Of the District of New Hampshire, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-1288

UNITED STATES,

Appellee,

v.

JOSÉ R. ANDÚJAR-BASCO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Torruella, Circuit Judge,

Lipez, Circuit Judge,

and DiClerico, Jr., District Judge. *

Rafael F. Castro-Lang for appellant.

G. Andrew Massucco-LaTaif, Assistant United States Attorney,

with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,

Nelson Pérez-Sosa, Assistant United States Attorney, Appellate

Division, and Thomas F. Klumper, Assistant United States Attorney,

were on brief for appellee.

June 6, 2007
-2-

DICLERICO, District Judge. A jury convicted José R.

Andújar-Basco of conspiring and aiding and abetting the possession

with intent to distribute five or more kilograms of cocaine.

Andújar seeks a new trial, arguing that the district court erred by

not declaring a mistrial (1) after a government witness testified

regarding Andújar’s election to exercise his Fifth Amendment rights

to remain silent and to request an attorney, and (2) after the

government made unrelated improper remarks in closing arguments.

I.

Andújar was ensnared in a Drug Enforcement Agency (DEA)

sting operation. In September 2004, the DEA paid a confidential

informant to make purchases of controlled substances. At the

behest of DEA Agents Carlos Galloza and Roberto Bryan, the

confidential informant contacted Freddy Cancel-Camacho, an

acquaintance he had known for twenty years, to inquire about the

purchase of ten kilograms of cocaine. Prior to the purchase, the

informant and Cancel met on multiple occasions and also had several

telephone conversations. The DEA recorded many of these

conversations and played them for the jury at trial. 

On September 20, Cancel told the informant that the only

person he knew who could acquire ten kilograms of cocaine was

Andújar. The informant was also familiar with Andújar because

Cancel had introduced the two a few years earlier. The next day,

September 21, the informant went to Cancel’s house to discuss the
-3-

transaction. While the informant was present with a recording

device, Cancel talked to Andújar on the phone. Andújar confirmed

that he would sell cocaine to the informant, but he lowered the

quantity from ten kilograms to five kilograms and set the purchase

price at $85,000. The three agreed to meet the next day to

complete the transaction.

The September 22 meeting did not go as planned. When

Andújar and Cancel did not arrive at the arranged meeting location

at the appointed time, the informant left. While driving home, he

received a call from Cancel on his mobile phone. At one point in

the conversation, Andújar took the phone from Cancel and told the

informant that he had the five kilograms and was ready to go

forward with the deal. It was subsequently agreed that Andújar

would give the cocaine to Cancel who would then give it to the

informant and that Cancel would thereafter bring the $85,000 from

the informant to Andújar.

On the morning of September 23, Cancel called the

informant and told him that Andújar had given him the cocaine.

Cancel instructed the informant to come to his house to exchange

the money for the cocaine. The informant and Agent Galloza, posing

undercover as the drug buyer financing the purchase, drove to

Cancel’s house. The informant went inside Cancel’s house, took

possession of the bag of cocaine, and lead Cancel out to his truck

to retrieve the money. After the informant put the cocaine in the
-4-

back of the truck, local police and federal agents converged on the

scene and arrested the informant, Cancel, and Agent Galloza. A

forensic chemist testified that the substance seized that day was

cocaine weighing just over five kilograms. 

Cancel subsequently agreed to call Andújar to arrange for

Andújar’s payment. Eddie Vidal, a Puerto Rico police officer

assigned to the DEA, recorded and listened to Cancel’s three phone

conversations with Andújar. In those conversations, Andújar

instructed Cancel to meet him at a shopping center parking lot.

Cancel, Galloza, Vidal, and other law enforcement personnel drove

to the shopping center and waited. Andújar arrived driving a white

BMW with two passengers. After Andújar got out of the car and

approached a fast food truck, Cancel identified him, and he was

arrested. DEA agents also arrested the two other individuals in

the white BMW, and conducted a search of the car’s interior. Under

the driver’s seat the agents found a white plastic bag containing

110 individually wrapped clear plastic bags containing a white

powdery substance. A forensic chemist testified that the bags

contained approximately seventy grams of cocaine.

