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USCA1 Opinion

UNITED STATES COURT OF APPEALS


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 95-1099

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID CUDLITZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]


___________________

____________________

Before

Selya and Boudin, Circuit Judges,


______________

and Lisi,* District Judge.


______________

____________________

Kimberly Homan
______________

with

whom Sheketoff & Homan


___________________

was on

brief

appellant.
Robert E. Richardson, Assistant United States Attorney, with
____________________
Donald K. Stern,
_______________

United States Attorney, was on brief

for the Uni

States.

____________________

January 8, 1996
____________________

____________________

*Of the District of Rhode Island, sitting by designation.

BOUDIN, Circuit

Judge.

David Cudlitz was

indicted in

______________

July

1993 and

conspiracy

844(i),

charged

to commit

arson, 18

mail fraud, id.


___

felony, id.
___

844(h).

that in

Cudlitz,

proceeds,

in four

1992

arranged

apartment building

to

he

Bedford, Massachusetts.

counts, respectively,

with

U.S.C.

id

1341, and

In substance,

in

have

order to

set on

owned at

371, arson,

use of fire to commit a

the government alleged

obtain

fire

the

an

7 Salisbury

insurance

unprofitable

Street in

New

Cudlitz was tried by a jury in March

1994.

At trial, the government

individuals--Craig

Santos,

offered the testimony of three

Harold

Burnham,

and

Daniel

Cornell--who in the summer and early fall of 1992 were living

as tenants at another apartment

New

Bedford located at 89

building owned by Cudlitz in

Austin Street.

Cornell's brother

David Vieira, who also

jobs

in the

for Cudlitz

These three, and

testified, did odd

various buildings

he owned.

All

except Burnham had criminal records, and Burnham drank a good

deal.

Cornell testified that in late August or early September

1992, Cudlitz twice

on

asked Cornell to set

fire, but he (Cornell) refused.

early

September Cudlitz

7 Salisbury Street

Vieira testified that in

made similar

requests of

him and,

when he refused, asked whether Santos and Burnham would do it

and later

said he

was

going to

-2-2-

ask them

to

do the

job.

Vieira

also

testified

that

he

vandalized

one

apartments at Cudlitz' request prior to the fire.

of

the

Santos and

Burnham both testified that Cudlitz had requested them to set

the

fire

and that

they

had agreed

to

do

so for

$1,500

(according to Santos) or $1,000 (according to Burnham).

Santos and Burnham testified that they did set

at 7 Salisbury Street

on the evening of September

the fire

18, 1992,

starting

back

it with gasoline spread

stairs.

The

attic, confining

smelling

testimony

Burnham

fire department put

the damage;

the odor

that

of a

the

and Santos

that he then

in the attic

and down the

out the

fire in the

the fire captain

flammable liquid.

following

day

that they had

Cudlitz

not done a

testified to

There

was also

complained

to

good job, and

set Vieira to vandalizing the third

floor of 7

Salisbury Street to increase the damage.

Eventually,

both the

Burnham

fire

Cudlitz collected

and the

moved into

7 Salisbury

evicted by Cudlitz when

basement.

vandalism.

on insurance

claims for

Thereafter, Santos

Street but

were eventually

Santos stole some property

Later Santos, interviewed in

and

from the

connection with the

fire, admitted his role.

with

Cudlitz,

counts,

and

He and Burnham were

although only

both

pled

on

guilty

the

in

conspiracy and

exchange

leniency for cooperating with the government.

-3-3-

both indicted

for

arson

possible

Cudlitz testified in his own defense.

He flatly denied

that

he had ever solicited either the arson or the vandalism

at 7

Salisbury Street;

million, although

he claimed

he admitted

on

a net

worth of

over $1

cross-examination that

Salisbury Street was not currently profitable because largely

vacant; and

he gave

testimony, described at

below, indicating that

or

ever before filed an

greater length

he had not previously staged an arson

insurance claim for

fire damage on

any property he owned.

The

jury

convicted Cudlitz

December 1994, Cudlitz

on the first

all four

counts.

was sentenced to 36 months

three counts, and a

of 60 months on the

on

final count.

