UNITED STATES оf America, Appellee, v. Franklin C. AZUBIKE, Defendant, Appellant.
No. 06-2255.
United States Court of Appeals, First Circuit.
Sept. 21, 2007
504 F.3d 30
The portion of the petition seeking review of the BIA‘s discretionary denial of cancellation of removal is dismissed for want of appellate jurisdiction, and the remainder of the petition is denied on the merits.
James F. Lang, with whom, Michael J. Sullivan, United States Attorney, and Cynthia A. Young, Assistant U.S. Attorney, were on brief, for the appellee.
Before BOUDIN, Chief Judge, TORRUELLA and DYK,* Circuit Judges.
DYK, Circuit Judge.
After a jury trial in the United States District Court for the District of Massachusetts, appellant Franklin Azubike (“Azubike“) was found guilty of (1) conspiring to possess with intent to distribute heroin in violation of
I.
In considering the motion for judgment of acquittal, we recite the facts in the light most favorаble to the government. See United States v. Olivo-Infante, 938 F.2d 1406, 1409 (1st Cir.1991). This case stems from a scheme to import heroin from Uganda into the United States. In 2005, Solomon Lui (“Solomon“), a Sudanese businessman living in Uganda, set up a courier service as a front for his heroin importation business. In January 2005, John Kaggwa (“Kaggwa“), a Ugandan lawyer, introduced Solomon to Richard Mukasa (“Mukasa“). Mukasa also had been a lawyer in Uganda but was now living in Malden, Massachusetts. Solomon falsely explained to Mukasa that the purpose of the business was to send items and clothes to Sudanese refugees in the United States. Solomon proposed to send briefcases through a courier service to Mukasa‘s apartment in Malden, Massachusetts. The refugees’ relatives would then pick up the package and pay Mukasa $300 per package. Mukasa, Kaggwa, and Solomon would share the $300. Mukasa agreed to the arrangement. Neither Mukasa nor Kaggwa was initially aware that the courier business was a front and that heroin would be hidden in the briefcases.
Five days after Mukasa‘s conversation with Solomon, a company called TNT Couriers telephoned Mukasa to tell him that a package had arrived from Uganda. Solomon called Mukasa to confirm that the package had arrived and told him that someone would call to arrange to pick it up. Shortly thereafter, a man with a Nigerian accent who identified himself as “Johnson” called Mukasa and informed him that he was flying in from Houston, Texas to retrieve the package and that he would be there on Saturday. “Johnson” would not give Mukasa his telephone number. Mukasa wаs concerned by the telephone call because the man did not have a Sudanese accent, as would have been expected if he had been a Sudanese refugee, and because the telephone number that he called from had a Chicago area code. That Saturday Mukasa told the receptionist in his building to give the package to “Johnson.” The receptionist reported that TNT Couriers never delivered the package, and that although “Johnson” had come by he eventually left.
In January or February of 2005, a second package was sent to Mukasa. This time FedEx was the courier. The briefcase was heavy and locked. Solomon called that evening and told Mukasa that “Mike” would pick up the package. Mukasa asked about the earlier package, and Solomon told him not to worry about it. Solomon stated that both packages contained crafts and local clothing. “Mike” called Mukasa the same night. He informed Mukasa that an unnamed woman would pick up the package and would bring $300. Like “Johnson,” “Mike” would not leave his telephone number. A woman with an African American accent then called for directions because she was driving up from New Jersey to pick up the package. When she arrived, she told Mukasa that she did not know what was in the briefcase. She gave Mukasa $300 and left. The next day, Mukasa told Solomon that he had given the woman the package and had received $300.
