                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-2103
No. 92-2136

             JUAN ARRIETA-AGRESSOT, REGULO RIOS,
       JOSE ANTONIO BARROSO, ADALBERTO AGUILAR-EPIEYU,
                 ADALBERTO MONCARIS-BERMODEZ,
                  and DIEGO CALDAS-GONZALEZ,

                   Plaintiffs, Appellants,

                              v.

                  UNITED STATES OF AMERICA,

                     Defendant, Appellee.

                                         

No. 92-2207

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                  ADALBERTO AGUILAR-EPIEYU,

                    Defendant, Appellant.

                                         

No. 92-2208

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                  ALBERTO MONCARIS-BERMODEZ,

                    Defendant, Appellant.

                                         

No. 92-2209

                  UNITED STATES OF AMERICA,

                           Appellee,

                              v.

                    JOSE ANTONIO-BARROSO,

                    Defendant, Appellant.

                                         

No. 92-2210

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                         REGULO RIOS,

                    Defendant, Appellant.

                                         

No. 92-2211

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                    JUAN ARRIETA-AGRESSOT,

                    Defendant, Appellant.

                                         

No. 93-1946

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                    DIEGO CALDAS-GONZALEZ,

                    Defendant, Appellant.

                                        

        APPEALS FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

         [Hon. Carmen C. Cerezo, U.S. District Judge]
                                                    

                                         

                            Before

                    Selya, Cyr and Boudin,

                       Circuit Judges.
                                     

                                         

Rafael  F.   Castro-Lang,  by  Appointment   of  the  Court,   for
                        
appellants Adalberto Aguilar-Epieyu and Juan Arrieta-Agressot.
Frank  D.  Inserni, by  Appointment of  the Court,  for appellants
                  
Jose Antonio Barroso, Regulo Rios and Diego Caldas-Gonzalez.
Joseph C.  Laws, Jr., by Appointment  of the  Court, for appellant
                    
Adalberto Moncaris-Bermodez.
Ramon Garcia, by Appointment of the  Court, on brief for appellant
            
Regulo Rios.
Jeffrey M.  Williams,  by  Appointment  of the  Court,  Javier  A.
                                                                  
Morales  Ramos and  Indiano, Williams  &amp; Weinstein-Bacal on  brief for
                                                    
appellant Juan Arrieta-Agressot.
Yolanda  A.  Collazo Rodriguez,  by Appointment  of the  Court, on
                              
brief for appellant Diego Caldas-Gonzalez.
Carlos  A. Perez-Irizarry, Assistant  United States Attorney, with
                                                            
whom  Charles E.  Fitzwilliam, United  States  Attorney,  and Jose  A.
                                                                  
Quiles  Espinosa, Senior  Litigation Counsel,  were on  brief for  the
            
United States.

                                         

                      September 8, 1993
                                         

     BOUDIN, Circuit  Judge.  The six appellants in this case
                           

were  convicted  in  the district  court  in  Puerto Rico  of

possession of  marijuana with  intent to distribute  while on

board  a vessel  subject to  the jurisdiction  of the  United

States.    46 U.S.C.  App.    1903(a).   The  prosecutor made

inflammatory  remarks to the jury, and we cannot say that the

evidence made conviction inevitable.  We therefore vacate the

convictions and remand for further proceedings.1

     Appellants were  crew members  aboard  a fishing  vessel

named  the Jurango  Kiss, which  was intercepted by  the U.S.
                        

Navy and  accompanying U.S.  Coast Guard personnel  about 100

miles  off the  coast of  Colombia and  found to  be carrying

approximately 11,885 pounds of marijuana.  The government had

no direct evidence that  the crew members knowingly possessed

the marijuana with  intent to distribute, and  the success of

its case lay in persuading the jury beyond a reasonable doubt

that  the crew members must  have had the necessary knowledge

and  intent.  This task  was complicated by  the testimony of

Pedro Silvio  Croes-Vincente, the captain of  the vessel, who

was tried and convicted  along with the crew members  but has

not appealed.  Croes-Vincente testified that the crew members

came aboard the Jurango  Kiss just before the voyage  and did
                             

not know of the illicit cargo. 

                    

1.  The appeals  from the  convictions are Nos.  92-2207, 92-
2208, 92-2209, 92-2210, 92-2211,  and 93-1946.  The remaining
appeals,  relating to the  petitions under  28 U.S.C.    2255
(Nos. 92-2103 and 92-2136), are dismissed as moot.

                             -4-

     Throughout his closing argument the prosecutor urged the

jury to  view this case as a battle in the war against drugs,

and the  defendants as  enemy soldiers.   During  his initial

closing remarks the prosecutor told the jury: 

     When  the captain  .  .  .  and  the  rest  of  the
     defendants  departed  Colombia they  knew  what was
     inside  the boat.  They knew that the boat was full
     with bales  of marijuana,  and they had  no concern
     for  the youth.  They had no concern for the people
     that would  have used the  marijuana.  They  had no
     concern  for  the  people  that   would  have  been
     addicted by the use of marijuana.

