  February 23, 1993
                    UNITED STATES COURT OF APPEALS
                        FOR THE FIRST CIRCUIT

                                             

No. 91-2079
                      UNITED STATES OF AMERICA,

                              Appellee,
                                  v.

                    ANGEL LUIS MORALES-CARTAGENA,
                        Defendant, Appellant.

                                             
No. 91-2080

                      UNITED STATES OF AMERICA,
                              Appellee,

                                  v.
                       WILFREDO ALVARADO-ORTIZ,

                        Defendant, Appellant.
                                             

            APPEALS FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF PUERTO RICO

            [Hon. Jose Antonio Fuste, U.S. District Judge]                                                                 
                                             

                                Before
                       Torruella, Circuit Judge,                                                       

                   Campbell, Senior Circuit Judge,                                                         
                      and Stahl, Circuit Judge.                                                      

                                             

    Javier  A.  Morales  Ramos  and  Jeffrey  M.  Williams  with  whom                                                                  
Indiano, Williams &amp; Weinstein-Bacal was on brief for appellants.                                           
    Jeanette  Mercado-Rios,  Assistant United  States  Attorney,  with                                  
whom  Daniel F. Lopez-Romo, United States Attorney, and Jose A. Quiles                                                                              
Espinosa were on brief for the United States.                

                                             

                          February 23, 1993
                                             

         CAMPBELL,   Senior  Circuit   Judge.    Angel   Luis  Morales                                                    

Cartagena  and Wilfredo Alvarado  Ortiz were convicted  along with co-

defendants Luis Alfredo  Alvarado and Juan Eugenio  Lorenzi Padilla of

aiding  and  abetting  in  the  unlawful  possession  with  intent  to

distribute  approximately 267  kilograms  of cocaine  aboard a  United

States vessel, 46  U.S.C.   1903(c)(1)(D) and (f), 18  U.S.C.   2, and

aiding and abetting  in the  importation of cocaine  into the  customs

territory of the United States, 21 U.S.C.   952(a), 18 U.S.C.   2.  On

appeal, Morales  and Alvarado  ask us  to  reverse their  convictions,

alleging an  insufficiency of evidence,  erroneous jury  instructions,

and prosecutorial misconduct.  We affirm the convictions.

                                  I.                                          I.

         A. Sufficiency of the Evidence                                               

         Appellants assert that as there was insufficient evidence  of

criminal  intent, the  district  court erroneously  denied their  Rule

29(a) motions  for judgment  of acquittal.    In reviewing  a properly

preserved Rule 29 motion,  we examine the evidence and  all legitimate

inferences  therefrom in the light most favorable to the government to

determine  whether a  rational jury  could have  found guilt  beyond a

reasonable  doubt.  E.g.,  United States v.  Gonzalez-Torres, 980 F.2d                                                                    

788, 790  (1st Cir. 1992);  United States v.  Clotida, 892 F.2d  1098,                                                             

1103 (1st Cir. 1989).  

         The government  argues that appellants  waived their Rule  29

motions  by presenting  evidence  after the  government concluded  its

case-in-chief and by failing to renew the motions at the  close of the

                                 -2-

evidence.   Were this so, our  review would be for  plain error only.1

E.g.,  United States v. Alfredo Alvarado, Nos. 91-2075, 2076, slip op.                                                

at 6 (1st Cir. Dec. 31,  1992); United States v. Arango-Echeberry, 927                                                                         

F.2d 35, 37 (1st  Cir. 1991); Clotida, 892 F.2d at 1103.   However, we                                             

need not decide whether appellants waived their Rule 29 motions.  Even

assuming they did not, the evidence was sufficient for a rational jury

to find that appellants were guilty beyond a reasonable doubt.

         Appellants urge  that  "mere presence"  at the  scene is  not

enough to convict a defendant of aiding and abetting in the commission

of a  crime.   E.g.,  Clotida, 892  F.2d  at 1104.    They assert  the                                     

evidence merely showed that they  were present on a vessel in  an area

of the open  sea where an  air drop  of bales of  cocaine took  place.

They  analogize their conviction to  that of innocent  crew members on

board a sailboat  taking part  in the Grand  Regatta Columbus2  solely

because  crew members in another  sailboat in the  regatta committed a

crime.  Appellants' analogy does not wash.  

                                                

1.    We upheld the convictions of co-defendants Luis Alfredo Alvarado
and  Juan  Eugenio   Lorenzi  Padilla  against  a   challenge  to  the
sufficiency  of  the evidence  under the  plain  error standard.   See                                                                              
United States v. Alfredo Alvarado, Nos. 91-2075, 2076, slip op. at 5-7                                         
(1st  Cir. Dec. 31, 1992).   The opinion in that  case contains a more
exhaustive  account than  we provide  here of  the relevant  facts and
circumstances surrounding the convictions  of appellants and their co-
defendants.

