          United States Court of Appeals
                    For the First Circuit


No. 99-1805

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                    HANSON WILSON MILLAN,

                    Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

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


                            Before

                    Torruella, Chief Judge,
                Coffin, Senior Circuit Judge,
                  and Boudin, Circuit Judge.



     Rafael F. Castro Lang, by Appointment of the Court, for
appellant.
     Antonio R. Bazan, Assistant U.S. Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant U.S. Attorney, and Camille Velez-Rive, Assistant U.S.
Attorney, were on brief for the appellee.




                       October 27, 2000
            COFFIN,   Senior Circuit Judge.      Defendant-appellant

Hanson Wilson Millan appeals from convictions for carjacking

that resulted in death, in violation of 18 U.S.C. § 2119(3), and

for using a firearm during the commission of the offense, in

violation of 18 U.S.C. § 924(c).         Appellant claims error in

several evidentiary rulings at trial and contends that the

prosecutor made improper remarks during his closing argument.

We affirm.

I.   BACKGROUND

            The facts as the jury could have found them are as

follows.     In the wee hours of April 5, 1996, appellant was

riding in a red Mitsubishi driven by Jose Otero Mendez in

Carolina, Puerto Rico.         Also along for the ride were Javier

Betancourt, his girlfriend, Jomary Aleman Gonzalez, and Geovani

Castro Ayala.     When a white Nissan with alloy wheels passed by,

Otero followed it, intending to swipe the coveted wheels.         The

Nissan     was   driven   by   Juan   Manuel   Gonzalez   Encarnacion

("Gonzalez"), an off-duty police officer who was on his way to

his girlfriend's house.

            As Gonzalez parked on the street in front of the house,

Otero pulled up alongside.      Appellant and Betancourt, each armed

with handguns, got out and approached Gonzalez' car.       Shots were




                                   -3-
fired.     Both Gonzalez and Betancourt were hit and died as a

result of their injuries.

            At trial it was unclear who fired first.                    There was

testimony of an initial exchange of bullets between Betancourt

and Gonzalez through the driver's side window of Gonzalez' car.

Appellant testified that upon hearing gunshots, he fired through

the rear window at Gonzalez, who, according to autopsy reports,

died instantly.

            Betancourt, who had been shot in the abdomen, was

assisted    into   Otero's   car   and      dropped    off   at   the    Carolina

hospital along with Aleman and Castro.              At the hospital, Aleman

and   Castro,     both   juveniles,   lied     to     authorities     about   how

Betancourt was shot, in an attempt to cover up the crime.                    After

Betancourt died, Aleman and Castro told police what actually

happened,    and    both    subsequently       pleaded       guilty     to   their

accessory roles in the offense and agreed to cooperate and

testify.    Appellant and Otero were indicted together, but their

cases were severed before trial. Appellant was found guilty and

sentenced    to    imprisonment    for      life.   Pertinent     portions     of

appellant's trial will be recounted in context as part of our

analysis of his arguments on appeal.

            Appellant asserts three claims of error.                    First, he

argues that the court erred in refusing to admit a portion of


                                      -4-
the government's written version of facts that was attached to

Aleman's plea agreement, which, he contends, would have shown

that Gonzalez fired first.           Second, appellant claims that the

court   erred   in   refusing   to    permit   hearsay   testimony   about

illegal firearms dealing involving Gonzalez, which would have

helped refute the government's theory that the shooting occurred

during a carjacking.      Third, appellant takes exception to the

prosecutor's remarks during closing argument.            We address each

of these arguments in turn.




                                     -5-
II.     ANALYSIS

        A.     Refusal to Admit Excerpt from Version of Facts

               Appended to Aleman's plea agreement was a three-page

statement of facts drafted by the government and signed by the

prosecutor and Aleman.           During Aleman's direct testimony at

trial, the government sought to introduce the plea agreement

along with the version of facts, but defense counsel objected.

At a bench conference, counsel stated that he had no objection

to the plea agreement, only to the version of facts.                      The

prosecutor agreed to excise the version of facts and the plea

agreement was admitted by itself.