Shortly thereafter a third package was sent to Mukasa by FedEx. The package contained a briefcase that was addressed to Mukasa. The airbill indicated that the package was sent from “John M.” in Kampala, Uganda, and stated that the briefcase contained “African designed cloths” valued at $80. On February 13, 2005, Immigration and Customs Enforcement (“ICE“) agents seized the package when it entered
The next day, at the agents’ direction, Mukasa spoke with Solomon, informed him that the third package had arrived, and implied that he knew the package contained drugs.1 Mukasa stated that the $300 that he was paid was insufficient given the “big risk” that he was taking. J.A. 47. Solomon agreed to pay Mukasa $1500 for the next package and $2000 for additional packages. When Mukasa asked whether Kaggwa knew about “this business,” Solomon stated that “I have nobody who know[s] this business. . . . I am a confidential man. John [Kaggwa] doesn‘t know anything about this.” J.A. 48, 53. Solomоn said that “Johnson” would pick up the third package. In a conversation later that day, Solomon reiterated that someone would be coming up from New York to pick up the package and that he would be calling “now.” Solomon also instructed Mukasa to remove Solomon‘s address from the outside of the package.
Later that day, “Johnson,” who was later identified as Peter Ike, called Mukasa to tell him that he would be coming from New York to pick up the package. Ike called again on February 17. When Mukasa answered the telephone, he asked, “Who‘s this, Solomon?” J.A. 67. Ike answered, “Not Solomon, Johnson.” Id. Mukasa said, “Oh, sorry, Johnson,” and Ike responded, “Yah, sound like Solomon.” Id. Ike confirmed that he would arrive the next day to pick up the package. On February 18, Ike and Mukasa arranged to meet in a theater parking lot in Revere, Massachusetts. Ike arrived, got into Mukasa‘s car, gave Mukasa $1500, removed the briefcase from Mukasa‘s trunk, and left the parking lot.
Mukasa received a fourth briefcase from FedEx on March 4, 2005. Again the agents investigated the briefcase and found that it contained fabric and clothes and two more kilograms of heroin in hidden compartments. The agents removed the heroin and replaced it with a bag containing confectioner‘s sugar and 106 grams of heroin. That day Solomon called Mukasa to say that “Mike” would retrieve the package and bring $2000.2 This “Mike” (later identified as Roy Oki) called later that day to say that he would send someone to pick up the package. On March 8 Oki called again to say that “Franklin” (Azubike‘s first nаme) was coming from New York to pick up the package. Mukasa reminded Oki that he was to be paid $2000 for this package, and Oki confirmed that Solomon had told him so.
On Friday, March 11, Mukasa received a call from the defendant, Azubike, who
Azubike telephoned a third time that day to check again whether he could pick up the package earlier. Mukasa informed Azubike that the package would not be available until Monday at 12 noon. Azubike exclaimed, “No, no. Oh my good God. This is . . . bad. How can I be there, that will kill me, from Friday to Monday. I must be out of my mind to be. . . .” J.A. 100. Mukasa explained that he did not want his friend “to get involved in this stuff . . . it‘s between me and you and the other guy, . . . I don‘t want him to be involved.” Id. at 101. Mukasa further stated that “I don‘t want him to be suspicious, because he doesn‘t know much about this stuff.” Id. Azubike responded, “It‘s OK, it‘s OK. You don‘t have to say that on the phone. . . . Don‘t say nothing more, don‘t say anything.” Id.
On Sunday, March 13, Azubike called Mukasa again and they arranged to meet the following day. On Monday morning at 10:44 a.m., Mukasa called Azubike to let him know that he was an hour away from the cinema parking lot in Revere, Massachusetts where they had planned to meet. Azubike objected to the meeting location, explaining that the cinema parking lot did not have enough cars. They agreed to move the meeting across the street to the Stop ‘N Shop parking lot. Azubike drove into the parking lot in a blue Impala that he had rented in Baltimore under the name Michael Ifeonu. He got into the passenger seat of Mukasa‘s Jeep and paid Mukasа $2000. Mukasa told Azubike that the briefcase was in the trunk of the Jeep and suggested that Azubike pull his Impala closer. Azubike pulled his Impala next to the Jeep, removed the briefcase from the trunk, and placed it in the trunk of the Impala against the back seat. He rearranged the other luggage in the trunk so that the briefcase was not visible when the trunk door opened. He closed the trunk and began driving south.
