*Of the Tenth Circuit, sitting by designation.

Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 02-1448

UNITED STATES OF AMERICA,

Appellee,

v.

ISRAEL NAVEDO-CONCEPCIÓN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Boudin, Chief Judge, 

Baldock,* Senior Circuit Judge,

and Howard, Circuit Judge.

Peter Goldberger with whom Pamela A. Wilk was on brief for

appellant.

Nelson Pérez-Sosa, Assistant United States Attorney, with whom

H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabón,

Assistant United States Attorney, was on brief for appellee.

August 26, 2003
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BALDOCK, Senior Circuit Judge. In November 1999, a

Puerto Rico grand jury returned a single-count indictment charging

Defendant, Israel Navedo-Concepción, also known as “Gallo,” and

seven other named co-defendants with conspiracy to possess with the

intent to distribute cocaine in amounts which exceed five (5)

kilograms and heroin in amounts which exceed one (1) kilogram, in

violation of 21 U.S.C. § 846. The indictment alleged a four-year

conspiracy between the named defendants and others unknown to the

grand jury to distribute narcotics in the La Perla section of Old

San Juan. All named co-defendants pled guilty pursuant to plea

agreements. Defendant, however, proceeded to trial. Following a

seven-day trial, the jury convicted Defendant of the sole count in

the indictment. The district court sentenced Defendant to 151

months imprisonment. 

Defendant appeals, arguing (1) the district court erred

by failing to sua sponte deliver a limiting instruction on the use

of prior inconsistent statements by a witness; (2) the prosecutor’s

improper remarks during closing argument warrant a new trial; (3)

the district court plainly erred by instructing the jury about the

content of a witness’ testimony; (4) the district court erred by

not making an independent relevant conduct finding as to the drug

quantity attributable to Defendant; and (5) the district court

erred by failing to give a reason pursuant to 18 U.S.C. § 3553(c)

for imposing a sentence at the top of the guideline range. The
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parties are familiar with the facts of the case, and we will not

repeat them here except where necessary. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We affirm the district court on

Defendant’s first four issues. But we remand for resentencing in

accordance with § 3553(c) due to the district court’s failure to

state in open court reasons for the selected sentence.

A.

Defendant first argues the district court erred by

failing to sua sponte give a limiting instruction on how the jury

should treat a witness’ prior inconsistent statements. Because

defense counsel did not object, Defendant concedes we review this

issue for plain error. Under the four-part plain error inquiry,

(1) an error must have been committed; (2) the error must be plain

or obvious; (3) the plain error must affect substantial rights,

which generally means that it must have been prejudicial; and (4)

the error must seriously affect the fairness, integrity or public

reputation of judicial proceedings. See United States v.

Pena-Lora, 225 F.3d 17, 29 (1st Cir. 2000) (citing United States v.

Olano, 507 U.S. 725, 732-33 (1993)).

On direct examination, defense witness Luis Mojica

Bultron (“Bultron”) testified under oath that he did not recognize

Defendant, that he did not sell drugs for Defendant, and that he

had not seen Defendant selling drugs in La Perla. This testimony

contradicted the testimony of the Government’s witness, Catherine
1“Champagne” heroin refers to the color of packaging in which

the heroin was wrapped, and champagne heroin apparently was of

superior quality. 

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Rivera Valle (“Valle”), who testified she and Bultron bought drugs

from Defendant. On cross examination, Bultron acknowledged he had

heard of a person nicknamed “Gallo”, but denied that he told FBI

agent Scott Nielson in interviews that “Gallo” sold narcotics or

that he had personally purchased heroin from Gallo. Bultron also

denied he told Sgt. Pablo Quiñones or other law enforcement

officials that Gallo sold “champagne”1 heroin. Bultron admitted on

cross examination that he told agents of a meeting that a man known

as “Sandro” called and that someone named “Gallo” attended.

