235 F.3d 705 (1st Cir. 2000)
UNITED STATES, Appellee,v.CARLOS L. HERNANDEZ-VEGA, Defendant, Appellant.
No. 99-1462.
United States Court of Appeals, For the First Circuit.
Heard Sept. 14, 2000.Decided December 29, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Salvador E. Casellas, U.S. District Judge.
Rafael F. Castro Lang for appellant.
Jacabed Rodrguez-Coss, Assistant United States Attorney,  with whom, Guillermo Gil, United States Attorney, and Jorge E.  Vega-Pacheco, Assistant United States Attorney, were on brief  for appellee.
Before  Selya, Circuit Judge,  Bownes, Senior Circuit Judge,  and Lipez, Circuit Judge.
BOWNES, Senior Circuit Judge.


1
Defendant-appellant  Carlos L. Hernandez-Vega, along with eight other defendants, was  tried pursuant to a three-count indictment in the District Court  for the District of Puerto Rico for drug related activities. The indictment charged as follows: Count I, 21 U.S.C. § 848(a)  and (b), continuing criminal enterprise, and 18 U.S.C. § 2,  aiding and abetting; Count II, 21 U.S.C. § 846, conspiracy to  distribute in excess of five kilograms of heroin, in excess of  five kilograms of cocaine, in excess of five kilograms of  cocaine base and in excess of 100 kilograms of marijuana; and  Count III, 18 U.S.C. § 924(c)(1) & (2), unlawful use of firearms  during and in relation to a drug trafficking offense and aiding  and abetting.


2
All nine of the defendants who stood trial were found  guilty on all or some of the counts.  We consolidated the  appeals.  Seven of the defendants argued orally on September 14,  2000.  The other two defendants' appeals were submitted on  briefs to the same panel.


3
The defendant in this case, Carlos Hernandez-Vega, was  found guilty on all three counts.  He was sentenced to life  imprisonment on Counts I and II of the indictment1 and a term of  ten years on Count III, to be served consecutively.  Defendant  has raised five issues on appeal, which we will discuss in the  order followed in his brief.

I.  FACTS

4
We state the facts in the light most favorable to the  verdict.  See United States v. Duclos, 214 F.3d 27, 32 (1st Cir.  2000).  This rehearsal of the evidence does not, of course,  cover the facts that are applicable only to other defendants. Nor do we recite, at this juncture, all of the facts involving  defendant.  Many of the facts pertaining to particular issues  will be set forth in our discussion of the issues.  All we do  now is state those facts that will give the reader the necessary  background information to understand the different issues raised  by defendant.


5
Defendant and Vega-Figueroa were in charge of an  extensive criminal enterprise involving the sale and  distribution of heroin, cocaine, crack cocaine, and marijuana. Cooperating witnesses for the government included five former  members of the enterprise who sold narcotics for the  organization.  Their testimony can be summarized as follows.


6
Defendant and/or Vega-Figueroa delivered the drugs to  the various cooperating witnesses at the drug point, located in  a public housing project.  Members of the enterprise carjacked  automobiles on a regular basis.  The carjacked vehicles were  then used for drive-by shootings targeted against other drug  dealers who operated drug points in other public housing units  in competition with defendant and Vega-Figueroa.  The drug  distribution point of the enterprise was guarded by armed  members of the organization.  There was also testimony that  defendant and Vega-Figueroa operated a heroin drug point located  within the Hogar Crea detention and drug rehabilitation facility  in Saint Just at Trujuillo Alto, Puerto Rico.  Another drug gang  ousted two members of defendant's organization from the Hogar  Crea drug point.  Defendant and Vega-Figueroa ordered that the  two men who had taken over the Hogar Crea drug point be  murdered.  The men were ambushed and killed by defendant, Vega-Figueroa, and other members of defendant's enterprise.


7
The indictment charged that the continuing criminal  enterprise and conspiracy started on or about August 1, 1990,  and continued until on or about April 10, 1997.

II.  ISSUES

8
We state the issues as phrased by defendant.2


9
A. Whether the district court committed  reversible error in its instructions to the  jury as to the continuing criminal  enterprise charged in Count I of the  indictment.


10
The district court instructed the jury as follows:


11
In Count I of the indictment two of the  defendants are charged, Jose Vega Figueroa  and Carlos Hernandez Vega.  The law makes it  a federal crime or offense for anyone to  engage in what is called a continuing  criminal enterprise involving controlled  substances.


