          United States Court of Appeals
                        For the First Circuit


No. 15-1108

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                           ANDREW ZARAUSKAS,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                                Before

                Barron and Stahl, Circuit Judges,
                  and Sorokin,* District Judge.


     Stephen C. Smith, with whom Lipman & Katz, P.A. was on brief,
for appellant.
     John Emad Arbab, Attorney, Appellate Section, with whom Allen
M. Brabender, Attorney, Appellate Section, John C. Cruden,
Assistant Attorney General, and the Environment and Natural
Resources Division of the United States Department of Justice,
were on brief, for appellee.


                           February 10, 2016



____________________
     * Of the District of Massachusetts, sitting by designation.
            STAHL, Circuit Judge.           Following a jury trial, Andrew

Zarauskas was found guilty on charges relating to the illegal

importation of narwhal tusks.1         In this appeal, Zarauskas contends

that the district court erred by allowing, then failing to cure,

a series of comments and questions by the prosecutor, which

Zarauskas claims violated the Fifth Amendment by drawing the jury's

attention       to   his   decision   not   to   testify.   Zarauskas   also

challenges the district court's admission of records of vehicular

border crossings between the United States and Canada, which the

government offered to establish that the tusks in question had

originated in Canada.         After careful review, we AFFIRM.

                            I. Facts and Background

     A.     The Tusk Purchases and the Café Vivaldi Interview

            Between approximately 2003 and 2009, Zarauskas served as

a confidential informant for the United States Fish and Wildlife

Service ("FWS"), providing information about individuals engaged

in the smuggling of whale teeth and other wildlife contraband.2

In this capacity, Zarauskas developed a relationship with FWS Agent

Andrey Guidera, with whom he spoke on many occasions.




            1
            Narwhals are Arctic whales. Known as "unicorns of the
sea," they have a long tusk, which is prized by some collectors.

            2Zarauskas had access to this sort of information
because he collected and sold wildlife-related antiques as a hobby.


                                        - 2 -
            On February 17, 2010, Zarauskas agreed to meet with Agent

Guidera, as well as Guidera's colleague, FWS Agent Eric Holmes,

and a Canadian wildlife official.         The meeting took place at Café

Vivaldi, located in Zarauskas's home state of New Jersey (the "Café

Vivaldi Interview").      In initiating the Café Vivaldi Interview,

Agent Guidera told Zarauskas that he wanted to discuss the recent

conviction of an individual whom Zarauskas had identified to the

FWS as illegally trafficking in sperm whale teeth.

            In truth, Agent Guidera and his colleagues had a very

different reason for initiating the Café Vivaldi Interview.              As

part of a separate investigation, the FWS had gathered information

on Gregory and Nina Logan, a Canadian couple whom the FWS believed

to be illegally importing narwhal tusks into the United States.

In the course of that investigation, the FWS learned that Zarauskas

had purchased some thirty-three tusks from the Logans between 2002

and 2010 and had resold many of them for profit.

              The Café Vivaldi Interview, which the parties agree

was   a   voluntary,   non-custodial   encounter,    was   recorded   with

Zarauskas's consent.     Although it began amiably, the agents soon

confronted Zarauskas with evidence of his dealings with the Logans.

Zarauskas    was   initially   evasive,    but   ultimately   admitted   to

purchasing approximately a dozen tusks from the Logans.         Zarauskas

insisted, however, that he believed the tusks were sourced not




                                    - 3 -
from Canada, but from a collection in Maine known as the Hildebrant

Collection.3

            At    the   conclusion   of    the    Café   Vivaldi     Interview,

Zarauskas consented to a search of his home and his computer.

Although Zarauskas initially told the agents that he had only two

narwhal tusks at his home, Agent Guidera's search uncovered a total

of seven, including several hidden in the rafters of Zarauskas's

basement.       A subsequent search of Zarauskas's computer turned up

email correspondence between Zarauskas and Gregory Logan, which

suggested that Zarauskas had arranged to submit a series of

payments to Logan at a Canadian address.