               At the close of the defendant's case, his attorney

attempted to reintroduce a portion of the version of facts he

had successfully barred earlier.            He argued that this part of

the   version      of   facts   clarified   who   fired    first,   an   issue

disputed at trial.          After a lengthy sidebar conference, the

court was persuaded to allow counsel to introduce the version of

facts notwithstanding his earlier objection, but ruled that the

whole version had to come in, not just the excerpt favorable to

his position.       In its consideration of the issue, the district

court        apparently   viewed    the     government's     four-paragraph

narrative as an integrated whole, the piecemeal introduction of

which would have unfairly distorted the government's version of


                                     -6-
events.        Counsel declined the invitation to admit the entire

version and now claims error in that ruling.

               Under the doctrine of completeness codified in Federal

Rule of Evidence 1061, a party wishing to introduce only a

portion of a recorded statement may be precluded from doing so

where     partial      disclosure   out       of   context   would    result    in

unfairness to the other party.             See United States v. Awon, 135

F.3d 96, 101 (1st Cir. 1998) ("The doctrine of completeness . .

.   operates     to    ensure   fairness      where   a   misunderstanding     or

distortion created by the other party can only be averted by the

introduction of the full text of the out-of-court statement.").

The rule permits "a party against whom a fragmentary statement

is introduced [to] demand that the rest of the statement (or so

much thereof as is appropriate) be admitted into evidence in

order     to   place    the   excerpt   in     context."     United   States    v.

Houlihan, 92 F.3d 1271, 1283 (1st Cir. 1996).                   We review Rule

106 completeness determinations for abuse of discretion.                       See

United States v. Thuna, 786 F.2d 437, 441 n.7 (1st Cir. 1986)

("application of rule 106 is left to the sound discretion of the

district court"); United States v. Conley, 186 F.3d 7, 22 (1st


      1   "When a writing or        recorded statement or part thereof
is introduced by a party,           an adverse party may require the
introduction at that time of        any other part or any other writing
or recorded statement which         ought in fairness to be considered
contemporaneously with it."          Fed. R. Evid. 106.

                                        -7-
Cir. 1999) ("In making determinations as to the completeness of

proffered statements, the district court's judgment is entitled

to great respect."); accord Houlihan, 92 F.3d at 1283.

           After reviewing the version of facts, we find no abuse

of discretion in the court's refusal to admit less than the

whole document.    "[T]he threshold question under Rule 106 is

always one of defining the entirety: that is, if Rule 106

applies, what is it that must be complete?"          United States v.

Boylan, 898 F.2d 230, 256 (1st Cir. 1990).          Here, the entirety

is easily defined as the government's version of facts.             That

document   bore   its   own   caption   and   was   signed   and   dated

separately from the plea agreement to which it was appended.

Early on in the trial, the parties implicitly agreed that the

version stood on its own when it was excised from the plea

agreement introduced into evidence by the government.

           Having determined the version of facts document to be

"a reasonable unit of wholeness," we next consider whether the

excerpt would "neglect[] some revealing context of the whole."

Id. at 257. Although appellant did not indicate on the record

which portion he wanted admitted, he points us in his brief to

three sentences that, he argues, would have been helpful to his

case:

           As Javier Betancourt approached the driver's
           side of the automobile that they intended to

                              -8-
             carjack, its driver, Juan M. Gonzalez
             Encarnacion, an off duty state policeman,
             fired his revolver at him. Betancourt was
             hit in the stomach area but still managed to
             fire   several  shots   that  hit   Gonzalez
             Encarnacion.     Meanwhile, Hanson Wilson
             Millan fired several shots at Gonzalez
             through the rear window of the car.

This excerpt, plucked mid-paragraph, tells only part of the

story portrayed in the government's version of facts.                          That

document     also    describes,    in   the     government's    voice,      events

leading up to the shooting, including a passage just prior to

the excerpt stating that appellant and Betancourt "dismounted

the   car    with    firearms     in    their    hands."       That    appellant

approached Gonzalez' car with revolver at the ready bears on the

possibility that appellant fired his shots before, or at the

same time as, Gonzalez did.              Shorn from the context of the

entire narrative, the excerpt may have distorted the jury's

perception     of    the   government's       written     version     of   events.

Requiring admission of the entire document was therefore within

the district court's discretion.

             Furthermore, any error in refusing to admit the excerpt

was harmless.       Even if the excerpt had been admitted, it would

not   have    been     particularly      helpful     to    appellant's        case.

Contrary     to     appellant's    assertion,       the    excerpt     does     not

unequivocally settle the issue of who shot first.                     Though the

narrative order of the quoted language may suggest that Gonzalez

                                        -9-
fired first, the statement, "[m]eanwhile, [appellant] fired

several shots at Gonzalez," could mean that appellant was the

first to fire.