12
A defendant can be found guilty of that  offense only if all of the following facts  are proved beyond a reasonable doubt:


13
First, that the defendants violated  Section 841(a)(1) as charged in the  indictment.  This is the drug trafficking  case.


14
Second, that such violations were a  part of a continuing series of violations as  herein after defined.


15
Third, that such continuing series of  violations were undertaken by the defendants  in concert or together with at least five or  more other persons.


16
Fourth, that the defendant occupied  the position of an organizer, supervisor or  manager.


17
Fifth, that the defendant obtained  substantial income or resources in the  continuing series of violations.


18
A continuing series of violation means  proof of at least three violations under the  Federal controlled substances law, as  charged in Count I of the indictment, and  also requires a finding that those  violations were connected together as a  series of related or ongoing activities as  distinguished from isolated and disconnected  acts.  You must unanimously agree on which  three violations constitute the series of  three or more violations in order to find  the essential element No. 2 of this offense  has been proven.


19
It must also be proved that the  defendants engaged in the continuing series  of violations with at least five or more  persons, whether or not those persons are  named in the indictment and whether or not  the same five or more persons participated  in each of the violations, or participated  at different times.  And, it must be proved  that the defendant's relationship with the  other five or more persons was that of  organizers, supervisors or managers - that  the defendant's relationship with the other  five or more persons was that of organizer,  supervisor or manager, and that the  defendant was more than a fellow worker and  either organized or directed the activities  of the others, whether the defendant was the  only organizer or supervisor or not.


20
Finally, it must be proved that the  defendant obtained substantial income or  resources from the continuing series of  violations.  This means that the defendant's  income from violations, in money or other  property, must have been significant in size  or amount as distinguished from relatively  insubstantial, insignificant or trivial  amount.


21
In Richardson v. United States, 526 U.S. 813, 815  (1999), the Court, per Justice Breyer, held:


22
A federal criminal statute forbids any  "person" from "engag[ing] in a continuing  criminal enterprise." 84 Stat. 1264, 21  U.S.C. § 848(a). It defines "continuing  criminal enterprise" (CCE) as involving a  "violat[ion]" of the drug statutes where  "such violation is a part of a continuing  series of violations." § 848(c).  We must  decide whether a jury has to agree  unanimously about which specific violations  make up the "continuing series of  violations."  We hold that the jury must do  so. That is to say, a jury in a federal  criminal case brought under § 848 must  unanimously agree not only that the  defendant committed some "continuing series  of violations" but also that the defendant  committed each of the individual  "violations" necessary to make up that  "continuing series."


23
Defendant acknowledges that the district court  instructed the jury that it had to unanimously agree as to the  three violations that constituted the series of violations.  He  contends, however, that the court erred because "it failed to  identify which predicate offenses the continuing criminal  enterprise was based upon so as to permit the jury to determine  if it unanimously agreed upon said specific predicate offenses  which should have been specifically identified in the jury  instructions."


24
We read nothing in Richardson requiring such action by  the district court.  If it had instructed the jury along the  lines defendant suggests, it would have usurped the function of  the jury.  Accordingly, we rule that the instruction met the Richardson requirements.


25
B.  Whether the district court committed  reversible error by allowing evidence of  drug trafficking at the Ramos Antonini  Housing Project during 1996 and 1997 and an  agent's interpretation of videotapes.


26
The material allowed to be introduced as evidence over  defendant's objections included videotapes and photographs taken  at the drug point in the Ramos Antonini Housing Project.  The  evidence allegedly depicted narcotic sales taking place on the  following dates:  April 24, May 28, May 30, May 31, June 5, June  13, and June 15, 1996; and January 30, 1997.


27
Defendant also objected to the expert testimony of  Elias Negron, a member of the FBI's Safe Streets Task Force. Negron explained to the jury how the videotapes depicted drug  transactions.  Negron also gave his expert opinion that the  extended period of lack of violence at the drug point showed  that defendant and his cohorts had such secure control of the  drug point that no other drug gangs would attempt to take it  over.


