United States v. Marshall

Procedural entryThis page is a short order in United States v. Marshall. Read the opinion of the Court — 109 F.3d 94 →

Court of Appeals for the First Circuit·Decided April 3, 1997·No. 95-1826·Published

Opinion

USCA1 Opinion

United States Court of Appeals
For the First Circuit
____________________

No. 95-1826

UNITED STATES OF AMERICA,

Appellee,

v.

RICHARD MARSHALL,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge] ___________________

____________________

Before

Lynch, Circuit Judge, _____________

Aldrich and Bownes, Senior Circuit Judges. _____________________

____________________

Gordon D. Fox, with whom David A. Cooper and Cooper & Sanchez ______________ ________________ _________________
were on brief, for appellant.
Craig N. Moore, Assistant United States Attorney, with whom ________________
Sheldon Whitehouse, United States Attorney, and Zechariah Chafee, ___________________ _________________
Assistant United States Attorney, were on brief, for appellee.

____________________

March 31, 1997
____________________

LYNCH, Circuit Judge. The Providence police LYNCH, Circuit Judge. ______________

arrested Richard Marshall and another individual in a Rhode

Island hotel room for possession of heroin with intent to

distribute and conspiring to do the same. Initially,

Marshall was acquitted on the conspiracy count, but the jury

deadlocked on the possession with intent charge. A second

trial, limited to the charge of possession with intent,

resulted in a guilty verdict. Marshall was sentenced to 72

months' incarceration.

Marshall argues on appeal that his conviction was

brought about by a series of errors: the district court's

denial of his motion to suppress, its failure to make the

police produce a tape recorder and tape which may or may not

have been in the hotel room, and its limitation of cross

examination; a DEA agent's inconsistent testimony before the

grand jury and at trial; and improper statements by the

prosecutor in his closing argument. We reject these claims

and affirm the conviction. The issue which merits the most

discussion is the contention about the "missing evidence."

I.

We outline the facts only as necessary to set the

framework for the issues, because Marshall does not challenge

the overall sufficiency of the evidence. To the extent

Marshall challenges the sufficiency of the evidence to

support the trial judge's determination against him on the

-2- 2

motion to suppress, the evidence is described in the light

most favorable to the government. United States v. ______________

Hernandez, 1997 WL 109200, *1 (1st Cir. Mar. 17, 1997). _________

On the morning of November 30, 1994, a Providence

police lieutenant received a phone call from the manager of

the Day's Hotel in Providence. The manager reported that he

suspected there was drug activity in Room 312 involving a

Richard Marshall and explained the reasons for his

suspicions. The federal Drug Enforcement Administration

("DEA") was brought into the case. The officers did a

background check on Richard Marshall and came up with a

criminal record and a photograph. They drove to the hotel,

where the manager confirmed there had been a heavy flow of

traffic in and out of Marshall's room, identified the

photograph as being of Marshall, and said Marshall had listed

his car as a Mercedes Benz on the hotel registration card.

While the officers were in the lot looking for the Mercedes,

Marshall appeared. The officers identified themselves and

asked if they could speak with him. Marshall agreed, and

when they said there had been complaints about the activity

in his room, he said he had "his girl" in the room.

The officers asked which was his car, and Marshall

pointed to a Toyota, which had a different license plate

number than the one he had listed on the registration card.

The officers asked permission to look in the car; Marshall

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agreed, and they searched the car but found no drugs. When

asked, Marshall denied ever having been arrested, but when

shown his arrest record, started to chuckle.

The officers asked Marshall if he minded if they

went to his room. He said he did not mind and repeated that

his girl was there. They all went up to the room. Although

Marshall had his room key, he knocked on the door before

opening it.

There was no woman in the room. There was,

however, a man, Thomas Dantzler, soon to become a co-

defendant. In addition, there was a paper bag protruding

from between the mattress and the box springs of one of the

beds. The bag contained almost 200 grams of heroin, with a

street value of about $26,000.

II.

