US v. Fernandez
Case Date: 08/20/1996
Court: United States Court of Appeals
Docket No: 95-1864
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[NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 95-1864 UNITED STATES, Appellee, v. JUAN FERNANDEZ, Defendant - Appellant. ____________________ No. 95-2067 UNITED STATES, Appellant, v. JUAN FERNANDEZ, Defendant - Appellee. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Raymond L. Acosta, Senior U.S. District Judge] __________________________ ____________________ Before Torruella, Chief Judge, ___________ Coffin, Senior Circuit Judge, ____________________ and Cyr, Circuit Judge. _____________ _____________________ John Wall, with whom David Shaughnessy and Wall & __________ __________________ _______ Shaughnessy were on brief for appellant Juan Fern ndez. ___________ Lena Watkins, Attorney, Criminal Division, Narcotic and _____________ Dangerous Drug Section, U.S. Department of Justice, with whom John C. Keeney, Acting Assistant Attorney General, Theresa M.B. ______________ _____________ Van Vliet, Chief, Criminal Division, Narcotic and Dangerous Drug _________ Section, U.S. Department of Justice, and Guillermo Gil, Acting ______________ United States Attorney, were on brief for appellee United States. ____________________ AUGUST 20, 1996 ____________________ -2- TORRUELLA, Chief Judge. A jury found appellant- TORRUELLA, Chief Judge. ____________ defendant Juan Fern ndez ("Fern ndez") guilty of conspiracy to possess with intent to distribute cocaine, and the United States District Court, District of Puerto Rico, denied his motion for a new trial. Fern ndez now raises a series of challenges to his conviction, and the government cross-appeals his sentence. For the reasons stated herein, we affirm. BACKGROUND BACKGROUND We begin with a basic outline of the case, and address the particulars in more detail as they arise, as the specific issues Fern ndez raises require that we examine the facts from differing perspectives. Fern ndez was one of 20 co-defendants charged in Count One of a September 1993 superseding indictment of conspiring to possess with intent to distribute more than 1,000 kilograms of cocaine and more than 1,000 kilograms of marijuana in violation of 21 U.S.C. 841(a)(1) & 846. Count One alleged 56 overt acts in furtherance of the conspiracy (the "Sardinas operation"), beginning in 1981 and continuing over twelve years. The central allegation regarding Fern ndez was that in or about the month of April 1991, he entered into an association with co-defendants Jorge Loredo-Alonso ("Loredo") and Horacio Sardinas-Albo ("Sardinas") to use Carrier Transportation Company ("Carrier"), a transportation company which Fern ndez owned, to ship loads of cocaine from Puerto Rico to the continental United States. The indictment alleged that some nine loads of cocaine -3- had been shipped through Carrier by early 1993. Fern ndez was tried with co-defendant Antonio Contreras. The evidence against Fern ndez at the jury trial was primarily made up of the testimony of four alleged co- conspirators: Jos Bruno ("Bruno"), Elmo De Jes s ("De Jes s"), Michael Frame ("Frame"), and Lambert Aloisi ("Aloisi"). Bruno testified that nine loads of cocaine were shipped through Carrier, the first seven between April and August of 1991, and that he visited Carrier's warehouse in New Jersey several times in connection with those loads. Fern ndez' counsel offered evidence indicating that Carrier did not in fact exist in April 1991, but rather was incorporated in August 1991, and began its occupation of the warehouse Bruno identified in October of that year. The prosecution in turn questioned defense witnesses about Gulf Transportation1 ("Gulf"); according to the testimony, Gulf was a shipping company at which Fern ndez had worked before he owned Carrier. In its closing argument, the government argued that Fern ndez had used Gulf to transport cocaine prior to using Carrier. Fern ndez was found guilty and was sentenced to 151 months. DISCUSSION DISCUSSION A. Variance A. Variance ________ Fern ndez argues on appeal that there was a material ____________________ 1 The defendant refers to Gulf as "Gulf Transportation," while the government uses "Gulf Carrier Transportation." We express no opinion as to which name is more accurate, and use "Gulf" for convenience. -4- variance between the superseding indictment and the evidence on which the government relied at trial.2 We find a variance "when the proof differs from the allegations in the indictment." United States v. Vavlitis, 9 F.3d 206, 210 (1st Cir. 1993). Not _____________ ________ every variance mandates a new trial: reversal is only required if the variance proves both material and prejudicial. See Fed. ___ R. Crim. P. 52(a); United States v. Arcadipane, 41 F.3d 1, 6 (1st _____________ __________ Cir. 1994). Thus, where, as here, "the government charges a defendant with a crime . . . but the facts proven at trial vary somewhat from those