     B.     Zarauskas's Indictment and Prosecution

            Zarauskas    was   charged    under   a   network   of    treaties,

statutes, and regulations that govern the importing and exporting

of wildlife.        The United States has signed the Convention on

International Trade in Endangered Species of Wild Fauna and Flora

("CITES"), Mar. 3, 1973, 27 U.S.T. 1087, which aims to protect

endangered and threatened species by regulating trade in wildlife

specimens and artifacts.        See United States v. Place, 693 F.3d

219, 222 (1st Cir. 2012).       Species subject to CITES are listed in

three separate appendices to the treaty.                 See CITES art. II.




            3
            As we explain, federal law makes it illegal to import
narwhal tusks.    Zarauskas's defense centered on his purported
belief that the tusks had originated in Maine, rather than Canada.


                                         - 4 -
Narwhals are listed in Appendix II, meaning that the export of any

narwhal specimen (including a tusk) requires the possession of a

special permit.    See id. at art. IV(2); Place, 693 F.3d at 222.

           CITES has been implemented in the United States through

a series of statutes and regulations.         The Endangered Species Act

("ESA"), 16 U.S.C. § 1531 et seq., makes it a crime "to engage in

any trade in any specimens" or "to possess any specimens" in

violation of CITES.        16 U.S.C. § 1538(c)(1).        Separately, the

Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq.,

makes it unlawful "for any person to use any port, harbor, or other

place under the jurisdiction of the United States to take or import

marine   mammals    or    marine   mammal   products,"    unless   done   in

compliance with CITES or another agreement to which the United

States is a party.       16 U.S.C. § 1372(a)(2)(B).      Finally, pursuant

to regulations promulgated by the FWS, all wildlife specimens must

be imported through a designated port of entry, accompanied by an

appropriate declaration, and cleared by an FWS officer (the "FWS

Regulations").     See 50 C.F.R. §§ 14.11, 14.52, 14.61.

           In November 2012, a federal grand jury returned an

indictment against Zarauskas, the Logans, and a fourth defendant.

Zarauskas was charged with one count of conspiracy to illegally

import narwhal tusks into the United States, in violation of the

ESA, the MMPA, the FWS Regulations, and 18 U.S.C. § 371; one count

of conspiracy to commit money laundering, in violation of 18 U.S.C.


                                      - 5 -
§ 1956(h); two counts of smuggling narwhal tusks into the United

States, in violation of the ESA, the MMPA, the FWS Regulations,

and 18 U.S.C. § 545; and two counts of money laundering, in

violation of 18 U.S.C. § 1956(a)(2)(A).

             The case against Zarauskas proceeded to trial.   Although

Zarauskas did not testify, his defense centered on his purported

belief that the tusks in question were not imported contrary to

law, but rather were obtained by the Logans from the Hildebrant

Collection in Maine.    On this basis, the defense claimed Zarauskas

did not know that the tusks had been brought into the country

illegally, as was required to prove an act of smuggling.       See 18

U.S.C. § 545 (criminalizing the "knowing" receipt, concealment,

purchase, or sale of merchandise "imported or brought into the

United States contrary to law").    The jury apparently rejected his

defense, returning guilty verdicts on all counts of the indictment.

Zarauskas was sentenced to thirty-three months in prison.

             We briefly overview several facets of the trial that are

of central importance to this appeal.      First, Zarauskas contends

that the district court erred when it allowed, then failed to cure,

a series of statements and questions by the prosecutor regarding

the Café Vivaldi Interview and Zarauskas's failure during the

interview to deny his involvement in the Logans' tusk smuggling

operation.     Zarauskas argues that these statements and questions




                                   - 6 -
violated his Fifth Amendment right to remain silent by drawing the

jury's attention to his decision not to testify at trial.4

             Second, Zarauskas contends that the district court erred

when it found, over his objection, that the government could rely

on the public records exception to the rule against hearsay to

admit a series of records of vehicular border crossings between

the United States and Canada.          See Fed. R. Evid. 803(8).        The

government used these records to establish that a vehicle belonging

to Gregory Logan crossed the border from Canada into Maine at times

corresponding to Logan's shipment of tusks to Zarauskas.                We

consider Zarauskas's two arguments in turn.