In

in prison

mandatory consecutive term

He now

appeals, conceding

the

sufficiency of

claims of error.

the evidence

but raising

several other

Three of them, all complicated,

relate to

questions allowed on cross-examination of Cudlitz; the others

concern the trial court's instructions.

I.

Cudlitz asserts

first that the district

court erred by

allowing the prosecutor to cross-examine him about an alleged

prior

attempt

to

solicit

arson.

The

critical

set

of

questions, which the court permitted the prosecutor to ask in

three different

whether

versions

Cudlitz

another tenant who

had in

and over

1991

solicited

was then doing

-4-4-

Cudlitz' objection,

one Ron

odd jobs for

was

Wallace--

Cudlitz--to

burn down another one of Cudlitz'

doing so

and,

apart from

buildings.

some follow-up

described below, the government made

Cudlitz denied

cross-examination

no attempt to prove the

solicitation.

The

criminal

rules

governing

defendant about

complex and confusing

this

subject--cross-examining

prior wrongs--are

in the

entire law of

among the

most

evidence.

The

main

reason is that they represent not a logical pattern but

series of ad hoc

law

over the

with several

Rules

accommodations arrived at

course of

centuries in

related problems.

of Evidence

dealing (differently)

Worse

have retained

by the common

still, the

the common

law structure,

with a few modifications, but expressed it in four

rules--Fed.

R.

Evid.

404,

405,

608

Federal

different

and

609--whose

relationship and content are not models of clarity.

Cudlitz' main complaint is that there was no "basis" for

allowing the

support the

elicit

questions in

questions.

dispute, but two

Ordinarily,

evidence of prior similar

defendant

has a propensity to

different bases

the government

bad acts to

commit such acts

cannot

show that the

and is thus

more

likely to have committed

404(a).

by the

the crime now

charged.

Rule

But this rule against so-called "character evidence"

prosecutor is waived

offer "good"

where the defendant

character evidence in

404(a)(2).

-5-5-

his own

chooses to

defense.

Rule

Cudlitz did

direct

examination

unprofitable

debts

offer such

and

that,

evidence here by

when

business venture,

had

not

had

previously

he

any

testifying on

faced

had dutifully

fire

connected

with

paid

with

an

his

that

enterprise, nor made a claim for insurance for fire damage on

any other of his properties.

evidence

of good

character by

that he lacked the propensity

fraud in

government

In effect, Cudlitz was offering

showing, quite

to commit arson and

inviting circumstances.

was therefore

pertinently,

entitled

Under

insurance

Rule 404(a)(2), the

"to rebut

the same"

by

seeking to elicit evidence of bad character.

Cudlitz' good

character evidence

was improper in

form

since the rules limit the proponent to offering an opinion or

reputation

witness

instances

or events,

occurrence.

rather

as

than

Cudlitz did

Rule 405(a).

But

Cudlitz' testimony more effective

attempt

arson

to rebut

attempt

examination,

by asking

was

inquiry

within

is

instances of conduct."

testifying

the

detail

405.

past

simply

made

The government's

Cudlitz about a

the

specific

denying any

for him.

rules;

allowable

Rule

in

to

specific prior

for

into

"[o]n

cross

relevant specific

E.g.,
____

United States
_____________

v.

West, 58 F.3d 133, 141 (5th Cir. 1995).


____

Alternatively, the question as to the prior arson can be

justified

Before

on

asking

theory

about the

of

impeachment

specific

by

attempt

contradiction.

to solicit

Ron

-6-6-

Wallace to commit arson in 1991, the prosecutor asked without

objection whether Cudlitz had ever solicited anyone to commit

arson, and

Cudlitz said

that he

had not.

When

a witness

testifies to a fact, he may--subject to certain limitations--

be cross-examined to elicit testimony contradicting his prior

testimony

for the purpose of

showing that the

witness is a

liar

and should not be

believed.

446 U.S. 620, 627 (1980);

United States v. Havens,


______________
______

United States v. Perez-Perez,


_____________
___________

No.