charged in the indictment . . . it is settled law that a conviction for the crime charged will be affirmed unless the variance as to the facts is shown to have prejudiced the defendant." United States v. Moran, 984 F.2d 1299, 1304 (1st _____________ _____ Cir. 1993). Our review of whether a retrial is required is plenary. Arcadipane, 41 F.3d at 6. __________ The superseding indictment specifically stated that Fern ndez used Carrier to transport cocaine.3 The government's case was consistent with this theory. Thus, Fern ndez maintains, while Carrier was neither a defendant nor an object of the ____________________ 2 Fern ndez' motion for a bill of particulars, which included a request for discovery of other transportation companies utilized by Sardinas, was denied by the court. 3 Paragraph 28 of the superseding indictment charged that "[o]n or about the month of April, 1991, HORACIO SARDINAS-ALBO, a/k/a/ HIPPIE, and JORGE ALONSO-LOREDO [sic] associated with JUAN FERNANDEZ to use the services of Carrier Transportation Company, a transportation company owned by JUAN FERNANDEZ, to transport large amounts of cocaine from Puerto Rico to the continental United States using containers." The following paragraphs detailed the nine alleged shipments of cocaine. -5- indictment, it was nonetheless a key part of the government's case. However, Fern ndez continues, when he offered evidence in his defense which refuted the charges concerning Carrier by proving that it could not have been used as alleged in the superseding indictment, the government abruptly switched gears and argued that Fern ndez used Gulf. The prejudice against him, Fern ndez contends, was obvious: his trial preparations, which had centered around Carrier, were no longer adequate, since Gulf became the focus of the trial and the jury's deliberations. We do not find such "obvious" prejudice; nor do we agree that Gulf became the focus of the trial and deliberations. We recognize that there was a variance, but do not believe it "work[ed] a substantial interference with the defendant's right to be informed of the charges laid at his doorstep." Arcadipane, __________ 41 F.3d at 6. Simply put, although Carrier was repeatedly mentioned in the indictment, the charge was against Fern ndez, not his company. Regardless of whether Carrier or Gulf is discussed, the charge is the same: that Fern ndez associated with Sardinas and Loredo to transport cocaine. Fern ndez cannot now claim that he was misinformed of the charges against him, or that his substantial rights were somehow affected. See id. at 7. ___ ___ A new trial is not required. B. Admission of the Evidence B. Admission of the Evidence _________________________ 1. Gulf 1. Gulf ____ Fern ndez contends that the district court erred in allowing evidence and argument regarding Gulf. We review a lower -6- court's admission of evidence for abuse of discretion. See, ___ e.g., United States v. Disanto, 1996 WL 312368, *11 (1st Cir. ____ _____________ _______ 1996); United States v. Rivera-G mez, 67 F.3d 993, 997 (1st Cir. _____________ ____________ 1995). Testimony regarding Gulf was elicited by the government, over Fern ndez' objection, during its cross- examination of defense witness Rosa Sanjurjo, an employee in Carrier's collection department. She stated that she began working for Carrier in January of 1992, prior to which she worked for Gulf until 1990. She acknowledged that Fern ndez had also worked for Gulf, that it did the same type of business as Carrier, and that it closed before Carrier was created. She also stated that Gulf did not become Carrier. On redirect, Fern ndez' counsel elicited her testimony that Gulf was a corporation controlled by Fern ndez and two other individuals, including Sanjurjo's stepson. She stated on recross that Carrier and Gulf had different offices and used different warehouses. George Wyle, a salesman for Carrier for part of 1992, testified on cross that he knew Fern ndez through the shipping business prior to 1992, that Fern ndez was involved with Gulf, that Gulf did essentially the same kind of business that Carrier did, and that Gulf's full name was Gulf Carrier. After the first few questions to Sanjurjo about Gulf, defense counsel objected to the cross-examination on Gulf as being outside the scope of examination; the court allowed the prosecution to continue, but asking questions on direct, instead -7- of on cross. After a few more questions, defense counsel asked for a sidebar, and objected that the questioning was outside the scope of the testimony and the entire case. The prosecutor argued that the evidence was being used for impeachment, pointing out that since Fern ndez was arguing that it was impossible that Carrier could have been used, the evidence on Gulf would show that even before Carrier started Fern ndez was in the same line of business, at a company which operated in essentially the same fashion, offering Fern ndez access to shipping services, albeit under a different name. The