                          II. The Fifth Amendment

     A.      Prosecutorial Comment on the Café Vivaldi Interview

             We    consider   first   Zarauskas's   contention   that   the

prosecutor violated his Fifth Amendment right to remain silent by

repeatedly referring to Zarauskas's failure, at the Café Vivaldi

Interview, to deny his involvement in the Logans' tusk smuggling

operation.       Zarauskas draws our attention to four separate points

in the trial record, beginning with the following exchange during

the prosecutor's direct examination of FWS Agent Guidera, which we

refer to as the "Guidera Colloquy":


             4
            Zarauskas filed a motion for a new trial premised on
the alleged Fifth Amendment violation, which the district court
later denied. See United States v. Zarauskas, No. 1:12-cr-00188-
JAW-04, 2014 WL 4658718 (D. Me. Sept. 17, 2014).


                                       - 7 -
           Q:   During the [Café Vivaldi Interview], did the
                defendant ever say anything like "you're
                accusing me of something I didn't do here"?

           A:   No, he didn't.

           Q:   Did he ever raise his voice at you?

           A:   He did not.

           Q:   Did he ever get mad at you or say that you
                misunderstood what happened?

           A:   No.

           Zarauskas next points to comments made by the prosecutor

during his closing argument and closing rebuttal.        The first

comment, which we refer to as "Closing Comment No. 1", occurred

during the prosecutor's closing argument:

           It strikes me that when asked by federal agents to
           be interviewed, a person really has three choices:
           You can say "no, thank you, I'd rather not talk";
           you can agree to be interviewed and tell the truth;
           [or] you can agree to be interviewed and spin a web
           of inconsistent statements. You heard the entire
           interview. You decide which choice the defendant
           made on February 17th, 2010.

           Next, the defense offered its closing argument.   As it

is relevant to the prosecutor's rebuttal, we recite the following

excerpt:

           The government insists over and over that the
           defendant knew . . . . [B]ut that's not the way
           this court works. . . . They have to show evidence
           that he knew. And they have not shown one iota,
           not one shred . . . that says that [Zarauskas] knew
           that those tusks were coming from Canada. . . .
           They've got this conversation in a café. . . . And
           then the government acts surprised and says you
           should be suspicious when [the] agents suddenly


                                 - 8 -
          spring on [Zarauskas] that he's the focus of the
          investigation. What's the human reaction? You've
          got three government agents . . . sitting there
          suddenly accusing you of being a tusk smuggler.
          What are you going to do?

          Zarauskas next contests portions of the prosecutor's

ensuing rebuttal, the first of which we refer to as "Closing

Comment No. 2":

          Now, the defendant says there's not one shred of
          evidence, not one shred, that the defendant knew
          that these tusks were illegal. Well, if he thought
          they were . . . legal, why couldn't he give a
          straight answer? Two hours and nine minutes, not
          once did he raise his voice or say, "I didn't do
          what you're saying I did."

          Finally,     Zarauskas   directs   our   attention   to   the

following excerpt from the same closing rebuttal, which we refer

to as "Closing Comment No. 3":5

          I would ask you to do the very same thing that
          [defense counsel] asked you to do. Ask yourself,
          if you were in that situation where you believed
          you were being falsely accused, what would you do?
          What would you say? If [Zarauskas] thought these
          tusks were from Maine, why did he keep telling the
          agents that it was perfectly legal to sell narwhal
          tusks in Canada? They're from Maine. Who cares?
          If he thought they were from Maine, then why did he
          tell the agents, "I don't know how [Gregory Logan]
          got them across the border"?

          Zarauskas objected to the Guidera Colloquy and Closing

Comment No. 2.    However, he did not object to Closing Comment No. 1

and it appears that he did not object to Closing Comment No. 3.


