United States Court of Appeals 

For the First Circuit 

No. 15-1108 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

ANDREW ZARAUSKAS, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. John A. Woodcock, Jr., U.S. District Judge] 

Before 

Barron and Stahl, Circuit Judges, 

and Sorokin,* District Judge. 

 Stephen C. Smith, with whom Lipman & Katz, P.A. was on brief, 

for appellant. 

 John Emad Arbab, Attorney, Appellate Section, with whom Allen 

M. Brabender, Attorney, Appellate Section, John C. Cruden, 

Assistant Attorney General, and the Environment and Natural 

Resources Division of the United States Department of Justice, 

were on brief, for appellee. 

February 10, 2016 

____________________ 

 

* Of the District of Massachusetts, sitting by designation. 
- 2 - 

STAHL, Circuit Judge. Following a jury trial, Andrew 

Zarauskas was found guilty on charges relating to the illegal 

importation of narwhal tusks.1 In this appeal, Zarauskas contends 

that the district court erred by allowing, then failing to cure, 

a series of comments and questions by the prosecutor, which 

Zarauskas claims violated the Fifth Amendment by drawing the jury's 

attention to his decision not to testify. Zarauskas also 

challenges the district court's admission of records of vehicular 

border crossings between the United States and Canada, which the 

government offered to establish that the tusks in question had 

originated in Canada. After careful review, we AFFIRM. 

I. Facts and Background 

A. The Tusk Purchases and the Café Vivaldi Interview 

Between approximately 2003 and 2009, Zarauskas served as 

a confidential informant for the United States Fish and Wildlife 

Service ("FWS"), providing information about individuals engaged 

in the smuggling of whale teeth and other wildlife contraband.2 

In this capacity, Zarauskas developed a relationship with FWS Agent 

Andrey Guidera, with whom he spoke on many occasions. 

 1 Narwhals are Arctic whales. Known as "unicorns of the 

sea," they have a long tusk, which is prized by some collectors. 

2 Zarauskas had access to this sort of information 

because he collected and sold wildlife-related antiques as a hobby. 
- 3 - 

On February 17, 2010, Zarauskas agreed to meet with Agent 

Guidera, as well as Guidera's colleague, FWS Agent Eric Holmes, 

and a Canadian wildlife official. The meeting took place at Café 

Vivaldi, located in Zarauskas's home state of New Jersey (the "Café 

Vivaldi Interview"). In initiating the Café Vivaldi Interview, 

Agent Guidera told Zarauskas that he wanted to discuss the recent 

conviction of an individual whom Zarauskas had identified to the 

FWS as illegally trafficking in sperm whale teeth. 

In truth, Agent Guidera and his colleagues had a very 

different reason for initiating the Café Vivaldi Interview. As 

part of a separate investigation, the FWS had gathered information 

on Gregory and Nina Logan, a Canadian couple whom the FWS believed 

to be illegally importing narwhal tusks into the United States. 

In the course of that investigation, the FWS learned that Zarauskas 

had purchased some thirty-three tusks from the Logans between 2002 

and 2010 and had resold many of them for profit. 

 The Café Vivaldi Interview, which the parties agree 

was a voluntary, non-custodial encounter, was recorded with 

Zarauskas's consent. Although it began amiably, the agents soon 

confronted Zarauskas with evidence of his dealings with the Logans. 

Zarauskas was initially evasive, but ultimately admitted to 

purchasing approximately a dozen tusks from the Logans. Zarauskas 

insisted, however, that he believed the tusks were sourced not 
- 4 - 

from Canada, but from a collection in Maine known as the Hildebrant 

Collection.3

 At the conclusion of the Café Vivaldi Interview, 

Zarauskas consented to a search of his home and his computer. 

Although Zarauskas initially told the agents that he had only two 

narwhal tusks at his home, Agent Guidera's search uncovered a total 

of seven, including several hidden in the rafters of Zarauskas's 

basement. A subsequent search of Zarauskas's computer turned up 

email correspondence between Zarauskas and Gregory Logan, which 

suggested that Zarauskas had arranged to submit a series of 

payments to Logan at a Canadian address. 

