A jury convicted Jose Orlando Fernandez of conspiring to import heroin, 21 U.S.C. §§ 841(a), 846, and of conspiring to possess heroin with intent to distribute, 21 U.S.C. §§ 952(a), 968. He now argues that a number of procedural errors deprived him of a fair trial. Disagreeing, we affirm.
FACTS
In reviewing a judgment of conviction, we consider the facts, as supported by the record, in the light most favorable to the government.
See United States v. Pitrone,
On July 28, 1996, the cruise ship Seaward docked in Old San Juan, Puerto Rico. Just after 3:00 p.m., U.S. Customs agents detained one of the Seaward’s crew, Howard White, a Jamaican national, on suspicion of drug possession. A search revealed that White was carrying heroin. White immediately agreed to cooperate with government officials.
White told the agents and testified at trial that he had received the heroin from a Colombian in Curacao. The Colombian had given White a piece of paper bearing two telephone numbers and the name “Miguel.” According to White, the Colombian supplier advised him that the telephone numbers were Miguel’s and that Miguel was another Colombian living in Puerto Rico. The supplier told White to call Miguel at the numbers and turn the drugs over to him. At the time of his detention, White was carrying a piece of paper, later admitted into evidence, bearing the name “Miguel” and two phone numbers. It was later found that one of the numbers was for defendant Fernandez’s cel-. lular phone; the other was for a room at the El San Juan Towers rented by Fernandez and used by both Fernandez and Miguel Garzón.
White testified that hours before his encounter with Customs officials, at around 12:30 in the afternoon, he had telephoned one of the numbers and set up a meeting with a person who identified himself on the phone as Miguel. Fernandez admitted at trial that he had responded to such a call and had indeed said he was Miguel. Miguel Garzón was present with Fernandez when the latter spoke with White. White testified to meeting with Miguel Garzón and a second individual whom White identified as Fernandez at 2:30 — an hour before Customs agents found White with the heroin. According to White, Fernandez asked whether White had brought the “stuff.” White told Fernandez that the drugs were still aboard the Seaward. Fernandez instructed White to retrieve the drugs and bring them to a meeting later in the same place. According to one of the agents who first questioned White, White had admitted that he and Fernandez agreed that Fernandez would purchase the heroin at their next meeting for $3000.
It was as White was disembarking the Seaward and returning to meet Fernandez that Customs agents stopped and searched him. When White offered to cooperate, the Customs officials set up a “controlled buy” with White. At 4:30 and again at 6:30 the same day, they recorded two telephone calls (later played to the jury) from White to Fernandez in which the two arranged to meet at a nearby pier. On each occasion, language difficulties between White and Fernandez required a government agent, posing as an acquaintance of White’s, to serve as an interpreter.
White went to the meeting place, accompanied by a government agent who posed as an acquáintanee of White’s and served as an interpreter. Other agents secretly positioned themselves around the scene. Fernandez and Garzón then arrived. According to the government agent present with White, Fernandez stated that he disliked their meeting place because it tended to be populated by Customs agents. Both Fernandez and Garzón asked White and the government agent to get in the car. White and the agent refused; Fernandez parked the vehicle and emerged, without Garzón, to meet with White.
White, ..Fernandez, and the government agent then proceeded to a nearby public *62 restroom, with Garzón remaining in Fernandez’s car. White lifted his shirt to show Fernandez what appeared to be heroin, and Fernandez showed a roll of cash. Fernandez again asked that they move to the car, and again White and the agent refused. Fernandez then told White and the agent that the deal would take place in the ear or not at all, and turned to walk back to the car.
Government agents then arrested both Fernandez and Garzón. Fernandez was discovered to be carrying $5000 in cash. Immediately after the arrest, Garzón consented to a search of the room at the El San Juan Towers. That search revealed that Garzón had leased the room; during the search, a woman called the room and identified herself as Fernandez’s wife.
