1 Senior Judge of the Western District of Louisiana, sitting by

designation.

2 The building was insured for $120,000, and the coverage for

personal property in the building was raised from $50,000 to

$75,000 in January 1991. In mid-February 1991, Tark had offered

the grocery store manager $5,000 to burn the building, but the

manager declined and reported the offer to the Custom's Service.

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 92-3286

_____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAMAL ABU SAMAK,

Defendant-Appellant.

______________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

______________________________________________________

(November 15, 1993)

Before DUHÉ, EMILIO M. GARZA, Circuit Judges and STAGG,1 District

Judge.

PER CURIAM:

Appellant Jamal Abu Samak challenges his conviction for

conspiracy to violate, and violation of, the Organized Crime

Control Act, 18 U.S.C. §§ 2, 34, 371, 844(i). Finding no error, we

affirm. 

FACTS

On March 12, 1991, Jamal Abu Samak recruited Daniel Joseph Lee

to burn down the building housing the Community Grocery Store. The

building and grocery store were owned by Abdel and Tark Mousa.2 At
2

approximately 3:00 a.m., Lee and Samak entered the Community

Grocery Store building and poured two containers of gasoline in the

apartment above the store and two containers into the grocery

itself. As they were leaving the store, Samak attempted to lock

Lee in the grocery. He threw a match in the store, causing a blast

that threw Lee outside the building. An inhabitant of one of the

apartments died in the fire. 

Lee entered a guilty plea. Both Mousas entered guilty pleas

to superseding bills of information. Samak went to trial on a

second superseding indictment and was convicted by a jury on both

counts. The district court sentenced Samak to five years of

imprisonment on Count 1 and life imprisonment on Count 2 with the

terms to run concurrently. Samak appeals.

DISCUSSION

I.

Samak's main contention is that Government exhibits 1 through

20 and 23 through 35 were not formally admitted into evidence by

the district court, but were delivered to the jury for their

deliberations. These exhibits were offered into evidence following

the direct testimony of a Government expert, George M. Bradley.

The district court reserved ruling on the admissibility of the

exhibits until after defense counsel cross-examined Bradley.

Following Bradley's cross-examination, the court made no further

ruling, and defense counsel made no specific objections to the

exhibits and no admissibility ruling was requested.

When there are no articulated reasons for an objection to
3

exclude evidence, the admission of such evidence will be reviewed

for plain error. See United States v. Martinez, 962 F.2d 1161,

1166 n.10 (5th Cir. 1992). "Plain error is error which, when

examined in the context of the entire case, is so obvious and

substantial that failure to notice and correct it would affect the

fairness, integrity, or public reputation of the judicial

proceedings." United States v. Ayers, 946 F.2d 1127, 1131 (5th

Cir. 1991). The Government admits that the record is unclear as to

the formal admission of the exhibits, but the Government asserts,

and Samak acknowledges, that the court's exhibit list shows that

the exhibits in question were formally admitted. It is also beyond

dispute that they were treated as if they had been admitted. 

Samak has not suggested any reason why the exhibits should not

have been admitted into evidence. He speculates that there may

have been some basis for inadmissibility if his counsel had been

allowed cross-examination. The record indicates, however, that

Samak's trial counsel did conduct cross-examination of the witness

whose testimony was related to the exhibits. Samak has produced

nothing to show that there was any error much less a plain error by

having these exhibits in evidence. 

II.

Samak next contends that he was denied due process because of

acrimony between his trial counsel and the district court. "To

constitute constitutional error . . . the trial court's action,

viewed as a whole, must amount to intervention which could have led

the jury to a predisposition of guilt by improperly confusing the
3 Specifically, the trial court said: 

[D]uring the course of Trial, I have

occasionally made comments to the Lawyers, or

asked a question of a Witness, or admonished a

Witness concerning the manner in which he

should respond to the question of the Counsel.

Do not assume from anything I may have said

that I have any opinion concerning any of the

issues in this case. In arriving at your own

findings as to the facts, you should disregard

anything I may have said during the Trial,

except for my instructions to you on the Law.