Massachusetts state police officers stopped Azubike‘s car shortly thereafter. Upon questioning, Azubike stated that he had been in Boston to visit his cousin and that he had stayed at the Colonnade hotel. Azubike did not know where his cousin lived, however. Officer Hanlon seized the briefcase, and told Azubike that he wanted to search it. Azubike did not respond. Officer Hanlon searched the briefcase and found the evidence bag containing confectioner‘s sugar and a small amount of heroin. He then arrested Azubike.
Azubike was indicted by a Grand Jury of (1) conspiring to possess with intent to distribute heroin in violation of
In rebuttal to the defense‘s closing argument, the government argued that Azubike did in fact know Solomon. The prosecutor stated to the jury:
[Y]ou will hear . . . that Mr. Azubike did have knowledge about Solomon, and you will hear that when Mr. Mukasa asked the caller, that happened to be Al Hajji, “Oh, is this Solomon?” Al Hajji said, “No, no, this is not Solomon. Al Hajji. Al Hajji.” And what did Mr. Mukasa say to him? “Oh, you sound like Solomon.” And what did Mr. Al Hajji tell him? “Yeah, Solomon.” He knew Solomon and he knew Mike and he knew Peter Ike. Thank you.
Id. at 24. This statement ended the government‘s rebuttal.
Immediately after the statement the court met with counsel at the bench. During this conference, defense counsel objected to the prosecutor‘s statement as inaccurate. The court responded, “I‘ll tell the jury to listen carefully.” Id. at 27. The court first reminded the jury that counsel‘s statements are not evidence and that “it is your recollection and your interpretation that will have to carry the day.” Id. at 35. In addition to this standard instruction, the court explained to the jury that “you should review the evidence of the phone calls. I understand, by the way, that counsel agree that Mr. Azubike did not mention the name Solomon in any phone calls.” Id. at 43-44. At this point the prosecutor interrupted and stated that “the government did not agree with counsel with respect to the phone calls and Mr. Mukasa making mention of Mr. Solomon.” Id. at 44. The court then abandoned its effort to instruct the jury that counsel had agreed that Azubike did not mention Solomon in any of the telephone calls. The court merely stated to the jury:
[Y]ou need to listen to the tapes carefully, but there is a clear difference between the government and the defendant as to what was said and the defendant does not believe that he mentioned Solomon and the government says he did, for whatever purpose you use that testimony.
Id.
Following the jury instruction, defense counsel again objected to the government‘s statement and the court‘s instruction during a bench conference. Id. at 52. In response, the prosecutor argued that there
Immediately after the jury began deliberations, on March 28, 2006, Azubike filed a motion for a mistrial based on the prosecutor‘s misstatement. Later that day, the jury returned a guilty verdict on both counts. On March 31, the defendant again raised both arguments in a motion for judgment of acquittal notwithstanding the jury‘s verdict or, alternatively, motion for a new trial. The district court denied the motion for a mistrial as moot and denied the motion for judgment of acquittal.
DISCUSSION
I.
Azubike first argues that the district court erred in denying his motion for judgment of acquittal because the evidence was insufficient to prove an essential element of each of his convictions, namely that he “knowingly and intentionally” possessed a controlled substance with an intent to distribute. See
This court reviews a district court‘s denial of a motion for judgment of acquittal without deference. United States v. Thomas, 467 F.3d 49, 53 (1st Cir.2006). Thus we must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Olivo-Infante, 938 F.2d 1406, 1409 (1st Cir.1991).5
As both the district court recognized and the government acknowledges, this is a close case. Nonetheless, upon careful review of the evidence, we conclude that the evidence was sufficient to support the jury‘s verdict.