A grand jury returned a two-count indictment charging

Andújar and Cancel with conspiring to possess with intent to

distribute five or more kilograms of cocaine, see 21 U.S.C. §§

841(a)(1) and 846, and aiding and abetting the possession with

intent to distribute five or more kilograms of cocaine, see 21
-5-

U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Cancel pled guilty to both

charges before trial and was sentenced to seventy-eight months

imprisonment. A five-day jury trial ensued on the charges against

Andújar in which the government elicited testimony from the

confidential informant, Officer Vidal, Agent Bryan, and two

forensic chemists. The government also presented several recorded

conversations, and testimony and documentary evidence concerning

Andújar’s and Cancel’s phone records. The jury found Andújar

guilty on both counts and the district court sentenced him to 121

months in prison. Andújar filed a timely notice of appeal.

II.

Andújar argues that two errors necessitate a new trial.

First, he contends that the district court erred by not granting a

mistrial after the government infringed his Fifth Amendment

privilege against self-incrimination by eliciting testimony

concerning his election to remain silent and to request an attorney

while being questioned by DEA agents. See U.S. Const. amend. V

(“No person shall . . . be compelled in any criminal case to be a

witness against himself . . .”); Miranda v. Arizona, 384 U.S. 436,

468 n.37 (1966) (holding that a defendant’s exercise of his right

to remain silent may not be used against him at trial). Andújar

argues that this testimony resulted from “intentional government

misconduct which was geared to impressing on the [jury] that [he

had] refused to talk about the 5 kilo[grams] and wanted a lawyer
-6-

because he was guilty.” Second, he contends that his right to a

fair trial was “further violated when the prosecutor made repeated,

unprovoked[,] improper closing argument[s] to the jury.” Andújar

argues that the district court should have declared a mistrial

after the prosecutor impermissibly interjected his personal opinion

and then compounded the error by telling the jurors that it was

their “duty” to “uphold the law” and find Andújar guilty. 

A. Improper Testimony

We begin with Andújar’s contention that the government

elicited improper testimony regarding his election to remain silent

and to request an attorney. On the third day of the trial, the

government called Agent Bryan who testified about Andújar’s arrest

and booking. According to Bryan, Andújar was advised of his

Miranda rights and indicated his understanding of those rights.

Because Andújar did not initially invoke his right to silence,

Bryan began questioning him. Bryan testified as follows concerning

that interrogation:

Q. Can you tell the ladies and gentlemen of

the jury what, if anything, the defendant told

you?

A. Basically we explained the seriousness of

the charge that he was looking at and advised

him that you know, we have evidence regarding

that, and trying to seek his cooperation

regarding the next level. . . . At that time

we tried to explain to Mr. Andújar the

seriousness of the charges, and explain to him

this was the particular time that was for him,

to be beneficial for him to get on board, what

we say, to go ahead and see if we could seek
-7-

the person that he received the five kilograms

of cocaine from.

Q. Did he tell you any information pertaining

to any of the cocaine that you seized on that

day?

A. Before we went straight to the five

kilograms, what I initially started with was

regarding the cocaine found in the vehicle.

At that time he admitted to the fact that he

said they, they had just purchased that

particular cocaine.

Q. When he said they, who did you take they

to be?

A. Himself and the other individuals in the

vehicle.

Q. What happened after that?

A. In addition, as I tried to ascertain

further information as far as who he actually

received the cocaine from, he then changed the

statement and said that it was his cocaine and

no one else had anything to do with it.

Q. His cocaine being the five kilograms or

the 70 grams?

A. At the time we were specifically talking

about the cocaine in the vehicle. When

attempting to go further or get further

details regarding the five kilograms, and also

where was the cocaine ascertained from, at

that time he didn’t want to speak any further,

he advised he wanted his lawyer and invoked

his Miranda warnings and we stopped.

Q. Did you question him any further after

that?

A. No, sir.

Day Three Tr. at 100-03 (emphasis added). Andújar did not object

at any point during this line of questioning. 
Citing Federal Rule of Evidence 403, the court had ruled that 1

any testimony referring to co-defendant Cancel’s “cooperation” with

law enforcement was overly prejudicial and misleading because

Cancel ultimately chose not to cooperate and not to testify at

Andújar’s trial. The government was ordered to instruct its

witnesses not to characterize Cancel as a “cooperator.” 