Bultron also admitted he had seen Defendant in a picture shown to

him by law enforcement, but stated he was unsure whether the

picture shown to him at trial was the same picture.

In response to this testimony, the Government called

Sergeant Pablo Quiñones in rebuttal. Quiñones testified that,

during an interview, he had shown Bultron a photograph of Defendant

and Bultron identified Defendant as “Gallo.” Quiñones also

testified that Bultron told him in an interview that Gallo would

meet with others to form an enterprise and to discuss the drug

trade in La Perla. Quiñones also testified that Bultron told him

that “Gallo” sold champagne heroin. 

Under Fed. R. Evid. 801(d)(1)(A), a declarant’s prior

inconsistent statements are hearsay and inadmissible as substantive
2Defendant notes that under Rule 801(d)(1)(C), a prior

statement by a witness is not hearsay if it was “one of

identification of a person made after perceiving the person.”

Consequently, Defendant agrees Quiñones’ testimony that Bultron

previously identified the person in the photograph as “Gallo” was

not hearsay, and thus could be considered substantively by the

jury.

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evidence unless they were made “under oath subject to the penalty

of perjury at a trial, hearing, or other proceeding, or at a

deposition.” Fed. R. Evid. 801(d)(1)(A); see also Finn v.

Consolidated Rail Corp., 782 F.2d 13, 16 n.4 (1st Cir. 1986).2

Bultron’s statements to Quiñones were not made under oath at a

trial or like proceeding, but rather in interviews with law

enforcement authorities. Thus, Quiñones’ testimony was

inadmissible for the truth of the matter asserted. Defendant

concedes, however, the testimony was admissible as impeachment

evidence. See United States v. Winchenbach, 197 F.3d 548, 558 (1st

Cir. 1999) (concluding a witness’ prior inconsistent statement is

admissible to attack the witness’ credibility under Fed. R. Evid.

613(b)). Despite this concession, Defendant argues the district

court had a duty to sua sponte deliver a limiting instruction

informing the jury that they could not consider Bultron’s prior

inconsistent statements for their truth, but only as they bore on

his credibility. 

We do not find plain error in the trial court’s failure

to sua sponte deliver a limiting instruction in this circumstance.

Pursuant to Fed. R. Evid. 105– 
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When evidence which is admissible as to one

party or for one purpose but not admissible as

to another party or for another purpose is

admitted, the court, upon request, shall

restrict the evidence to its proper scope and

instruct the jury accordingly.

Id. (emphasis added). Based on the Rule’s language, we previously

have concluded that the failure to request an instruction waives

the argument on appeal. United States v. Mateos-Sanchez, 864 F.2d

232, 238 (1st Cir. 1988). Consequently, Defendant’s arguments that

the district court erred at all, or that the error was plain and

obvious, are questionable. 

But even assuming the district court plainly erred, the

alleged error does not seriously affect the fairness, integrity or

public reputation of judicial proceedings. The jury heard both of

Bultron’s statements and was able to observe both his demeanor and

Quiñones’ demeanor. Both witnesses were subject to direct and

cross examination. The offered testimony did not concern

Defendant’s prior convictions or prior uncharged acts, and was not

highly inflammatory or so prejudicial that the district court

should have offered a limiting instruction absent a request from

the defense. Compare United States v. DeGeratto, 876 F.2d 576, 584

(7th Cir. 1989) (suggesting in dicta that even if cross examination

about uncharged prior bad acts was properly admitted under Fed. R.

Evid. 404(b), district court had a duty to sua sponte offer a

limiting instruction on highly prejudicial testimony); Dawson v.

Cowan, 531 F.2d 1374, 1377 (6th Cir. 1976) (finding plain error in
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the failure to give a limiting instruction regarding evidence of a

prior conviction for attempted rape where the defendant was facing

both a principal charge of attempted rape and a habitual offender

charge). We find no special circumstances in this case that would

require the district court to sua sponte offer a limiting

instruction. See United States v. Malik, 928 F.2d 17, 23 (1st Cir.