It is undisputed that a rational jury could infer that Azubike knew that the briefcase contained something illegal. See Appellant‘s Br. at 29-30. The circumstantial evidence to this effect is quite substantial. Azubike drove to Massachusetts from Baltimore (or New York) in a car that he rented under a false name, Michael Ifeonu. He initially refused to give Mukasa his telephone number. When Mukasa eventually told Azubike where to meet him, Azubike stated, “I don‘t like that place.” J.A. 117. He later explained that the meeting place was not safe because “[t]here are no cars there.” J.A. 119. Once a meeting place was decided upon, Azubike pulled his car close to Mukasa‘s vehicle, exchanged $2000 for the briefcase, and placed the briefcase in his trunk taking care to arrange the contents of the trunk so that the briefcase was not visible. Finally, when Azubike was ultimately arrested, he lied to the police that he had been visiting his cousin and there was no evidence that he had stayed at the Colоnnade hotel. See United States v. Hadfield, 918 F.2d 987, 999 (1st Cir.1990) (finding that the evidence was “bolstered” by the defendant‘s “tall tale“). This circumstantial evidence leads to the inference that Azubike knew that he was engaged in an illegal activity.
First, in a conversation between Mukasa and Azubike, Azubike indiсated that he knew what was in the briefcase. Mukasa stated that “I don‘t want [my friend] to get involved in this stuff because it‘s between me and you and the other guy . . . I don‘t want him to be involved.” J.A. at 101. Mukasa again stated, “I don‘t want him to be suspicious, because he doesn‘t know much about this stuff.” Id. In response, Azubike indicated that they should not have that conversation over the telephone. He stated that “[i]t‘s OK, it‘s OK. You don‘t have to say that on the phone. . . . Don‘t say nothing more, don‘t say anything.” Id. This conversation does not necessarily indicate that Azubike knew there were drugs in the briefcase, but it does provide a basis for the jury to infer that Azubike knew what was in the briefcase and that its contents should not be discussed over the telephone.
Second, the jury could infer that Azubike had knowledge of the contents of the briefcase given his close association and familiarity with Oki (because of Azubike‘s reference to him in the telephone calls with Mukasa) and Ike (because of documents found after Azubike‘s arrest).7 The jury could have inferred that Oki and Ike knew the contents of the briefcase from their organizational role in the conspiracy and their direct relationship with Solomon, and that their relationship with Azubike led them to inform him of the contents. See Thomas, 467 F.3d at 54 (noting that the defendant was in direct contact with the confidential informant).
Finally, this court has recognized that a reasonable inference of knowledge arises when the defendant is trusted with possession of a large amount of drugs. This is because drug organizations do not usually take unnecessary risks by trusting critical transactions to outsiders. See id.8 In
In summary, a careful review of all the evidence leads us to conclude that the evidence was sufficient to sustain the jury‘s guilty verdict. For the same reasons that Azubike is not entitled to acquittal, he is not entitled to new trial on the grounds that the jury verdict was against the weight of the evidence.
II.
Azubike‘s second argument on appeal is that the prosecutor‘s misstatements prejudiced the outcome of the case, warranting a new trial.
We first determine whether the prosecutor‘s statements constituted misconduct (we use the term here and below
persons at critical stages of a drug deal.“) (internal citations omitted); United States v. Ortiz, 23 F.3d 21, 25 (1st Cir.1994) (“This trust . . . permits a reasonable inference of criminal complicity between defendant and [the person providing the drugs].“); United States v. Tejeda, 974 F.2d 210, 213 (1st Cir. 1992) (“[T]he fact finder may fairly infer . . . that it runs counter to human experience to suppose that criminal conspirators would welcome innocent nonparticipants as witnesses to their crimes.“); see also Olivo-Infante, 938 F.2d at 1409; United States v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir.1991).