-8-

On the fourth day of the trial, the government recalled

Agent Bryan to testify about a phone call DEA agents had made using

Andújar’s mobile phone the evening after he was arrested. The

following colloquy took place:

Q. Did Richard Andújar have his cellphone

with him at the time?

A. No, sir, we had it with us, sir.

Q. Did you have occasion to use his cellphone

any time later in the night of September 23,

2004?

A. Yes, I did.

Q. Can you tell the ladies and gentlemen of

the jury how you used his cellphone and for

what purpose?

A. Yes, sir, after Mr. Andújar was arrested

we were attempting to have Mr. Andújar

basically what we call get on board, and in

order to also keep the other cooperators cool

at that particular time–

Day Four Tr. at 5 (emphasis added). At that point, Andújar

objected to the testimony concerning “the other cooperators.”

Andújar requested a mistrial, arguing that the government violated

an earlier court order that government witnesses should refrain

from suggesting that co-defendant Cancel had cooperated with law

enforcement. The court offered to instruct the jury that Cancel 1
-9-

did not cooperate. Andújar then argued that Bryan’s testimony

concerning the DEA’s attempt to get Andújar “on board” “seems like

. . . he is making a comment on Mr. Andújar’s choice to remain

silent.” The court did not “read that into this testimony” and

denied Andújar’s request for a mistrial. The court nonetheless

struck the testimony from the record. 

At the start of the fifth and final day of trial, Andújar

again moved, both orally and in a written submission, for a

mistrial based on Bryan’s testimony that the DEA had attempted to

get Andújar “on board.” Andújar noted that, although he had

objected only once, Bryan had twice testified about the attempt to

get Andújar “on board.” Andújar did not refer or object to the

testimony describing Andújar’s termination of the interrogation.

The court denied the motion for a mistrial but offered to deliver

a curative instruction to the jury. Andújar objected to a specific

instruction, which he feared would draw attention to the stricken

testimony. Therefore, with the assent of both parties, the court

simply delivered an instruction emphasizing that the jury could not

consider any testimony that had been stricken from the record. 

Andújar now challenges three portions of Bryan’s

testimony: (1) the day three testimony about attempting to get

Andújar “on board,” (2) the day three testimony regarding Andújar’s

explicit invocation of his Fifth Amendment rights, and (3) the day

four testimony again mentioning the attempt to get Andújar “on
-10-

board.” We begin our analysis with consideration of the day three

testimony specifically mentioning Andújar’s Miranda assertion. 

Because Andújar did not raise a contemporaneous objection

to this testimony, our review is for plain error only. See United

States v. Gabriele, 63 F.3d 61, 70 & n.13 (1st Cir. 1995). For

Andújar to prevail under this standard, he must demonstrate that

there was an error, that was clear or obvious, and that affected

his substantial rights. United States v. Olano, 507 U.S. 725, 732-

34 (1993) (citing Fed. R. Crim. P. 52(b)). If these three

conditions are satisfied, the court may reverse to prevent a

miscarriage of justice. Id. at 734-35.

The Fifth Amendment forbids the use of a defendant’s

custodial silence as substantive evidence of his guilt. Miranda,

384 U.S. at 468 n.37. In Doyle v. Ohio, the Supreme Court held

that, under the Fourteenth Amendment, where a defendant exercises

his right to remain silent after being informed of his Miranda

rights, the government may not use that silence to impeach an

explanation offered by the defendant at trial. See 426 U.S. 610,

618-19 (1976). In so holding, the Court recognized that allowing

the government to use a defendant’s silence against him at trial,

after having implicitly encouraged that silence through delivery of

the Miranda warning, would be “fundamentally unfair and a

deprivation of due process.” Id. at 618. This court has further

held that a defendant’s actual statement asserting his Miranda
Andújar does not argue that his waiver was not made knowingly 2

and voluntarily.

-11-

rights, even when uttered before a Miranda warning has been

delivered, is not admissible as substantive evidence of the

defendant’s guilt. See Coppola v. Powell, 878 F.2d 1562, 1567 (1st

Cir. 1989) (“[T]he disclosure of the words [the defendant] used to

claim his privilege results in the same dilemma addressed” in the

Supreme Court cases dealing with prosecutorial reference to a

defendant’s silence).