1991) (finding no plain error where district court did not sua

sponte offer a limiting instruction on law enforcement agent’s

testimony that defendant made statements to agent inconsistent with

defendant’s trial testimony).

B.

Defendant next argues the prosecutor made improper

closing arguments by misrepresenting the evidence and vouching for

a witness. 

1. Misrepresentation of Evidence

Defendant first contends that, in closing argument, the

prosecutor misrepresented Bultron’s testimony. The prosecutor

stated that although Bultron was evasive and hesitant to answer

questions, he eventually testified that he knew Gallo, and knew

Gallo ran a drug business. Defense counsel objected to this

characterization, to which the district court stated, “Let’s move

on.” The prosecutor then continued and stated that Bultron

testified Gallo’s product was champagne. The prosecutor also

stated Bultron admitted he knew that Gallo, Sandro, and the rest of
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the “committee” had Friday meetings in which they organized the La

Perla drug trade. 

“This Court has fashioned a three prong test for

examining whether the prosecution’s misconduct ‘so poisoned the

well’ that the trial’s outcome was likely affected, thus warranting

a new trial.” United States v. Joyner, 191 F.3d 47, 54 (1st Cir.

1999). “We examine: (1) whether the prosecutor’s conduct was

isolated and/or deliberate; (2) whether the trial court gave a

strong and explicit cautionary instruction; and (3) whether it is

likely that any prejudice surviving the judge’s instruction could

have affected the outcome of the case.” Id. Where Defendant

timely objected, we review de novo the question of whether the

comment was improper and review for abuse of discretion the

question whether the misconduct, if any, warrants a new trial.

United States v. Hernandez, 218 F.3d 58, 68 (1st Cir. 2000). Where

the defendant has not objected, we review for plain error. Id. at

69.

The record reveals some of the prosecutor’s statements

about Bultron’s statements were not fully supported by the

testimony. Bultron did not testify that he knew “Gallo,” although

he eventually admitted under cross examination that he previously

told an FBI agent that he knew someone named Gallo who lived in

Wipe Out and operated a store there. Bultron did not testify about

Friday meetings as stated by the prosecutor, nor did Quiñones
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testify that Bultron previously told agents about Friday committee

meetings. Only Valle testified about Friday meetings. Bultron

also did not testify that he observed any committee meetings or

that Gallo attended those meetings, or that the meetings concerned

running the drug trade in La Perla. On cross examination, he

admitted he previously told agents about two meetings Sandro called

which “Gallo” attended. The prosecutor did not inquire into the

substance of the meetings, however. Thus, no testimony was

produced that the meetings to which Bultron was referring involved

discussions about the rules of the La Perla drug trade as the

prosecutor stated in closing argument. And Bultron denied that he

knew Gallo sold champagne or heroin or that he personally purchased

drugs from Gallo, contrary to the prosecutor’s closing statements.

He further denied that he told agents this information. The

prosecutor seemed to discuss Quiñones’ testimony that Bultron made

these statements to agents in earlier interviews as if the

statements were Bultron’s live testimony. Thus, the prosecutor’s

statements about Bultron’s testimony misstated the record in some

respects. 

We agree with Defendant these comments were improper.

But we do not find sufficient prejudice to warrant a new trial.

Defendant presented no evidence the prosecutor’s conduct was

deliberate, and the misstatements were isolated to this one

witness. The witness’ testimony was less than clear on some
3Defendant also asserts the prosecutor misrepresented the

testimony of Valle and Quiñones. After reviewing the record, we

conclude the prosecutor’s description of these witnesses’ testimony

constituted reasonable argument based on the actual testimony.

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points, and the witness was impeached by prior statements to

investigators. Thus, the prosecutor may have innocently, albeit

negligently, confused Bultron’s live testimony and the impeachment

testimony. In final instructions, the district court instructed

the jury as follows: 

The statements that the lawyers made are not

to be considered by you either as evidence in

the case, which comes only from witnesses and

exhibits, or as [] instruct[ions] on the law,

which will come only from me. These

statements and arguments are intended to help

you understand the issues and the evidence as

it comes in, as well as the positions taken by

both sides.