           The excerpt was also cumulative of appellant's trial

testimony.   On the stand, appellant admitted to firing several

times into the back of Gonzalez' car after seeing Betancourt get

hit.   He testified that he did not start shooting until after

Betancourt had started and that Betancourt returned fire only

after being shot.    Although the selected excerpt may have on

balance corroborated appellant's testimony, excluding it did not

preclude appellant from presenting his theory of the case.

           Nevertheless, even if the jury had been permitted to

consider the excerpt from the government's version of facts and,

in combination with appellant's testimony, drew the inference

that appellant did not initiate gunfire, it is unclear how that

fact might have tended to exonerate him.      Establishing that

Gonzalez fired first, or even that appellant did not fire first,

would have done little to undermine the mens rea element of the

offense.   The carjacking statute attaches criminal liability to

anyone who, with the intent to cause death or serious bodily

harm, attempts to take a motor vehicle by force or intimidation.




                              -10-
18 U.S.C. § 2119 (1994).2     Violations of the carjacking statute

do not turn on who initiated the altercation.         See Holloway v.

United States, 526 U.S. 1, 11-12 (1999) (holding that mens rea

element of § 2119 is satisfied by conditional intent to cause

death or serious bodily harm if necessary to hijack the car);

see also United States v. Gandia-Maysonet, No. 98-1144, 2000 WL

1273845, at *3 (1st Cir. Sept. 13, 2000).

         The district court determined that fairness to the

government required the admission of the whole version of facts.

On this record, we are not prepared to hold that determination

a harmful abuse of discretion.

    B.   Refusal to Admit Testimony of Illegal Firearms Dealing

         Appellant's second claim of error is that the court

wrongfully   refused   to   admit   testimony   of   illegal   firearms

dealing involving Betancourt and Gonzalez.       At trial, appellant

attempted to show that the shooting did not occur during a

carjacking, but was motivated by a dispute over money owed by



    2    Section 2119 states, in pertinent part:
    Whoever, with the intent to cause death or serious
    bodily harm [,] takes a motor vehicle that has been
    transported, shipped, or received in interstate or
    foreign commerce from the person or presence of
    another by force and violence or by intimidation, or
    attempts to do so, shall . . .
      (3) if death results, be fined under this title or
    imprisoned for any number of years up to life, or
    both, or sentenced to death.

                                -11-
Gonzalez      to     Betancourt   as     part    of     their     gun     dealing.

Appellant's attempts to present this alternate theory to the

jury were thwarted by two of the court's evidentiary rulings.

The   first        occurred   when,     during    the      defendant's      direct

testimony, a hearsay objection was sustained that prevented

appellant from testifying to the substance of a conversation he

heard between Betancourt and Gonzalez about trading illicit

firearms.     The second ruling barred Otero from testifying that

he fled from police because he feared reprisal for knowing that

Gonzalez -- a police officer -- was engaged in illicit activity.

We review these evidentiary rulings for abuse of discretion.

See United States v. Mojica-Baez, Nos. 98-2349 to 2353, 2000 WL

1211013, at *5 (1st Cir. Aug. 30, 2000).

             1.       Appellant's         Proffered          Testimony         Was

                      Inadmissible.

             Appellant testified on direct examination that he first

met   Gonzalez       in   mid-March    1996    when   he    was   driving     with

Betancourt and they pulled up next to Gonzalez' car in the

parking lot of a Burger King.           As appellant began to relate what

was   said    between      Betancourt    and     Gonzalez,      the     government

objected strenuously, arguing that the admission of the hearsay

statements would be particularly unfair because both declarants

were dead.


                                       -12-
            At sidebar, counsel proffered that the conversation was

about weapons, but that he was not offering it for the truth of

the matter asserted.       The testimony was admissible, he argued,

to   show   defendant's        awareness     of    firearms      dealing.   He

apparently wanted to bolster appellant's later testimony that

his understanding of the purpose of the fatal confrontation with

Gonzalez was to collect a debt.             However, there was no proffer

that the excluded conversation shed any light on the financial

dealings of Betancourt and Gonzalez.

            At the conclusion of the colloquy on this point, the

court gave counsel the opportunity to identify another basis for

admission, which we discuss below.                Assuming the earlier non-

hearsay argument was preserved, we have no difficulty in holding

harmless    any   error   in    refusing     to    admit   the   conversation.