28
Defendant's objections to the videotape evidence are  based on relevancy and Federal Rule of Evidence 403.  The  relevancy contention is twofold:  (1) that the evidence did not  prove that the drug trafficking at the drug point in the housing  development in 1996 and 1997 related to defendant and the  conspiracy charged in the indictment; and (2) that both  defendant and Vega-Figueroa had been absent from the Ramos  Antonini Housing Project since 1995.


29
There was a plethora of evidence, however, as to how  defendant and Vega-Figueroa operated and strictly controlled the  enterprise regardless of their occasional physical absence from  Puerto Rico.  William Acevedo Rodriguez, a trusted lieutenant in  the enterprise, testified as to the operation of the drug  points.3  Alicia Gotay Saez testified that she and her sister ran  a drug point in the housing project in competition with the one  run by Vega-Figueroa and defendant.  Gotay described in detail  how a drug point is operated.  She also testified that after she  refused to join Vega-Figueroa's enterprise, her sister was shot  to death at his drug point.


30
Ramon Caesareo Soto, who worked for a rival of the  criminal enterprise throughout the life of the conspiracy run by  Vega-Figueroa and defendant, described in detail the violence  and killings that had taken place in the Ramos Antonini Housing  Project between rival drug gangs for control of the drug trade  in the project in the years 1960 to 1963.  He testified that, by  1997, there was only one drug point in the project, which was  controlled by the enterprise run by Vega-Figueroa and defendant.


31
There was evidence from which a jury could find beyond  a reasonable doubt that defendant was part of a criminal  enterprise and conspiracy devoted to selling illegal drugs that  started on or about August 1, 1990, and continued through March,  1997.  There was also evidence from which a jury could  reasonably find that the physical presence of defendant and/or  Vega-Figueroa at all times was not necessary to the daily  operation of the two drug points.


32
The evidence described above was not the only evidence  before the jury on drug trafficking under defendant's and Vega-Figueroa's auspices.  Our careful scrutiny of the record  convinces us that the jury verdict was based on evidence that  constituted proof beyond a reasonable doubt of defendant's guilt  as charged in the indictment.


33
We now turn to the objection based on the admission of  videotapes and photographs of the drug point in the public housing project and the admission of expert testimony to explain  the tapes and photographs.  Defendant argues that this evidence  should have been excluded because it violated Fed. R. Evid. 403.

Rule 403 provides:

34
Exclusion of Relevant Evidence on Grounds of  Prejudice, Confusion, or Waste of Time


35
Although relevant, evidence may be  excluded if its probative value is  substantially outweighed by the danger of  unfair prejudice, confusion of the issues,  or misleading the jury, or by considerations  of undue delay, waste of time, or needless  presentation of cumulative evidence.


36
Defendant objected to the introduction of the  videotapes and photos as highly prejudicial because they were  taken after he had left Puerto Rico, while he was in New York  State.  We point out that New York and Puerto Rico are only a  short plane ride apart and telephone communication is routine. We have already found that defendant's daily presence was not  necessary for the operation of the drug point.  There was no  violation of Fed. R. Evid. 403 by the introduction of the  videotapes and photos of the drug point.


37
Defendant also claims that it was a violation of Rule  403 to allow an expert witness to explain to the jury what the  videotapes and photos depicted.  He argues that the testimony of  the expert was not necessary because the jury was capable of  understanding what was going on without expert help.


38
The appropriate test for reviewing the admission or  exclusion of expert testimony is abuse of discretion.  General  Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997).  Elias Negron, a  member of the FBI's Safe Streets Task Force, provided his expert  opinion that the videotapes and photographs showed drug  transactions taking place.  He also proffered his opinion that  the extended non-violent period at the housing project showed  that defendant and Vega-Figueroa were in firm control of drug  trafficking at the project and that no other drug gangs  attempted to compete with the criminal enterprise and conspiracy  in which defendant played a major role.  It seems clear that  under the pertinent facts and the applicable law the district  court did not abuse its discretion in admitting the videotapes  and photos and allowing Elias Negron to testify as he did.


39
C.  Whether or not prosecutor's closing  argument stating repeatedly that the  government's evidence had gone "unrebutted"  and "unrefuted" constituted improper comment  on the silence of defendants and transferred  burden of proof to defendants and improper  argument concerning "dream" of peaceful  residential projects warrants granting of  new trial.


40
No objections were made by defendant to the statements  by the prosecutor during her argument.  This means that we  review for plain error.  See United States v. Sepulveda, 15 F.3d  1161, 1187 (1st Cir. 1993).