Although not contemporaneous, the instruction informs the jury that

the statements of the lawyers are not evidence. We conclude the

misstatements were not so egregious, inflammatory, or pervasive

that they could have affected the outcome of the case.3 

2. Vouching

Defendant also challenges comments during the

prosecutor’s closing arguments which he alleges constitute improper

vouching for a witness and for the Government’s overall case.

During closing argument, defense counsel suggested witness Jose

Mercado Febles lied about a meeting among drug dealers on

Thanksgiving Day which Defendant allegedly attended. Defense
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counsel argued Febles was lying about this meeting because Febles

claimed another dealer, Papo Aviles, was present at the meeting

when Aviles actually was in jail on Thanksgiving Day. In response

to this argument, the prosecutor argued defense counsel was

misreading and misinterpreting the testimony, and thus Febles “had

not lied.” Defendant admits he did not object to the prosecutor’s

statement in closing argument that Febles “did not lie.” Thus we

review this issue for plain error. 

The prosecutor’s choice of words was unfortunate. What

the prosecutor meant was that the defense had not shown Febles

lied. According to the prosecutor’s view of the testimony, Febles

did not testify that Aviles was at the Thanksgiving Day meeting.

Hence his testimony was not contradictory with Aviles being in

prison on Thanksgiving Day. While we caution prosecutors to be

more careful in their choice of words, we do not find this comment

affected Defendant’s substantial rights, nor seriously affects the

fairness, integrity or public reputation of judicial proceedings.

The comment was isolated to one statement regarding one witness,

and the meaning of the comment was not the usual vouching problem

where the prosecutor assures the jury the witness is telling the

truth. See United States v. Figueroa-Encarnacion, 335 F.3d 28, 33

(1st Cir. 2003) (defining the “archetypal example of vouching” as

“a prosecutor’s claim that the witness should be believed because

the prosecutor–a representative of the government–believes the
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witness . . . .”). Rather, the prosecutor argued the defense was

mischaracterizing Febles’ testimony. Instead of stating Febles

“did not lie,” the prosecutor should have said the defense had not

caught Febles in an obvious lie.

Defendant also challenges the prosecutor’s comments in

closing argument that the Government had presented only a “sample”

of the evidence. Specifically, the prosecutor argued--

And what my colleague Miss Sulzbach told you

in her opening statement is that she would

give you a sample, an opportunity to hear from

three people who would tell you about the drug

trade in La Perla. 

. . .

What you heard from the government ladies and

gentlemen was a sample, if you think this week

trial was long, if we had brought in every one

that knew about drugs in La Perla we would

have been here for months.

. . .

You have to realize that what the government

brought you was a sample. It wasn’t a day to

day record of everything that went on in La

Perla drug world. It was a sample and that is

all we are asking you consider, this sample of

activity in La Perla drug world involving the

defendant and the [other] individuals involved

in this committee or this group.

. . .

And you saw a sample, not only the drug

dealings that went on but just a very small

portion and the government has proven its case

beyond a reasonable doubt.

In response, defense counsel in closing argued if this was just a

“sample,” the Government should have introduced more compelling

evidence of Defendant’s participation in the drug trade, such as

video, photographs, or tape recordings of controlled buys.
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The prosecutor’s use of the “sample” language constitutes

error. A prosecutor may not suggest to the jury that the

Government has more evidence establishing a defendant’s guilt than

it has presented to the jury. See United States v. Balsam, 203

F.3d 72, 88 (1st Cir. 2000) ("[A] prosecutor may not . . . indicate

that facts outside the jury’s cognizance support the testimony of

the government’s witnesses.") (internal quotation and citation

omitted). Although a close case, we conclude the prosecutor’s ill

advised statements did not prejudice Defendant, nor seriously

effect the fairness, integrity or public reputation of judicial

proceedings. 