 The Law of the United States permits the

Judge to comment on evidence in the case. I

do not believe that I have made any comments

on the evidence in this case. However, if you

could possibly construe any remarks which I

have made during the course of this Trial as a

comment on the evidence, then I instruct you

that any such comment on my part is only an

expression of my opinion as to the facts, and

you, the jury, may disregard such comment or

comments entirely since you, as jurors, are

the sole judges of the facts in this case. 

4

functions of judge and prosecutor." United States v. Davis, 752

F.2d 963, 974 (5th Cir. 1985). The Government has conceded, and we

agree, that the record shows tension between the district court and

trial counsel, but notes that many of the comments Samak complains

of on appeal were made out of the jury's presence. Further, at the

time of the charge the district judge admonished the jury to

disregard anything that he may have said during the trial except

for his instructions on the law.3

 In Davis, we recognized that "[t]he trial court is not

required to remain silent and passive." Id. at 975. The district

court has a duty to "facilitate the orderly progress of the trial

while maintaining the appearance of strict impartiality." Id. We
5

concluded that a curative instruction, such as that given by the

district court in this case, would operate against a finding of

constitutional error. Id. Viewed as a whole, the district court's

conduct in this case did not prejudice the defense. 

III.

Samak argues that the presence of a Mousas' relative in the

courtroom, together with his other complaints, amounted to such

prejudice that his trial was rendered unfair. During the course of

the trial, Government and defense counsel informed the district

court that a Mousas' relative was taking notes in the courtroom and

requested that she be excluded. The district judge questioned the

woman as to her identity and upon discovering that she was a

relative of the Mousas, instructed her that she was not to reveal

any of the testimony that she heard in court. No motions were made

by either counsel, nor was any curative instruction given. On

appeal, Samak has not suggested how this incident adversely

affected him, and accordingly, his claim is without merit. 

IV.

Finally, Samak contends that the district court should have

instructed the jury that Lee's guilty plea could not be used as

substantive evidence of Samak's guilt. Samak neither requested

such a jury charge nor objected to the jury charge given. Absent

timely objection, we review this assigned error under the plain

error standard. United States v. Mattoni, 698 F.2d 691, 694 (5th

Cir. 1983). The factors we consider when analyzing an admission of

a co-conspirator's guilty plea include: (1) presence or absence of
6

a limiting instruction; (2) proper evidentiary purpose in

introducing the guilty plea; (3) improper use of the guilty plea as

substantive evidence of the defendant's guilt; and (4) whether the

introduction was invited by defense counsel. United States v.

Leach, 918 F.2d 464, 467 (5th Cir. 1990), cert. denied, 111 S. Ct.

2802 (1991); United States v. Fleetwood, 528 F.2d 528, 532 (5th

Cir. 1976).

 Although our precedent has made it clear that evidence about

a co-conspirator's conviction is not admissible as substantive

proof of a defendant's guilt, we have recognized an exception when

the record reflects a defense strategy that relies on the coconspirator's guilt. Leach, 918 F.2d at 467. In other words, "a

defendant will not be heard to complain of its admission when he

instigates such admission, or attempts to exploit the evidence by

frequent, pointed, and direct references to the co-conspirator's

guilty plea." Id. at 467 (footnote omitted); see also United

States v. Handly, 591 F.2d 1125, 1128 (5th Cir. 1979) (holding no

plain error, even though there was no curative instruction, when

defendant's emphasis of the guilty pleas was not the result of

prosecutor's improper comment). 

The record is clear that the admission of Lee's guilty plea

was part of a defense strategy to bring Lee's credibility into

question. Samak has not asserted, and the record does not

indicate, that the Government attempted to use the guilty plea as

substantive evidence of Samak's guilt. Because Samak relies

substantially on the evidence of the guilty plea as part his
7

defense strategy, we cannot say there has been reversible error. 

CONCLUSION

For the foregoing reasons, we affirm Samak's conviction and

sentence.

AFFIRMED.