          5 We refer to Closing Comment No. 1, Closing Comment No.
2, and Closing Comment No. 3 together as the "Closing Comments".


                                   - 9 -
          Zarauskas's      argument    may   be   summarized      as   follows:

because the Guidera Colloquy and the Closing Comments focused on

Zarauskas's failure during the Café Vivaldi Interview to deny his

involvement    in   the   Logans'     tusk   smuggling    operation,     their

admission improperly drew the jury's attention to Zarauskas's

silence at the Café Vivaldi Interview and to his decision not to

testify at trial. As a result, the burden was shifted to Zarauskas

to disprove his guilt, all in violation of the Fifth Amendment.

     B.   Standard of Review

          In   assessing    the     appropriateness      of   a   prosecutor's

remarks, we employ a standard of review which varies depending on

whether the defendant lodged a contemporaneous objection.                Where

such an objection was raised, our review is de novo. United States

v. Rodriguez, 675 F.3d 48, 61 (1st Cir. 2012).                If we conclude

that the statement was improper, we then review for harmless error.

United States v. Azubike, 504 F.3d 30, 38-39 (1st Cir. 2007).              If,

on the other hand, the defendant did not raise a contemporaneous

objection, appellate review is merely for plain error.                  United

States v. Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993).

     C.   Analysis

          It is a "bedrock" principle that "[t]he Fifth Amendment

forbids any comment by the prosecutor on the defendant's exercise

of the right to remain silent," id. at 1186, and a prosecutor may

not call attention to the defendant's decision not to take the


                                       - 10 -
stand in his own defense.         See Griffin v. California, 380 U.S.

609, 615 (1965); United States v. Rodríguez-Vélez, 597 F.3d 32, 44

(1st Cir. 2010) ("[T]he government infringes the defendant's Fifth

Amendment rights whenever 'the language used [by the prosecutor

is] manifestly intended or [is] of such character that the jury

would naturally and necessarily take it to be a comment on the

failure of the accused to testify.'" (alterations in original)

(quoting United States v. Glantz, 810 F.2d 316, 322 (1st Cir.

1987))).

            A number of courts have addressed a related, but distinct

question.    They have addressed whether a prosecutor violates the

Fifth Amendment simply by arguing to the jury that a defendant's

pre-custodial silence is an affirmative indicator of guilt, even

if   the   jury   would   not   "naturally   and   necessarily"   take   the

prosecutor's argument to be a comment on the defendant's failure

to testify.       See Rodriguez, 675 F.3d at 62 n.17 ("[T]he law

concerning a prosecutor's use of a defendant's pre-arrest, pre-

Miranda silence is, to say the least, unsettled."); United States

v. McCann, 366 F.3d 46, 56 (1st Cir. 2004) (noting that the First

Circuit has yet to decide "whether the privilege against self-

incrimination is implicated when, in the context of a non-custodial

interrogation, a suspect selectively refuses to answer a . . .

question despite having volunteered answers to other questions




                                      - 11 -
that he perhaps believes are less likely to induce an incriminating

response"), vacated on other grounds, 543 U.S. 1104 (2005).

            While the First Circuit has yet to stake a position on

this issue, other courts of appeals have reached conflicting

results.    Compare, e.g., United States v. Moore, 104 F.3d 377, 389

(D.C. Cir. 1997) ("[Defendant] is correct that the prosecutor's

comment    on   his    pre-trial   silence   violated   his   constitutional

rights.") and United States v. Burson, 952 F.2d 1196, 1200-01 (10th

Cir. 1991) (finding a Fifth Amendment violation where government

agents testified about the defendant's refusal to answer questions

during a pre-indictment, non-custodial interrogation), with United

States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991) ("The

government may comment on a defendant's silence if it occurred

prior to the time that he is arrested and given his Miranda

warnings.").

            To resolve the split of authority, the Supreme Court

granted certiorari in Salinas v. Texas, 133 S. Ct. 2174 (2013).