Most of the comments suggested the evidence presented was

just a sample of the overall drug scene in La Perla and the

overarching investigation of the drug trade in La Perla, without

specifying that the Government had more information specifically

going to Defendant’s guilt. In reaching a verdict, the jury

necessarily had to accept or reject the testimony of the

Government’s cooperating witnesses. The prosecutor’s “sampling”

comments made in closing argument likely did not weigh heavily in

this determination. Either the jury believed the witnesses who

testified they bought from or sold drugs to Defendant, or they did

not. Further, defense counsel was able to effectively use this

“sampling” language in closing argument, further reducing any

potential prejudice. While we harshly condemn the Government’s
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comments in this case, we cannot say on plain error review that the

comments warrant reversal.

C.

Defendant next argues the trial court committed plain

error in instructing the jury when it asserted as fact that witness

Bultron testified he viewed a photograph of Defendant shown to him

by law enforcement officers. Defendant concedes he did not object

to the challenged instruction, and hence we review for plain error.

At the close of the case, the court instructed the jury–

No[w], witness Luis Mojica Bult[r]on testified

that he viewed a photograph of the defendant

Israel Navedo Concepcion which was shown to

him by a law enforcement officer. The police

collect pictures of many people from many

different sources and for many different

purposes. The fact that the police or a law

enforcement officer had defendant’s picture

does not mean that he committed this or any

other crime, and it must have no effect on

you[r] consideration of this case.

Defendant now claims Bultron did not testify that he had identified

Defendant from a photograph shown to him by law enforcement

officers, and thus the district court’s instruction erroneously

resolved a contested factual issue. 

The district court did not misstate the evidence.

Bultron did in fact testify that he “viewed a photograph of the

defendant Israel Navedo Concepcion which was shown to him by a law

enforcement officer.” Under questioning by defense counsel,
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Bultron denied he had seen Defendant in person, but admitted to

seeing him in a photograph:

Q: Sir, tell the jury when was the first time

that you saw this gentleman?

A: The first time? Today.

Q: And before today?

A: Before today I had been shown a photo.

Q: Who showed you a photo?

. . .

A: The photo I saw it for the first time at

the C.I.C. in San Augustine.

. . . 

Q: And after that first time, when was the

next time if any other time?

A: Second time was at the Department of

Justice.

Q: I ask you if any federal agent has shown

you a photo of my client?

A: Scott.

. . .

Q: Where was that, that Scott showed you a

photo of my client?

A: That was in the office of Domingo Alvarez.

. . .

Q: On that third occasion, who showed you the

photo of my client?

A: It was another federal agent, I was

brought.

Following this colloquy, Bultron testified that the agents asked

whether he recognized the individual in the photographs, and he

told the agents he did not. Thus, Bultron did testify that law

enforcement authorities showed him a photo of Defendant, as the

district court’s instruction indicated. A separate question

existed about whether Bultron identified the person in that photo

as “Gallo” the drug dealer from La Perla, but the district court’s

instruction did not speak to that issue. The district court did
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not misstate the evidence or decide a contested fact issue for the

jury, and thus did not plainly err.

D.

Defendant next argues the district court erred by relying

on the jury verdict for the amount of cocaine and heroin

attributable to Defendant as relevant conduct at sentencing. In a

drug conspiracy case, the jury should determine the existence of

the conspiracy as well as any facts about the conspiracy that will

increase the possible penalty for the crime of conviction beyond

the default statutory maximum. Derman v. United States, 298 F.3d

34, 42 (1st Cir. 2002). But the judge should determine, at

sentencing, the particulars regarding the involvement of each

participant in the conspiracy. Id. at 43. “This means that once

the jury has determined that the conspiracy involved a type and

quantity of drugs sufficient to justify a sentence above the

default statutory maximum and has found a particular defendant

guilty of participation in the conspiracy, the judge lawfully may

determine the drug quantity attributable to that defendant and

sentence him accordingly (so long as the sentence falls within the

statutory maximum made applicable by the jury's conspiracy-wide

drug quantity determination).” Id. Defendant thus contends that

while the jury could find the overall conspiracy involved amounts

exceeding those charged in the indictment, the district court

failed to make an individualized determination of what drug
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quantities were reasonably foreseeable to Defendant specifically,

and thus attributable to him as relevant conduct. 