Appellant was permitted to testify later as to his state of

mind, and the proffered conversation lacking specifics would not

have added significantly to appellant's case.

            Once it became clear that appellant was not going to

prevail on his non-hearsay argument, defense counsel proposed to

have the firearms statements admitted under Federal Rule of

Evidence 804(b)(3)3, which permits the introduction of hearsay


     3    The rule defines "statement against interest" in part
as "[a] statement which . . . at the time of its making . . . so
far tended to subject the declarant to civil or criminal

                                     -13-
testimony where a declarant unavailable to testify had exposed

himself to criminal liability in the out-of-court statement.

See Williamson v. United States, 512 U.S. 594, 599 (1994) ("Rule

804(b)(3) is founded on the commonsense notion that reasonable

people, even reasonable people who are not especially honest,

tend not to make self-inculpatory statements unless they believe

them to be true.").     Whenever offered to exculpate the accused,

such    statements   must   be   corroborated       to   "clearly    indicate

the[ir] trustworthiness."         Fed. R. Evid. 804(b)(3); see also

United States v. Mackey, 117 F.3d 24, 29 (1st Cir. 1997) ("the

requirement for corroboration is not unrealistically severe but

does go beyond minimal corroboration") (internal quotation marks

omitted).    District   courts        have   "'a   substantial     degree   of

discretion'" in determining whether a hearsay statement against

penal    interest    offered     to    acquit      the   accused    has   been

sufficiently corroborated to be admissible.              Mackey, 117 F.3d at

29 (quoting United States v. Barrett, 539 F.2d 244, 253 (1st

Cir. 1976)).




liability . . . that a reasonable person in the declarant's
position would not have made the statement unless believing it
to be true.   A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate
the trustworthiness of the statement." Fed. R. Evid. 804(b)(3).

                                      -14-
            The district court apparently assumed without deciding

that the statements of Betancourt and Gonzalez were against

their    respective       penal     interests,           but    ruled    appellant's

testimony     about    the       conversation       inadmissible        because      its

trustworthiness had not been sufficiently corroborated.                         We find

no error with this ruling.

            The    only    corroborative         evidence        offered       was   the

testimony     of     appellant's        cousins,         Margarita      and     Jessica

Esquilin, who reported an occasion, prior to the carjacking,

when they observed appellant and Betancourt follow a white car

after being paged and then return irked because they had been

shortchanged money. Appellant argues that the court should have

inferred that it was Gonzalez who paged them, that the white car

was Gonzalez' and that their vexation over the money had to do

with illegal firearms.            We agree with the district court that

these    inferences       were    too   remote      to    corroborate         Gonzalez'

hearsay statement.          The Esquilins' testimony lacks sufficient

detail   to   lend    much       assistance    to    the       reliability      of   the

Gonzalez-Betancourt conversation.                Because appellant sought to

testify to the substance of that conversation and because that

substance could not be adequately corroborated, appellant's

proffered testimony about illegal firearms dealing was properly

excluded as inadmissible hearsay.


                                        -15-
           2.          Otero's    Testimony    Was   Also     Inadmissible

                       Hearsay.

           Before appellant took the stand, his attorney tried to

elicit   the    same    information    about   Gonzalez'    involvement    in

firearms dealing from Otero, the co-defendant whose case was

severed before trial.        On redirect examination, Otero testified

that, after driving the wounded Betancourt to the hospital and

dropping off the other passengers, he proceeded to a friend's

house, where the police caught up with him.                  Observing the

officers checking out his vehicle, Otero fled on foot.             Counsel

asked Otero whether, at the time the police were looking at his

car, he knew Gonzalez was involved in anything illegal.                   The

government objected, claiming the question was beyond the scope

of its cross examination.         The court sustained the objection.4

           At sidebar, counsel argued for admitting the statement

to show Otero's state of mind: he fled fearing retribution from

the police because he was aware Gonzalez was a crooked cop.


    4     The Rules of Evidence do not explicitly address the
scope of redirect, but state only that cross examination should
be limited to the scope of direct. See Fed. R. Evid. 611(b).
We have recognized the Eighth Circuit's rule granting trial
courts discretion to limit redirect examination to the scope of
cross. See United States v. Catano, 65 F.3d 219, 226 (1st Cir.
1995) (citing United States v. Braidlow, 806 F.2d 781, 783 (8th
Cir. 1986)).   We need not further address that issue today,
however, because the district court ruled in the alternative
that the proffered statement was hearsay, and we deem this
alternative ruling correct.