The question that arises here is whether the rule

announced in Miranda -- that the government may not use the

defendant’s post-arrest silence in its case-in-chief -- is

applicable here, where the defendant initially waived his Fifth

Amendment privilege only to assert his right to silence at some

later point in the midst of questioning. As a general rule, any

inculpatory or exculpatory statements made by a defendant

(including silence with regard to particular questions) are

admissible at trial insofar as they were the product of a knowing

and voluntary waiver. See Miranda, 384 U.S. at 475; United States 2

v. Goldman, 563 F.2d 501, 503 (1st Cir. 1977) (“A defendant cannot

have it both ways. If he talks, what he says or omits is to be

judged on its merits or demerits, and not on some artificial

standard that only the part that helps him can be later referred

to.”) (internal quotation marks omitted). But waiver, in this
-12-

context, is not an all-or-nothing proposition. As the Supreme

Court noted in Miranda, “where in-custody interrogation is

involved, there is no room for the contention that the privilege is

waived if the individual answers some questions or gives some

information on his own prior to invoking his right to remain silent

when interrogated.” 384 U.S. at 475-76. The Court was explicit

that a detained suspect may change his mind about talking to the

police “at any time prior to or during questioning,” and that the

“right to cut off questioning,” is essential to the privilege. Id.

at 473-74. 

The government cites a line of Eighth Circuit cases that

hold that testimony regarding a defendant’s refusal to speak to the

police, following an initial Miranda waiver, is admissible against

the defendant. See United States v. Burns, 276 F.3d 439, 442 (8th

Cir. 2002) (“[W]here the accused initially waives his or her right

to remain silent and agrees to questioning, but ‘subsequently

refuses to answer further questions, the prosecution may note the

refusal because it now constitutes part of an otherwise admissible

conversation between the police and the accused.’”) (quoting United

States v. Harris, 956 F.2d 177, 181 (8th Cir. 1992), and citing

United States v. Collins, 652 F.2d 735, 739 (8th Cir. 1981)). See

also Rowan v. Owens, 752 F.2d 1186, 1190 (7th Cir. 1984) (Posner,

J.) (finding that, on the facts of that case, the government’s

testimony concerning the end of the interrogation was permissible).
-13-

Andújar argues that his case is distinguishable from the

above cases because the challenged testimony here refers directly

to his express assertion of his constitutional rights. In the

above cases, Andújar argues, the challenged testimony mentioned

only the defendant’s refusal to answer further questions. See

Burns, 276 F.3d at 441 (federal agent testified that the defendant,

in response to one particular question, “did not respond and ‘just

looked’ at those questioning him”); Harris, 956 F.2d at 181

(prosecutor’s summation mentioned the defendant’s confession and

that the defendant thereafter “conclude[d] the interview”); Rowan,

752 F.2d at 1190 (two police officers testified that after the

defendant answered some questions he “said he didn’t want to say

anything else”); Collins, 652 F.2d at 740 (officers testified that

after making an incriminating statement, the defendant “refused to

make any other statement”). In contrast, Andújar argues, Bryan’s

testimony explicitly noted that Andújar had asked for a lawyer and

had “invoked his Miranda warnings.”

Andújar raises a meaningful distinction. It has long

been established that a witness who has been compelled to testify

may avoid a question on Fifth Amendment grounds only if the answer

would pose “some authentic danger of incrimination.” United States

v. Castro, 129 F.3d 226, 229 (1st Cir. 1997). In light of the

self-evident purpose of the privilege against self-incrimination,

a government witness’s testimony that an accused explicitly invoked
-14-

the privilege raises a nearly irresistible inference that the

accused was hiding something incriminating. Put another way,

although silence may be interpreted in many ways, see Doyle, 426

U.S. at 617 (“every post-arrest silence is insolubly ambiguous”),

the affirmative assertion of the privilege against selfincrimination raises a clear inference of culpability.

Accordingly, since such testimony more directly implies that the

defendant was hiding something, it is necessarily more prejudicial

than testimony that simply notes that the defendant at some point

stopped answering questions. Indeed, the distinction between an

affirmative statement and simple silence was one important factor

in Coppola. See 878 F.2d at 1566 (distinguishing from Supreme

Court precedent upholding the use of pre-arrest silence to impeach

a defendant’s credibility because, “[i]n the case at bar, we are

concerned with the use of a statement made by a suspect and used by

the prosecutor in his case in chief, not the use of silence to

impeach the defendant’s credibility”).