In  his rebuttal  argument  the prosecutor  returned to  this

theme:    Nobody has the right to poison the people
          and poison our children.   I can tell you
          that I don't have an issue with that; but
          I know  the pain,  the suffering that  is
          brought into many families by the  use of
          drugs, by  the use  of marijuana,  by the
          addiction to marijuana.

     And  you know that.   You know that  that is a real
     problem.   And we are here today because we want to
     say no  to drugs.   We want  to say no  to what  is
     corrupting  and  disrupting  the  society,  because
     marijuana  not  only   disrupts  and  corrupts  our
     society  but  it  also  corrupts  and  disrupts any
     society in the world.

Later in his rebuttal, the government's lawyer continued: 

     But thank God at  that time we had the  Coast Guard
     on board the [U.S.S.] SIMMS  . . . .    Because not
     only  they  are  [sic]  protecting  us;  they   are
     protecting  the  people,  they are  protecting  the
     youth, they are protecting other societies.

     That is why, ladies and gentlemen of the jury, they
     were in  the drug  interdiction.   To save  you all
     from the evil of drugs.  Because the defendants are
     not  soldiers  in  the  army  of  good.   They  are
     soldiers in  the army  of evil, in  the army  which
     only  purpose [sic]  is to  poison, to  disrupt, to
     corrupt.

                             -5-

     We think it is  crystal clear that inflammatory language

of  this ilk  falls well  outside  the bounds  of permissible

argument.  In United States v. Machor, 879 F.2d 945, 955 (1st
                                     

Cir.  1989),  cert. denied,  493  U.S. 1081,  1094  (1990), a
                          

prosecuting attorney in Puerto Rico  told the jury during his

closing statement that "[cocaine]  is poisoning our community

and our kids die because of this."  In United  States v. Doe,
                                                            

860 F.2d 488,  494 (1st  Cir. 1988), cert.  denied, 490  U.S.
                                                  

1049 (1989), a prosecutor  from that same district argued  to

the jury that  marijuana is  "poison that  is destroying  our

children in our  schools [and]  is bringing an  end [to]  our

youth  .  . .  ."    In both  cases  we  sharply rebuked  the

prosecutor for making these  comments, because they "serve no

purpose other than 'to inflame the passions and prejudices of

the jury, and to  interject issues broader than the  guilt or

innocence of the accused.'"  Machor, 879 F.2d at 956 (quoting
                                   

Doe, 860 F.2d at 494).2  
   

     Once again, we affirm  our view that such arguments  are

plainly improper.   It is  hard enough for  a jury to  remain

dispassionate and  objective amidst the tensions  and turmoil

of  a  criminal  trial, and  this  is  not  the occasion  for

                    

2.  We went on to hold  in Machor and Doe that  the comments,
                                         
though "totally unjustified," Doe,  860 F.2d at 495, did  not
                                 
warrant reversal  because the evidence against the defendants
was  "very  strong,"     Machor,   895  F.2d   at  956,   and
                               
"overwhelming,"  Doe, 860 F.2d at 495,  and because in Machor
                                                             
the  remarks were  made in  rebuttal  to similar  comments by
defense counsel.  

                             -6-

superheated  rhetoric  from the  government urging  jurors to

enlist in the war on  drugs.  The Seventh Circuit  appears to

have  approved references  to "society's  drug problem"  in a

prosecutor's  argument, although  milder in tone  and briefer

than  the remarks here.   See United States  v. Ferguson, 935
                                                        

F.2d 1518, 1530-31 (7th Cir. 1991).  Still, it is remarkable,

in  light of Machor, Doe and a  slew of other recent cases in
                        

this  circuit,3 that  the  government defends  as proper  its

closing argument in this case.  However,  defense counsel  in

this  case  failed  to  object  to any  of  the  prosecutor's

remarks.  Courts of appeals are reluctant to entertain claims

of  error absent  timely  objections at  trial.   Most  trial

judges are leary of sua sponte interventions,  so the failure
                              

to object usually precludes a curative instruction, a warning

about further  remarks, or some  form of amelioration.   And,

allowing  such  claims to  be raised  for  the first  time on

appeal may encourage strategic  decisions by trial counsel to

remain  mute in  the face  of error,  reserving an  issue for

appeal in the event of conviction. 