94-1781, slip op. at 7 (1st Cir. Dec. 26, 1995).1

The government and the

theory

of

impeachment

assumption that

district court thought that this

is

reflected

is shared by

centrally concerned

in

some courts.

with character

quite

different

discrediting

character

examination

by

for

reasoning of Rule

rules.

opinion

veracity,

only, by

Rule

or

608

inquiry

404 but

Rule 608 is

mode of

is subject

to

permits accrediting

or

608(a),

into

an

that is based on the

reputation

Rule

But

608(b),

for veracity, a

accrediting or discrediting the witness

same "propensity"

Rule

evidence

and,

specific

on

as

to

cross-

instances

of

conduct if
__

"probative

of truthfulness

or

untruthfulness."

Rule 608(b).

____________________

1There
"impeachment

is
by

no

Federal

Rule

contradiction"

of

but the

Evidence
critical

labeled
point to

remember about those rules is that they treat selected topics


________
and even

then sometimes only

most familiar

selectively.

modes of impeachment

(e.g., bias,
____

interest, corruption) are never mentioned.

-7-7-

Several of

the

prejudice,

At

common law,

the quoted

included, but Rule 608

allowed.

Rule

not always

deliberately narrowed type of conduct

Thus, Cudlitz

might have been cross-examined under

608(b) as to prior instances of forgery or perjury; but

soliciting

arson, although showing

is not "probative

does

restriction was

of

. .

bad character generally,

. untruthfulness."2

But

neither

Rule 608(b) prohibit the questions so long as they were

justified

on

another
_______

basis.

Here,

contradiction was such a legitimate basis.

impeachment

by

Perez-Perez, slip
___________

op. at 6-7.

Cudlitz objects

that

the

government

was

seeking

to

contradict

a denial

(of

prior solicitations)

that it

had

itself improperly elicited, a practice that we warned against

in

United States v. Ruiz-Batista, 956 F.2d 351, 352 n.1 (1st


_____________
____________

Cir.), cert. denied, 113 S. Ct.


_____ ______

105 (1992).

It is true that

the government's question on cross went marginally beyond the

scope of the direct.

solicitations

testimony,

occasion.

But we think that the denial

was very

denying

The

that

strongly implied by

he

government

had

may

Cudlitz' direct

set fires

have

of prior

on

sharpened

any

other

the

edge

not without

some

____________________

2The government's response,


force,

which is

is that arson may not impugn veracity; but that arson

in aid of insurance fraud would do so and that such fraud was


implicit
Compare
_______

where

the

building

United States v.
_____________

Cir. 1993).

was owned

Wilson, 985 F.2d


______

by

the

arsonist.

348, 351-52 (7th

We need not resolve the issue here.

-8-8-

slightly but

Cudlitz himself

proffered the weapon.

United
______

States v. Eaton, 808 F.2d 72, 75-76 (D.C. Cir. 1987).


______
_____

Cudlitz

asserts that

the

questions should

have

been

barred under Fed.

R. Evid.

prejudice greatly

outweighed probative

prejudice was certainly real

to portray himself

403 because the

risk of

value.

The

unfair

risk of

but, given Cudlitz' own attempt

as a businessman of upright character who

had never resorted to arson or insurance

fraud, allowing the

questions was not an abuse of the broad discretion enjoyed by

the

F.2d

district judge.

232, 235-36

Cudlitz

United States v.
______________

(1st Cir.

1988).

that the evidence sought

Mateos-Sanchez, 864
______________

Nor do

we agree

to be elicited

with

was in any

way made superfluous by the direct testimony against him.

Finally,

Cudlitz

appears

to

solicitation question at its foundation.

government

surely knew

that

attack

the

prior-

As he suggests, the

Cudlitz would

deny the

prior

arson solicitation; nor could

it offer extrinsic evidence to

prove the solicitation if

Cudlitz denied it.

v.

456,

Innamorati,
__________

996 F.2d

denied, 114 S. Ct. 1073 (1994).


______

Cudlitz'

appeal brief

in asking

479 (1st

An

Cir.

United States
______________

1993), cert.
_____

observer might well join

how it

could possibly

proper for the government to ask a prejudicial question

it knows will be answered

with

be

that

negatively, that cannot be pursued

extrinsic proof, and that serves only to suggest to the

-9-9-

jury (contrary to the

standard instruction) the fact implied

by the question.