                                      -16-
Otero    had    testified     earlier    that   he   knew    of     Gonzalez   from

Betancourt       prior   to    the   carjacking,       but    had    no    personal

knowledge of a debt owed by Gonzalez purportedly due to dealings

in illegal firearms.          The court sustained the objection, ruling

that the question called for inadmissible hearsay.                      This ruling

seems entirely proper.          The fact of any illicit activity on the

part of Gonzalez could not be proven through the back door, so

to speak, by the state of Otero's mind, which was irrelevant to

appellant's case.

        C.     Prosecutor's Closing

               Appellant's third claim of error is that, during his

closing argument, the prosecutor improperly vouched for the

credibility of a government witness and made derogatory remarks

about    defense     witnesses.         Because      none    of   the     offensive

statements were objected to, our review is for plain error.

Fed. R. Crim. P. 52(b); United States v. Verrecchia, 196 F.3d

294, 302 (1st Cir. 1999).5

               During his closing argument, the prosecutor referred

to Aleman's plea agreement, in which she had pledged to testify

honestly, suggesting that Aleman had no incentive to lie and had



    5     The one comment to which an objection was made -- "the
penalties at the federal level are a lot stiffer than at the
local level" -- was ameliorated by a limiting instruction, which
rendered any error harmless. See Fed. R. Crim. P. 52(a).

                                        -17-
indeed testified truthfully.6               Because the verdict in this case

turned, in part, on Aleman's credibility, appellant argues that

the prosecution's assurance about her testimony was plain error.

                Although a "prosecutor may not place the prestige of

the government behind a witness by making personal assurances

about the witness's credibility," United States v. Bey, 188 F.3d

1, 7 (1st Cir. 1999), "an argument that does no more than assert

reasons why a witness ought to be accepted as truthful by the

jury       is   not   improper    witness     vouching."       United   States    v.

Rodriguez,        215   F.3d     110,   123   (1st   Cir.     2000).    Here,    the

prosecutor        simply   pointed      out   a   fact   in    evidence   --    that

Aleman's plea agreement required her to testify candidly -- and

asserted that she had upheld her end of the bargain by doing so.

This was not error.              See Bey, 188 F.3d at 7 ("[A] prosecutor

properly may admit a witness's plea agreement into evidence,

discuss the details of the plea during closing arguments, and

comment upon a witness's incentive to testify truthfully.")

(citing United States v. Dockray, 943 F.2d 152, 156 (1st Cir.

1991)).



       6  The specific passage to which appellant takes exception
reads: "I submit to you she is testifying, she has a plea
agreement, she has kept that plea agreement. . . . She has a
plea agreement to testify truthfully. . . . I submit to you,
ladies and gentlemen of the jury, you can consider the fact,
consider the fact that she has indeed testified truthfully."

                                         -18-
             Appellant enumerates several derogatory comments as

improperly discrediting himself and other defense witnesses.

These remarks generally suggest that appellant concocted the

story about Gonzalez' involvement in selling illegal weapons to

paint the shooting as precipitated by a dispute over a debt, not

a    carjacking.         For   example,   in    reference   to   appellant's

testimony, the prosecutor told the jury: "you do not have to

believe that which nobody else will believe"; "[y]ou have a

right not to have anyone insult your intelligence"; "you cannot

cover the sky with your hands . . . . [Appellant] has had

approximately two and a half years [in pretrial detention] to

come up with this story." Referring to Gonzalez and Betancourt,

the prosecutor remarked, "Dead men don't come to testify in

court.    So now it's very easy to try to put words in the mouths

of dead people and build a story around these two individuals."

And in reference to appellant's cousins, he said, "the testimony

of    both   of    the    Esquilin    sisters      are   [sic]   part   of   a

fabrication."      We have considered each of these remarks and find

no one particularly egregious; nor do they rise to the level of

plain error in the aggregate because they did not "affect[] the

outcome of the proceedings."          United States v. Hughes, 211 F.3d

676, 684 (1st Cir. 2000) (citing               United States v. Olano, 507

U.S. 725, 734 (1993)).


                                     -19-
For the foregoing reasons, the conviction is affirmed.




                    -20-