2.      The Grand  Regatta Columbus  was  a celebration  of  the 500th
anniversary of  Columbus' discovery  of America  in which  hundreds of
vessels  from dozens of  nations took part  in a  five-month race from
Europe to America and  back in the  spring and summer  of 1992.   M.E.
Malone,  CADIZ  to Boston;  Grand  regatta  pays  homage to  Columbus'                                                                              
voyage, Boston Globe, July 5, 1992.              

                                 -3-

         Rather  than  being aboard  only one  of hundreds  of vessels

taking part in a regatta,  appellants were in one of two  vessels over

which a suspect  aircraft was seen to hover.   Flying at night without

lights and with no flight plan, the aircraft made tight  circles about

300  to  500 feet  above the  two vessels.    A Customs  Service pilot

following the suspect aircraft testified to having seen  moving lights

from the  vessels.  From this  a reasonable jury could  infer that the

vessels wished to be visible  to the aircraft.  Bales of  cocaine were

dropped in proximity to the vessels from the aircraft, after which the

vessels began heading  north towards the  shore with their  navigation

lights turned  off.  At  first the  two boats traveled  together at  a

distance of about  100 yards.  After the second vessel veered off in a

westerly direction, a  police helicopter was  directed over the  first

vessel,  occupied by  the  appellants.   The  helicopter was  lit  and

identified  as a police helicopter  by the letters  "FURA," which were

twelve  to  sixteen  inches  long.    A  police  sergeant  aboard  the

helicopter  gestured for appellants  to stop.   Appellants  looked up,

reduced  speed, and  then accelerated.   When  a police  marine vessel

subsequently approached,  appellants' vessel  veered off in  order, it

might  be  inferred,  to get  away.    While  other explanations  were

offered,  a jury  could  reasonably conclude  from  this conduct  that

appellants were  conscious of having engaged in  criminal activity and

were  more than mere inadvertent bystanders  at the drug drop.  United                                                                              

States v.  Lopez, 944 F.2d  33, 40 (1st  Cir. 1991); United  States v.                                                                           

Hernandez-Bermudez,  857 F.2d 50, 54 (1st Cir. 1988); United States v.                                                                           

                                 -4-

Flores Perez, 849 F.2d 1, 3 (1st Cir. 1988); United States v. Alvarez,                                                                             

626 F.2d 208, 210 (1st Cir. 1980).

         The fishing  gear found  aboard both vessels  was wrapped  up

and  not prepared for fishing.   No bait or fish  were found on either

vessel.   No  fishing nets were  found in  the area.   As  fishing was

apparently not their purpose, the jury could infer that appellants had

another purpose for  their nighttime sojourn on the  sea.  Although no

cocaine  was found aboard  appellants' vessel,  four bales  of cocaine

were discovered on the companion vessel.  A connection between the two

vessels  was suggested not only by their proximity when first seen but

by  evidence that appellant Wilfredo Alvarado Ortiz was related to co-

defendant  Luis Alfredo  Alvarado.   "While innocent  association with

those involved in illegal activities can never form the sole basis for

a conviction, . . .  the existence of  a close relationship  between a

defendant and  others involved in criminal activity  can, as part of a

larger  package  of  proof,  assist  in  supporting  an  inference  of

involvement  in illicit activity."   United States v.  Ortiz, 966 F.2d                                                                    

707, 713  (1st Cir. 1992) (citing  Nye &amp; Nissen v.  United States, 336                                                                         

U.S. 613, 619 (1949)), cert. denied, 61 U.S.L.W. 3479 (1993).                                            

         Criminal   intent   may,  of   course,   be   inferred   from

circumstantial evidence.  E.g., United States v. Gomez-Villamizar, No.                                                                         

92-1228, slip op.  at 9 (1st Cir. Dec.  23, 1992); Ortiz, 966  F.2d at                                                                

711; United States v. Rodriguez- Alvarado, 952 F.2d 586, 590 (1st Cir.                                                 

1991).   Here, numerous factors, including  the unlighted, clandestine

airplane  maneuvering over the two  boats, the lights  on the vessels,

                                 -5-

their proximity to the cocaine when dropped, the fact that appellants'

vessel was running without navigational lights, the finding of cocaine

bales on the companion vessel, and the lack of support for their being

engaged  in fishing  or  some other  innocent occupation,  constituted

substantial evidence  from which  a jury  could infer  that appellants

possessed  the requisite criminal intent.   See Alfredo Alvarado, Nos.                                                                        

2075, 2076, slip op. at 6-7 (1st Cir. Dec. 31, 1992).