The only

answer is

that the cross-examination

of this

kind is part a system of checks and balances that the law has

developed

perjury.

to

caution

Thus,

while

credulous

the

jury

question

may

against

be

possible

asked,

the

government must on demand

supply a good faith basis

for the

question; the witness may

vigorously deny the suggestion and

explain the basis for

the denial; with rare exceptions,

government must accept the answer without offering

evidence;

and the

instruction.

defendant

court

will normally

With these

must be

protections,

content.

As

extrinsic

provide a

and

the

limiting

Rule 403,

Justice Jackson

said

the

in

Michelson v. United States, 335 U.S. 469, 486 (1948):


_________
_____________

[M]uch of this law is archaic, paradoxical and full


of

compromises

irrational

and

compensations

advantage to

one side

by

which

is offset

poorly reasoned counterprivilege to the other.


somehow
system

it has

workable even

by a
But

if clumsy

when moderated by discretionary controls in

the hands of
pull

proved a

an

one

structure

a wise

misshapen
is

present balance

more

and strong trial


stone

out of

the

likely

simply

to

court.

To

grotesque
upset

between adverse interests

its

than to

establish a rational edifice.

II.

The most troublesome issue

in the case arises out

of a

related but distinct series of

cross-examination.

The

questions asked of Cudlitz on

questions

began as

the prosecutor

laid the groundwork for asking Cudlitz whether he had earlier

-10-10-

solicited Wallace to set fire to 212 State Street.

He first

asked Cudlitz

whether one Joe Camara

to Cudlitz at 212

had introduced Wallace

State Street and Cudlitz responded:

Wallace lived in the house.

He lived in --

"Ron

he lived -- yes,

he did."

The

prosecutor then

correct?"

really."

and

Cudlitz

asked, "So

replied,

There followed some

Wallace had

done work at

"No,

you knew

Ron Wallace,

didn't

know

questions aiming to show

the building for

him

that

Cudlitz; Cudlitz

said that he thought Wallace was helping Joe Camara clean out

the yard

at 212 State Street,

paying Camara.

"Had you

The

a task for which

Cudlitz was

prosecutor then asked--over

objection--

ever heard as of

that time [summer

1991] that Mr.

Wallace had been arrested on charges of arson?"

Cudlitz said "no" and

the prosecutor then followed with

three questions, earlier mentioned, which in

substance asked

Cudlitz whether he had twice solicited Wallace to set fire to

212 State Street, whether one of these requests had been made

in

Camara's

apartment,

and

Wallace $2,500 to do the job.

whether

When

Cudlitz

had

offered

Cudlitz answered "no" to

each accusation, the prosecutor proceeded as follows:

Do you know where Ron Wallace it [sic] today, sir?

MR. LEE:

Objection, please, your Honor.

THE COURT:

Overruled.

No, I don't.

-11-11-

Have you ever

heard that Ron Wallace

is

down in Plymouth County --

MR. LEE:

Objection, your Honor.

THE COURT:

Overruled.

In the Plymouth House of Corrections?

No, I didn't know that.

Did you

pled

ever hear

guilty

to a

that Mr.

charge

Wallace had

of

arson and

conspiracy to commit arson?

MR. LEE:

Objection, please, your Honor.

THE COURT:

Overruled.

No, I haven't.

At no time have you ever heard that?

No.

On this appeal, Cudlitz says

as to

error.

that

Wallace's whereabouts

The

that the cross-examination

and prior arson

government says it was

at trial

Cudlitz

questions--that is,

made no

not.

conviction was

It argues

specific
________

that the objections did

further

objection to

the

not state their

precise legal basis--so that the highly forgiving standard of

plain error

governs.

Finally the

government says

that if

error occurred

of

the evidence

it was harmless, given

against Cudlitz.

We

the cumulative weight

address these

three

issues in the same order.