court denied Fern ndez' objection. Before closing arguments, Fern ndez' counsel raised the issue of whether the government should be allowed to make reference to Gulf in its closing argument. Defense counsel protested that the government was trying to make an inference not based on the evidence, since there was no evidence regarding whether Gulf and Carrier had a similar identity, or when Fern ndez was involved with Gulf. Indeed, counsel noted, the testimony indicated no continuity of ownership between the companies, and that they used different facilities. The court, however, rejected the defense's argument and allowed the government to discuss Gulf in its closing argument. Fern ndez now argues that the district court erred in allowing evidence and argument regarding Gulf. He does not specify his reasons, however. Rather, he simply refers us to the reasons stated in his additional arguments, leaving us to speculate as to which reasons would apply in this context, and -8- running the risk of waiver. As we address those contentions where they are made, we add only a few comments here. Briefly stated, while it could have decided the issue several different ways, we find that the district court did not abuse its discretion in choosing to allow the government to elicit and use the evidence regarding Gulf. While not detailed, the evidence was certainly relevant, for the very reasons the government outlined. See Fed. R. Evid. 401; United States v. ___ _____________ Griffin, 818 F.2d 97, 101-02 (1st Cir.), cert. denied, 484 U.S. _______ ____________ 844 (1987) (noting the broad discretion district courts enjoy in determining relevance). Allowing the line of questioning and argument was neither unfairly prejudicial, see Fed. R. Evid. 403, ___ nor constituted an unfair surprise: Fern ndez' defense was that it was impossible for him to have used Carrier to ship cocaine because Carrier was not in operation -- a line of reasoning fairly inviting the question of what other companies Fern ndez had access to during the relevant time period, and whether he could have used them in a similar manner. 2. Sixth Amendment Claims 2. Sixth Amendment Claims ______________________ Fern ndez contends that his Sixth Amendment right of confrontation has been violated, in that he did not have a full and effective opportunity to cross-examine the witnesses. See ___ Olden v. Kentucky, 488 U.S. 227, 231 (1988) (per curiam) (noting _____ ________ that the right of confrontation "includes the right to conduct reasonable cross-examination"). As we find no error on the part of the district court, we need not enter into a harmless error -9- analysis. See id. at 232; Delaware v. Van Arsdall, 475 U.S. 673, ___ ___ ________ ___________ 680-81 (1986). First, Bruno and two other witnesses testified that a Puerto Rico senator was implicated in the conspiracy: they alleged that in 1990, when other members of the conspiracy were arrested in Tortola, the senator attempted to gain their release. Bruno testified that the senator received close to two hundred fifty thousand dollars in order to bribe the magistrate handling the case in the British Virgin Islands, as well as other individuals. Another witness testified that he believed the senator had met with representatives of the Sardinas operation in the Puerto Rico Senate -- the witness claimed that he waited in the car outside while they met. At trial, the court ruled in limine that counsel could _________ not mention the senator's name. Fern ndez argues that this constituted error requiring a new trial. First, he contends that identification of the senator's name could have "tipped the balance" in the impeachment of Bruno by showing that he would go to any lengths to obstruct justice, and thus should not be believed in his testimony at trial. Second, he posits that identification could have led the jury to believe that the account of the senator's involvement in the Tortola events was fabricated by witnesses in order to gain leniency from the government, because of the prominence and importance of the particular senator. Thus, the argument goes, the identification would have added to the evidence that the witnesses were -10- fabricating stories in a desperate attempt to obtain leniency. Finally, Fern ndez maintains that members of the jury could have felt that the failure to prosecute the senator was unfair selective prosecution. We do not find any of these arguments convincing. There can be no question that the Sixth Amendment entails a right to cross examine a witness; nonetheless, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination [regarding potential bias] based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Van Arsdall, 475 U.S. at 679; see Delaware v. ____________ ___ ________ Fensterer, 474 U.S. 15, 20 (1985) (per curiam) ("Generally _________ speaking, the Confrontation Clause guarantees an opportunity for ___________ effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."). The court