41
Once the prosecutor's words are placed in context, we  inquire whether "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."  Id. at 1187 (quoting United States v. Glantz, 810 F.2d 316, 322 (1st Cir. 1987) (citations omitted)). We note that in his final charge, the judge instructed the jury  that the defendants had the right to remain silent and not  testify, and that their failure to testify could not be  considered as a factor in the case.


42
Our first task is to put the prosecutor's words in  context.  She began her argument by stating:


43
I'd like to start by highlighting what  evidence we have presented to you that is  just simply, completely unprofitable [sic],  unrebuttable.


44
What do we know is a fact, that  neither I nor any defense counsel that can  stand here before you can argue to the  contrary?  What has been so well-established  that it is simply undeniable?


45
. . . We know that on May 16th, 1994,  two people got killed at the Hogar Crea  located in Saint Just La Quinta in Carolina,  and that was Reinaldo Colon Gonzalez and  Melvin Flores Montalvo.  No doubt about  that.


46
What else do we know about that event  that is completely unrefutable?  We know  that Daisy Serrano found 19 rifle casings at  the scene of these two murders.


47
We know that Daisy Serrano found 18  .45-caliber casings at the scene of these  two murders.  They were there.  They've been  admitted here in court.  There is nothing  that any witness can say or that any person  can argue that these casings do not exist. Eighteen .45-caliber casings recovered from  the scene of these crimes.  Nineteen rifle  casings recovered from the scene of these  two murders.  They're here.  They exist. There's no doubt about that.


48
Thirty 9-millimeter casings recovered  at the scene of this crime.  Those are here  also.  These simply cannot go away; there's  just no going around that.


49
It seems obvious that the prosecutor was not, even by  the broadest possible interpretation of the words "unprofitable"  and "unrebuttable," commenting on defendant's failure to  testify.  What she stated were facts that were unrebuttable.


50
The next statement was made in the following context.


51
We also know that one of those  individuals was carrying this revolver,  because Mr. Maldonado told you that  projectiles recovered from the body of  Reynaldo and at least one projectile  recovered from the body of Melvin were fired  by this revolver right here (indicating). That's unrebuttable.


52
Where was this revolver found?  This  revolver was found in the house of Carlos  Hernandez Vega.  That evidence also went  unrebutted before you.


53
The agent who found this weapon, Edwin  Rodriguez, says, "I found this weapon in the  house of Carlos Hernandez Vega," and Mr.  Maldonado says this was one of the revolvers  used during the commission of the murders at  Hogar Crea.


54
The context is not complete, however, without the  following.  There was an objection by defense counsel:


55
MS. DAVILA: She misstated the  evidence.  She said it was found in Carlos  Hernandez Vega's.  What the evidence said  was that the agent seized it from the floor  of the bottom of the residential project.


56
. . . .


57
MS. RODRIGUEZ: We stand corrected.


58
The prosecutor acknowledged that she had incorrectly  stated the testimony of a witness.


59
The next comment and context is as follows.


60
And it just so happens that one of the  other weapons used in the murders is found  in Carlos Hernandez Vega's and at least one  other person who William Acevedo Rodriguez  says was with him admits to Agent Luis  Negron and to Agent Vazquez of the FBI that  he is indeed guilty of the Hogar Crea  murders.  It's unrefutable evidence.  It's  unrebuttable.


61
Acevedo was a former member of the enterprise and  conspiracy.  He was one of the chief witnesses for the  government.  His admission to murder is hardly the type of  statement that the jury would think that defendant would want to  answer.

The next statement in context was:

62
Now, what else, what other evidence has come  before you that is unrebuttable, undisputed? Well, we know that at least one wound  on Reynaldo Colon Gonzalez's body was fired  from a distance of less than 2 feet. Whoever fired the shot that made that tattoo  which Dr. Rosa Figueroa explained to you is  caused by gun powder particles which are  lodged on the skin when the gun is being  held at a close distance from the victim  means that that one shot was fired less than  2 feet away.


63
What does that mean?  That means that  Reynaldo could not have been any further  away from the person who was holding that  gun to his head than that TV is to me right  now - less than 2 feet; less than 2 feet  away.  That is undisputed, unrebuttable  evidence.


