        [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]


              United States Court of Appeals
                       For the First Circuit
                      ____________________

No. 99-1560

                         UNITED STATES,

                            Appellee,

                                v.

                    MANUEL RODRIGUEZ-SANTANA,

                      Defendant, Appellant.

                      ____________________

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Daniel R. Domínguez, U.S. District Judge]

                      ____________________

                              Before

                     Torruella, Chief Judge,

                Stahl and Lynch, Circuit Judges.

                      _____________________

     Rafael F. Castro-Lang, by appointment of the Court, on brief for
appellant.
     Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant United States Attorney, Chief, Criminal Division, and Camille
Vélez-Rivé, Assistant United States Attorney, on brief for appellee.



                      ____________________

                         August 4, 2000
                      ____________________
          Per Curiam. Appellant Manuel Rodríguez-Santana was convicted

of conspiring to illegally import and possess with intent to distribute

cocaine and of illegally importing cocaine. He was sentenced to serve

360 months of imprisonment, to be followed by five years of supervised

release. Appellant claims on appeal (1) that he received ineffective

assistance of counsel; (2) that the prosecution's closing argument was

improper; and (3) that the court's instructions to the jury constitute

reversible error. None of appellant's claims has merit, and we affirm

the judgment of the district court.

I.   INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

          Appellant    argues   that   his   trial   counsel   rendered

constitutionally deficient assistance by (1) failing to join a

codefendant's successful motion for a mistrial; (2) failing to move to

strike a juror with limited English language ability; and (3) making an

improper closing argument. To succeed on his ineffective assistance of

counsel claim, appellant must demonstrate both that counsel's

performance fell below the applicable standard of reasonable

decisionmaking under the circumstances and that such substandard

performance resulted in prejudice. See United States v. Fisher, 3 F.3d

456, 463 (1st Cir. 1993). Particularly where tactical decisions are at

issue, appellant must overcome a "strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance."   Strickland v. Washington, 466 U.S. 668, 689 (1984).


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          1.   Motion for Mistrial

          On the fifth day of appellant's trial, a court security

officer informed the trial judge that he had overheard a member of the

jury remark that she recognized codefendant Modesto Molina from a

previous criminal proceeding, in which she had been a member of the

jury pool but was excused without participating in the actual trial.

The district court also learned that, when this comment was made,

another juror remarked that Molina "seemed to be in every courtroom in

the district," in apparent reference to having seen Molina's name on a

court calendar posted near the public telephones. After learning of

these remarks, the district court individually interviewed, in the

presence of counsel, each member of the jury. During these interviews,

it was established that the comments were made in reference to Molina

only, and not to appellant Rodríguez-Santana.

          Based on the jurors' remarks, Molina's counsel moved for a

mistrial, which was granted by the district court. Rodríguez-Santana's

counsel declined to join the motion, explaining to the court (1) that

he considered the comments to implicate only Molina and not his client;

(2) that his client's trial had already been delayed two years for

Molina's benefit; (3) that both he and his client were pleased with the

cross-examination of the government's main witness and otherwise felt

that the evidence was "coming in" well for appellant; and (4) that,




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based on those factors, appellant had instructed him not to join the

motion for a mistrial.

          We find counsel's decision not to join the motion for a

mistrial to fall well within the "wide range of reasonable professional

assistance." See id. It was apparent from the interviews with the

jurors that appellant was implicated only marginally, if at all, by the

grounds for the mistrial motion.        Furthermore, counsel expressed

reasonable grounds for declining to join the motion, most notably

appellant's own wishes.     See id. at 691 ("The reasonableness of

counsel's actions may be determined or substantially influenced by the

defendant's own statements or actions."). Under the circumstances, we

hold that the failure to join the motion for mistrial did not

constitute ineffective assistance of counsel.

          2.   Motion to Strike

          Appellant next contends that it was ineffective assistance

of counsel for his attorney not to move to strike a juror who

indicated, during the interviews discussed above, that although she

understood English and was fully able to understand the proceedings she

nevertheless was not comfortable speaking English.