At trial, Fernandez testified that he had unwillingly and unknowingly been made a part of co-defendant Garzon’s drug dealings. Fernandez explained that he made a living as a producer and promoter of music groups, and that he befriended Garzón because Gar-zón claimed also to be in the music business. Fernandez offered Garzón the use of the room at the El San Juan Towers; Fernandez had initially rented the l-oom for a foreign band that had canceled plans to play in Puer-to Rico. Fernandez admitted giving Garzón the keys to the apartment and the number to his cellular phone.
Fernandez testified that he went to the drug buy not realizing it was an illicit transaction but thinking it was an opportunity to receive an,honest payment of a debt owed by Garzón. Garzón owed him rent on the El San Juan Towers room, and Garzón told him that his brother was sending him money that he could use to satisfy the debt. According to Fernandez, he agreed to speak to White on the phone only because White and Garzón were having difficulty communicating. Fernandez went to the final meeting under the impression that Garzon’s acquaintance would simply pay him cash. Upon learning that White had no money, he walked away. Fernandez testified that he had no idea that drugs were involved. As for the $5,000 found on him at the time of his arrest, Fernandez stated that a fellow music promoter named Cheo Cruz had given him the money as payment for Fernandez’s music services.
On cross-examination, Fernandez contradicted several statements made by government witnesses. Specifically, Fernandez denied that he met with White in the early afternoon of July 28, 1996, that he showed the agent a wad of money at the pier encounter, and that he told the agent that he was reluctant to complete the exchange at the pier because of the prevalence of Customs agents.
The jury returned a verdict of conviction on all counts, and this appeal followed.
DISCUSSION
Fernandez argues that the trial court made several errors, the cumulative effect of which was to deny him a fundamentally fair trial. After reviewing the record, we conclude that a new trial is not warranted. We review each claim of error in turn.
1. Failure To Instruct the Jury Regarding Accomplice Testimony
Fernandez complains that the district court did not instruct the jury that it should take special care in crediting the testimony of White, Fernandez’s alleged eo-eonspirator.-“It is well established that an accomplice is qualified to testify as long as ... the ‘judge [gives] complete and correct instructions detailing the special care the jury should take in assessing the testimony.’ ”
United States v. Hernandez,
As Fernandez at no time asked for a “special care” instruction at trial, our review is for plain error.
See
Fed.R.Crim.P. 52(b);
United States v. Olano,
White’s testimony was, moreover, corroborated by other evidence. When White was found with the heroin, he was carrying a piece of paper bearing two phone numbers registered in Fernandez’s name. Upon being called at one of the numbers, Fernandez agreed to meet with White and was arrested at the prearranged place carrying $5,000. In the phone conversations recorded by government agents and played for the jury, Fernandez never indicated that, as he later testified, he expected to be receiving money, not drugs. At the last meeting between White and Fernandez, a government agent testified that Fernandez was shown the sham heroin and that he displayed his cash to White. The agent testified that Fernandez voiced concern about the presence' of Customs agents in the area of the aborted transaction, a concern inconsistent with innocent activity. Each of these items belied Fernandez’s claim to have been unaware of the illicit nature of the meeting, and supported White’s testimony that Fernandez was a party to an attempted drug transaction.
2. Admission of the Government’s Version of the Facts
Fernandez complains that when a copy of White’s plea agreement was placed in evidence it improperly included a statement of the government’s version of the facts. While on appeal Fernandez takes no exception to admission of the plea agreement itself, he strenuously contends that the failure to eliminate from it the government’s version of the facts was a serious and very prejudicial error. However, at trial, Fernandez’s counsel made no objection to admission of the government’s version of the facts. Rather he objected to admitting the plea agreement, asserting it to be irrelevant, and disclaiming any other basis for exclusion. We accordingly review his present objection for plain error alone. For an error to be such, it must indeed be “plain,” or “obvious,”
see Olano,
In the present circumstances it is debatable whether submission of the government’s version of the facts along with the plea agreement was, if error, error that was plain or obvious. It dqes not appear that the judge even knew that the government’s version of facts was being submitted with the plea.