-12-12-

Resolving the first issue,

we conclude that this branch

of the cross-examination

questions

on

Cudlitz'

trial

sentence

for arson

suggestion in

should not have been allowed.

their face

in 1994,

suggested

Wallace

that,

was then

and conspiracy

turn lent credence

at the

to the

time

serving

to commit

of

a jail

arson.

far more

The

This

damaging

suggestion that in 1991 Cudlitz had solicited Wallace to burn

down

212 State Street.

Some jurors could have believed that

Wallace's current jail sentence was for the 1991 arson effort

allegedly involving

was

an

Cudlitz; others, that

arsonist and

so more

likely

at least

Wallace

than otherwise

to be

the questioning

about

plotting arsons with Cudlitz.

None

of

this might

Wallace's whereabouts

But even

with time to

matter

if

and arson conviction had

reflect, the

been proper.

government offers

very

little

basis for the questions.

Cudlitz,

in

the

lead-up

seeking "to distance himself

the government, "it was

defendant at

least

background," i.e.,
____

Its main

to the

disputed

from Wallace."

argument is that

questions,

Therefore, says

appropriate to find out

knew Wallace

well

that he was charged

was

whether the

enough to

know

his

and later imprisoned

for arson.

In fact,

Cudlitz admitted

at the

outset that

Wallace, that Wallace lived in his building and

was helping Camara on

a task that Camara was

-13-13-

he knew

that Wallace

performing for

Cudlitz.

True, Cudlitz implied that he did not know Wallace

well; but

the questions

and jailing

about knowledge of

would not have proved

Wallace's arson

a close acquaintanceship.

Far more important, the arguable but very slight relevance of

the

questions

can hardly

prejudice they were capable

be

compared

to the

substantial

of inflicting, so they certainly

could not have passed the test of Rule 403 on this excuse.

The

government

also

says

that

"had

the

defendant

admitted to knowing Wallace well enough to know that he ended

up in custody

would

after pleading guilty

have helped

people such as

to explain

why

to arson charges,

the defendant

Cornell, Vieira, Santos, and

turned to

Burnham when he

decided to have the Salisbury Street property burned."

are

various

sufficient.

problems

Cudlitz

Wallace's arrest and

was

with

this

was asked

explanation

whether he knew

but

There

one

is

in 1991

of

his incarceration as of 1994; but there

no indication whether Wallace

the fire at Salisbury

that

was in jail

in 1992 when

Street occurred, and that is

the only

date relevant to the choice of accomplices.

Defense

counsel

objected

questions at issue as to

to

virtually

all

of

the

Wallace's location and prior crimes

but gave no reason.

are

therefore to

doctrine.

Fed.

specific ground be

The government argues that the questions

be

R.

reviewed only

Evid. 103(a)(1)

stated, "if the

under

the plain

does require

error

that the

specific ground was

not

-14-14-

apparent

from the context."

Here, we think that the central

objections--arguable

irrelevance

prejudice--were obvious.

and

certainly

Indeed, Cudlitz' counsel had

undue

begun

the morning by making those objections to the more defensible

question about

Cudlitz' alleged

solicitation of Wallace

to

commit arson.

Accordingly, we

think that

fairly tested under the harmless

the more

the questions at

issue are

error doctrine, and not

demanding requirements of

plain error.

by

Under the

harmless error doctrine, cf.


___

Kotteakos v. United States, 328


_________
_____________

U.S. 750, 776 (1946), we are

instructed to ask whether it is

"highly probable" that

verdict."

the error did not

"contribute to the

E.g., United States v. Rullan-Rivera, 60 F.3d


____ _____________
_____________

18-19 (1st Cir. 1995).

The

16,

greater the likely impact of the

error,

the

the harder it is to

greater the

defendant,

weight of

find harmless error; conversely,

the other

the less likely it

evidence

is that a

against the

given error swayed

the jury.3

Thus to frame the issue only compounds our dilemma.

The

evidence against Cudlitz was substantial: four witnesses said

that Cudlitz had solicited

them, Santos and

them to set the fire;

Burnham, said

they had done

and two of

so, and

been

____________________

3This gloss is hardly


while repeatedly
claims for
Lane,
____

reaffirmed

a precise standard but Kotteakos,


_________
as the

governing standard

for

non-constitutional error, e.g., United States v.


____ ______________

474 U.S. 438 (1986), has rarely been elucidated by the

Supreme Court.