More importantly, although Miranda acknowledges the

possibility of a knowing and voluntary waiver, neither Miranda, nor

any subsequent Supreme Court decision, draws a distinction between

an immediate post-arrest Fifth Amendment assertion and a delayed

mid-interrogation assertion. In either event, the assertion

triggers the privilege, the police must cease interrogation, and

the government may not use the assertion against the defendant at
-15-

trial. See Doyle, 426 U.S. at 619; Miranda, 384 U.S. at 468 n.37

(“In accord with our decision today, it is impermissible to

penalize an individual for exercising his Fifth Amendment privilege

when he is under police custodial interrogation. The prosecution

may not, therefore, use at trial the fact that he stood mute or

claimed his privilege in the face of accusation.”). At least with

respect to clear affirmative assertions, we do not see how an

initial Miranda waiver can operate to make a subsequent Miranda

assertion admissible against the defendant, nor do we perceive a

sound rationale for cutting back the scope of Miranda’s

protections. See Coppola, 878 F.2d at 1566 (noting that the

privilege against self-incrimination is given liberal application

and cautioning against “whittl[ing] it down by the subtle

encroachments of judicial opinion”) (quoting Maffie v. United

States, 209 F.2d 225, 227 (1st Cir. 1954)); see also Castro, 129

F.3d at 229 (recognizing that the privilege against selfincrimination is “a cornerstone of our adversarial system of

criminal justice” that “must not be given a crabbed construction”).

Whatever the merit of the reasoning of the Eighth Circuit

cases, there are limits to how far the government may go in

describing the scope of an interrogation. See Rowan, 752 F.2d at

1190 (recognizing that the police can “indicate . . . the end as

well as the beginning of the interrogation, so that the jury [will]

know that the officers’ testimony [is] complete,” “provided [that]
-16-

they [do] not do so with undue emphasis”). Government witnesses

who testify concerning the circumstances of an interrogation that

was terminated by the defendant must proceed with caution. In the

circumstances of this case, we hold that the Fifth Amendment bars

testimony concerning a defendant’s explicit mid-interrogation

assertion of his Miranda rights, and that it was error to permit

such testimony to go to the jury.

The government argues, nevertheless, that in light of the

Eighth Circuit cases, and a case from this circuit that favorably

cites one of those cases, see United States v. Lopez-Lopez, 282

F.3d 1, 12 (1st Cir. 2002) (citing Harris, 956 F.2d at 181), the

district court’s error was not plain. As noted above, because the

Fifth Amendment privilege against self-incrimination “must be given

liberal construction,” Coppola, 878 F.2d at 1565, any exceptions

that undermine its protections should be applied narrowly. 

It is important to emphasize that the Eighth Circuit

cases did not confront the precise scenario presented here. See

supra at 13-14. Neither did Lopez-Lopez. In that case, two codefendants were questioned together and in response to a specific

question, one co-defendant told the other “don’t answer.” LopezLopez, 282 F.3d at 11. The district court allowed the

interrogating officer to testify regarding that statement at the

defendants’ joint trial. We upheld their convictions, holding

that, after an accused knowingly and voluntarily waives his Miranda
-17-

rights by making statements, “he may not rely on Doyle to object to

the admission of those statements simply because the statements

refer to the act of keeping silent.” Id. at 12. As in the Eighth

Circuit cases, the testimony challenged in Lopez-Lopez did not

describe the defendant expressly electing to exercise his Miranda

rights. Moreover, Lopez-Lopez is further distinguishable by the

fact that it did not involve an accused asserting his own Miranda

rights, but rather involved an accused urging his companion to

assert his rights. 

In sum, Miranda draws no distinction between a midinterrogation assertion of the privilege against self-incrimination

and an immediate post-arrest assertion, see Miranda, 384 U.S. at

468 n.37 & 475-76, and our holding in Coppola makes it clear that

the words the defendant uses to assert the privilege are themselves

protected by it, see Coppola, 878 F.2d at 1567-68. We reject the

contention that any subsequent cases, of this circuit or of any

other circuit, can be read to have carved out an exception to this

protection where the express assertion of the privilege comes after

a previous waiver. Such an exception would run contrary to

Miranda’s plain language. Accordingly, we find that it was plain

error to allow testimony concerning Andújar’s express assertion of

his Miranda rights.