 B. Zarauskas's Indictment and Prosecution 

 Zarauskas was charged under a network of treaties, 

statutes, and regulations that govern the importing and exporting 

of wildlife. The United States has signed the Convention on 

International Trade in Endangered Species of Wild Fauna and Flora 

("CITES"), Mar. 3, 1973, 27 U.S.T. 1087, which aims to protect 

endangered and threatened species by regulating trade in wildlife 

specimens and artifacts. See United States v. Place, 693 F.3d 

219, 222 (1st Cir. 2012). Species subject to CITES are listed in 

three separate appendices to the treaty. See CITES art. II. 

 3 As we explain, federal law makes it illegal to import 

narwhal tusks. Zarauskas's defense centered on his purported 

belief that the tusks had originated in Maine, rather than Canada. 
- 5 - 

Narwhals are listed in Appendix II, meaning that the export of any 

narwhal specimen (including a tusk) requires the possession of a 

special permit. See id. at art. IV(2); Place, 693 F.3d at 222. 

 CITES has been implemented in the United States through 

a series of statutes and regulations. The Endangered Species Act 

("ESA"), 16 U.S.C. § 1531 et seq., makes it a crime "to engage in 

any trade in any specimens" or "to possess any specimens" in 

violation of CITES. 16 U.S.C. § 1538(c)(1). Separately, the 

Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq., 

makes it unlawful "for any person to use any port, harbor, or other 

place under the jurisdiction of the United States to take or import 

marine mammals or marine mammal products," unless done in 

compliance with CITES or another agreement to which the United 

States is a party. 16 U.S.C. § 1372(a)(2)(B). Finally, pursuant 

to regulations promulgated by the FWS, all wildlife specimens must 

be imported through a designated port of entry, accompanied by an 

appropriate declaration, and cleared by an FWS officer (the "FWS 

Regulations"). See 50 C.F.R. §§ 14.11, 14.52, 14.61. 

In November 2012, a federal grand jury returned an 

indictment against Zarauskas, the Logans, and a fourth defendant. 

Zarauskas was charged with one count of conspiracy to illegally 

import narwhal tusks into the United States, in violation of the 

ESA, the MMPA, the FWS Regulations, and 18 U.S.C. § 371; one count 

of conspiracy to commit money laundering, in violation of 18 U.S.C. 
- 6 - 

§ 1956(h); two counts of smuggling narwhal tusks into the United 

States, in violation of the ESA, the MMPA, the FWS Regulations, 

and 18 U.S.C. § 545; and two counts of money laundering, in 

violation of 18 U.S.C. § 1956(a)(2)(A). 

 The case against Zarauskas proceeded to trial. Although 

Zarauskas did not testify, his defense centered on his purported 

belief that the tusks in question were not imported contrary to 

law, but rather were obtained by the Logans from the Hildebrant 

Collection in Maine. On this basis, the defense claimed Zarauskas 

did not know that the tusks had been brought into the country 

illegally, as was required to prove an act of smuggling. See 18 

U.S.C. § 545 (criminalizing the "knowing" receipt, concealment, 

purchase, or sale of merchandise "imported or brought into the 

United States contrary to law"). The jury apparently rejected his 

defense, returning guilty verdicts on all counts of the indictment. 

Zarauskas was sentenced to thirty-three months in prison. 

We briefly overview several facets of the trial that are 

of central importance to this appeal. First, Zarauskas contends 

that the district court erred when it allowed, then failed to cure, 

a series of statements and questions by the prosecutor regarding 

the Café Vivaldi Interview and Zarauskas's failure during the 

interview to deny his involvement in the Logans' tusk smuggling 

operation. Zarauskas argues that these statements and questions 
- 7 - 

violated his Fifth Amendment right to remain silent by drawing the 

jury's attention to his decision not to testify at trial.4 

Second, Zarauskas contends that the district court erred 

when it found, over his objection, that the government could rely 

on the public records exception to the rule against hearsay to 

admit a series of records of vehicular border crossings between 

the United States and Canada. See Fed. R. Evid. 803(8). The 

government used these records to establish that a vehicle belonging 

to Gregory Logan crossed the border from Canada into Maine at times 

corresponding to Logan's shipment of tusks to Zarauskas. We 

consider Zarauskas's two arguments in turn. 