                    

3.  E.g.,  United States v.  Moreno, 991  F.2d 943,  947 (1st
                                   
Cir. 1993) (reference in  closing argument to "protecting the
community  that  has  been  plagued  by  violence,  senseless
violence,  shootings and killings"  was "patently improper");
United  States v. Rodriguez-Cardona,  924 F.2d  1148, 1153-54
                                   
(1st Cir.) (improper reference  to "deadly trade of narcotics
trafficking"  and to  appellant's "evilness"),  cert. denied,
                                                            
112 S. Ct. 54 (1991).

                             -7-

     For these reasons, we will reverse a conviction where no

objection was  made at trial only  in the rare  case in which

the mistake rises to the level of "plain error."  See Fed. R.
                                                     

Crim. P. 52(b);  Machor, 879 F.2d  at 955.   Most errors  are
                       

plain  after  the event,  and the  phrase  is something  of a

misnomer:       "[t]he    plain-error   exception    to   the

contemporaneous-objection  rule is  to  be  'used  sparingly,

solely  in  those circumstances  in  which  a miscarriage  of

justice would  otherwise result.'"   United States  v. Young,
                                                            

470  U.S. 1, 15 (1985)  (quoting United States  v. Frady, 456
                                                        

U.S.  152, 163 n.14 (1982)).  Reversal is appropriate only if

the  illegitimate argument  "so  poisoned the  well that  the

trial's  outcome  was likely  affected."    United States  v.
                                                         

Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987).  
            

     In making  this post hoc  judgment, a crucial  factor is
                             

the weight  of  the  evidence of  the  defendants'  guilt  or

innocence.   See United  States v. Santana-Camacho,  833 F.2d
                                                  

371,  373-74 (1st Cir. 1987).  We do  not in such a case take

the evidence in the light most favorable to the government or

assume that  credibility issues  were resolved in  its favor.

The jury  may well have  decided the issues  in favor of  the

government, but  that jury decision may itself  be tainted by

the improper remarks.  Thus we will look at the evidence as a

whole  and, despite the lack of objection, we will reverse if

                             -8-

the  error is manifest and  if there is  a substantial chance

that absent the error the jury would have acquitted. 

     In this  case, a reasonable  jury could on  the evidence

offered have found the crew guilty beyond a reasonable doubt,

but there was  also evidence that made  acquittal a realistic

possibility.    At  trial,  the  government  proved  that  on

December 7,  1987,  the  U.S.S.  Simms  was  conducting  drug
                                      

interdiction patrols  in the  Caribbean Sea when  it detected

the Jurango Kiss about 12 miles away, approximately 100 miles
                

north of Colombia.  A helicopter reported that the vessel was

fashioned  to look like a fishing ship but had no outriggers,

nets or fishing poles; that it did not display a registration

number; and that it was headed northbound toward the  passage

between the Dominican Republic and Puerto Rico.

     As the helicopter pilot  approached the Jurango Kiss for
                                                         

the second  time, he saw numerous  burlap- or plastic-wrapped

bales floating in  the water and, when  he got closer to  the

ship, saw a man  on the deck  throwing bales overboard.   The

pilot  also observed  that  the ship  had completely  changed

course  and was now  heading south.   After a  short time the

Simms   came   alongside   the  Jurango   Kiss   and,   after
                                              

unsuccessfully attempting radio  contact, a  small crew  from

                             -9-

the Simms boarded the suspect vessel  and ordered the captain
         

and his seven crewmen to congregate on the upper deck.4  

     The  captain of the Jurango Kiss claimed not to know the
                                     

vessel's country of  registry and was  unable to produce  any

documentation.  A protective sweep of the vessel revealed 146

bales containing a green leafy substance, most of  which were

stacked in plain  view below deck  in the ship's  compartment

and a  few of which were  on the deck.   Another 17 identical

bales were found floating  in the sea and brought  aboard the

Simms.   A field test  of samples of  the bales' contents was
     

positive  for  marijuana.    Members of  the  boarding  party

described  the Jurango  Kiss as  dilapidated  and practically
                            

unseaworthy,  carrying little  by  way of  food or  clothing,

having sleeping quarters for only two persons and smelling of

marijuana. 

     After  the  government  rested,  the  defendants  called

Croes-Vincente,  the  captain  of  the  Jurango  Kiss.    The
                                                     

captain, virtually  conceding his  own knowledge of  the drug

smuggling  operation,  told the  jury that  his crew  was not

involved.   He testified that six of his crewmen were brought

to the vessel shortly  before it departed by "the  people who

were running the  show."   The seventh was  recruited from  a

fishing vessel that  happened to  be in the  vicinity of  the

                    

4.  One  of the crew members pleaded guilty, leaving only the
captain and the six appellants to stand trial.

                             -10-

Jurango  Kiss on the morning of  its departure.  The crew did
             

not participate in  loading the  cargo, and did  not see  the

cargo  or even go below deck until after the vessel departed.

Croes-Vincente testified that the crewmen were never told the

nature  of   the  voyage,   and  explained  that   they  were

intentionally kept in the  dark "so they cannot talk  if they

get busted."  