-15-15-

paid by Cudlitz.

one of

The same witnesses, and the

them, testified

Cudlitz after

set

the fire,

to incriminating statements

the fire, and the

of financial motive.

girlfriend of

Further, at

Santos and

made by

government offered evidence

the time they

Burnham were

on good

Cudlitz; any hint of blackmail arose only later.

admittedly

terms with

But the

only four

linked together;

who

real witnesses against

each had a criminal

drank to excess;

and by

record except Burnham,

the time

of trial

Burnham had multiple reasons for hostility.

stand, flatly

own

record

financial

denied the

as

an

base.

inculpated Cudlitz.

Cudlitz were

Santos and

Cudlitz took the

allegations, and testified

honest businessman

There was no
__

The case

with

to his

comfortable

hard evidence

that directly

was in essence

a credibility

contest between Cudlitz and four quite dubious witnesses, who

told

generally

consistent

stories

but

with

some

discrepancies.

Under these circumstances,

it would have

been easy--if

not strictly fair--for the jury to have given great weight to

the

suggestion that

Cudlitz had

previously sought

Wallace burn down a different building he owned.

the

jury

was

told

evidence, although

survives

such

that

not

the

contemporaneously.

instructions,

impeaching questions

lawyer's

which

that they

-16-16-

know

is

to have

Of

course,

questions

are not

But

why

the

lawyers

will produce

sting

ask

denials.

That

is just why the

government in this

whether in 1991 he had

case asked Cudlitz

asked Wallace to burn down

212 State

Street.

If

that
____

easily say

have

line of

that it

questions

had been

was not harmless.

error,

The jury

we would

could well

had trouble deciding who to believe about the 1992 fire

for which

Cudlitz

resolved

was

on trial,

when it learned,

Cudlitz

had been

another

building by

Yet as the

but

or thought

involved in

employing

a 1991

found

it had

those

learned, that

attempt to

another tenant

burn down

as henchman.

questions that carried that implication

error, we are left to ask what was added


_____

doubts

were not

to that implication

by the related questions

at issue concerning Wallace's arson

conviction and jailing.

The

quantify, but

the additional effect

have

been more than trivial.

contest, the

in

the

especially

the

we think that

The case

suggestion that Cudlitz

same

conduct

was

quite

given his prior claim

suggestion

was flatly

statements of

lawyers

is

impossible

to

may well

being a credibility

had previously engaged

dangerous

to a blameless

denied,

accept the answer, and the jury

that the

answer

the

to

Cudlitz,

past.

But

government had

to

was to be told in due course

were not

evidence.

Quite

possibly, despite the detail in the questions about the prior

solicitation, the jury would in doubt have put the suggestion

aside.

-17-17-

The doubt could

well have been

suggestion

that

conspiracy

and arson and was

Cudlitz

did not

Wallace

deny

had

these

removed by the

actually

been convicted

now in jail

further

further

for

for those crimes.

facts, but

only

his

knowledge of them; and the jury could fairly suppose that the

prosecutor

would

conviction

and jailing without actual

several

jury

not

make

statements

inferences--we have already

could

have

thought

that

as

to

Wallace's

knowledge.

By any of

given two examples--the

these

new

facts

substantially more likely that Cudlitz had solicited

made

it

Wallace

to commit an earlier arson.

No one

knows what reasoning

convicting Cudlitz,

jury

could have

the jury actually

nor have we any doubt

convicted Cudlitz

deliberated for two

as open and shut.

that a reasonable

on this

Wallace's name had never been mentioned.

used in

record even

if

But the jury, which

days, apparently did not view the matter

And under

the harmless error doctrine, we

can uphold the conviction, in the teeth of an error preserved

by

timely

objection,

only

where we

think

it

"highly

probable"

that is to

that the

say, that

regardless of

Given the

error played no role in

the result would

the error.

that the jury could

have been

Roullan-Rivera, 60
______________

potential impact of

the conviction,

the error, and

identical

F.3d at 18-19.

the questions

legitimately have about the government's

proof, we cannot with confidence so conclude in this case.