II. The Fifth Amendment 

 A. Prosecutorial Comment on the Café Vivaldi Interview 

 We consider first Zarauskas's contention that the 

prosecutor violated his Fifth Amendment right to remain silent by 

repeatedly referring to Zarauskas's failure, at the Café Vivaldi 

Interview, to deny his involvement in the Logans' tusk smuggling 

operation. Zarauskas draws our attention to four separate points 

in the trial record, beginning with the following exchange during 

the prosecutor's direct examination of FWS Agent Guidera, which we 

refer to as the "Guidera Colloquy": 

 4 Zarauskas filed a motion for a new trial premised on 

the alleged Fifth Amendment violation, which the district court 

later denied. See United States v. Zarauskas, No. 1:12-cr-00188-

JAW-04, 2014 WL 4658718 (D. Me. Sept. 17, 2014). 
- 8 - 

Q: During the [Café Vivaldi Interview], did the 

defendant ever say anything like "you're 

accusing me of something I didn't do here"? 

 A: No, he didn't. 

 Q: Did he ever raise his voice at you? 

 A: He did not. 

Q: Did he ever get mad at you or say that you 

misunderstood what happened? 

 A: No. 

Zarauskas next points to comments made by the prosecutor 

during his closing argument and closing rebuttal. The first 

comment, which we refer to as "Closing Comment No. 1", occurred 

during the prosecutor's closing argument: 

It strikes me that when asked by federal agents to 

be interviewed, a person really has three choices: 

You can say "no, thank you, I'd rather not talk"; 

you can agree to be interviewed and tell the truth; 

[or] you can agree to be interviewed and spin a web 

of inconsistent statements. You heard the entire 

interview. You decide which choice the defendant 

made on February 17th, 2010. 

 Next, the defense offered its closing argument. As it 

is relevant to the prosecutor's rebuttal, we recite the following 

excerpt: 

The government insists over and over that the 

defendant knew . . . . [B]ut that's not the way 

this court works. . . . They have to show evidence 

that he knew. And they have not shown one iota, 

not one shred . . . that says that [Zarauskas] knew 

that those tusks were coming from Canada. . . . 

They've got this conversation in a café. . . . And 

then the government acts surprised and says you 

should be suspicious when [the] agents suddenly 
- 9 - 

spring on [Zarauskas] that he's the focus of the 

investigation. What's the human reaction? You've 

got three government agents . . . sitting there 

suddenly accusing you of being a tusk smuggler. 

What are you going to do? 

 Zarauskas next contests portions of the prosecutor's 

ensuing rebuttal, the first of which we refer to as "Closing 

Comment No. 2": 

Now, the defendant says there's not one shred of 

evidence, not one shred, that the defendant knew 

that these tusks were illegal. Well, if he thought 

they were . . . legal, why couldn't he give a 

straight answer? Two hours and nine minutes, not 

once did he raise his voice or say, "I didn't do 

what you're saying I did." 

 Finally, Zarauskas directs our attention to the 

following excerpt from the same closing rebuttal, which we refer 

to as "Closing Comment No. 3":5

I would ask you to do the very same thing that 

[defense counsel] asked you to do. Ask yourself, 

if you were in that situation where you believed 

you were being falsely accused, what would you do? 

What would you say? If [Zarauskas] thought these 

tusks were from Maine, why did he keep telling the 

agents that it was perfectly legal to sell narwhal 

tusks in Canada? They're from Maine. Who cares? 

If he thought they were from Maine, then why did he 

tell the agents, "I don't know how [Gregory Logan] 

got them across the border"? 