         B. Jury Instructions                                     

         Appellants contend  that the district court's instructions to

the  jury  were  erroneous,  misleading,  and  created   impermissible

mandatory presumptions of  guilt.  Pointing to isolated  excerpts from

assorted instructions  regarding intent to distribute, possession, and

aiding  and abetting, appellants complain that the jury was allowed to

convict appellants  for merely being  present at  the scene of  a drug

drop.  

         We review  a  district court's  charge  as  a whole,  not  in

isolated excerpts.   E.g., United States v.  Hallock, 941 F.2d 36,  42                                                            

(1st  Cir. 1991);  United States  v.  Boylan, 898  F.2d 230,  244 (1st                                                    

Cir.), cert. denied, 111  S. Ct. 139 (1990); United States v. Cintolo,                                                                             

818  F.2d 980, 1003  (1st Cir.),  cert. denied,  484 U.S.  913 (1987).                                                      

Viewing the charge  in this manner, appellants'  arguments have little

force.    For  example,  appellants  object  to  the  district court's

definition  of possession  with intent  to distribute.   The  district

court  defined this element as  possessing "with intent  to deliver or

transfer  possession of a controlled  substance to another person with                                                                              

                                 -6-

or without any financial interest in the transaction."  We see nothing                                                            

wrong  in this.  See Pattern Jury Instructions (Criminal Cases), Fifth                            

Circuit, Instruction  45, at  III-73 (1991); Federal  Judicial Center,

Pattern Criminal  Jury Instructions  (1987), Instruction 112,  at 147.

Appellants contend that the instruction would permit a jury to convict

appellants  and  their co-defendants  for  delivering  cocaine to  the

police.   This argument, however,  ignores the fact  that the district

court  clearly  and correctly  defined  the  elements of  willfulness,

intent, and knowledge elsewhere in the charge.  Considering the charge

as  a whole,  we find  nothing that  would cause  the jury  to convict

appellants without finding the requisite criminal intent. 

         Appellants  make  a  similar  argument  as  to  the  district

court's  definition   of  constructive   possession.     According  to

appellants,  the  definition  was   misleading  because  the  required

intentional  aspects  were  only  vaguely   and  ambiguously  defined.

Because  appellants failed  to make  this objection  to the  charge at

trial, we  will reverse only upon  a showing of "plain  error."  E.g.,                                                                             

United States v. De La Cruz, 902 F.2d 121, 122 (1st Cir. 1990); United                                                                              

States v. Nazzaro, 889 F.2d 1158, 1166 (1st Cir. 1989);  Fed. R. Crim.                         

P.  30.  Appellants  have not shown  plain error.   The district court

defined constructive  possession as "knowingly [having]  the power and                                                      

the intention, at a given time, to exercise dominion or control over a                     

thing,  either directly or through  another person or  persons."  This

definition,  which  clearly required  both  knowledge  and intent,  is

similar to one we have approved in the past.  See, e.g., United States                                                                              

                                 -7-

v. Garcia, Nos. 92-1427, 1428, slip op. at 6 (1st  Cir. Feb. 4, 1993);                 

United States v. Akinola, No. 92-1587, slip op. at 9 (1st Cir. Feb. 2,                                

1993); United States v.  Ocampo-Guarin, 968 F.2d 1406, 1409  (1st Cir.                                              

1992).   Moreover, as already  noted, the district  court elsewhere in

its  charge made  clear that,  to convict  appellants of  the offenses

charged,  the  jury  had  to  find  that  appellants acted  knowingly,

intentionally,  and  willfully.     See  Hallock,   941  F.2d  at   42                                                        

(constructive possession instruction without any  mention of knowledge

or intent  is  not plain  error if  knowledge and  intent are  defined

elsewhere in jury instructions).  We see no instructional error, plain

or  otherwise,  that could  have  confused  the  jury into  convicting

appellants without finding the requisite criminal intent.