Such a finding, however does not end the plain error

analysis. Andújar must establish that the error affected his
-18-

“substantial rights by altering the outcome of the trial.” United

States v. Shoup, 476 F.3d 38, 42 (1st Cir. 2007). Put another way,

he must establish that the error prejudiced him. Given the

overwhelming strength of the government’s case, we conclude that it

did not.

Although the government’s case largely hinged on the

testimony of a confidential informant, his testimony was

corroborated by several sources, including the testimony of Officer

Vidal and Agent Bryan, and the recorded conversations between the

informant and Cancel. Bryan’s and Vidal’s testimony, and the

substance of the recorded conversations, track the informant’s

testimony. Moreover, Vidal personally identified Andújar as being

on the other end of the calls Cancel made to set up the time and

the place for the seller to receive payment for the five kilograms

of cocaine. The phone records for Cancel’s and Andújar’s mobile

phones -- which show a number of calls between Cancel and Andújar

during the time period of the conspiracy -- further support the

informant’s story.

The defendant’s own actions and statements provide

further corroboration. Andújar’s very arrival at the appointed

time and place designated for the transfer of the $85,000 is strong

circumstantial evidence of his involvement in the conspiracy,

especially when viewed in context with the other evidence.

Moreover, Andújar’s post-arrest confession that he was the owner of
-19-

the seventy grams of cocaine found in the white BMW provides

additional circumstantial evidence linking Andújar to the

conspiracy. Both the quantity and the packaging of the seventy

grams of cocaine, in 110 individual plastic bags, were consistent

with distribution. See United States v. Puckett, 405 F.3d 589, 601

(7th Cir. 2005) (noting that “63 grams [of cocaine], is in excess

of what one would possess for personal use, and is in and of itself

sufficient evidence to compel an inference that [the defendant]

intended to distribute the drug”). Andújar’s possession of the

seventy grams -- although not directly probative of his ownership

of the five kilograms -- lends credibility to the informant’s

depiction of Andújar as a drug dealer and undermines the defense

testimony aimed at establishing an innocent explanation for

Andújar’s presence at the shopping center parking lot.

Andújar argues that the credibility of the government’s

identification is in doubt because the officers who arrested

Andújar inquired whether other people at the scene were “Richard.”

But the fact that the arresting officers may not have known what

Andújar looked like hardly undermines the government’s case.

Admittedly, the DEA relied on Cancel to make a visual

identification of the seller, and he did just that. Andújar also

argues that “the short duration of calls between Cancel and

[Andújar], the lack of certainty as to what was spoken between them

during those calls, [and] that there was evidence Cancel had direct
-20-

communication with the owners of the narcotics whom he did not

identify to the authorities at the time of arrest” further

undermines the government’s case. Again, however, it is not

readily apparent how any of these factors weaken the government’s

case. It is hardly surprising that a drug dealer would want to

minimize the length of his phone conversations concerning an

illicit transaction. Nor is the government charged with providing

the precise contents of every conversation involved in a

conspiracy. In any event, the detailed testimony of the

confidential informant, and the testimony of Officer Vidal, who

listened in on three of Cancel’s calls with Andújar, could hardly

be characterized as “uncertain.” Finally, that Cancel may have had

contact with Andújar’s source does not disprove Andújar’s

participation, especially in light of the testimony that the source

trusted only Andújar and would not work directly with anyone else.

We therefore find that Andújar has failed to establish

that the error “had [a] prejudicial impact on the jury’s

deliberations.” Olano, 507 U.S. at 734 (internal quotation marks

omitted). For the same reason, Andújar’s unpreserved challenge to

the day three “on board” testimony also fails.

Andújar did, however, object to the day four testimony.

Although not perceiving a problem, the district court sustained

Andújar’s objection, struck the offending testimony from the

record, and instructed the jury as requested by Andújar. Thus, the
-21-

only question presented on appeal is whether the granting of

greater relief (i.e., the declaration of a mistrial) was warranted.