See United States v. Binker,
3. Improper Cross-Examination
Fernandez next claims that the district court erred in allowing the government to ask Fernandez whether prosecution witnesses were lying. During the prosecution’s case-in-chief, Officer Juan Rivera testified that Fernandez showed him a roll of cash at the scene of the aborted drug sale, and that Fernandez had complained that the area was known to be patrolled by Customs agents. When Fernandez contradicted Rivera’s testimony, the prosecutor asked him three times *64 whether Agent Rivera was lying. 1 The prosecutor also asked Fernandez whether White was lying when he testified that he and Fernandez had met at noon on the day of the arrest.
We have recently emphasized that “counsel should not ask one witness to comment on the veracity of the testimony of another witness.”
United States v. Sullivan,
Here, the government asked Fernandez to impugn the veracity -of a government agent. Given the faith a jury may place in the word of a law enforcement officer, it is unfair to force a criminal defendant to choose between recanting and calling a law officer a liar.
See Sullivan,
Hence, the prosecutor’s questions should not have been phrased as they were. However, to constitute plain error they must potentially have affected the outcome of the district court proceedings.
See Olano,
Fernandez’s defense to the above was to deny the agent’s version of his behavior just before arrest, and explain his conceded willingness to meet with White as part of an innocent bill-paying scam set up by his associate, Miguel Garzón. Fernandez testified he had purportedly become Garzon’s creditor on a whim, giving him the use of his apartment and cellular phone because “I [Fernandez] could trust him ... even though I didn’t know him very well, I would do this favor for him because he was a music colleague of mine.” None of this story was corroborated *65 on the telephone tapes, much less by the other witnesses’s testimony. Fernandez’s explanation failed to account reasonably for White’s possession of Fernandez’s phone numbers, nor did it explain plausibly why Fernandez identified himself as Miguel on the phone, nor why he never mentioned the alleged debt he was owed, instead telling White “you have work for me.” Given the strength of the government’s case, it stretches credulity to believe that the improper framing of these unobjected-to questions affected the outcome of the trial.
4. Improper Prosecutorial Comments
Fernandez also urges that we reverse his conviction based on the prosecution’s reference before the jury to an unproven document never put in evidence. This was a lease agreement supposedly made by Garzón to rent the same apartment later rented by Fernandez. Interrogating Fernandez, the prosecutor asked, “[s]ir, this is a contract made by Mr. Miguel Garzón, on rental unit number 268 at ESJ Towers, the same rental unit that you rented on July 1996?” After defense counsel objected, the court instructed the prosecutor to make no further reference to the unidentified agreement. The prosecutor then revised the inquiry to ask, “[s]ir, would you be surprised that Mr. Miguel Garzón rented this same apartment you rented in July, approximately one year before?” The court at first allowed this, but later sustained defense counsel’s objection and ordered the government not to proceed with any questions as to contents of the alleged document.
An earlier Garzón lease, had one been proven, would tend to impeach Fernandez’s testimony that he had met Garzón only a few days before their arrest. While it is reprehensible, in the jury’s presence, to frame questions so as to suggest matters not in evidence, the court’s sustaining of the objections limited the damage in large measure. We would have preferred the court to have instructed the jury then and there to disregard any suggestion of a prior Garzón lease. At least, however, the issue was abandoned and was not mentioned during closing argument. Moreover, the judge told the jury in closing instructions that “[statements and arguments of counsel are not evidence in the ease, unless made as an admission or stipulation.” Defense counsel never moved to strike nor did he seek a mistrial or a more pointed curative instruction. We find insufficient prejudice in the circumstances to warrant a new trial.