We address Marshall's claims seriatim. ________

Exculpatory Evidence Claim __________________________

Marshall asserts that he had a micro-cassette

recorder, switched to the "on" position, in the room at the

time of his arrest, that the tape captured what happened in

the room both before and during the arrival of the police,

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USCA1 Opinion




United States Court of Appeals

                                For the First Circuit

                                 ____________________


No. 95-1826



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                  RICHARD MARSHALL,



                                Defendant, Appellant.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                     [Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                 Lynch, Circuit Judge,
                                        _____________



                      Aldrich and Bownes, Senior Circuit Judges.
                                          _____________________



                                 ____________________



            Gordon  D. Fox, with  whom David  A. Cooper  and Cooper  & Sanchez
            ______________             ________________      _________________

        were on brief, for appellant.

            Craig  N.  Moore, Assistant  United  States  Attorney,  with  whom
            ________________

        Sheldon  Whitehouse, United  States  Attorney, and  Zechariah  Chafee,
        ___________________                                 _________________

        Assistant United States Attorney, were on brief, for appellee.



                                 ____________________



                                    March 31, 1997

                                 ____________________



LYNCH,   Circuit  Judge.    The  Providence  police
                      LYNCH,   Circuit  Judge.
                               ______________



            arrested Richard  Marshall and another individual  in a Rhode



            Island hotel  room for  possession of  heroin with  intent to



            distribute  and  conspiring  to  do  the  same.    Initially,



            Marshall was acquitted on the  conspiracy count, but the jury



            deadlocked on  the possession with  intent charge.   A second



            trial,  limited  to the  charge  of  possession with  intent,



            resulted in a guilty  verdict.  Marshall was sentenced  to 72



            months' incarceration.



                       Marshall argues on appeal that his conviction  was



            brought about  by a  series of errors:  the district  court's



            denial of his  motion to  suppress, its failure  to make  the



            police produce  a tape recorder and tape which may or may not



            have  been in  the hotel  room, and  its limitation  of cross



            examination; a DEA agent's inconsistent  testimony before the



            grand  jury  and at  trial;  and improper  statements  by the



            prosecutor in his closing argument.   We reject these  claims



            and affirm the conviction.   The issue which merits  the most



            discussion is the contention about the "missing evidence."



                                          I.



                      We outline the  facts only as necessary  to set the



            framework for the issues, because Marshall does not challenge



            the  overall sufficiency  of  the evidence.    To the  extent



            Marshall  challenges  the  sufficiency  of  the  evidence  to



            support the  trial judge's  determination against him  on the


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                                          2



motion to suppress,  the evidence is  described in the  light



            most  favorable   to  the  government.     United  States  v.
                                                       ______________



            Hernandez, 1997 WL 109200, *1 (1st Cir. Mar. 17, 1997).
            _________



                      On the  morning of November 30,  1994, a Providence



            police lieutenant received  a phone call from  the manager of



            the  Day's Hotel in Providence.  The manager reported that he



            suspected there  was drug  activity in  Room 312 involving  a



            Richard   Marshall   and  explained   the  reasons   for  his



            suspicions.    The  federal Drug  Enforcement  Administration



            ("DEA")  was brought  into  the case.    The officers  did  a



            background check  on  Richard Marshall  and  came up  with  a



            criminal record and a  photograph.  They drove to  the hotel,



            where  the manager confirmed there  had been a  heavy flow of



            traffic  in  and  out  of  Marshall's  room,  identified  the



            photograph as being of Marshall, and said Marshall had listed



            his  car as a Mercedes  Benz on the  hotel registration card.



            While  the officers were in the lot looking for the Mercedes,



            Marshall  appeared.   The officers identified  themselves and



            asked if they  could speak  with him.   Marshall agreed,  and



            when they said  there had been complaints about  the activity



            in his room, he said he had "his girl" in the room. 



                      The officers asked which  was his car, and Marshall



            pointed  to a  Toyota, which  had a  different license  plate



            number than the one  he had listed on the  registration card.



            The officers asked  permission to look  in the car;  Marshall


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                                          3



agreed,  and they searched the car  but found no drugs.  When



            asked, Marshall  denied ever  having been arrested,  but when



            shown his arrest record, started to chuckle.



                      The officers  asked Marshall  if he minded  if they



            went to his room.  He said he did not mind  and repeated that



            his girl was there.  They all went  up to the room.  Although



            Marshall  had his  room key,  he knocked  on the  door before



            opening it.