informed the jury that it had ruled that the name of the senator "would not be mentioned in order to protect an ongoing investigation with respect to activities that he may have been engaged in." Tr. at 515. The jury was also informed that the parties stipulated that the senator was "prominent." Further, as noted above, the scope of the senator's alleged actions was explored through testimony from several witnesses: the sole element the court ordered be left out was the senator's name. Certainly the jury had enough information in -11- front of it to be able to weigh the impeachment value of the alleged plot: it had "the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Davis v. _____ Alaska, 415 U.S. 308, 318 (1974). As for the selective ______ prosecution claim, we note that the court told the jury there was an ongoing investigation: the implication that the senator had not been charged is clear. We do not find any error in the district court's ruling. The second claim focuses on the De Jes s cross- examination. He testified that he assisted in the transportation of more than 1,000 kilograms of cocaine, yet his plea agreement stated that he was responsible for only 3.5 to 5 kilograms. The prosecution objected to defense's questioning on this discrepancy, and the court sustained the objection. The court ruled that the defense could not cross-examine De Jes s regarding the quantity of cocaine for which he was held accountable in his plea agreement, but could question him on the difference the agreement made in his sentence. De Jes s duly testified that without the plea he faced from thirty years to life, and that with it, he was facing seven years. He agreed that by testifying in this case, he was hoping to have the sentence further reduced so as to not have to spend any time in jail. Fern ndez argues that the court erred, since any proof of false, self-serving statements by a government witness -- such as the plea agreement figure -- would aid the defense in showing -12- the witnesses' untrustworthiness. Thus, Fern ndez contends, his Sixth Amendment right of confrontation was violated. See Olden, ___ _____ 488 U.S. at 231. We disagree. First, defense counsel was able to impeach De Jes s through eliciting his testimony on the impact the plea agreement had on his sentence and his hopes for a reduced sentence based on his participation in this trial. Second, the court's ruling seems to have been based on the concern that the jury understand that De Jes s was not actually lying in his plea agreement, but rather that the figure used was a mechanism of convenience in order to get to a specific sentence: "I think the whole concept is to show . . . [that it was a] deal, a wow deal, but not to show that he's a liar because that's not the real facts." Tr. at 1879. We do not find that the district court erred in striking a balance between this concern and the importance of impeachment through limiting the testimony to the sentence obtained. Indeed, we agree with the court's comment to the effect that to do otherwise would run the risk of having defense counsel impeach the government, not De Jes s. Fern ndez' reliance on United States v. Lynn, 856 F.2d ______________ ____ 430 (1st Cir. 1988), is misplaced. There, we found that the trial court erred in restricting cross-examination into the circumstances underlying a witness' plea bargain. The witness' agreement with the government required that he take and "successfully complete" a polygraph examination. He took the test, twice, and the examiner labeled some of his answers as -13- "inconclusive." The defense sought to impeach the witness by implying that the witness had not "successfully completed" the test, and so had motive to lie on the stand to please the government. The court cut off all questioning about the test, and informed the jury that such tests yielded inherently unreliable results. Id. at 432. We held that the district court ___ abused its discretion by cutting off all cross-examination into a "relevant and not fully explored area." Id. at 434. The same is ___ not true here. The district court did not cut off all examination in the area of De Jes s' credibility: rather, it set limits on the examination so as to permit the introduction of the information in a manner which would not mislead the jury yet provide it "with 'sufficient information concerning formative events to make a "discriminating appraisal" of [De Jes s'] motives and bias.'" Id. at 433 (quoting United States v. Twomey, ___ _______ _____________ ______ 806 F.2d 1136, 1140 (1st Cir. 1986) (quoting United States v. _______ _____________ Campbell, 426 F.2d 547, 550 (2d Cir. 1970))). ________ C. The Sufficiency and Weight of the Evidence C. The Sufficiency and Weight of the Evidence __________________________________________ 1. Sufficiency of the Evidence 1. Sufficiency of the Evidence ___________________________ At the end of the presentation of evidence, Fern ndez moved for a judgment of acquittal, which