not to suggest deliberate wrongdoing but rather to signal a statement of fact that is mistaken or unsupported by any evidence). See Berger v. United States, 295 U.S. 78, 85 (1935); see also United States v. Joyner, 191 F.3d 47, 53-54 (1st Cir.1999). Here it is clear that the prosecutor‘s statements were incorrect. The prosecutor stated to the jury:
[Y]ou will hear . . . that Mr. Azubike did have knowledge about Solomon, and you will hear that when Mr. Mukasa asked the caller, that happened to be Al Hajji, “Oh, is this Solomon?” Al Hajji said, “No, no, this is not Solomon. Al Hajji. Al Hajji.” And what did Mr. Mukasa say to him? “Oh, you sound like Solomon.” And what did Mr. Al Hajji tell him? “Yeah, Solomon.” He knew Solomon and he knew Mike and he knew Peter Ike. Thank you.
Mar. 27, 2006 TT 24. The government admits that this recitatiоn of the evidence was factually inaccurate. See Appellee‘s Br. at 29. Accordingly, the misstatements constituted prosecutorial misconduct. See Berger, 295 U.S. at 84; see also Joyner, 191 F.3d at 54; 3 Charles Alan Wright, Nancy J. King & Susan R. Klein, Federal Practice & Procedure § 555 (3d ed. 2007) (“It is misconduct for a prosecutor to make an assertion to the jury of a fact, either by way of argument or by an assumption in a question, unless there is evidence of that fact.“).
Since the statements constituted misconduct, we must then determine whether they resulted in prejudice to the defendant. United States v. Giorgi, 840 F.2d 1022, 1037 (1st Cir.1988) (“Even were we to find the prosecutor‘s methods improper, that alone would not suffice to reverse the conviction. . . . [A] party must show both misconduct and resulting prejudice.” (citing Berger, 295 U.S. at 89)). The test is “whether the prosecutor‘s misconduct ‘so poisoned the well’ that the trial‘s outcome was likely affected, thus warranting a new triаl.” Joyner, 191 F.3d at 54. Because defense counsel timely objected to the misstatement,9 we review for harmless error. Id. at 53. In such cases, this court has applied a three part test: (1) whether the prosecutor‘s conduct was isolated and/or deliberate; (2) whether the trial court gave a strong and explicit cautionary instruction; (3) whether it is likely that any prejudice surviving the instruction could have affected the outcome of the case. Id. at 54; see also United States v. Cormier, 468 F.3d 63, 73 (1st Cir.2006).
Applying the first portion of the test, we accept the government‘s argument that the misstatements were not deliberate and only involved a mistaken recollection of the evidence. However, the prosecutor made the misstatement twice in front of the jury. The prosecutor‘s first misstatement was made during rebuttal to the closing argument—the last argument before the jury instruction. We have rеcognized that prejudicial statements made during closing argument “militate in favor of reversal” because they are “the last words spoken to the jury by the trial attorneys.” United States v. Manning, 23 F.3d 570, 575 (1st Cir.1994). This error was compounded when the prosecutor later interrupted the court‘s jury instruction. When the court explained to the jury that “you should review the evidence of the phone calls. I understand, by the way, that counsel agree that Mr. Azubike did not mention the name Solomon in any phone calls,” Mar. 27, 2006 TT 43-44, the
Second, we find that the court‘s instructions that counsel‘s arguments are not evidence and “to listen to the tapes carefully” were not particularly useful in the circumstances of this case. Both parties recognize that there were large gaps and unintelligible portions of the tape-recorded conversations.10 The tapes were sufficiently difficult to understand that, when they were played at trial, a transcript was provided to the jury for use during the testimony. Mar. 21, 2006 TT 62. The court stated to the jury:
[T]he evidence that you will have to use in deliberating on your verdict is the tape itself. The transcripts are simply designed to help you understand what may not be so easily understood, but it is what‘s on the tape that you must rely on in reaching your verdict.