-18-18-

It is a shame that a lengthy trial should now have to be

repeated

because of questions

transcript,

But

all of

impeachment

by

which

totaling less than

resulted in

questions

a page of

exculpatory denials.

about prior

crimes

can

be

devastating, and when the prosecutor embarks on their use, he

or she has

to take special

devastation within bounds.

care to

keep the questions

Doubtless the temptation to press

an advantage is harder to resist where,

is the

absent.

key

to the

case

and

and "hard"

as here, credibility

evidence of

guilt

is

But that is just why the harmless error argument has

failed in this instance.

III.

We

address here,

and

in part

IV, several

additional

claims that--although not determinative of this appeal--could

affect the retrial.

Cudlitz next complains about

examination of defense witness Albert Raposo,

contractor,

Cudlitz

the

who testified

on

direct that

the cross-

a construction

he had

provided

with an estimate of the fire and vandalism damage at

Salisbury Street

prosecutor

began to

offered Cudlitz advice

building.

question

On

cross-examination, the

Raposo about

on how best to

whether he

create the appearance

of vandalism in order to collect insurance proceeds.

counsel objected

inquiry, but

that no good

after a bench

had

Defense

faith basis existed

for this

conference and proffer

from the

-19-19-

prosecutor the judge

allowed the

questions without

further

defense objection.

The

relevant portion

of

the cross-examination

follows:

Q:

Did you ever give


how

to

cause

Mr. Cudlitz advice


damage

to

on

Salisbury

was as

Street?

A:

No, sir.

Q:

Did you ever


how

to

give Mr. Cudlitz advice

best

try

to

make--create

on
the

appearance that vandalism had been done?

MR. LEE:

Objection your honor.

May we

approach the bench?

THE COURT:

Yes.

[BENCH CONFERENCE OMITTED]

Q:

Mr.

Raposo,

defendant

did

you

advice on how

in 7 Salisbury

ever

give

the

to cause damage

Street to make

it appear

that vandalism had been done there?

A:

No, sir.

Q:

Did you ever tell the defendant in


or substance that
to rip up

it wasn't enough

rugs, because that

look like something a tenant


leaving the building?

words
just

might just
had done in

A:

No, sir.

Q:

Did you ever tell


or

the defendant in words

substance that to

the

insurance

collect money from

company

you

had

to

do

things like break plumbing fixtures?

A:

No, sir.

On appeal,

basis

and,

Cudlitz again

in addition,

asserts lack of

contends

-20-20-

that

a good-faith

no proper

purpose

existed for allowing

defense

did not

prosecutor's

because

renew

proffer

no

government

this line

other

of questions.

its good-faith

and

the

objections

trial

were

Because

the

objection after

the

court's

raised

at

ruling,

and

trial,

the

urges that we limit review to plain error.

Since

the lack of a good faith basis was the only ground offered by

Cudlitz for excluding

the

standard

for

the questions, we

judging

any

agree that this

other

objection

is

to

the

different grounds

for

testimony.

Here, the

government offers two

permitting the questions,

is

that

Cudlitz'

alleged

assuming a good faith basis.

procurement of

vandalism

One

at

Salisbury Street was an issue in this case.

Vieira testified

that he was solicited to vandalize one apartment prior to the

fire

and another one afterwards when

inadequate, and

the fire damage proved

the government's case treated

the arson and

vandalism as part of the same effort to defraud the insurance

company.

The questions

showing, although

to Raposo

were

pertinent to

arguably they were well

this

outside the scope

of the direct (an objection not made by Cudlitz).

Additionally, the government argues that these questions

were permissible under Rule

by

showing

that he

Here, the alleged

had

608(b) to impeach Raposo himself

participated

advice was

in insurance

given by Raposo

for the

fraud.

very

purpose of perpetuating such fraud, and thus was allowable in

-21-21-

the trial judge's discretion.

52.

It

is not

evidence that

did

not offer

pertinent to

clear to

See Wilson, 985 F.2d


___ ______

us that

Raposo had

the government needed to

such

an

objection,

given direct

impeach, but Cudlitz

which would

the trial court's exercise

at 351-

have

been

of discretion under

both Rule 403 and Rule 608(b).

In sum, reserving the question of a good faith basis, we

think that the district

court did not commit plain

allowing the cross-examination.

error by

Here, Cudlitz did not make a

general objection but a specific one--lack of good faith--and

the district court had no reason to think that other possible

lines of

from

objection were

context.

