 (1st Cir.

1999). “We examine: (1) whether the prosecutor’s conduct was

isolated and/or deliberate; (2) whether the trial court gave a

strong and explicit cautionary instruction; and (3) whether it is

likely that any prejudice surviving the judge’s instruction could

have affected the outcome of the case.”               Id.     Where Defendant

timely objected, we review de novo the question of whether the

comment was     improper    and   review   for   abuse   of    discretion    the

question whether the misconduct, if any, warrants a new trial.

United States v. Hernandez, 218 F.3d 58, 68 (1st Cir. 2000).             Where

the defendant has not objected, we review for plain error.              Id. at

69.

           The record reveals some of the prosecutor’s statements

about   Bultron’s    statements    were    not   fully      supported   by   the

testimony.    Bultron did not testify that he knew “Gallo,” although

he eventually admitted under cross examination that he previously

told an FBI agent that he knew someone named Gallo who lived in

Wipe Out and operated a store there.        Bultron did not testify about

Friday meetings as stated by the prosecutor, nor did Quiñones


                                     -8-
testify that Bultron previously told agents about Friday committee

meetings.     Only Valle testified about Friday meetings.                    Bultron

also did not testify that he observed any committee meetings or

that Gallo attended those meetings, or that the meetings concerned

running the drug trade in La Perla.                 On cross examination, he

admitted he previously told agents about two meetings Sandro called

which “Gallo” attended.            The prosecutor did not inquire into the

substance   of    the    meetings,     however.         Thus,   no   testimony    was

produced that the meetings to which Bultron was referring involved

discussions about the rules of the La Perla drug trade as the

prosecutor stated in closing argument.              And Bultron denied that he

knew Gallo sold champagne or heroin or that he personally purchased

drugs from Gallo, contrary to the prosecutor’s closing statements.

He further denied that he told agents this information.                           The

prosecutor seemed to discuss Quiñones’ testimony that Bultron made

these   statements       to   agents   in     earlier    interviews     as   if   the

statements were Bultron’s live testimony.                 Thus, the prosecutor’s

statements about Bultron’s testimony misstated the record in some

respects.

            We agree with Defendant these comments were improper.

But we do not find sufficient prejudice to warrant a new trial.

Defendant   presented         no   evidence   the   prosecutor’s       conduct    was

deliberate,      and    the   misstatements      were    isolated     to   this   one

witness.      The witness’ testimony was less than clear on some


                                        -9-
points, and the witness was impeached by prior statements to

investigators.     Thus, the prosecutor may have innocently, albeit

negligently, confused Bultron’s live testimony and the impeachment

testimony.      In final instructions, the district court instructed

the jury as follows:

           The statements that the lawyers made are not
           to be considered by you either as evidence in
           the case, which comes only from witnesses and
           exhibits, or as [] instruct[ions] on the law,
           which will come only from me.            These
           statements and arguments are intended to help
           you understand the issues and the evidence as
           it comes in, as well as the positions taken by
           both sides.

Although not contemporaneous, the instruction informs the jury that

the statements of the lawyers are not evidence.            We conclude the

misstatements were not so egregious, inflammatory, or pervasive

that they could have affected the outcome of the case.3

           2.    Vouching

           Defendant        also    challenges    comments       during     the

prosecutor’s closing arguments which he alleges constitute improper

vouching for a witness and for the Government’s overall case.

During closing argument, defense counsel suggested witness Jose

Mercado   Febles    lied    about   a   meeting   among   drug    dealers    on

Thanksgiving Day which Defendant allegedly attended.                  Defense



     3
      Defendant also asserts the prosecutor misrepresented the
testimony of Valle and Quiñones. After reviewing the record, we
conclude the prosecutor’s description of these witnesses’ testimony
constituted reasonable argument based on the actual testimony.