         Appellants  additionally contend  that  the  district court's

opening remarks  to the  jury on  the concept  of aiding  and abetting

created an impermissible mandatory presumption.  During these remarks,

the district court stated  that "[a]iding and abetting means  when two

or more persons assist each other, basically,  in the commission of an

offense,  . .  . all of  them are  presumed to be  responsible for the

whole  acts committed together."  This statement, while not a complete

explanation  of the concept  of aiding and abetting,  did not create a

mandatory  presumption of guilt.   Instead, it merely  explained, in a

preliminary fashion, that  aiding and abetting is a form  of agency in

which  the law holds a  defendant criminally responsible  for the acts

and conduct of another person  even though the defendant may  not have

personally  committed every act constituting  the offense alleged.  Of

                                 -8-

course,  before a defendant may  be held criminally  responsible as an

aider  and  abettor, the  government  must  prove  that the  defendant

"associated himself with the underlying venture, participated in it as

something he wished to bring about, and sought by his  actions to make

it succeed."  United States  v. Clifford, 979 F.2d 896, 899  (1st Cir.                                                

1992); United States v.  O'Campo, 973 F.2d 1015, 1020 (1st  Cir. 1992)                                        

("In  order for aiding and abetting liability  to be applicable, . . .

the evidence  must establish  that the defendant  knowingly, willfully

and  intentionally  sought  by his  action  or  presence  to make  the

principal's criminal  transaction succeed.").  The  district court, in

its  subsequent charge, accurately instructed the jury in this regard.

We find  no error in  the district court's  instruction on  aiding and

abetting  or  in any  of the  other  instructions to  which appellants

object.3

         C. Prosecutorial Misconduct                                            

         Appellants'  final  assertion  of   error  involves   alleged

prosecutorial  misconduct.   Appellants  complain that  the prosecutor

misstated  the evidence during argument  of the Rule  29 motion before

the  trial  judge4   and  during  closing   argument  to  the   jury.5

                                                

3.    Appellants did not object  to the district court's definition of
importation,  which we  held, in  their co-defendants'  appeal,  to be
error, but not plain error.  See Alfredo Alvarado, Nos. 91-2075, 2076,                                                         
slip op. at 9-11 (1st Cir. Dec. 31, 1992).

4.    Since  the jury was not present during  the prosecutor's Rule 29
argument,  appellants cannot  claim  that any  part  of that  argument
improperly  influenced the  jury.   The statements  made to  the judge
alone were,  for the most part,  fully supported by the  record.  Only
one seems unsupported.   That involved whether appellants'  vessel was
stationary  when the FURA helicopter  first approached.   We find this

                                 -9-

Appellants' arguments are severely  hampered by their failure  to have

made  contemporaneous objections to  the allegedly  offensive remarks.

Absence of objection to a prosecutor's remarks limits appellate review

to  the plain error standard.   E.g., United  States v. Panet-Collazo,                                                                             

960  F.2d 256, 260  (1st Cir.), cert.  denied sub nom.  Diaz v. United                                                                              

States, 113 S. Ct. 220 (1992); United States v. Rodriguez-Cardona, 924                                                                         

F.2d 1148, 1154 (1st Cir.), cert. denied, 112 S. Ct. 54 (1991); United                                                                              

States  v. Griffin, 818 F.2d 97, 99-100  (1st Cir.), cert. denied, 484                                                                         

U.S. 844 (1987); Fed. R. Crim. P. 52(b).  This standard is not an easy

one to meet.  We may not "'consider the ordinary  backfires -- whether

or  not  harmful to  a  litigant's  cause --  which  may  mar a  trial

record.'"  United States v. Mejia-Lozano, 829 F.2d 268,  272 (1st Cir.                                                

1987) (quoting  Griffin, 818  F.2d at  100)).  Under  the plain  error                               

                                                

statement  so isolated and insignificant  that it could  not amount to
plain  error even if it had been uttered  in the presence of the jury.
See,  e.g., United  States v.  Panet-Collazo, 960  F.2d 256,  260 (1st                                                    
Cir.),  cert. denied sub  nom. Diaz v.  United States, 113  S. Ct. 220                                                             
(1992); United States v. Prouse, 945 F.2d 1017, 1025 (8th Cir. 1991).                                        

5.       Appellants  also  contend  that   the  prosecutor's  improper
introduction of hearsay evidence constituted prosecutorial misconduct.
Appellants complain  specifically of the testimony  of Customs Service
radar operator Richard Cunnicelli  that he saw flashing lights  in the
water as the suspect  aircraft approached the two vessels.   On cross-
examination, Cunnicelli  admitted that he never  actually saw anything
in the  water because his  eyes were  focused on the  radar equipment.
Instead, he heard  the pilot say,  "I see  lights."  Appellants  argue
that they were prevented from  effectively objecting to this testimony
by  the prosecutor's failure  to provide  Cunnicelli's rough  notes to
appellants during  discovery.   Unlike  their co-defendants,  however,
appellants never requested  these notes;  nor did they  object to  the
admission of  this testimony at trial; nor did they move to strike the
hearsay testimony.  We are therefore  foreclosed from considering this
issue on appeal  absent plain  error, which appellants  are unable  to
establish.   See United  States v. Serrano,  870 F.2d 1,  11 n.11 (1st                                                  
Cir. 1989).