                      There  was no  woman  in  the  room.    There  was,



            however,  a  man,  Thomas  Dantzler,  soon to  become  a  co-



            defendant.   In addition,  there was a  paper bag  protruding



            from  between the mattress and the  box springs of one of the



            beds.  The bag contained  almost 200 grams of heroin,  with a



            street value of about $26,000.



                                         II.



                      We address Marshall's claims seriatim.
                                                   ________



            Exculpatory Evidence Claim
            __________________________



                      Marshall  asserts  that  he  had  a  micro-cassette



            recorder, switched to the  "on" position, in the room  at the



            time of his arrest,  that the tape captured what  happened in



            the  room both before and  during the arrival  of the police,



            and  that the  tape  would exculpate  him.   It  would  prove



            exculpatory in at  least two  senses, he submits:   it  would



            show that he  and Dantzler  were in fact  talking about  rock



            concert promotions, not  drug dealing, and  it would tend  to


-4-
                                          4



support his version of  the facts -- which  differs radically



            from  the  officers'  version   --  relevant  to  his  Fourth



            Amendment  claims.    There  is  some  room  for  skepticism:



            whatever his  conversation with  Dantzler, the drugs  were in



            his room, and on the motion to suppress, the court found that



            he had consented to  the officers' request to enter  his room



            before they entered the room.  Nonetheless, the government is
            ______



            obligated  to  produce exculpatory  evidence to  a defendant.



            Brady v. Maryland, 373 U.S. 83 (1963).
            _____    ________



                      We set the factual  stage.  Marshall testified that



            he recorded  his conversation  with Dantzler about  a concert



            they  were  promoting and  that  he  left the  tape  recorder



            running when he left the hotel room to go to the parking lot.



            This was done,  he said,  to keep track  of whether  Dantzler



            used  his telephone.  He  says the recorder  would still have



            been running when he returned to the room and that one of the



            detectives picked it up and made a remark about it.



                      The officers who  were present in  Marshall's hotel



            room  tell  a  different story.    DEA  Agent Mansolillo  and



            Detective Cross both testified  that they did not see  a tape



            recorder  in the room.  Detective Lauro indicated that he saw



            a "narrow" "electronic device" in the room, which he  thought



            "might have  been a tape  recorder."  Detective  Lauro denied



            picking  it up  or  saying anything  about  it.   The  fourth



            officer,  Detective Gerstmeyer, though cross-examined at some


-5-
                                          5



length by defense  counsel, was  never asked  whether he  had



            seen  a tape  recorder.   The officers  did seize  some small



            electronic equipment (two beepers, two portable phones, and a



            small calculator), but none of them remembered seizing a tape



            recorder.



                      Agent  Mansolillo took  control  of  the drugs  and



            other seized  evidence, but unfortunately did  not prepare an



            inventory.   Later, both  the prosecutor and  defense counsel



            examined  that evidence and did  not find a  tape recorder or



            tape.    The  court  asked  the  prosecutor  whether  he  had



            specifically questioned the officers  on the existence of the



            recorder;  he replied that he  had not.   The court requested



            that the prosecutor  do so.   The prosecutor  did check,  but



            with only two of the four officers.  The court instructed the



            prosecutor  to go back and check with the other two officers;



            the prosecutor failed to  do so, but defense counsel  did not



            pursue the issue any further.  The judge stated that he could



            not require the government to produce something which it said



            it  did  not have.    Defense counsel  did  cross-examine the



            officers  about  the tape  recorder  and  argued the  missing



            evidence theory to the jury.



                      Marshall's  exculpatory  evidence argument  has two



            predicates:   that the recorder and tape existed and that the



            contents of the tape were exculpatory.  His claim flounders.


-6-
                                          6



Marshall  does  not argue  that the  government did



            possess  the tape recorder and  tape and destroyed  it in bad



            faith.   Cf. Arizona v. Youngblood,  488 U.S. 51 (1988).   He
                     ___ _______    __________



            does not  even argue  that  the government  removed the  tape



            recorder and tape from the hotel  room.  He simply says  that



            the  recorder was there, the government  agents were aware of



            it, the agents were the ones who seized the evidence, and the



            tape should have been produced.



                      United States v. Femia, 9 F.3d 990 (1st Cir. 1993),
                      _____________    _____



            which the government cites  as dispositive, does not directly



            address the issue here.  In  Femia, there was no dispute over
                                         _____



            whether certain  tape recordings  existed; the issue  was the



            consequences of the  government's inadvertent destruction  of



            the tapes.



