United States v. Zarauskas , 814 F.3d 509 ( 2016 )

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.
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.
2Zarauskas had access to this sort of information
because he collected and sold wildlife-related antiques as a hobby.
- 2 -
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
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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.
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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.
- 5 -
§ 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
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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).
- 7 -
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
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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".
- 9 -
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, pre-
Miranda 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 self-
incrimination 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
- 11 -
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.
- 13 -
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.").
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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
- 16 -
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.
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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
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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.
- 19 -
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
- 20 -
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
9Zarauskas 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.
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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
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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 non-
adversarial 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.
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