That case involved a claimed Fifth Amendment violation stemming

from the prosecution's use of evidence that the defendant had

refused to answer certain questions at a non-custodial interview

with officers investigating a murder with which the defendant was

later charged.        Id. at 2178-79.   A three-justice plurality opinion

authored by Justice Alito, however, concluded that the defendant




                                        - 12 -
could not assert a Fifth Amendment violation because he had failed

to invoke the privilege during the interview.6                 Id. at 2178.

             Justice      Thomas   (joined    by    Justice    Scalia)    wrote   a

concurrence in which he concluded that the Fifth Amendment should

"not extend . . . to a defendant's silence during a precustodial

interview."        Id. at 2184 (Thomas, J., concurring in the judgment).

Thus, read together, Justice Alito's plurality opinion and Justice

Thomas's concurrence leave open the question of whether, in line

with   the       Fifth   Amendment,   a    prosecutor    may    comment   on   the

defendant's pre-custodial silence.

             Nevertheless, we leave this question for another day and

instead follow a well-worn path by assuming, without deciding,

that   prosecutorial        comment   on     the    defendant's    pre-custodial

silence violates the Fifth Amendment.               See Rodriguez, 675 F.3d at

62; Rodríguez-Vélez, 597 F.3d at 44; McCann, 366 F.3d at 56-57.

We must then determine whether any such violation merits reversal.

As we have said, our review varies based on whether the particular

question or statement by the prosecutor resulted in an objection.




             6
            The transcript of the Café Vivaldi Interview makes
plain that Zarauskas did not invoke his Fifth Amendment privilege
at any point. Indeed, the district court reached that conclusion
in its written order denying Zarauskas's motion for a new trial.
See Zarauskas, 2014 WL 4658718, at *10.         Nonetheless, the
government has not argued on appeal that Zarauskas may not assert
a Fifth Amendment privilege, and thus we deem any such contention
waived.


                                           - 13 -
            i.    The Guidera Colloquy and Closing Comment No. 2

            Zarauskas objected to both the Guidera Colloquy and

Closing Comment No. 2.          Our review, therefore, is de novo for

harmless error.     See Rodriguez, 675 F.3d at 61; Azubike, 504 F.3d

at 38-39.     "The test is 'whether the prosecutor's misconduct 'so

poisoned the well' that the trial's outcome was likely affected,

thus warranting a new trial.'"         Azubike, 504 F.3d at 39 (quoting

United States v. Joyner, 191 F.3d 47, 54 (1st Cir. 1999)).                In

order to make this determination, we employ a three-part inquiry,

asking: (1) whether the prosecutor's conduct was isolated and/or

deliberate; (2) whether the trial court offered a strong and

explicit curative instruction; and (3) whether, in light of the

strength of the evidence against the defendant, it is likely that

any resulting prejudice affected the verdict.             See Rodriguez, 675

F.3d at 62.

            Our review of these factors compels the conclusion that

any error raised by the Guidera Colloquy and Closing Comment No. 2

was harmless.     To be sure, in light of his repeated reference to

Zarauskas's      silence   at    the    Café    Vivaldi     Interview,   the

prosecutor's conduct was neither isolated nor unintentional.             Cf.

id. (characterizing the prosecutor's challenged statements as

"isolated and brief").

            Nevertheless, the second and third factors favor the

government.      As an initial matter, at Zarauskas's behest, the


                                       - 14 -
district court offered a curative jury instruction immediately

following closing arguments:

          I just want to emphasize one thing that I think is
          an important point for your consideration . . . .
          [The prosecutor], during his closing argument,
          commented on the conversation between the agents
          and the defendant in New Jersey, and he commented
          on both what the defendant said and what the
          defendant did not say.

          I'd like to reiterate just a portion of my earlier
          instruction . . . . [T]he defendant has the right
          to remain silent, and Mr. Zarauskas has a
          constitutional right, in particular, during the
          course of this trial not to testify, and there
          should be no inference of guilt, or of anything
          else, drawn from the fact he did not testify here
          in court during the course of this trial.     I've
          told you and I again reiterate that for any of you
          to draw such an inference would be wrong, and it
          would be a violation of your oath as a juror.