          The qualifications for federal jury service, set forth at 28

U.S.C. § 1865, state that any person is qualified for jury service

unless, inter alia, she "is unable to speak the English language." Id.

§ 1865(b)(3); see also McDonough Power Equip. v. Greenwood, 464 U.S.


                                  -4-
548, 555 (1984) ("[T]he statutory qualifications for jurors require

only a minimal competency in the English language.") (citing 28 U.S.C.

§ 1865). When the juror at issue here indicated to the court that she

did not speak English easily,1 the district court conducted an in camera

hearing with the juror in the presence of counsel to evaluate her

proficiency in English. During that hearing, it was established (1)

that the juror had completed twenty-two credits of English courses in

connection with receiving a bachelor's degree in secretarial sciences;

(2) that she used textbooks in English; (3) that she had participated

in two previous criminal cases in federal court and was satisfied that

she could follow the case and the evidence; and (4) that she understood

the judge's questions in English during the in camera hearing, although

she responded in Spanish.     On the basis of the hearing, both the

prosecutor and appellant's trial counsel indicated that they were

satisfied with the juror's capacity to understand the case and continue

her service on the jury.

           Under the circumstances, we think that the juror's minimum

competency in the English language was sufficiently established so that

appellant's trial counsel was not unreasonable in determining not to

move to strike the juror. See Strickland, 466 U.S. at 688 ("In any

case presenting an ineffectiveness claim, the performance inquiry must



1 We note that this occurred after the juror had successfully filled
out the juror qualification form and participated in voir dire.

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be whether counsel's assistance was reasonable considering all the

circumstances."). The attorney for the United States obviously agreed

with counsel's evaluation of the juror's language skills,2 and the

district court also appears to have been satisfied with the juror's

English-language ability. See United States v. González-Soberal, 109

F.3d 64, 69 (1st Cir. 1997) ("We are hesitant to reverse the reasoned

conclusion of the trial judge on the question of a juror's ability to

understand English because the trial judge is in a much better position

to assess the language competency of a particular juror.").

Consequently, we hold counsel's decision not to constitute ineffective

assistance of counsel. See id. ("Although . . . the juror's command of

the English language was less than that of a native speaker, [it does]

not warrant the conclusion that the juror was unable to follow the

proceedings or understand the evidence and therefore do[es] not merit

reversal.").

          3.   Defense Counsel's Closing Argument

          Appellant also claims that his attorney's closing argument

constituted ineffective assistance by breaching the attorney's ethical

duty of loyalty to his client. However, the portions of the transcript

emphasized by appellant, when read in the context of the closing

argument as a whole, were not unconstitutionally deficient.

2 We note that neither prosecution nor defense could reasonably have
expected to obtain any tactical advantage from a juror with limited
English language ability.

                                 -6-
          Although appellant complains about his trial counsel's

decision to concede that the United States had proven a conspiracy,

this decision was not unreasonable under the circumstances.        See

Strickland, 466 U.S. at 688. In light of the substantial evidence of

the conspiracy, and considering the guilty pleas of twelve of the

fourteen defendants named in the indictment, defense counsel made a

reasonable tactical decision not to dispute the existence of a

conspiracy but instead to focus on the alleged lack of evidence tying

his client to that conspiracy, while also attacking the credibility of

the government's witnesses. This is a defense strategy that has been

successful in other cases, and there is nothing in this case to suggest

that defense counsel's purely tactical decision in this regard was

indicative of any disloyalty or other defect in his representation of

appellant. We therefore hold that defense counsel's closing argument

did not constitute ineffective assistance of counsel.

II.   PROSECUTION'S CLOSING ARGUMENT

          Appellant next objects to the prosecutor's statement during

closing that "The Honorable Court will also instruct you in more detail

that Manuel Rodríguez Santana participated in a conspiracy." That

statement is flatly improper. Nonetheless, it is quite clear from the

adjoining parts of the prosecution's closing argument that what the

prosecutor meant was that the district court would instruct the jury in

detail about the elements of a criminal conspiracy charge. In fact,


                                 -7-
the prosecutor himself proceeded to explain the necessary elements and

that the government bore the burden of proving them. The impropriety

of the prosecutor's isolated comment surely did not affect the outcome

of trial, and therefore does not merit reversal. See United States v.