motion the trial court denied. Fern ndez now argues anew that the evidence was insufficient to support his conspiracy conviction. We are cognizant of the government's burden in this case: "In order to win a conspiracy conviction the government was required to establish, by direct or circumstantial evidence -14- and beyond a reasonable doubt, that the defendant and one or more coconspirators 'intended to agree and . . . to commit the substantive criminal offense which was the object of their unlawful agreement.'" United States v. L pez, 944 F.2d 33, 39 _____________ _____ (1st Cir. 1991) (quoting United States v. S nchez, 917 F.2d 607, _____________ _______ 610 (1st Cir. 1990), cert. denied, 499 U.S. 977 (1991)). In our ____________ review, we evaluate the sufficiency of the evidence as a whole, and "resolve credibility issues and draw inferences in the government's favor, since the issue is whether a jury could reasonably have arrived at the verdict." United States v. ______________ Morrow, 39 F.3d 1228, 1233 (1st Cir. 1994), cert. denied, __ U.S. ______ ____________ __, 115 S. Ct. 1421 (1995). Fern ndez contends that the evidence in this case was insufficient to prove his guilt, since there was no direct testimony of any agreement. However, the government need not prove a formal agreement existed: as it points out, "the illegal agreement may be either 'express or tacit.'" United States v. _____________ S nchez, 917 F.2d 607, 610 (1st Cir. 1990). Indeed, "'[t]he _______ evidence may be entirely circumstantial and need not exclude every reasonable hypothesis of innocence; that is, the factfinder may decide among reasonable interpretations of the evidence.'" L pez, 944 F.2d at 39 (quoting United States v. Batista-Polanco, _____ _____________ _______________ 927 F.2d 14, 17 (1st Cir. 1991)). We agree with the government that, under our standard of review, Bruno's testimony, and that of other government witnesses, suffices to show that a tacit agreement existed. -15- Bruno testified that Sardinas and Loredo each paid $80,000 to buy into Carrier in order to ship cocaine; he stated that he saw them collect the money to make a payment to Fern ndez, and heard them discussing the use of Carrier. Bruno testified about sending the nine shipments of cocaine, and about Fern ndez' personal participation in the operation, including telephone calls and meetings. He stated that he went to the Carrier warehouse in New Jersey, his first visit being in July 1991, and that Fern ndez was there on at least one occasion. Aloisi's testimony generally corroborated Bruno's statements. De Jes s testified that he participated in at least four shipments of cocaine, including deliveries of cocaine to Fern ndez at a warehouse in Carolina, Puerto Rico, and retrieval from the New Jersey warehouse. His testimony contradicted Bruno's on several points, regarding the amount of cocaine in particular loads and who participated in specific meetings and loads.4 Our review of this record leads us to conclude that, "having heard the evidence, including nuances and intimations that a cold record cannot capture, a rational jury could find beyond a reasonable doubt that [Fern ndez] was guilty of conspiracy." Mor n, 984 F.2d at 1301-02. _____ Fern ndez also argues that this court must reverse the verdict below because it was physically impossible that Carrier was the company used to transport cocaine in 1991: he presented ____________________ 4 Frame testified that Fern ndez was already active in the operation in 1989 or 1990 and that he was instructed to communicate with Fern ndez whenever he needed to contact Sardinas, which he did several times. These allegations were not in the superseding indictment. -16- evidence that Carrier did not exist until after April 1991, and that it did not occupy the New Jersey warehouse until October of that year. Since the chief government witnesses testified that Carrier was used, the argument continues, there is no reason to credit the witnesses' testimony as to this point, or any other. Thus, Fern ndez concludes that the trial court erred in not granting his motion for acquittal. While there were inconsistencies in the witnesses' testimony, and while they all had an incentive to please the government, these aspects of the evidence were pointed out to the jury by defense counsel. As the government notes, Bruno and De Jes s did not go to any warehouse for the first loads -- indeed, Bruno testified that Carrier had previously had a different address -- and the evidence regarding Gulf suggests that Fern ndez had knowledge of and access to shipping facilities during the relevant time frame. It was within the province of the jury to disregard some of the inconsistencies and to accept aspects of the witnesses' testimony as credible. "The force of the evidence as a whole, including all reasonable inferences favorable to the verdict, was sufficient to support a rational jury finding: that defendant was guilty." L pez, 944 F.2d at _____ 40. 