 Zarauskas objected to the Guidera Colloquy and Closing 

Comment No. 2. However, he did not object to Closing Comment No. 1 

and it appears that he did not object to Closing Comment No. 3. 

 5 We refer to Closing Comment No. 1, Closing Comment No. 

2, and Closing Comment No. 3 together as the "Closing Comments". 
- 10 - 

Zarauskas's argument may be summarized as follows: 

because the Guidera Colloquy and the Closing Comments focused on 

Zarauskas's failure during the Café Vivaldi Interview to deny his 

involvement in the Logans' tusk smuggling operation, their 

admission improperly drew the jury's attention to Zarauskas's 

silence at the Café Vivaldi Interview and to his decision not to 

testify at trial. As a result, the burden was shifted to Zarauskas 

to disprove his guilt, all in violation of the Fifth Amendment. 

 B. Standard of Review 

 In assessing the appropriateness of a prosecutor's 

remarks, we employ a standard of review which varies depending on 

whether the defendant lodged a contemporaneous objection. Where 

such an objection was raised, our review is de novo. United States 

v. Rodriguez, 675 F.3d 48, 61 (1st Cir. 2012). If we conclude 

that the statement was improper, we then review for harmless error. 

United States v. Azubike, 504 F.3d 30, 38-39 (1st Cir. 2007). If, 

on the other hand, the defendant did not raise a contemporaneous 

objection, appellate review is merely for plain error. United 

States v. Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993). 

 C. Analysis 

It is a "bedrock" principle that "[t]he Fifth Amendment 

forbids any comment by the prosecutor on the defendant's exercise 

of the right to remain silent," id. at 1186, and a prosecutor may 

not call attention to the defendant's decision not to take the 
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stand in his own defense. See Griffin v. California, 380 U.S. 

609, 615 (1965); United States v. Rodríguez-Vélez, 597 F.3d 32, 44 

(1st Cir. 2010) ("[T]he government infringes the defendant's Fifth 

Amendment rights whenever 'the language used [by the prosecutor 

is] manifestly intended or [is] of such character that the jury 

would naturally and necessarily take it to be a comment on the 

failure of the accused to testify.'" (alterations in original) 

(quoting United States v. Glantz, 810 F.2d 316, 322 (1st Cir. 

1987))). 

A number of courts have addressed a related, but distinct 

question. They have addressed whether a prosecutor violates the 

Fifth Amendment simply by arguing to the jury that a defendant's 

pre-custodial silence is an affirmative indicator of guilt, even 

if the jury would not "naturally and necessarily" take the 

prosecutor's argument to be a comment on the defendant's failure 

to testify. See Rodriguez, 675 F.3d at 62 n.17 ("[T]he law 

concerning a prosecutor's use of a defendant's pre-arrest, preMiranda silence is, to say the least, unsettled."); United States 

v. McCann, 366 F.3d 46, 56 (1st Cir. 2004) (noting that the First 

Circuit has yet to decide "whether the privilege against selfincrimination is implicated when, in the context of a non-custodial 

interrogation, a suspect selectively refuses to answer a . . . 

question despite having volunteered answers to other questions 
- 12 - 

that he perhaps believes are less likely to induce an incriminating 

response"), vacated on other grounds, 543 U.S. 1104 (2005). 

 While the First Circuit has yet to stake a position on 

this issue, other courts of appeals have reached conflicting 

results. Compare, e.g., United States v. Moore, 104 F.3d 377, 389 

(D.C. Cir. 1997) ("[Defendant] is correct that the prosecutor's 

comment on his pre-trial silence violated his constitutional 

rights.") and United States v. Burson, 952 F.2d 1196, 1200-01 (10th 

Cir. 1991) (finding a Fifth Amendment violation where government 

agents testified about the defendant's refusal to answer questions 

during a pre-indictment, non-custodial interrogation), with United 

States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991) ("The 

government may comment on a defendant's silence if it occurred 

prior to the time that he is arrested and given his Miranda 

warnings."). 

To resolve the split of authority, the Supreme Court 

granted certiorari in Salinas v. Texas, 133 S. Ct. 2174 (2013). 