Id. Once the tapes were played, thе court stated in front of the jury, “I must confess, I didn‘t understand a single word of that.” Id. at 63. Defense counsel agreed, “I thought it was just me, your Honor,” and the prosecutor explained that this was “the reason why the transcripts were made.” Id. While the tapes were available to the jury during deliberations, the transcripts were not. Thus the court‘s instruction “to listen to the tapes carefully” was not as
helpful as it would have been if the tapes had been clearer.
Finally, this was a close case and the prosecutor‘s misstatements went to the heart of Azubike‘s defense. At oral argument, counsel for the government conceded that “the government recognizes . . . that this was a close case as did the district court. The government does not stand here contending that no verdict other than a guilty verdict could sensibly have been returned.” The district court itself also recognized that this was a difficult case. The court stated, “I find this a very thin case and I‘m really troubled by it.” Mar. 27, 2006 TT 4.
Here there was no direct evidence that Azubike knew what was in the package, and the government was required to prove Azubike‘s knowledge through inference. The inference that Azubike knew what was in the briefcase was undermined by the fact that the heroin was securely hidden in the briefcase and that Solomon took efforts to conceal the nature of the business from Mukasa. Thus Azubike‘s role in the organization was a central issue. See United States v. Santana-Camacho, 833 F.2d 371, 374 (1st Cir.1987) (remanding where “[t]he prosecutor‘s erroneous remark strongly fortified the government‘s theory“). The government argues on appeal that whether Azubike knew Solomon was insignificant because there was evidence that Azubike knew Ike, who in turn worked directly with Solomon. The government‘s argument is unpersuasive. The higher up in the organization Azubike stood, the more likely it was that he was told that drugs were involved. While connecting Azubike to Ike was helpful to the government, connecting him to Solomon by evidence that Azubike had mentioned Solo-
The government argues that the prejudice of a prosecutorial misstatement does not survive a jury instruction to consider the evidence or that the prosecutor‘s statements are not evidence. In most of the cases in which a standard corrective instruction was held sufficient to dissipate all prejudice, there was “overwhelming evidence of [the defendant‘s] guilt, which ‘eliminate[d] any lingering doubt that the remarks could have unfairly prejudiced the jury‘s deliberations.‘” Joyner, 191 F.3d at 54.13 In other cases, the misstatements were peripheral to the defense. See United States v. Bey, 188 F.3d 1, 8 (1st Cir.1999) (finding that the prosecutor‘s misstatements were irrelevant to Bey‘s theory that hе was “an innocent dupe“); see also United States v. Lowe, 145 F.3d 45, 48, 50 (1st Cir.1998) (affirming a conviction where there was ample evidence supporting the verdict and the misstatement apparently was not central to the defense).
Other cases hold that where the evidence was close, and the misstatement goes to a central issue in the case, an instruction to consider the evidence may well be insufficient. In United States v. Watson, 171 F.3d 695 (D.C.Cir.1999), “the prosecutor misstated a defense witness’ testimony on a critical point and did so
373-74; see also United States v. Simpson, 479 F.3d 492, 504 (7th Cir.2007) (noting that “where the circumstantial evidence against Simpson was close” the prosecutor‘s improper argument was “powerful“).
The Second Circuit also has vacated a conviction where the prosecutor repeatedly misstated the evidence even though the district court sustained the defendant‘s objections and stated to the jury that “it‘s your recollection of the evidence that counts and not counsel‘s.” United States v. Forlorma, 94 F.3d 91, 94 (2d Cir.1996). The Second Circuit found that “although the trial judge sustained the defendant‘s objections, we cannot be confident that the judge‘s unexplained ruling dispelled the misperception that was likely caused by the baseless argument,” id. at 95, and stated that “we do not think these rulings and instructions were sufficient to undo the effect of the highly prejudicial inaccurate argument.” Id. at 95-96.14 This case seems to be quite similar to Watson and Forlorma, and we agree with the approach taken by our sister circuits in these cases.