                                     -10-
counsel argued Febles was lying about this meeting because Febles

claimed another dealer, Papo Aviles, was present at the meeting

when Aviles actually was in jail on Thanksgiving Day.          In response

to   this    argument,   the   prosecutor   argued   defense   counsel    was

misreading and misinterpreting the testimony, and thus Febles “had

not lied.”     Defendant admits he did not object to the prosecutor’s

statement in closing argument that Febles “did not lie.”           Thus we

review this issue for plain error.

              The prosecutor’s choice of words was unfortunate.          What

the prosecutor meant was that the defense had not shown Febles

lied.    According to the prosecutor’s view of the testimony, Febles

did not testify that Aviles was at the Thanksgiving Day meeting.

Hence his testimony was not contradictory with Aviles being in

prison on Thanksgiving Day.         While we caution prosecutors to be

more careful in their choice of words, we do not find this comment

affected Defendant’s substantial rights, nor seriously affects the

fairness, integrity or public reputation of judicial proceedings.

The comment was isolated to one statement regarding one witness,

and the meaning of the comment was not the usual vouching problem

where the prosecutor assures the jury the witness is telling the

truth.      See United States v. Figueroa-Encarnacion, 335 F.3d 28, 33

(1st Cir. 2003) (defining the “archetypal example of vouching” as

“a prosecutor’s claim that the witness should be believed because

the prosecutor–a representative of the government–believes the


                                    -11-
witness . . . .”).    Rather, the prosecutor argued the defense was

mischaracterizing Febles’ testimony.      Instead of stating Febles

“did not lie,” the prosecutor should have said the defense had not

caught Febles in an obvious lie.

          Defendant also challenges the prosecutor’s comments in

closing argument that the Government had presented only a “sample”

of the evidence.     Specifically, the prosecutor argued--

          And what my colleague Miss Sulzbach told you
          in her opening statement is that she would
          give you a sample, an opportunity to hear from
          three people who would tell you about the drug
          trade in La Perla.
          . . .
          What you heard from the government ladies and
          gentlemen was a sample, if you think this week
          trial was long, if we had brought in every one
          that knew about drugs in La Perla we would
          have been here for months.
          . . .
          You have to realize that what the government
          brought you was a sample. It wasn’t a day to
          day record of everything that went on in La
          Perla drug world. It was a sample and that is
          all we are asking you consider, this sample of
          activity in La Perla drug world involving the
          defendant and the [other] individuals involved
          in this committee or this group.
          . . .
          And you saw a sample, not only the drug
          dealings that went on but just a very small
          portion and the government has proven its case
          beyond a reasonable doubt.

In response, defense counsel in closing argued if this was just a

“sample,” the Government should have introduced more compelling

evidence of Defendant’s participation in the drug trade, such as

video, photographs, or tape recordings of controlled buys.


                                 -12-
            The prosecutor’s use of the “sample” language constitutes

error.      A    prosecutor    may    not    suggest   to    the   jury   that   the

Government has more evidence establishing a defendant’s guilt than

it has presented to the jury.               See United States v. Balsam, 203

F.3d 72, 88 (1st Cir. 2000) ("[A] prosecutor may not . . . indicate

that facts outside the jury’s cognizance support the testimony of

the government’s witnesses.") (internal quotation and citation

omitted).       Although a close case, we conclude the prosecutor’s ill

advised statements did not prejudice Defendant, nor seriously

effect the fairness, integrity or public reputation of judicial

proceedings.

            Most of the comments suggested the evidence presented was

just a sample of the overall drug scene in La Perla and the

overarching investigation of the drug trade in La Perla, without

specifying that the Government had more information specifically

going to Defendant’s guilt.             In reaching a verdict, the jury

necessarily       had   to   accept    or    reject    the    testimony    of    the

Government’s cooperating witnesses.              The prosecutor’s “sampling”

comments made in closing argument likely did not weigh heavily in

this determination.          Either the jury believed the witnesses who

testified they bought from or sold drugs to Defendant, or they did

not.     Further, defense counsel was able to effectively use this

“sampling” language in closing argument, further reducing any

potential prejudice.          While we harshly condemn the Government’s


                                       -13-
comments in this case, we cannot say on plain error review that the

comments warrant reversal.