64
Here, the use of the words "undisputed, unrebuttable  evidence" hardly can be construed as a comment on defendant's  failure to testify about these facts.

We proceed to the next statement:

65
What else has been presented that is  unrebuttable, unrefuted testimony?  Well, we  know that in May of 1996, Edgardo Quiros  Morales produced these two rifles right here  in a matter of minutes to a police officer  so he would do away with an arrest warrant  against him.


66
Again, we find nothing to suggest a trespass on  defendant's right to remain silent in this statement.


67
The final statement is slightly more troubling:


68
What was he going to do with the  cocaine and marijuana that was seized in  that apartment in 1992?  That evidence came  before you unrebutted and unrefuted.


69
This statement conceivably could be construed as a  comment on the defendant's failure to explain the circumstances  of the drugs being in his apartment.  But there was no  contemporaneous objection, and we have held in such  circumstances that ambiguous statements in a prosecutor's  summation ordinarily should be given their more innocuous  meaning.  United States v. Lilly, 983 F.2d 300, 307 (1st Cir.  1992).


70
We need not decide whether this instruction involved  plain error, because in all events, we think that any error was  harmless.  Rule 52(a) of the Federal Rules of Criminal Procedure  defines harmless error as "[a]ny error, defect, irregularity or  variance which does not affect substantial rights . . . ." Rule 52(b) provides that "[p]lain errors or defects affecting  substantial rights may be noticed although they were not brought  to the attention of the court."  The Supreme Court held in United States v. Olano, 507 U.S. 725 (1993), that "Rule 52(b)  leaves the discretion to correct the forfeited error within the  sound discretion of the court of appeals, and the court should  not exercise that discretion unless the error 'seriously  affect[s] the fairness, integrity or public reputation of  judicial proceedings.'" Id. at 732 (quoting United States v. Young, 470 U.S. 1, 15 (1985)).  Whether an error is prejudicial  or harmless depends on whether it effects the outcome of the  case.  See id. at 734 (holding that the "affecting substantial  rights" language of Rule 52(b) "means that the error must have  been prejudicial:  It must have affected the outcome of the  district court proceedings").  In order to satisfy the  "affecting substantial rights" prong of Rule 52(b), a defendant  must normally make a specific showing of prejudice.  See id. at  737.


71
The harmless error doctrine also applies to the final  statement made by the prosecutor in her argument.


72
I will tell you and leave you with this  thought.  There is a dream in public housing  projects in Puerto Rico.  That there is a  tomorrow that we can make it better.  That  is our dream, that is part of our promise,  and by  "our" I mean those of us in Puerto  Rico.


73
D.  Whether or not the district court  committed reversible error in allowing  prosecutor to present false New York  identifications of appellant in evidence,  which were obtained while appellant was  charged on unrelated state charges and were  distant in time from indictment object of  trial.


74
Ten days before being indicted, defendant was arrested  in New York on charges unrelated to those in this case.  When  arrested, defendant possessed several false identification  items.  These were introduced in evidence over defendant's  objections.


75
In her closing argument, the prosecutor characterized  defendant's possession of false identification as "consciousness  of guilt."  The government points out that Acevedo Rodriguez, a  member of the enterprise with whom defendant had participated in  drug-related murders, was arrested in March, 1995.  Because of  statements Acevedo had made to another member of the conspiracy  charged in this case, defendant knew that Acevedo planned to be  a cooperating witness in this case.  Based on these premises,  the government contends that defendant had obtained false  identification so as to avoid prosecution in this case. Defendant counters that he obtained the false identification as  long as seventeen months before he was indicted in this case,  and that the false identification was discovered during the  prosecution of an entirely different case.


76
We decline to decide this issue.  It is abundantly  clear from the record that if it was error to admit the false  identification evidence, the error was harmless.  See Fed. R.  Crim. P. 52(a).


77
The judgment of the district court is affirmed.



Notes:


1
 Count II was subsequently dismissed.


2
 The first issue raised by defendant is that he received  life sentences under both Counts I and Count II, thus violating  principles of double jeopardy.  As Count II has been dismissed,  leaving only one life sentence, this point needs no discussion.


3
 After Acevedo was arrested in March of 1995, he decided to  become a cooperating witness.  He was afraid that if he was  incarcerated in the main prison at Guayama, he would be killed  by other inmates because he had participated in the killing of  friends of theirs.