5. Questions from the Bench
Defendant urges that we find a major error in the court’s close questioning of Fernandez. After the prosecution finished cross-examining Fernandez, the court questioned him at length in the presence of the jury. The court’s examination occupied some eighteen pages of trial transcript, covering several areas of Fernandez’s previous testimony. The first and lengthiest line of questioning dealt with the timing of Fernandez’s meetings with White on the day of the arrest. The judge also asked Fernandez to explain several of his statements, including his telling White, in a taped telephone conversation, that “you [i.e., White] have work for me.” The judge then covered three issues in brief, asking Fernandez about the amount of money he was carrying at the time of his arrest, his job as. a music producer, and the rental of the room at the El San Juan Towers. Following the judge’s questioning, Fernandez answered questions on redirect and recross-examination.
“Because [Fernandez] did not object to the judge’s questioning during trial, the conduct complained of will be considered under the plain error doctrine.”
2
Gonzalez-
*66
Torres,
As a general matter, a trial judge “has a perfect right — albeit a right that should be exercised with care — to participate actively in the trial.”
Logue v. Dore,
Here, Fernandez claims that the “inquiry could have had no other effect on the jury than to persuade it of the existence of a conspiracy to import drugs” and that much of Fernandez’s testimony was untruthful. We think this misstates the tenor and effect of the court’s inquiry. Rather, we think the judge sought impartially to clarify Fernandez’s testimony. Much of Fernandez’s testimony was confused, stemming in part from the language barrier, and in part from Fernandez’s own obfuscations. Thus, the judge prefaced his questions with phrases like “[s]ir, so there is no confusion,” and “I don’t want to confuse you. What I want to do is get the facts straight for the jury to be able to understand them.” As in
Logue,
“the judge’s questions strike us as designed to simplify the jury’s task, and ... to clarify [the witness’s] frequently vague and confusing answers.”
To the extent the court’s inquiry exposed flaws in Fernandez’s defense, this was not because the questions were unfair but because Fernandez provided answers that were themselves evasive, incredible, and patently contradictory to his previous statements. Our reading of the transcript convinces us that the judge’s questioning did not transgress the court’s inherent power to participate objectively in the conduct of the trial.
6. Cumulative Effect
Finally, Fernandez argues that the cumulative effect of the asserted errors was to deprive him of a fair trial. “Individual errors, insufficient in themselves to necessitate a new trial, may in the aggregate have a more debilitating effect,”
United States v. Sepulveda,
Here, only certain of the challenged conduct amounted to error, and as to this we are unable to say that it was of such gravity and frequency as to have deprived Fernandez of a fair trial. The evidence of Fernandez’s conscious participation in the attempted drug transaction was exceedingly strong. *67 Fernandez had the opportunity to attempt to rebut this .evidence by offering his version of why he so readily responded to White’s phone calls, passed himself off as Miguel, and sought to meet with White bearing $5,000 in cash. The errors Fernandez cites, viewed individually or cumulatively, did not seriously impede his ability to present his defense to the jury.
The conviction is affirmed.
Notes
. The relevant exchange was as follows:
Q; You showed the agent a roll of money you had in your pocket, didn't you, sir?
A: ’ No, negative.
Q: So, Officer Rivera who testified yesterday[,] he’s lying?
A: I don't know why he said that, but I did not show it. I didn’t do anything.
Q: You had five thousand dollars in your possession, right, sir?
A: Yes, I was aware of that. I knew that.
Q: Sir, you did state that that place was full of Customs agents, didn’t you?
A: God, I haven’t said anything like that. How could I say anything like that?
Q: So, Officer Rivera who testified yesterday that you said that is lying, right?
A: I don’t know the reason why that man stated that. But the truth is I didn’t say anything like that.
Q: So Officer Rivera is making all that up, right, sir?
A: I don’t know what I could say. I didn’t say anything as to that matter. I don't know why he said that. 1 didn’t say anything like that.
. During one particularly confused sequence, the interpreter interrupted the examination to make sure that he had heard the judge correctly. At that point, apparently responding to a signal from Fernandez’s counsel, the judge asked, ”[w]ould you like to place an objection or'clarification?” Fernandez’s counsel answered, "[cjlar-ification, your Honor.’’
On
appeal, Fernandez does not actually argue that he objected at trial. Instead, he implies that the error should be treated as preserved because, as we noted in
In re United States,