That case involved a claimed Fifth Amendment violation stemming 

from the prosecution's use of evidence that the defendant had 

refused to answer certain questions at a non-custodial interview 

with officers investigating a murder with which the defendant was 

later charged. Id. at 2178-79. A three-justice plurality opinion 

authored by Justice Alito, however, concluded that the defendant 
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could not assert a Fifth Amendment violation because he had failed 

to invoke the privilege during the interview.6 Id. at 2178. 

Justice Thomas (joined by Justice Scalia) wrote a 

concurrence in which he concluded that the Fifth Amendment should 

"not extend . . . to a defendant's silence during a precustodial 

interview." Id. at 2184 (Thomas, J., concurring in the judgment). 

Thus, read together, Justice Alito's plurality opinion and Justice 

Thomas's concurrence leave open the question of whether, in line 

with the Fifth Amendment, a prosecutor may comment on the 

defendant's pre-custodial silence. 

 Nevertheless, we leave this question for another day and 

instead follow a well-worn path by assuming, without deciding, 

that prosecutorial comment on the defendant's pre-custodial 

silence violates the Fifth Amendment. See Rodriguez, 675 F.3d at 

62; Rodríguez-Vélez, 597 F.3d at 44; McCann, 366 F.3d at 56-57. 

We must then determine whether any such violation merits reversal. 

As we have said, our review varies based on whether the particular 

question or statement by the prosecutor resulted in an objection. 

 6 The transcript of the Café Vivaldi Interview makes 

plain that Zarauskas did not invoke his Fifth Amendment privilege 

at any point. Indeed, the district court reached that conclusion 

in its written order denying Zarauskas's motion for a new trial. 

See Zarauskas, 2014 WL 4658718, at *10. Nonetheless, the 

government has not argued on appeal that Zarauskas may not assert 

a Fifth Amendment privilege, and thus we deem any such contention 

waived. 
- 14 - 

 i. The Guidera Colloquy and Closing Comment No. 2 

 Zarauskas objected to both the Guidera Colloquy and 

Closing Comment No. 2. Our review, therefore, is de novo for 

harmless error. See Rodriguez, 675 F.3d at 61; Azubike, 504 F.3d 

at 38-39. "The test is 'whether the prosecutor's misconduct 'so 

poisoned the well' that the trial's outcome was likely affected, 

thus warranting a new trial.'" Azubike, 504 F.3d at 39 (quoting 

United States v. Joyner, 191 F.3d 47, 54 (1st Cir. 1999)). In 

order to make this determination, we employ a three-part inquiry, 

asking: (1) whether the prosecutor's conduct was isolated and/or 

deliberate; (2) whether the trial court offered a strong and 

explicit curative instruction; and (3) whether, in light of the 

strength of the evidence against the defendant, it is likely that 

any resulting prejudice affected the verdict. See Rodriguez, 675 

F.3d at 62. 

 Our review of these factors compels the conclusion that 

any error raised by the Guidera Colloquy and Closing Comment No. 2 

was harmless. To be sure, in light of his repeated reference to 

Zarauskas's silence at the Café Vivaldi Interview, the 

prosecutor's conduct was neither isolated nor unintentional. Cf. 

id. (characterizing the prosecutor's challenged statements as 

"isolated and brief"). 

 Nevertheless, the second and third factors favor the 

government. As an initial matter, at Zarauskas's behest, the 
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district court offered a curative jury instruction immediately 

following closing arguments: 

I just want to emphasize one thing that I think is 

an important point for your consideration . . . . 

[The prosecutor], during his closing argument, 

commented on the conversation between the agents 

and the defendant in New Jersey, and he commented 

on both what the defendant said and what the 

defendant did not say. 

I'd like to reiterate just a portion of my earlier 

instruction . . . . [T]he defendant has the right 

to remain silent, and Mr. Zarauskas has a 

constitutional right, in particular, during the 

course of this trial not to testify, and there 

should be no inference of guilt, or of anything 

else, drawn from the fact he did not testify here 

in court during the course of this trial. I've 

told you and I again reiterate that for any of you 

to draw such an inference would be wrong, and it 

would be a violation of your oath as a juror. 