                      The government also cites United States v. Pedraza,
                                                _____________    _______



            27  F.3d  1515 (10th  Cir.  1994), which  is  more pertinent.



            There the defendants claimed  that a government informant had



            taped  certain calls  and that  the government had  failed to



            produce  the tape recordings of  the calls.   Id. at 1526-27.
                                                          ___



            The  court  concluded  that the  defendants  "have  presented



            insufficient evidence  that the  government either  failed to



            turn over 'missing tapes,'  or that it destroyed them  in bad



            faith.  The fact  of the matter is, [defendants]  have failed



            to  produce any  convincing  evidence that  these tapes  ever



            existed."  Id.  at 1527.  The defendants' claim  was based on
                       ___


-7-
                                          7



an equivocal  statement from the informant  that he attempted



            to record all the calls.



                      Like the  court in Pedraza, we  think the defendant
                                         _______



            here bore the initial burden of persuading the district court



            that  there  was reason  to  believe  the recorder  and  tape



            existed.  He did not do so.  Absent a rare case in  which the



            government  may be in a better position than the defendant to



            disprove the existence of evidence claimed to be exculpatory,



            there  is   no  unfairness  in  placing  the  burden  on  the



            defendant.  It  is difficult for  the government to  disprove



            the existence of  something and easy for defendants  to claim



            that  something  existed and  was  exculpatory  but that  the



            government failed to preserve it.



                      Placing the initial burden on the defendant is also



            consistent with  the general law in the  area.  Even where it



            is  undisputed  that "missing  evidence"  exists,  it is  the



            defendant's  burden to  show that  the evidence  is material,



            that is,  that "there is  a reasonable probability  that, had



            the evidence been disclosed to the defense, the result of the



            proceeding  would have  been  different."   United States  v.
                                                        _____________



            Bagley, 473 U.S. 667, 682 (1985).
            ______



                      Defendants also  bear a  two-part burden to  show a



            constitutional   violation  when  the   government  fails  to



            preserve evidence on their  behalf.  California v. Trombetta,
                                                 __________    _________



            467  U.S. 479  (1984) (breath  alcohol test).    The "missing


-8-
                                          8



evidence"  must  possess  an  "exculpatory   value  that  was



            apparent before the  evidence was destroyed" and must  be "of



            such  a nature that the  defendant would be  unable to obtain



            comparable  evidence  by other  reasonably  available means."



            Id. at 489;  see also Femia,  9 F.3d at  993.  In Arizona  v.
            ___          ___ ____ _____                       _______



            Youngblood,  the Court imposed a third  burden on a defendant
            __________



            where   the   potentially  exculpatory   evidence   has  been



            destroyed: that of showing the government acted  in bad faith



            in  destroying the evidence.   488  U.S. at  58.   Under this



            precedent, absent some unusual situation, the initial  burden



            is  on  the defendant  to show  the  evidence existed.   That



            burden was not satisfied here.



                      The  related  evidentiary claim  that  the district



            court  improperly limited the  cross-examination of Detective



            Lauro, as beyond the scope of direct, is without merit.



            Fourth Amendment Claims
            _______________________



                      Marshall makes two Fourth Amendment  arguments: (1)



            that he did not  consent to have  the police enter his  room,



            and therefore all evidence that came from the room was seized



            illegally, and (2) that he  was under de facto arrest.   Both



            contentions require  that Marshall's version of  the facts be



            accepted and the government's version rejected.  The district



            court's factual determinations depended in large part on whom



            the court believed, as the testimony of the witnesses painted



            two very different scenarios.  The district court disbelieved


-9-
                                          9



Marshall's version.  Factual findings by the judge may not be



            reversed   unless  clearly  erroneous.     United  States  v.
                                                       ______________



            Cleveland, 1997 WL 61397, *7 (1st Cir. Feb. 18, 1997).  There
            _________



            can  be no  clear error  where factual  findings turn  on the



            credibility  of the  witnesses who  appear before  the judge.



            United States v. Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990).
            _____________    ____________



            Defendant  having consented,  there  is  no Fourth  Amendment



            issue  regarding  the  seized  evidence.   United  States  v.
                                                       ______________



            Zapata, 18 F.3d 971 (1st Cir. 1994). 
            ______



                      The  district  court  also  disbelieved  Marshall's



            testimony  on which he relies for the de facto arrest theory.