                                       C.

            Defendant next argues the trial court committed plain

error in instructing the jury when it asserted as fact that witness

Bultron testified he viewed a photograph of Defendant shown to him

by law enforcement officers.         Defendant concedes he did not object

to the challenged instruction, and hence we review for plain error.

At the close of the case, the court instructed the jury–

            No[w], witness Luis Mojica Bult[r]on testified
            that he viewed a photograph of the defendant
            Israel Navedo Concepcion which was shown to
            him by a law enforcement officer. The police
            collect pictures of many people from many
            different sources and for many different
            purposes. The fact that the police or a law
            enforcement officer had defendant’s picture
            does not mean that he committed this or any
            other crime, and it must have no effect on
            you[r] consideration of this case.

Defendant now claims Bultron did not testify that he had identified

Defendant   from    a   photograph    shown   to    him   by   law   enforcement

officers, and thus the district court’s instruction erroneously

resolved a contested factual issue.

            The    district   court    did    not   misstate    the    evidence.

Bultron did in fact testify that he “viewed a photograph of the

defendant Israel Navedo Concepcion which was shown to him by a law

enforcement officer.”          Under questioning by defense counsel,




                                      -14-
Bultron denied he had seen Defendant in person, but admitted to

seeing him in a photograph:

           Q: Sir, tell the jury when was the first time
           that you saw this gentleman?
           A: The first time? Today.
           Q: And before today?
           A: Before today I had been shown a photo.
           Q: Who showed you a photo?
           . . .
           A: The photo I saw it for the first time at
           the C.I.C. in San Augustine.
           . . .
           Q: And after that first time, when was the
           next time if any other time?
           A: Second time was at the Department of
           Justice.
           Q: I ask you if any federal agent has shown
           you a photo of my client?
           A: Scott.
           . . .
           Q: Where was that, that Scott showed you a
           photo of my client?
           A: That was in the office of Domingo Alvarez.
           . . .
           Q: On that third occasion, who showed you the
           photo of my client?
           A: It was another federal agent, I was
           brought.

Following this colloquy, Bultron testified that the agents asked

whether he recognized the individual in the photographs, and he

told the agents he did not.        Thus, Bultron did testify that law

enforcement authorities showed him a photo of Defendant, as the

district   court’s   instruction   indicated.    A   separate   question

existed about whether Bultron identified the person in that photo

as “Gallo” the drug dealer from La Perla, but the district court’s

instruction did not speak to that issue.        The district court did



                                   -15-
not misstate the evidence or decide a contested fact issue for the

jury, and thus did not plainly err.

                                           D.

                Defendant next argues the district court erred by relying

on   the    jury    verdict    for   the    amount   of    cocaine    and   heroin

attributable to Defendant as relevant conduct at sentencing.                  In a

drug conspiracy case, the jury should determine the existence of

the conspiracy as well as any facts about the conspiracy that will

increase the possible penalty for the crime of conviction beyond

the default statutory maximum.             Derman v. United States, 298 F.3d

34, 42 (1st Cir. 2002).              But the judge should determine, at

sentencing, the particulars regarding the involvement of each

participant in the conspiracy.             Id. at 43.     “This means that once

the jury has determined that the conspiracy involved a type and

quantity of drugs sufficient to justify a sentence above the

default statutory maximum and has found a particular defendant

guilty of participation in the conspiracy, the judge lawfully may

determine the drug quantity attributable to that defendant and

sentence him accordingly (so long as the sentence falls within the

statutory maximum made applicable by the jury's conspiracy-wide

drug quantity determination).”             Id.   Defendant thus contends that

while the jury could find the overall conspiracy involved amounts

exceeding those charged in the indictment, the district court

failed     to    make   an   individualized      determination   of    what   drug


                                       -16-
quantities were reasonably foreseeable to Defendant specifically,

and thus attributable to him as relevant conduct.