 This curative instruction identified the objectionable 

portion of the prosecutor's closing argument, "and emphasized 

[Zarauskas's] right not to testify or present evidence." 

Rodríguez-Vélez, 597 F.3d at 45. Thus, in the event that the 

Guidera Colloquy or Closing Comment No. 2 led the jury to believe 

that Zarauskas was under some obligation to take the stand in his 

own defense, this instruction palliated any potential prejudice.7

 7 It would have been preferable for the curative 

instruction to direct the jury to disregard the references to 

Zarauskas's silence, and to remind jurors that Zarauskas was under 

no obligation to say (or not say) anything at the Café Vivaldi 

Interview, but ultimately Zarauskas never requested these 

instructions, nor objected to their omission. See Sepulveda, 15 

F.3d at 1187 n.19 ("A trial court's failure to launch a limiting 

instruction sua sponte is not reversible error."). 
- 16 - 

 Finally, the strength of the evidence assures that any 

prejudice resulting from the Guidera Colloquy or Closing Comment 

No. 2 had no effect on the jury's verdict. As we have described, 

Zarauskas's defense centered on an attempt to disprove the 

government's claim that he knew the tusks in question had been 

imported from Canada, rather than acquired from the Hildebrant 

Collection in Maine. There was ample evidence to the contrary. 

 For example, through the testimony of FWS Agent Holmes, 

the government offered evidence that Zarauskas had sent a number 

of payments to Gregory Logan at an address in Alberta, Canada. 

What is more, the government offered evidence suggesting Zarauskas 

knew that the Logans' source of narwhal tusks was being 

continuously replenished, undermining Zarauskas's contention that 

he believed the Logans to have acquired the tusks from the 

Hildebrant Collection, where one would expect to find a fixed 

quantity. On this point, Agent Holmes presented the jury with 

email correspondence in which Gregory Logan told Zarauskas that he 

was "[l]ooking into three [tusks] we may be able to get [at] the 

end of May. They are 86 inch[es] and 89 inch[es] and 90 inches." 

Agent Holmes also told the jury that Zarauskas had purchased 

approximately thirty-three tusks from the Logans at a total cost 

of some $85,000. This testimony, establishing the Logans' ongoing 

acquisition of new tusks, combined with the sheer quantity of tusks 
- 17 - 

at issue, seriously undermined Zarauskas's claim that he believed 

the tusks to have come from a single existing collection. 

 Separately, the government offered evidence that 

Zarauskas repeatedly attempted to mislead investigators, further 

undermining his claim that he believed his actions to be legal. 

For example, during the Café Vivaldi Interview, Zarauskas 

initially claimed to have purchased only two small tusks from 

Gregory Logan. Later, after being confronted with evidence to the 

contrary, Zarauskas admitted to purchasing upwards of a dozen. 

Zarauskas also initially claimed during the Café Vivaldi Interview 

that he only had two tusks at his home. Immediately after the 

interview, however, Agent Guidera's search of the home uncovered 

a total of seven tusks, including several hidden among the basement 

rafters. 

Evidence of these deceits bolstered the government's 

case by eroding the credibility of Zarauskas's professed 

understanding of the source of the tusks and the legality of his 

actions. In sum, the evidence of guilt was strong and, even 

assuming that a measure of prejudice survived the district court's 

curative instruction, any such prejudice was insufficient to 

"poison[] the well" and affect the jury's verdict. See Azubike, 

504 F.3d at 39. 
- 18 - 

 ii. Closing Comment No. 1 and Closing Comment No. 3 

 Lacking contemporaneous objections at trial, we review 

Closing Comment No. 1 and Closing Comment No. 3 for plain error. 