We disagree. The district court instructed the jury in

such a way that the jury had to find Defendant personally

responsible for the amounts charged in the indictment to find

Defendant guilty of the overall conspiracy. After instructing the

jury about the elements of conspiracy, the district charged the

jury as follows:

The crime of conspiracy is complete upon the

agreement to commit the underlying crime.

The underlying crime is possession with

intent to distribute a controlled substance.

Israel Navedo Concepcion is accused of

conspiring with others to possess with the

intent to distribute to someone else cocaine,

in an amount exceeding five kilograms and

heroin in an amount exceeding on[e] kilogram

from on or about 1995 until the date of the

indictment. . . . For you to find Israel

Navedo Concepcion guilty of this crime you

must be convinced beyond a reasonable doubt:

First, that from on or about 1995 until

the date of his indictment, Israel Navedo

Concepcion possessed cocaine, in an amount

exceeding five kilograms and heroin, in an

amount exceeding one kilogram, either actually

or constructively.

Second, that he did so with the

specific intent to distribute the specified

amounts of cocaine and heroin over which he

had actual or constructive possession; and

Third, that he did so knowingly and

intentionally.

(Emphasis added). Based on these instructions, the jury had to

find Defendant personally possessed with intent to distribute over

five kilograms of cocaine and over one kilogram of heroin. By
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finding Defendant guilty, the jury made these factual findings

against Defendant. 

Even if the district court were at liberty to attribute

a lesser drug quantity to Defendant for sentencing purposes, the

district court expressed its belief that Defendant was personally

responsible for the drug quantities alleged in the indictment:

. . . I presided over this trial and I have no

question in my mind after viewing all of the

evidence and all of the witnesses and the jury

having found on this, but I as presiding judge

have no qualms or question whatsoever that

this defendant should be held accountable for

a minimum of the amount [charged] in the

indictment. For a minimum.

Thus, even were we to conclude the district court must make a

particularized finding of the drug amount for which Defendant was

personally responsible, the district court made that finding. A

remand for the district court to reiterate its finding would be an

empty gesture.

E.

Finally, Defendant argues the district court erred by

failing to state its reasons for sentencing Defendant at the top

end of the guideline range. The district court determined the

guideline range was 121-151 months, and then imposed the maximum

sentence. Title 18 U.S.C. § 3553(c) requires the sentencing court

to explain how it determined the applicable guideline range and, if

that range exceeds twenty-four months, why it selected the
4Section 3553(c) provides--

(c) Statement of reasons for imposing a sentence. The

court, at the time of sentencing, shall state in open

court the reasons for its imposition of the particular

sentence, and, if the sentence-- 

(1) is of the kind, and within the range, described in

subsection (a)(4), and that range exceeds 24 months, the

reason for imposing a sentence at a particular point

within the range; . . . . 

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particular point it did within that range.

4 The Government

concedes the district court did not state any reasons supporting

its selected sentence at the top of the guideline range as

required. Accordingly, we remand to the district court for

resentencing in compliance with § 3553(c). See United States v.

McDowell, 918 F.2d 1004, 1012 (1st Cir. 1990) (remanding for

resentencing where district court made no findings pursuant to

§ 3553(c) to support a four level adjustment for organizer/leader

status).

For the foregoing reasons, we AFFIRM the district court

in all respects except for its failure to state reasons for its

selected sentence. As to that issue, we REMAND for resentencing.