2. Weight of the Evidence 2. Weight of the Evidence ______________________ Fern ndez also contends that the jury verdict was against the weight of the evidence, and that the district court erred in denying his motion for a new trial. Fern ndez argues -17- that the government's case here was wholly circumstantial and rested solely on the testimony of blatantly untrustworthy witnesses, as demonstrated by the many contradictions between their stories and Fern ndez' evidence that Carrier had not occupied a warehouse until October 1991. The evidence regarding Gulf, he continues, is insufficient to support the eleventh-hour claim that Fern ndez used it. We review for abuse of discretion, see, e.g., United ___ ____ ______ States v. Rogers, 41 F.3d 25, 34 (1st Cir. 1994), cert. denied, ______ ______ ____________ __ U.S. __, 115 S. Ct. 2287 (1995), and reject Fern ndez' argument. The evidence against Fern ndez, briefly outlined above, was neither unbelievable nor implausible, as he contends. Simply put, the witnesses' testimony was not "so inherently implausible that it could not be believed by a reasonable juror." United States v. Garc a, 978 F.2d 746, 748 (1st Cir. 1992) (per _____________ ______ ___ curiam). We accordingly find that the district court did not ______ abuse its discretion in denying Fern ndez' motion for a new trial, and refuse to take the issue of the witnesses' credibility out of the jury's hands. The jurors were entitled to weigh the witnesses' contradictions and incentives and still accept the substance of their testimony. See id. ___ ___ D. Prosecutorial Misconduct D. Prosecutorial Misconduct ________________________ 1. The Legal Framework 1. The Legal Framework ___________________ Fern ndez' primary argument is that the prosecutor violated his due process rights by making improper statements to the jury during the government's closing argument and rebuttal. -18- See Berger v. United States, 295 U.S. 78, 88-89 (1935). He ___ ______ _____________ contends that any one of the statements he now points to as improper could have prejudiced the jury so as to have prevented a fair trial, and that the cumulative effect of the statements was to deny him a fair trial under the Fifth Amendment. See United ___ ______ States v. Santana-Camacho, 833 F.2d 371, 373 (1st Cir. 1987) ______ _______________ (noting that, while a statement on its own may not have been harmful, it is "more troublesome" when viewed in conjunction with other prosecutorial statements). For the reasons we discuss below, we disagree. When faced with a claim of prosecutorial misconduct, we first weigh whether a statement was improper. If it was, we then determine "whether prosecutorial misconduct has '"so poisoned the well"' that a new trial is required." United States v. Manning, _____________ _______ 23 F.3d 570, 574 (1st Cir. 1994) (quoting United States v. Hodge- _____________ ______ Balwing, 952 F.2d 607, 610 (1st Cir. 1991) (quoting United States _______ _____________ v. Capone, 683 F.2d 582, 586-87 (1st Cir. 1982))). This circuit ______ has laid out a series of factors for guidance in making that determination: (1) the severity of the misconduct; (2) the context in which it occurred; (3) whether the judge gave any curative instructions and the likely effect of such instructions; and (4) the strength of the evidence against the defendant. Id.; see, e.g., United States v. Hardy, 37 F.3d 753, 757-58 (1st ___ ___ ____ _____________ _____ Cir. 1994). In this analysis, [w]e do not . . . take the evidence in the light most favorable to the government or assume that credibility -19- 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 . . . . Arrieta-Agressot v. United States, 3 F.3d 525, 528 (1st Cir. ________________ ______________ 1993); see Hardy, 37 F.3d at 755. ___ _____ We review the sole statement Fern ndez objected to at trial de novo. Hardy, 37 F.3d at 756. He did not object to the _______ _____ majority of statements he now points to as violating his due process rights: we review those for plain error, as "[r]eviewing courts are very reluctant to reverse for unobjected-to errors that could have been corrected or ameliorated by timely objection." United States v. Procopio, Nos. 95-1549, -1559, - _____________ ________ 1550, slip op. at 25 (1st Cir. July 9, 1996); see Arrieta- ___ ________ Agressot, 3 F.3d at 528 (explaining rationale behind applying ________ plain error review). "[T]he plain-error exception 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), reh'g denied, 456 U.S. 1001 (1982)). ____________ With our test and standard of review thus established, we turn to Fern ndez' specific contentions. 