Sepulveda, 15 F.3d at 1187. To prevail, Zarauskas must demonstrate 

"(1) that an error occurred (2) which was clear or obvious and 

which not only (3) affected [his] substantial rights, but also (4) 

seriously impaired the fairness, integrity, or public reputation 

of judicial proceedings." McCann, 366 F.3d at 56 (alteration in 

original) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st 

Cir. 2001)). Our inquiry takes us only as far as the second prong 

because we conclude that, with respect to both Closing Comment 

No. 1 and Closing Comment No. 3, Zarauskas has not shown that an 

error occurred, much less that any such error was clear or obvious. 

 We begin with Closing Comment No. 1, which Zarauskas 

maintains constituted a comment on his failure to proclaim his 

innocence at the Café Vivaldi Interview and, in turn, drew the 

jury's attention to his decision not to testify at trial. We read 

Closing Comment No. 1 differently, not as commentary on Zarauskas's 

silence at the Café Vivaldi Interview, but rather as commentary on 

the inconsistency of Zarauskas's statements. 

In our view, the prosecutor fairly laid out the three 

"choices" Zarauskas faced when Agent Guidera asked to meet with 

him. Based on these choices, it appears that the prosecutor sought 

to make clear that Zarauskas had not said "no, thank you" and 
- 19 - 

declined the interview, which clearly would have constituted 

commentary on his silence. Rather, the prosecutor suggested that 

Zarauskas had opted for the third choice, partaking in the Café 

Vivaldi Interview, but "spin[ning] a web of inconsistent 

statements" in the process. See Sepulveda, 15 F.3d at 1187 ("[I]n 

the absence of a contemporaneous objection it seems fair to give 

the arguer the benefit of every plausible interpretation of [his] 

words."). Thus, because Closing Comment No. 1 did not call into 

question Zarauskas's silence at either the Café Vivaldi Interview 

or at trial, the district court did not commit clear or obvious 

error in failing to identify and sua sponte remedy this statement. 

 We likewise conclude that Closing Comment No. 3 did not 

result in clear or obvious error.8 We reach this conclusion for 

two reasons. As an initial matter, like Closing Comment No. 1, 

Closing Comment No. 3 did not directly or indirectly refer to 

Zarauskas's silence during the Café Vivaldi Interview. On the 

contrary, in Closing Comment No. 3, the prosecutor sought to 

highlight the inconsistency of Zarauskas's statements during the 

Café Vivaldi Interview with his claimed belief that the tusks in 

 8 There is some uncertainty in the briefing as to whether 

the parties believe that Zarauskas objected to Closing Comment 

No. 3. Our review of the trial transcript suggests that he did 

not, but even were we to apply de novo review on the favorable 

assumption that he did, the result would be the same. 
- 20 - 

question had originated in Maine. In other words, the prosecutor 

sought to highlight what Zarauskas said, not what he did not say. 

Furthermore, Closing Comment No. 3 cannot be said to 

constitute plain error when considered in the broader context in 

which it was offered. See id. ("In assaying the appropriateness 

of a prosecutor's remarks, context frequently determines 

meaning."). In his closing argument, which immediately preceded 

the government's closing rebuttal, defense counsel exhorted the 

jurors to put themselves in Zarauskas's shoes, asking 

rhetorically, "[y]ou've got three government agents . . . sitting 

there suddenly accusing you of being a tusk smuggler. What are 

you going to do?" This invited the prosecutor to respond, as he 

did, by questioning whether Zarauskas's statements at the Café 

Vivaldi Interview were consistent with a belief that his dealings 

with the Logans were legal. See United States v. Henderson, 320 

F.3d 92, 107 (1st Cir. 2003) (finding the "invited response rule" 

applicable where "[t]he prosecutor's remarks were limited and 

addressed only the defense counsel's own comments"); see also 

Rodriguez, 675 F.3d at 65 (declining to find plain error where 

"the prosecutor merely posed a rhetorical question that mirrored, 

and directly responded to, the defendant's closing argument"). 