          This curative instruction identified the objectionable

portion of the prosecutor's closing argument, "and emphasized

[Zarauskas's]   right   not   to   testify   or   present   evidence."

Rodríguez-Vélez, 597 F.3d at 45.       Thus, in the event that the

Guidera Colloquy or Closing Comment No. 2 led the jury to believe

that Zarauskas was under some obligation to take the stand in his

own defense, this instruction palliated any potential prejudice.7


          7  It would have been preferable for the curative
instruction to direct the jury to disregard the references to
Zarauskas's silence, and to remind jurors that Zarauskas was under
no obligation to say (or not say) anything at the Café Vivaldi
Interview, but ultimately Zarauskas never requested these
instructions, nor objected to their omission. See Sepulveda, 15
F.3d at 1187 n.19 ("A trial court's failure to launch a limiting
instruction sua sponte is not reversible error.").


                                   - 15 -
            Finally, the strength of the evidence assures that any

prejudice resulting from the Guidera Colloquy or Closing Comment

No. 2 had no effect on the jury's verdict.              As we have described,

Zarauskas's     defense    centered     on   an   attempt     to   disprove    the

government's claim that he knew the tusks in question had been

imported from Canada, rather than acquired from the Hildebrant

Collection in Maine.       There was ample evidence to the contrary.

            For example, through the testimony of FWS Agent Holmes,

the government offered evidence that Zarauskas had sent a number

of payments to Gregory Logan at an address in Alberta, Canada.

What is more, the government offered evidence suggesting Zarauskas

knew   that     the    Logans'   source      of   narwhal   tusks      was   being

continuously replenished, undermining Zarauskas's contention that

he   believed    the   Logans    to   have   acquired   the    tusks    from   the

Hildebrant Collection, where one would expect to find a fixed

quantity.     On this point, Agent Holmes presented the jury with

email correspondence in which Gregory Logan told Zarauskas that he

was "[l]ooking into three [tusks] we may be able to get [at] the

end of May.     They are 86 inch[es] and 89 inch[es] and 90 inches."

Agent Holmes also told the jury that Zarauskas had purchased

approximately thirty-three tusks from the Logans at a total cost

of some $85,000.       This testimony, establishing the Logans' ongoing

acquisition of new tusks, combined with the sheer quantity of tusks




                                        - 16 -
at issue, seriously undermined Zarauskas's claim that he believed

the tusks to have come from a single existing collection.

             Separately,     the   government       offered    evidence   that

Zarauskas repeatedly attempted to mislead investigators, further

undermining his claim that he believed his actions to be legal.

For    example,   during     the   Café   Vivaldi     Interview,    Zarauskas

initially claimed to have purchased only two small tusks from

Gregory Logan.    Later, after being confronted with evidence to the

contrary, Zarauskas admitted to purchasing upwards of a dozen.

Zarauskas also initially claimed during the Café Vivaldi Interview

that he only had two tusks at his home.               Immediately after the

interview, however, Agent Guidera's search of the home uncovered

a total of seven tusks, including several hidden among the basement

rafters.

             Evidence of these deceits bolstered the government's

case    by   eroding   the    credibility      of    Zarauskas's    professed

understanding of the source of the tusks and the legality of his

actions.      In sum, the evidence of guilt was strong and, even

assuming that a measure of prejudice survived the district court's

curative     instruction,    any   such   prejudice    was    insufficient   to

"poison[] the well" and affect the jury's verdict.               See Azubike,

504 F.3d at 39.




                                      - 17 -
          ii.    Closing Comment No. 1 and Closing Comment No. 3

          Lacking contemporaneous objections at trial, we review

Closing Comment No. 1 and Closing Comment No. 3 for plain error.