                                 -10-

standard, we will reverse  a conviction only "'in  those circumstances

in  which a miscarriage of  justice would otherwise  result.'"  United                                                                              

States  v. Santana-Camacho, 833 F.2d 371, 373 (1st Cir. 1987) (quoting                                  

United States v. Young, 470 U.S. 1, 15 (1985)).                              

         In determining  whether a prosecutor's misstatements amounted

to  plain error,  we  consider the  prosecutor's  comments within  the

framework and context of the entire case.  Rodriguez-Cardona, 924 F.2d                                                                    

at  1154; Santana-Camacho, 833 F.2d  at 373; United  States v. Fuller,                                                                             

768  F.2d 343,  347 (1st  Cir. 1985).   Within  that context,  we must

decide  "whether the offending conduct  so poisoned the  well that the

trial's  outcome was likely affected."  Mejia-Lozano, 829 F.2d at 274.                                                            

We are  guided in making  this determination by  a number  of factors,

including  the  frequency  and   deliberateness  of  the  prosecutor's

comments, the strength and clarity  of the trial judge's instructions,

and  the strength  of  the government's  case  against the  defendant.

United  States v. Mateos-Sanchez, 864  F.2d 232, 241  (1st Cir. 1988);                                        

Mejia-Lozano, 829 F.2d at 274.                    

         We need not  recount each of  the allegedly  false statements

made by the prosecutor here.  Suffice it to say that we have carefully

scrutinized   the  record  and  find  that  most  of  these  so-called

misstatements involve controverted facts or reasonable inferences that

the  prosecutor asked  the jury  to draw  from the  facts.   There was

nothing improper in either instance.  See United States  v. Mount, 896                                                                         

F.2d 612, 625 (1st Cir. 1990);  United States v. Tucker, 820 F.2d 234,                                                               

237 (7th Cir. 1987).

                                 -11-

         Of  the dozen or so statements challenged by appellants, only

one deserves further comment.  During closing argument, the prosecutor

discussed appellants' attempt to evade apprehension:

              It  is only  as they are  about to  get caught
         that all  of a  sudden one  vessel  starts to  veer
         away.
              Which   vessel?    How  interesting  that  the
         defendant [Alfredo Alvarado] says,  the one that is
         the lightest.  That is the one that went off.  That
         is the one that took off.  That was the  decoy.  It
         could get away quicker.
              And sure enough,  the FURA helicopter in  fact
         went after  the vessel that appeared  to be getting
         away.

To  the  extent that  these  remarks suggest  that  appellants' vessel

veered away, i.e., changed its course  from north to west, the remarks

were misleading.  It was the co-defendants' vessel that  veered off in

a westerly direction, not appellants' vessel.  Nevertheless, the  FURA

helicopter initially pursued appellants'  vessel, which apparently was

lighter and could get away quicker.

         The  above-quoted comments  did not  amount to  plain  error.

They were isolated and,  in relation to the body of  evidence received

during trial,  relatively insignificant.  The jury had heard testimony

from a number  of government witnesses  that appellants' vessel  never

veered  from its northerly direction before or during the helicopter's

pursuit,  whereas  their co-defendants'  vessel  at  some point  began

traveling  in   a  more  westerly  direction.     This  testimony  was

corroborated  by a videotape showing  the tracking and  seizure of the

two vessels.  The jury  also heard several witnesses testify  that the

FURA helicopter  initially pursued appellants' vessel.   Therefore, it

                                 -12-

was  unlikely  that  the  jury  would  be  duped  or confused  by  the

prosecutor's misleading statements suggesting that the FURA helicopter

initially chased the  vessel that  had veered away  from its  previous

course.  

         The likelihood  of jury  confusion was  further decreased  by

the  judge's repeated,  explicit  instructions to  the  jury that  the

statements and arguments  of counsel  were not evidence  in the  case.

Mateos-Sanchez, 864 F.2d at 241; Mejia-Lozano, 829 F.2d at 274; United                                                                              

States v. Giry,  818 F.2d 120, 133 (1st Cir.),  cert. denied, 484 U.S.                                                                    

855 (1987).  Given  the isolated nature of the  comments, the strength

of  the government's case against  appellants, and the  clarity of the

district  court's  instructions,  it  seems  most  unlikely  that  the

misleading  statements could  have affected the  outcome of  the case.

The plain error standard was not met.

          Affirmed.                             

                                 -13-