 D. Conclusion 

 In our view, the Guidera Colloquy and Closing Comment 

No. 2 constituted harmless error, and neither Closing Comment No. 1 
- 21 - 

nor Closing Comment No. 3 resulted in plain error. Thus, whether 

we consider the Guidera Colloquy and the Closing Comments 

individually or collectively, we must reject Zarauskas's claim of 

a Fifth Amendment violation.9

III. Hearsay 

 Zarauskas next claims that the district court improperly 

admitted hearsay evidence. We review the district court's legal 

interpretation of a rule of evidence de novo, but its decision to 

admit or exclude evidence solely for abuse of discretion. United 

States v. Lang, 672 F.3d 17, 23 (1st Cir. 2012) (citing United 

States v. Dowdell, 595 F.3d 50, 70 (1st Cir. 2010)). 

The United States Customs and Border Protection ("CBP") 

maintains records of vehicles that enter the United States through 

its borders. These so-called "TECS" reports log, among other 

information, the license plate of the vehicle, and the date, time, 

and location of the border crossing. Over Zarauskas's objection, 

and pursuant to the public records exception, see Fed. R. Evid. 

803(8), the district court permitted the government to introduce 

TECS reports showing border crossings by a vehicle belonging to 

Gregory Logan. The government used the TECS reports to establish 

 9 Zarauskas has not appealed from the district court's 

denial of his motion for a new trial. Had he done so, we would 

have found that the district court's decision was not an abuse of 

discretion. See Glantz, 810 F.2d at 321 n.2. 
- 22 - 

that Logan's vehicle had crossed the border from Canada into Maine 

on dates corresponding to Logan's shipment of tusks to Zarauskas. 

 Federal Rule of Evidence 803(8) exempts from the general 

prohibition against hearsay certain records or statements of a 

public office. See Lang, 672 F.3d at 23. Nevertheless, Rule 

803(8) contains an exception and prohibits the introduction of a 

public record in a criminal case if the record consists of "a 

matter observed by law-enforcement personnel." Fed. R. Evid. 

803(8)(A)(ii). Zarauskas maintains that the district court's 

admission of the TECS reports violated Rule 803(8) because those 

reports were comprised of the observations of CBP personnel. 

 Our cases distinguish "routine, non-adversarial" records 

from those that are "adversarial" or constitute "contemporaneous 

observations of crime" by law enforcement. See Dowdell, 595 F.3d 

at 70-71. In Dowdell, we reasoned that routine, non-adversarial 

records are more reliable than "observations by police officers at 

the scene of the crime . . . because of the adversarial nature of 

the confrontation between the police and the defendant in criminal 

cases." Id. at 70 (citations omitted). Accordingly, we permitted 

the admission of a police booking sheet under Rule 803(8), 

reasoning that it contained only a "rote recitation" of 

"ministerial, non-adversarial information." Id. at 72. 

 The First Circuit has not yet considered whether TECS 

reports fall within Rule 803(8) as admissible, non-adversarial 
- 23 - 

public records. Nevertheless, the Fourth, Fifth, and Ninth 

Circuits have each concluded that they do. See United States v. 

Cabrera-Beltran, 660 F.3d 742, 753 (4th Cir. 2011); United States 

v. Puente, 826 F.2d 1415, 1417-18 (5th Cir. 1987); United States 

v. Orozco, 590 F.2d 789, 794 (9th Cir. 1979). 

We agree. TECS reports bear all of the indicia of nonadversarial public records. As a matter of course, the CBP 

collects information about vehicles crossing the border. See 

Cabrera-Beltran, 660 F.3d at 750-51. The act of recording this 

information amounts to rote recitation, and the information 

itself, such as the license plate of the vehicle, and the date of 

the crossing, is quintessentially ministerial and non-adversarial. 

See Orozco, 590 F.2d at 793 ("[T]he simple recordation of license 

numbers [by an officer] . . . is not of the adversarial 

confrontation nature which might cloud his perception."). We thus 

have little difficulty concluding that the district court properly 

admitted the TECS reports pursuant to Rule 803(8). 

IV. Conclusion 

For the foregoing reasons, the conviction is AFFIRMED.