            There being no  error in the finding  that Marshall consented



            to the  officers' request  to  enter his  room, the  district



            court's  conclusion that  there  was no  de  facto arrest  is



            hardly clear error.



                      For  the same reasons, we  uphold the denial of the



            motion  to  suppress the  drugs.   The  trial judge  chose to



            believe  the  testimony  of  the  officers,  who  provided  a



            sufficient predicate.



            Motion to Suppress Marshall's Statements.
            ________________________________________



                      Marshall   argues  that   the   court  abused   its



            discretion  in  refusing  to  hear  his  motion  to  suppress



            statements he made before  the drugs were found in  his room.



            The district court found that Marshall had waived this motion



            by failing to make it in a timely fashion.  We agree. 


-10-
                                          10



Marshall  filed the  motion to  suppress statements



            two months after  the date  the motions were  due.   Marshall



            also  did  not  object  to  the  statements  when  they  were



            introduced into evidence.   Because Marshall  failed properly



            to raise the  issue in the district court, we do not consider



            it.  United States v. Nunez, 19 F.3d 719 (1st Cir. 1994).  We
                 _____________    _____



            add  that the motion is  premised on Marshall's argument that



            he did not give consent  to enter his room and, as  a result,



            he was in custody and should have been informed of his rights



            under  Miranda v. Arizona, 384  U.S. 436 (1966).   Thus, even
                   _______    _______



            had there  not been  waiver, the argument  would have  failed



            because  the  court  determined  the  consent  issue  against



            Marshall.



            Grand Jury Testimony
            ____________________



                      The testimony given by DEA  Agent Mansolillo varied



            slightly  at trial from the testimony he had given before the



            grand jury about exactly where the bag of drugs was found and



            about  the  sequence  of   actions  by  a  Providence  police



            lieutenant who was  in the  room.  The  agent was  thoroughly



            cross-examined  on the  point.   It appears  that this  is an



            instance of  confusion or mistake  in the agent's  grand jury



            testimony,  and there is nothing  in the record  before us to



            suggest  perjury.   The dispute  about where  the drugs  were



            found  in the room was largely  immaterial to the indictment:


-11-
                                          11



whether the drugs  were under  the mattress or  not does  not



            undermine the charge of possession with intent to distribute.



                      Even  if there  were  an error  in  the grand  jury



            process, and we do not suggest there was one, defendant had a



            fair  trial,  and  the  verdict  renders  any  error  at  the



            preliminary stage  harmless now.  United  States v. Mechanik,
                                              ______________    ________



            475 U.S. 66, 72-73 (1986).



            Prosecutor's Closing Argument
            _____________________________



                      To   understand   Marshall's   objection   to   the



            prosecutor's summation,  the procedural history  of the  case



            must  be recalled.  This  is Marshall's second  trial; in the



            first  trial, he was acquitted  of a charge  of conspiracy to



            distribute drugs.



                      Marshall  says  that   the  prosecutor   improperly



            accused him of a conspiracy in the face of an acquittal, that



            the  prosecutor relied on facts not in evidence, and that the



            prosecutor improperly vouched for a  witness.  The first  two



            points are related.  



                      While   the  prosecutor   never   used   the   word



            "conspiracy,"  and  never  referred  to the  prior  trial  or



            charges, Marshall says  that he  did so in  essence with  the



            following argument:



                      I submit to you that the two of them were

                      working   together   and  this   is  what

                      happened.   That the drugs  were flown in

                      from Chicago that day.



                      . . . .


-12-
                                          12



The defendant met Dantzler, the other man

                      who  brought the  drugs in  from Chicago.

                      And they set up together in that room and

                      the plan, I submit  to you, was for them,

                      for Marshall to be the middleman for  the

                      sale of  those  drugs, the  wholesale  of

                      those drugs to people in Providence.