Sepulveda, 15 F.3d at 1187. To prevail, Zarauskas must demonstrate

"(1) that an error occurred (2) which was clear or obvious and

which not only (3) affected [his] substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings."    McCann, 366 F.3d at 56 (alteration in

original) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st

Cir. 2001)).    Our inquiry takes us only as far as the second prong

because we conclude that, with respect to both Closing Comment

No. 1 and Closing Comment No. 3, Zarauskas has not shown that an

error occurred, much less that any such error was clear or obvious.

          We begin with Closing Comment No. 1, which Zarauskas

maintains constituted a comment on his failure to proclaim his

innocence at the Café Vivaldi Interview and, in turn, drew the

jury's attention to his decision not to testify at trial.   We read

Closing Comment No. 1 differently, not as commentary on Zarauskas's

silence at the Café Vivaldi Interview, but rather as commentary on

the inconsistency of Zarauskas's statements.

          In our view, the prosecutor fairly laid out the three

"choices" Zarauskas faced when Agent Guidera asked to meet with

him. Based on these choices, it appears that the prosecutor sought

to make clear that Zarauskas had not said "no, thank you" and


                                  - 18 -
declined    the    interview,   which   clearly       would   have   constituted

commentary on his silence.       Rather, the prosecutor suggested that

Zarauskas had opted for the third choice, partaking in the Café

Vivaldi     Interview,    but   "spin[ning]       a    web    of     inconsistent

statements" in the process.       See Sepulveda, 15 F.3d at 1187 ("[I]n

the absence of a contemporaneous objection it seems fair to give

the arguer the benefit of every plausible interpretation of [his]

words.").       Thus, because Closing Comment No. 1 did not call into

question Zarauskas's silence at either the Café Vivaldi Interview

or at trial, the district court did not commit clear or obvious

error in failing to identify and sua sponte remedy this statement.

            We likewise conclude that Closing Comment No. 3 did not

result in clear or obvious error.8          We reach this conclusion for

two reasons.       As an initial matter, like Closing Comment No. 1,

Closing Comment No. 3 did not directly or indirectly refer to

Zarauskas's silence during the Café Vivaldi Interview.                    On the

contrary, in Closing Comment No. 3, the prosecutor sought to

highlight the inconsistency of Zarauskas's statements during the

Café Vivaldi Interview with his claimed belief that the tusks in




            8
            There is some uncertainty in the briefing as to whether
the parties believe that Zarauskas objected to Closing Comment
No. 3. Our review of the trial transcript suggests that he did
not, but even were we to apply de novo review on the favorable
assumption that he did, the result would be the same.


                                        - 19 -
question had originated in Maine.        In other words, the prosecutor

sought to highlight what Zarauskas said, not what he did not say.

            Furthermore, Closing Comment No. 3 cannot be said to

constitute plain error when considered in the broader context in

which it was offered.    See id. ("In assaying the appropriateness

of   a    prosecutor's   remarks,    context    frequently   determines

meaning.").    In his closing argument, which immediately preceded

the government's closing rebuttal, defense counsel exhorted the

jurors    to   put   themselves     in    Zarauskas's   shoes,     asking

rhetorically, "[y]ou've got three government agents . . . sitting

there suddenly accusing you of being a tusk smuggler.            What are

you going to do?"    This invited the prosecutor to respond, as he

did, by questioning whether Zarauskas's statements at the Café

Vivaldi Interview were consistent with a belief that his dealings

with the Logans were legal.       See United States v. Henderson, 320

F.3d 92, 107 (1st Cir. 2003) (finding the "invited response rule"

applicable where "[t]he prosecutor's remarks were limited and

addressed only the defense counsel's own comments"); see also

Rodriguez, 675 F.3d at 65 (declining to find plain error where

"the prosecutor merely posed a rhetorical question that mirrored,

and directly responded to, the defendant's closing argument").