To be sure this would have been quite a different case if the district court had cor-
rected the error in the prosecutor‘s statement. See United States v. Mangual-Garcia, 505 F.3d 1, 6-7 (1st Cir. 2007) (finding that a specific instruction to disregard testimony was sufficient to cure claimed prosecutorial misconduct). However, since there was no such correction, and since the evidence was close and the misstatement went to a central issue and was repeated, we conclude that “the prosecutor‘s misconduct ‘so poisoned the well’ that the trial‘s outcome was likely affected, thus warranting a new trial.” Joyner, 191 F.3d at 54.
III.
Azubike‘s convictions and sentence are vacated and the case is remandеd for proceedings consistent with this opinion.
Vacated and Remanded.
TORRUELLA, Circuit Judge
(Dissenting).
Even viewing the evidence in the light most favorable to the Government and drawing all reasonable inferences in its favor, I remain unconvinced that a rational trier of fact could have found one of the “essential elements” of this crime beyond a reasonable doubt, United States v. Olivo-Infante, 938 F.2d 1406, 1409 (1st Cir.1991): that Azubike “knowingly and intentionally” possessed a controlled substance.
While Azubike concedes that a rational jury could infer that he knew the briefcase
The simple fact is that what the Government proved could equally sustain a finding that Azubike believed he was carrying smuggled diamonds or other high-value contraband from Africa. In light of the degree of ambiguity in the evidence, the Government has not met its constitutional burden of establishing beyond a reasonable doubt that Azubike had the required criminal scienter with respect to the drugs. Hence, the district court should have granted Azubike‘s motion for judgment of acquittal.
Because I would reverse and direct entry of a verdict of acquittal, I respectfully dissent.
Notes
Mar. 27, 2006 TT 27. Although the objection was not made during rebuttal itself, the objection was made immediately thereafter during the sidebar conversation. In United States v. Mandelbaum, this court found that an objection was timely where the prosecutor‘s misstatement occurred during closing argument and defense counsel did not object until a sidebar following the prosecutor‘s rebuttal. 803 F.2d 42, 44 n. 1 (1st Cir.1986). This court stated:I also want to put on the record my objection to the reply by Miss Leoney. There‘s nothing—there are no tapes in there that show that Mr. Azubike mentioned the name Solomon. There‘s one reference where Mr. Mukasa says . . . something about Mr. Solomon and that‘s it. She was referring to the Jonathan issue where Mr. Mukasa said, “Are you Jonathan?” He says, “I‘m Al Hajji.” Doesn‘t say Solomon.
Id. (internal quotation marks omitted). The only other cases relied on by the government expressly did not decide the issue of whether the objection was timely. See Fonten Corp. v. Ocean Spray Cranberries, Inc., 469 F.3d 18, 21-22 (1st Cir.2006); United States v. Potter, 463 F.3d 9, 23-24 (1st Cir.2006); United States v. Laboy-Delgado, 84 F.3d 22, 31 n. 7 (1st Cir.1996). Accordingly, we find that the objection here was timely.[A]lthough defendant‘s objection should have been made earlier, it was still made before the jury retired and in time for the judge to take corrective action if he had felt it was necessary. A stricture governing the timing of objections should not be employed woodenly, but should be applied where its application would serve the ends for which it was designed. If it be applied blindly and withоut the benefit of analysis of particular fact situations before individual courts in specific cases, it will be transformed from a sound principle of judicial administration into a trap for the unwary.
J.A. 100. However, Azubike did not clearly indicate that he knew who Solomon was and did not himself mention Solomon. Significantly, the government did not rely on this exchange either at closing argument or at trial. Nor does the government rely on this exchange on appeal with respect to the prejudice question.Mukasa: No, it‘s Mike‘s fault. But then Mike is, is messing us up, us both. . . .
Azubike: But, but what‘s going to happen?
Mukasa: Because Solomon called me long time, like, like ten days ago and I‘ve been here all the time.
Azubike: No no no, forget about that. What is going to happen? Forget about what happened.