Although we ordinarily review de novo the question of whether “a

statement in the presence of the jury infringed upon the privilege

against self-incrimination,” we review the “denial of a motion for

mistrial for abuse of discretion.” Gabriele, 63 F.3d at 70.

The connection between Bryan’s testimony about the DEA’s

post-arrest “attempt[] to have Mr. Andújar . . . get on board” and

Andújar’s election to remain silent is tenuous at best. The

question posed by the government -- asking Bryan how and for what

purpose he had used Andújar’s cell phone -- did not call for such

testimony. On its face, the testimony itself does not explicitly

suggest that Andújar refused to talk to police, nor does it state

whether the DEA’s “attempt” was ultimately successful. See LopezLopez, 282 F.3d at 12 (finding no Doyle violation where there “was

no testimony as to whether [the co-defendant] responded to [the

defendant’s] suggestion by remaining silent and there was no

testimony about either party remaining silent in the face of

questioning”). Nor did the government make “a point of asking the

jury to draw a negative inference from” the attempt to get Andújar

“on board.” United States v. Daoud, 741 F.2d 478, 482 (1st Cir.

1984).

Even assuming the jury made the connection Andújar fears,

viewing the totality of the circumstances, we do not perceive a
-22-

violation of constitutional magnitude. In a recent habeas case, we

recognized that in cases involving testimony concerning a

defendant’s post-Miranda silence, where the trial court promptly

addresses the improper testimony “in an instruction to disregard

and/or strike from the record, there may not necessarily be a Doyle

violation because the government has not been permitted to ‘use’

the defendant’s silence against him.” Ellen v. Brady, 475 F.3d 5,

11 (1st Cir. 2007) (citing Greer v. Miller, 483 U.S. 756, 764-65

(1987)). In Ellen, a government witness, responding to a seemingly

innocuous question from the prosecutor, testified concerning the

defendant’s election not to speak to the police. Id. at 7. The

defendant immediately objected and the trial court sustained the

objection, struck the testimony, and delivered a curative

instruction. Id. at 8. In light of the surrounding circumstances,

we ruled that there was no constitutional violation. See id. at

12-14. Important to our consideration were the facts that the

defendant’s “post-Miranda silence was not mentioned, by either the

prosecutor or a witness, after the judge sustained the

objection[,]” the government’s questions “did not, on their face,

call for testimony in violation of Doyle,” and the court promptly

delivered curative instructions that “were proportional to the”

offensive testimony. Id. at 14.

The same factors are present here. The district court

sustained Andújar’s objection and struck the offending testimony
-23-

from the record. Following Andújar’s objection, no further

questions or testimony alluded to his silence and the government

made no comment on his silence in closing arguments. Additionally,

the jury was instructed, both at the beginning of the trial and

after the close of evidence, that it must not consider any

testimony stricken from the record. Following closing arguments,

the court, at Andújar’s request, again emphasized this point,

reminding the jury “that any testimony that you may have seen or

heard and that I have excluded from evidence, and instructed you to

disregard, is not evidence.” The court also instructed the jury

that Andújar has a “constitutional right not to testify and no

inference of guilt or of anything else, may be drawn from the fact

that he did not testify. For any of you to draw such an inference

would be wrong, indeed it would be a violation of your oath as a

juror.” Andújar presents no sound reason to discard “the customary

presumption that juries follow their instructions.” Gabriele, 63

F.3d at 70; see also Ellen, 475 F.3d at 13.

Andújar argues that we should view the challenged day

four testimony in context with the previous improper testimony.

Andújar argues that the government purposefully elicited Bryan’s

improper testimony and the district court should have considered

the cumulative effect of all the improper testimony. First, as

noted above, we disagree that the government purposefully sought to

elicit testimony about Andújar exercising his Fifth Amendment
We recognize that, unlike in Ellen, some testimony concerning 3

Andújar’s silence was ultimately submitted to the jury. But this

state of affairs came about only because of defense counsel’s

inattention. Once apprised of the problem, the district court

acted promptly and reasonably to correct it. We further add that,

even under the stricter form of harmless error review applicable to

constitutional errors, the government has established beyond any

reasonable doubt that the verdict was not influenced by the

references to Andújar’s Miranda election. United States v. Coker,

433 F.3d 39, 47 (1st Cir. 2005). Based on the overwhelming

evidence establishing Andújar’s guilt, we are confident that the

verdict would have been the same even in the absence of the

improper testimony. Id.; see supra at 18-20. 