2. Statements Objected to at Trial 2. Statements Objected to at Trial _______________________________ (1) During trial, a lease application filled out by Loredo in November, 1991, which stated that he had worked for Carrier for six years -- well before the time the defense argued Carrier began to exist -- was admitted for the limited purpose of -20- showing that Loredo claimed he worked for Carrier, not for the truth of the matters in the document. Fern ndez now contends that the prosecutor went beyond that limited purpose in his closing argument. Referring to the application, the prosecutor stated: You remember, as you look at it here, there is a part . . . where he's supposed to or he has to list his employer. His list what [sic]? Carrier Transportation. Just Carrier Transportation as his employer. . . . And most importantly, he said he was working for that company for six years. Six years. The phone numbers are right. The address is right. Working for the company, he says, for six years. This is proof that there was a Carrier Transportation that operated before the date that counsel -- Tr. at 2472. The prosecutor was cut off by the defense's objection. We agree with Fern ndez that the prosecutor was moving beyond the stipulation to assert that the lease application was "proof that there was a Carrier Transportation that operated before the date" the defense alleged it began business. Thus, we turn to our four-factor test. We note that the misconduct, though disingenuous, was not severe, and occurred only once, in relative isolation. More importantly, the court gave immediate curative instructions, admonishing the jury that the lease did not come in as anything more than a claim by Loredo to have worked for Carrier, and reminding them of its earlier instruction, made when the lease application was entered. -21- Indeed, in its closing, the defense also reminded the jury of the limited use of the lease. On balance, we find that "the curative instruction sufficed to dispel any prejudice from the improper comment." United States v. Boldt, 929 F.2d 35, 41 (1st Cir. ______________ _____ 1991); see United States v. Savarese, 649 F.2d 83, 88 (1st Cir. ___ ______________ ________ 1981). (2) Fern ndez objects to other references the prosecution made to Gulf on the basis that they encouraged speculation and attempted to argue facts not presented in the evidence.5 First, the prosecutor stated: we had to wait for cross-examination by [co-counsel for the government] to find out that there was a previous company before 1992, in fact from 1986 it had started, which did the exact same type of job. It had -- it was a shipping company that did transportation in the same manner, through the containers and Mr. Juan Fern ndez was also one of the owners or partners in the operation. Tr. at 2475. Like Fern ndez, we can find no evidence in the record stating that Gulf began in 1986. The offer of this fact is harmless, however, since the pertinent time period is 1991, and Sanjurjo testified that Gulf was in operation in 1990. The reference leaves open the crucial question, which is, when Gulf ____________________ 5 Fern ndez objected to the prosecution's being allowed to use Gulf in its closing. However, his counsel did not object when the court held that the prosecution could "tell it to the jury." Tr. at 2438. The government points out that Fern ndez did not make specific objections to these references to Gulf during closing argument, presumably asking us to review them under the more lenient plain error standard. As we find no error under either standard, we need not determine here whether the objection was preserved. -22- ceased operation. As for the form in which the prosecutor made ______ his statement, it is consistent with the framework the government used for its argument, discussed in (1), above. Fern ndez objects to the cited passage and four others for asserting that Carrier and Gulf were essentially the same thing, doing the exact same job: [O]ur argument is that before, when the company was operating as Gulf Carrier Transportation he used another warehouse in New Jersey. . . . [It] was known as Gulf Carrier, also. Gulf Carrier just like -- the same name, just slightly different wording and same owners, same business, same thing. Tr. at 2476. These statements, he contends, urged the jury to speculate in a manner unsupported and contradicted by the actual evidence regarding Gulf. There was evidence that they were both transportation companies, but not that they did the exact same job. Indeed, the owners were not the same: Fern ndez was part owner of Gulf, and the sole owner of Carrier. Finally, there was no evidence that Gulf was actually in business in 1991. On balance, we cannot find that this line of argument so poisoned the trial well that a new trial is required. See ___ Manning, 23 F.3d at 574. The government made an argument based _______ on the limited evidence regarding Gulf. The defense was able to argue the counter position, pointing out the lack of evidence, and did so. 3. Statements Not Objected to at Trial 3. Statements Not Objected to at Trial ___________________________________ We examine the statements which Fern ndez did not -23- object to at trial in the order in which he raised them. We find that most are not improper; of the few that are, none