     D.     Conclusion

            In our view, the Guidera Colloquy and Closing Comment

No. 2 constituted harmless error, and neither Closing Comment No. 1


                                    - 20 -
nor Closing Comment No. 3 resulted in plain error.          Thus, whether

we   consider    the   Guidera    Colloquy   and   the   Closing   Comments

individually or collectively, we must reject Zarauskas's claim of

a Fifth Amendment violation.9

                                 III. Hearsay

           Zarauskas next claims that the district court improperly

admitted hearsay evidence.        We review the district court's legal

interpretation of a rule of evidence de novo, but its decision to

admit or exclude evidence solely for abuse of discretion.           United

States v. Lang, 672 F.3d 17, 23 (1st Cir. 2012) (citing United

States v. Dowdell, 595 F.3d 50, 70 (1st Cir. 2010)).

           The United States Customs and Border Protection ("CBP")

maintains records of vehicles that enter the United States through

its borders.      These so-called "TECS" reports log, among other

information, the license plate of the vehicle, and the date, time,

and location of the border crossing.         Over Zarauskas's objection,

and pursuant to the public records exception, see Fed. R. Evid.

803(8), the district court permitted the government to introduce

TECS reports showing border crossings by a vehicle belonging to

Gregory Logan.    The government used the TECS reports to establish




           9Zarauskas has not appealed from the district court's
denial of his motion for a new trial. Had he done so, we would
have found that the district court's decision was not an abuse of
discretion. See Glantz, 810 F.2d at 321 n.2.


                                      - 21 -
that Logan's vehicle had crossed the border from Canada into Maine

on dates corresponding to Logan's shipment of tusks to Zarauskas.

            Federal Rule of Evidence 803(8) exempts from the general

prohibition against hearsay certain records or statements of a

public office.       See Lang, 672 F.3d at 23.              Nevertheless, Rule

803(8) contains an exception and prohibits the introduction of a

public record in a criminal case if the record consists of "a

matter observed by law-enforcement personnel."                     Fed. R. Evid.

803(8)(A)(ii).       Zarauskas maintains that the district court's

admission of the TECS reports violated Rule 803(8) because those

reports were comprised of the observations of CBP personnel.

            Our cases distinguish "routine, non-adversarial" records

from those that are "adversarial" or constitute "contemporaneous

observations of crime" by law enforcement.                See Dowdell, 595 F.3d

at 70-71.    In Dowdell, we reasoned that routine, non-adversarial

records are more reliable than "observations by police officers at

the scene of the crime . . . because of the adversarial nature of

the confrontation between the police and the defendant in criminal

cases."   Id. at 70 (citations omitted).           Accordingly, we permitted

the   admission     of   a   police   booking     sheet    under    Rule   803(8),

reasoning    that    it      contained   only     a   "rote    recitation"      of

"ministerial, non-adversarial information."               Id. at 72.

            The First Circuit has not yet considered whether TECS

reports fall within Rule 803(8) as admissible, non-adversarial


                                         - 22 -
public    records.      Nevertheless,       the      Fourth,      Fifth,    and   Ninth

Circuits have each concluded that they do.                  See United States v.

Cabrera-Beltran, 660 F.3d 742, 753 (4th Cir. 2011); United States

v. Puente, 826 F.2d 1415, 1417-18 (5th Cir. 1987); United States

v. Orozco, 590 F.2d 789, 794 (9th Cir. 1979).

            We agree.      TECS reports bear all of the indicia of non-

adversarial public records.            As a matter of course, the CBP

collects information about vehicles crossing the border.                           See

Cabrera-Beltran, 660 F.3d at 750-51.                 The act of recording this

information      amounts   to   rote   recitation,          and    the     information

itself, such as the license plate of the vehicle, and the date of

the crossing, is quintessentially ministerial and non-adversarial.

See Orozco, 590 F.2d at 793 ("[T]he simple recordation of license

numbers    [by   an   officer]    .    .    .   is    not   of     the     adversarial

confrontation nature which might cloud his perception.").                      We thus

have little difficulty concluding that the district court properly

admitted the TECS reports pursuant to Rule 803(8).

                                IV. Conclusion

            For the foregoing reasons, the conviction is AFFIRMED.




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