                      Marshall relies  on United  States v. McBride,  862
                                          ______________    _______



            F.2d 1316  (8th Cir. 1988),  where the Eighth  Circuit upheld



            the trial  court's discretionary ruling awarding  a new trial



            due to  three trial  errors.   One of  the errors involved  a



            statement  made  by  a  prosecutor in  final  argument  which



            appeared  to  refer to  counts  previously  dismissed and  to



            conflict with  the  evidence.    Id.  at  1318.    Marshall's
                                             ___



            argument  is not  frivolous, but,  on balance,  we think  the



            prosecution  did  not exceed  the  bounds.   The  presence of



            Dantzler in the room and the quantity of drugs fairly support



            the  "with intent  to distribute"  portion of  the possession



            charge.



                      The  prosecutor's  words  suggested,  we  think,  a



            permissible  inference from  the evidence produced  at trial,



            and  were  not a  reference to  the  conspiracy charge.   The



            statement was within the allowable scope of argument.  United
                                                                   ______



            States  v. Ovalle-Marquez, 36 F.3d 212 (1st Cir. 1994).  Even
            ______     ______________



            if the prosecutor's remarks were an improper veiled reference



            to   the  conspiracy  charge,   they  were  not  sufficiently



            egregious to warrant a reversal of the verdict.


-13-
                                          13



The   argument  about  improperly  vouching  for  a



            witness  is  based on  three  portions  of the  prosecution's



            closing:



                      Mr.  Marshall, in  effect,  has  said  by

                      telling the version he is  saying, he, in

                      effect, has said to  you, the police  are

                      not telling  you  the truth.   That  they

                      have  come in  here  and  taken the  oath

                      about  what  happened,  and they  haven't

                      told you the truth under oath.



                      . . . .



                      They say, I submit to you, they have told

                      the    story    the    way    it    truly

                      unfolded . . . .



                      . . . .



                      So, I ask you  in choosing between  these

                      versions think carefully  about what  the

                      police  could have  done  if  these  men,

                      Steven Cross,  Detective Lauro, Detective

                      Gerstmeyer, Detective Mansolillo had been

                      people  who  would  deliberately come  in

                      here and  tell you  the truth.   Yes, you

                      will hear undoubtedly  in summation  that

                      Detective  Mansolillo  made a  mistake in

                      the  Grand Jury.   People  make mistakes,

                      and he corrected it here.  All right.



            Defendant  did not object to  what he now  attacks as witness



            vouching,  and so  our review  in this  context is  for plain



            error.  United States v. Grabiec, 96 F.3d  549, 550 (1st Cir.
                    _____________    _______



            1996); United States v. Sepulveda, 15 F.3d 1161, 1187-88 (1st
                   _____________    _________



            Cir.  1993).   These  first two  comments  do not,  we think,



            amount to  improper vouching.  United  States v. Cruz-Kuilan,
                                           ______________    ___________



            75 F.3d  59, 62  (1st  Cir. 1996)  (holding  that it  is  not



            vouching  for  prosecutor to  say  that jury  should  come to


-14-
                                          14



believe  on the evidence that the events occurred the way the



            government's witnesses said they did).



                      The  last statement  is  simply too  garbled to  be



            vouching.  We  assume what  the prosecutor meant  to say  was



            that the Providence  police would not permit  its officers to



            deliberately tell lies.   He said, as  best we can tell,  the



            opposite.  Defendant has  no complaint.  Even if  the remarks



            were  inappropriate,  an  inappropriate  comment   is  not  a



            reversible  error unless  it is  likely to have  affected the



            outcome  of   the  trial.     United  States   v.  Cartagena-
                                          ______________       __________



            Carrasquillo,  70  F.3d 706,  713  (1st  Cir.  1995).   These
            ____________



            comments did not likely affect the outcome of the trial.



                      It is an oft-heard complaint that the prosecutor is



            putting  his personal endorsement on the scale.  Of course he



            should not do so, but there are two sides to this.  Not every



            factual  recitation in the  prosecutor's argument  must start



            with a personal  disclaimer.   It is one  thing to  emphasize



            personal endorsement.   It is  another for the  prosecutor to



            refer  to the  evidence  in factual  form  as he  goes  along



            without  constant qualification.   The  line, of  course, may



            sometimes be close.  But an excellent test is whether counsel



            contemporaneously  thinks  the  line  has been  crossed,  and



            objects, which,  in turn, enables  the court to  instruct the



            jury.   In the absence of such objections, plain error review


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is  called for.  There is no  plain error here.  See Grabiec,
                                                             ___ _______



            96 F.3d at 550.



                      The conviction is affirmed.
                                        ________


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