of them prove so serious that the district court plainly erred in allowing them. (1) Fern ndez first argues that the prosecutor erred by trying to "secure the empathy of the jury" through asking it to step into the government's shoes and align itself with the prosecution team through statements like the following. Now, the way I would like to discuss the evidence with you is in the order that we received it. Okay. The way we were interviewing these witnesses, in that order, to give you a feel for what we went through as you determine whether we have proven, as we submit to you we have, beyond a reasonable doubt the existence of the conspiracy and their participation . . . . Tr. at 2443. The prosecutor made a series of comments such as "[w]e seek [co-conspirators or drug traffickers] out and we go out and corroborate them." Tr. at 2442. We agree with the government, however, that, read in context, the statements Fern ndez points to were simply establishing a framework for the presentation of the government's argument. They also served to point out that even though the government's witnesses were drug traffickers with a motive to fabricate evidence -- as defense counsel had emphasized in opening argument -- their testimony was corroborated. Indeed, in the first passage quoted above, the prosecution reminded the jury that it carried the duty of determining whether the government proved its case. While we do not necessarily recommend this framework for argument as an ideal -24- one, we do not find that the statements were improper. (2) Fern ndez' second argument is that the prosecutor misstated the law on proof of conspiracy in making the following statements: the only way we can prove a conspiracy is through the testimony of the very co- conspirators who were members of that conspiracy. Tr. at 2441. you're always going to need the testimony of the co-conspirator to prove a conspiracy because of the secrecy of the conspiracy. Tr. at 2442. You're never going to find a decent person testifying to a drug deal. That's what we got to deal with. That's what we got to do. Tr. 2571-72. Contrary to appellant's assertion, these are arguments, not statements of fact, and are thus permissible. Even if they were improper, they would not require a new trial. For, viewed in context, it is clear that they did not poison the trial proceeding. In his opening statement, Fern ndez' counsel had emphasized the fact that no actual drugs were offered in evidence: the challenged comments were apparently designed to counter those statements with an explanation of why the government relied so heavily on witness testimony. The first two statements are addressed to the practical difficulties of proving a conspiracy. The prosecutor followed the first with an explanation of why the government did not introduce any actual drugs. Further, the prosecutor followed -25- up these comments with a discussion of the importance of documentary evidence in corroborating witnesses' testimony, belying his own comments. As for the "decent person" comment, its logical flaws are obvious. Moreover, defense counsel had emphasized the witnesses' dishonesty in his opening,6 to which this is apparently a response. These statements do not warrant a new trial. (3) The prosecutor made two statements to the jury to the effect that "[t]o acquit, you would have to find that everybody was lying in this case." Tr. at 2590-91. Fern ndez argues, and the government seems to agree, that these were improper. To the contrary, we feel they amounted to nothing more than argument, and were not improper. (4) Fern ndez' fourth contention is that the prosecutor made statements without evidentiary support. See ___ Santana-Camacho, 833 F.2d at 373 (reversing conviction on basis _______________ ____________________ 6 For example, in his opening statement, Fern ndez' counsel stated: And the evidence is that these drug pushers have consistently taken the easy way out of everything that is meaningful in life. . . . . . . [T]he evidence will show that they have no conscious [sic] that will prevent them -- the kind of consciousness that would prevent most people from accusing an innocent man. They simply only care about themselves . . . . They always have and they always will. Leopards don't change their spots. Tr. at 105-06. -26- of major and prejudicial misstatement of evidence in closing argument). The prosecutor erroneously stated that the testifying drug traffickers were "either in jail or go to [sic] jail," Tr. at 2442, and that Bruno specifically would be going to jail when, in fact, Aloisi had a non-prosecution agreement, and Bruno was not incarcerated at the time of trial. Again, the government acknowledges that the statements were not factually true. We agree with the government, however, that any error in admitting these statements does not rise to the level of plain error. The agreements between the government and the witnesses were in evidence, each of the four witnesses against Fern nd |