-24-

privilege. Additionally, it bears emphasizing that this court

reviews alleged errors of the district court, not errors of the

prosecution, and the district court is not charged with advocating

for the defense or anticipating issues not brought to the fore by

counsel. Cf. United States v. McIntosh, 380 F.3d 548, 555 (1st

Cir. 2004). Andújar never referred the court to the most

objectionable testimony directly relating to his Miranda assertion.

He only objected to the ambiguous and considerably less striking

“on board” testimony. In such circumstances, the court did not

abuse its discretion in denying Andújar’s motion for a mistrial.3

B. Improper Closing Arguments

Andújar challenges three comments made by the government

in closing arguments. First, at the end of his initial summation,

the prosecutor stated, “I feel comfortable and the United States

feels comfortable that they have proven beyond a reasonable doubt

that this man delivered five kilograms of cocaine between the 20

and 23 of September.” Day Five Tr. at 39. In rebuttal, the
-25-

prosecutor argued, inter alia, that Andújar and Cancel “conspired

to distribute five kilograms of cocaine, it does not matter where

it came from. He gave it to Freddy Cancel. That is what matters.

I have proven it, absolutely. We have met our burden.” Id. at 59.

Finally, in his last words to the jury, the prosecutor urged,

“[y]ou find him guilty, you uphold the law, your duty as jurors,

make the logical choice and come back with one answer, and telling

this man, Richard Andújar you are guilty. Thank you.” Id. at 67.

Andújar argues that the first two remarks were improper

because they amounted to “affirmations of [the prosecutor’s]

personal belief” that Andújar is guilty. See United States v.

Gonzalez Vargas, 558 F.2d 631, 632-33 (1st Cir. 1977) (vacating a

conviction where the prosecutor stated his personal belief in

summation). Further inflaming the jurors’ passions, Andújar

argues, was the prosecutor’s final exhortation to the jurors to do

“your duty.” See United States v. Mandelbaum, 803 F.2d 42, 44 (1st

Cir. 1986) (finding improper the suggestion that a jury has “a duty

to decide one way or the other” because such an appeal “can only

distract a jury from its actual duty: impartiality”). Andújar

contends that the severity of these comments warrants a new trial.

The government concedes that the comments were improper, but argues
The government also argues that Andújar’s counsel interjected 4

her own personal opinion in her summation and thereby

“neutraliz[ed] the harm flowing from the prosecutor’s remarks.”

United States v. Gallagher, 735 F.2d 641, 644 (1st Cir. 1984). We

decline to invoke the “invited response” rule here where the

government launched the “opening salvo.” United States v. Young,

470 U.S. 1, 12-13 (1985).

Although the lack of prejudice saves the government from a 5

lost conviction, we are troubled that such improper arguments

persist despite our repeated admonitions against them. See, e.g.,

United States v. Martínez-Medina, 279 F.3d 105, 120 (1st Cir.

2002); United States v. Gonzalez-Gonzalez, 136 F.3d 6, 10 (1st Cir.

1998) (collecting cases). The United States Attorney’s office in

Puerto Rico must redouble its efforts to educate its attorneys

about the ground rules for closing arguments.

-26-

that a new trial is unnecessary because it is not reasonably likely

these isolated remarks affected the outcome of the trial.4

Since Andújar did not object to the prosecutor’s remarks

at trial, we may only review for plain error. See United States v.

Henderson, 320 F.3d 92, 105 (1st Cir. 2003). The government

explicitly concedes error and implicitly concedes that the error

was plain. Nevertheless, as we have already noted above, see supra

18-20, 24 n.3, the record, viewed in the aggregate, presents

overwhelming evidence establishing Andújar’s guilt. In such

circumstances, we are compelled to conclude that the prosecutor’s

improper remarks did not “so poison[] the well that the trial’s

outcome was likely affected.” Henderson, 320 F.3d at 107 (internal

quotation marks omitted).5
-27-

III.

For the foregoing reasons, the defendant’s convictions

are affirmed.