     Despite this testimony, the government's  evidence would

have been sufficient to  support a verdict of guilty  against

the crew  members in a trial  free from error.   A jury might

reasonably choose to  disbelieve the white-wash  testimony of

Croes-Vincente,  and infer  from the  circumstances  that the

crew  members  must have  known  of and  participated  in the

smuggling.  But  what a reasonable jury might have  done in a

trial free from  error is not  the issue.   The question,  at

least on direct appeal,  is whether the prosecutor's repeated

appeals  to  impermissible  considerations  might  well  have

altered   the   verdict,   thereby    affecting   appellants'

substantial rights.  In  this case, given the potency  of the

misstatements   and  the   presence  of   direct  exculpatory

testimony, we think that the answer is yes.

     In  arguing to  the contrary,  the government  says that

given  the  conspicuous stacks  of  bales  and the  smell  of

marijuana, anyone aboard must  have known that drug smuggling

was the task at hand.  But this evidence was  tempered by the

                             -11-

captain's testimony  that the crewmen were  hired and brought

aboard "the  moment that the boat was ready to leave" and had

no opportunity to view the cargo or inspect the ship prior to

setting sail.   The government also  stresses the jettisoning

of the cargo, but  the captain testified that he  ordered the

men  to  throw  the  bales  overboard  and  they were  merely

following his command.   In weighing the captain's testimony,

the  jury might also  have considered that  the testimony was

against the captain's own interest.5  

     On occasion, we have declined to  find plain error where

the  prosecutor's  remarks  were  provoked   by  inflammatory

arguments by defendants' own counsel.  E.g., Machor, 879 F.2d
                                                   

at  956.  By and  large, defense counsels'  arguments in this

case  were brief  and confined  to legitimate  issues in  the

case.  Defendants' counsel did intimate during trial that the

Navy  and Coast Guard intimidated  the defendants with a show

of  weaponry and military force.   While that  theme may have

justified   the  prosecutor's   defense  of   the  government

officers, it did not  warrant his repeated references  to the

war  on  drugs, corruption  of  society  and "protecting  the

youth."  See Santana-Camacho, 833  F.2d at 375 (finding plain
                            

                    

5.  By testifying  as he did the  captain certainly forfeited
the  benefit of any doubt  the jury might  have had regarding
his own participation.   The captain's sole defense  at trial
was that the  Jurango Kiss was  not a "vessel subject  to the
                          
jurisdiction  of the United  States," which is  an element of
the crime charged.  46 U.S.C. App.   1903(a).

                             -12-

error where prosecutor's remark "was not  made in response to

any improper statement made by the defense counsel").  

     The district  court here read  the standard  instruction

informing  the  jury  that   arguments  of  counsel  are  not

evidence, and we have sometimes found that instruction enough

to  counteract  any  lingering  prejudice  from  an  improper

summation.   See, e.g., Mejia-Lozano, 829 F.2d at 274.  Here,
                                    

however,  the  danger was  not so  much  that the  jury would

consider  the  prosecutor's  statements  to  be "evidence."  

Rather, the  threat was  that the prosecutor's  remarks would

excite the jury, invite a partisan response, and distract its

attention  from the  only  issue properly  presented by  this
                         

case:  whether the  evidence  established  the crew  members'

guilt beyond a reasonable doubt.

     Although the  extent of  the prejudice is  the paramount

issue, we think  it necessary to say  that the nature  of the

misconduct also plays  a part  in our judgment.   Almost  any

argument made  in summation  can be described  as deliberate;

but the several paragraphs of 150-proof rhetoric in this case

overstep the bounds by  a wide margin.  Here,  the prosecutor

was inexperienced at the  time of trial, as he  candidly told

us at oral argument, and we  do not dwell further on personal

fault.  In fact, the  unhappy outcome in this case--including

the  expense of retrial, the waste of the trial court's time,

and the burden on  the appellants--is less a reproach  to the

                             -13-

individual  assistant  U.S.   attorney  than  to  those   who

superintend young prosecutors in the district in question.

     In sum, on review of the entire record, we are convinced

that  "the  prosecutor's   misstatement[s]  [were]  no   mere

incidental  embellishment  to  an  otherwise  powerful case."

Santana-Camacho,  833  F.2d  at  374.    Here,  the case  was
               

adequate but  not overwhelming,  and the  jury may have  been

swayed by the prosecutor's  impermissible rhetoric.  There is

ample basis for the  prosecutor's view that the drug  problem

facing  this  country  is  "corrupting  and  disrupting   the

society."   But  federal  prosecuting attorneys  ought to  be

mindful of the harm done when those in power ignore the rules

governing their own conduct while demanding strict compliance

from others.  

     The convictions  are vacated and the  cases remanded for
                                                         

further proceedings.

                             -14-