            We disagree.      The district court instructed the jury in

such   a   way   that   the   jury   had    to   find   Defendant   personally

responsible for the amounts charged in the indictment to find

Defendant guilty of the overall conspiracy.             After instructing the

jury about the elements of conspiracy, the district charged the

jury as follows:

            The crime of conspiracy is complete upon the
            agreement to commit the underlying crime.
                   The underlying crime is possession with
            intent to distribute a controlled substance.
            Israel Navedo Concepcion is accused of
            conspiring with others to possess with the
            intent to distribute to someone else cocaine,
            in an amount exceeding five kilograms and
            heroin in an amount exceeding on[e] kilogram
            from on or about 1995 until the date of the
            indictment. . . .     For you to find Israel
            Navedo Concepcion guilty of this crime you
            must be convinced beyond a reasonable doubt:
                   First, that from on or about 1995 until
            the date of his indictment, Israel Navedo
            Concepcion possessed cocaine, in an amount
            exceeding five kilograms and heroin, in an
            amount exceeding one kilogram, either actually
            or constructively.
                   Second, that he did so with the
            specific intent to distribute the specified
            amounts of cocaine and heroin over which he
            had actual or constructive possession; and
                   Third, that he did so knowingly and
            intentionally.

(Emphasis added).       Based on these instructions, the jury had to

find Defendant personally possessed with intent to distribute over

five kilograms of cocaine and over one kilogram of heroin.                  By


                                     -17-
finding Defendant guilty, the jury made these factual findings

against Defendant.

            Even if the district court were at liberty to attribute

a lesser drug quantity to Defendant for sentencing purposes, the

district court expressed its belief that Defendant was personally

responsible for the drug quantities alleged in the indictment:

            . . . I presided over this trial and I have no
            question in my mind after viewing all of the
            evidence and all of the witnesses and the jury
            having found on this, but I as presiding judge
            have no qualms or question whatsoever that
            this defendant should be held accountable for
            a minimum of the amount [charged] in the
            indictment. For a minimum.

Thus, even were we to conclude the district court must make a

particularized finding of the drug amount for which Defendant was

personally responsible, the district court made that finding.            A

remand for the district court to reiterate its finding would be an

empty gesture.

                                  E.

            Finally, Defendant argues the district court erred by

failing to state its reasons for sentencing Defendant at the top

end of the guideline range.       The district court determined the

guideline range was 121-151 months, and then imposed the maximum

sentence.   Title 18 U.S.C. § 3553(c) requires the sentencing court

to explain how it determined the applicable guideline range and, if

that   range   exceeds   twenty-four    months,   why   it   selected   the



                                 -18-
particular   point   it   did    within   that     range.4    The    Government

concedes the district court did not state any reasons supporting

its   selected   sentence   at    the   top   of   the   guideline    range   as

required.     Accordingly,      we   remand   to   the   district    court    for

resentencing in compliance with § 3553(c).               See United States v.

McDowell, 918 F.2d 1004, 1012 (1st Cir. 1990) (remanding for

resentencing where district court made no findings pursuant to

§ 3553(c) to support a four level adjustment for organizer/leader

status).

            For the foregoing reasons, we AFFIRM the district court

in all respects except for its failure to state reasons for its

selected sentence.    As to that issue, we REMAND for resentencing.




      4
       Section 3553(c) provides--
      (c) Statement of reasons for imposing a sentence. The
      court, at the time of sentencing, shall state in open
      court the reasons for its imposition of the particular
      sentence, and, if the sentence--
      (1) is of the kind, and within the range, described in
      subsection (a)(4), and that range exceeds 24 months, the
      reason for imposing a sentence at a particular point
      within the range; . . . .



                                     -19-