Hughes, 211 F.3d 676, 684 (1st Cir. 2000) (applying plain error review

to prosecution's comments during closing argument where defendant did

not object at trial, and stating that "[w]e will not reverse a

conviction for plain error unless it is clear that, inter alia, the

error 'affected the outcome of the proceedings.'").

          Appellant also claims that the prosecutor improperly vouched

for the credibility of the government's cooperating witnesses when he

told the jury that the United States "depends on persons like them to

come forward and provide the details of how Manual Rodríguez Santana

was involved in the conspiracy," and also when he reminded the jury

that a cooperating witness had pled guilty. See United States v.

Rosario-Díaz, 202 F.3d 54, 65 (1st Cir. 2000) ("[P]rosecutors may not

place the prestige of the United States behind a witness by making

personal assurances about the credibility of a witness or by indicating

that facts not before the jury support the witness's testimony.").

          First, we do not find reversible error in the prosecutor's

statement that the government depends upon cooperating witnesses in its

investigations and prosecutions of criminal defendants. Such statement

is certainly true, and more important it does not suggest that such


                                 -8-
cooperating witnesses are reliable or credible. Particularly in light

of the clear jury instructions given by the court advising the jury to

use caution when evaluating the testimony of cooperating witnesses, the

prosecutor's statement was very unlikely to affect the outcome of the

proceedings and therefore does not warrant reversal. See Hughes, 211

F.2d at 684.

          Second, the prosecutor's reminder that a cooperating witness

had pled guilty in the case was accurately based in the record and made

no assurance as to the credibility of the witnesses's testimony. Under

the circumstances, we hold that this statement did not constitute

improper vouching.

III.   JURY INSTRUCTIONS

          Finally, appellant challenges two aspects of the jury

instructions given by the district court. First, appellant contends

that the court erred when it instructed the jury that "[i]t is only

required that the government's proof exclude any reasonable doubt

concerning the defendant's guilt." This statement by the district

court came at the end of a thorough and correct articulation of the

prosecution's burden of proving guilt beyond a reasonable doubt. The

instruction explicitly stated that the defendant need not prove his

innocence nor even produce any evidence at all, and also emphasized the

"strict and heavy" nature of the government's burden. Taken in the

context of the complete jury instruction on burden of proof, the


                                 -9-
court's reference to the "exclusion" of reasonable doubt was not

misleading and by no means constitutes reversible error. Cf. United

States v. Rodríguez-Cardona, 924 F.2d 1148, 1159-60 (1st Cir. 1991)

(upholding nearly identical instruction, without discussion of the

"exclude" language).

          Second, appellant complains of the district court's

instruction that "[t]he fact that an accomplice has entered a plea of

guilty to the offense charged is not evidence in and of itself, of the

guilt of the other person." In United States v. González-González, 136

F.3d 6, 10-11 (1st Cir. 1998), we discouraged the use of "in and of

itself" language in reference to the guilty plea of an accomplice, and

we repeat today that the district courts should not use such language.

However, because the court's instructions in González-González, taken

as a whole, unequivocally told the jury not to consider an accomplice's

guilty plea as evidence of the defendant's guilt, we held that a new

trial was not warranted.     See id. at 11.

          The district court in this case failed to give the kind of

emphatic clarifying instructions present in González-González.

However, we nevertheless find that the erroneous "in and of itself"

instruction was harmless error under these particular circumstances.

The jury instructions as a whole made clear to the jury that they

should find appellant guilty only if the prosecution had proven his

guilt beyond a reasonable doubt, including all of the elements of the


                                 -10-
crimes and including in particular proof of appellant's individual

participation in the conspiracy and substantive offense. Given the

substantial evidence submitted to the jury of appellant's guilt, we

cannot conclude that the court's ambiguous instruction as to the

probative value of an accomplice's guilty plea would have affected the

jury's verdict.    The error, therefore, does not require reversal.

IV.   CONCLUSION

          For the reasons set forth above, we affirm the judgment of

the district court.

          Affirmed.




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