Given

being urged

that

none

by Cudlitz

of

the

objections is

clearly meritorious but only

no

thinking

basis for

injustice,

occurred.

that any

plain

United States
_____________

as obvious

other

possible

arguable, we see

error, or

v. Olano,
_____

manifest

113

S. Ct.

1770, 1777-779 (1993).

Turning to the question

of good faith basis, the

issue

is

somewhat closer both as

Cudlitz'

counsel clearly

to the standard

objected that

and the result.

there was

no "good

faith basis for these questions," adding that counsel was not

aware

of

an

connection

government witness.

-that Vieira

Cudlitz

between

Raposo

and

any

prior

The government then explained its basis-

had told the

government that

an associate

of

named "Al" had been present with Vieira and had been

-22-22-

giving advice

on how to vandalize--Cudlitz'

argue further

the lack of a good faith basis but switched to

complaining

that no

such statement

had been

counsel did not

given to

the

defense.

Both the

open

"merits" and

to dispute.

something more than

There is

the standard

to apply

pretty good

are thus

argument

that

a reference to "Al" was warranted before

allowing the government to ask a highly damaging question; it

would have been easy enough to have Vieira called to identify

Raposo

as "Al" outside the presence of the jury.

good faith basis is

a very important

After all,

safeguard to assure

that such

highly prejudicial questions,

if asked at

all in

the teeth of a likely denial, are not unfairly prejudicial.


________

On

the

latitude

in

other hand,

the

district

deciding whether

good

United States v. Ovalle-Marquez, 36


______________
______________

1994), cert. denied,


____________

result might

115 S.

judge enjoys

faith basis

exists.

F.3d 212, 219 (1st Cir.

Ct. 1322 (1995).

be different if Cudlitz'

great

Perhaps

the

counsel had protested

that the proffer was inadequate, explaining the basis for his

doubt

and urging

summoned.

and might

that at

the very

Here, however, the

least Vieira

trial judge got

easily have thought that Cudlitz'

should be

no such help

own counsel had

been satisfied by the proffer and was no longer disputing the

presence of a good faith basis.

-23-23-

In all events, our

case on

"what

other grounds

reversal of the convictions

makes it unnecessary

if" point definitively.

in this

to decide

this

On any retrial, we think that

the government ought to make a somewhat stronger showing that

it has reason

person.

on

We

the

and Raposo are

do not say that we would

present

highlighted

proffer

to believe that "Al"

record.

clearly and if

should be available,

But

the

the same

reverse on this ground

issue

Raposo is "Al,"

has

now

been

then a stronger

a consideration

that deserves

some weight in determining how much of a proffer is enough.

IV.

Cudlitz' remaining claims all

alleged

inadequacy, of

relate to the absence, or

cautionary instructions

relating to

the cross-examination of Cudlitz

and Raposo described in the

prior sections of this decision.

Cudlitz claims first that a

sua sponte
__________

to the

cautionary instruction should have

cross-examination of Cudlitz

been given as

regarding Ron

Wallace;

second, that

the final

instructions should have

included a

requested instruction that the "questions" of counsel are not

evidence; and finally that such a specific instruction should

have been given during the cross-examination of Raposo.

As Cudlitz himself concedes, the general rule is that

trial judge need not give a cautionary instruction sua sponte


__________

at

the

offered.

time

that

evidence

of

limited

admissibility

is

Fed. R. Evid. 105; United States v. De La Cruz, 902


_____________
__________

-24-24-

F.2d 121, 124 (1st Cir. 1990).

evidence admitted

for a limited purpose; it is a matter of a

question not being evidence

parallel, and

would

we think

plainly be

Here, the issue is not one of

at all.

that while a

proper at

the time

But the

situations are

cautionary instruction

that the

question is

asked and denied, its omission is not normally error where no

such contemporaneous instruction was requested.

Cudlitz' argues

with some force that

why appeals courts do

sponte

is

the defense

not insist on such an

counsel

may have

a standard reason

instruction sua
___

made

a strategic

______

judgment not to

says,

have the matter highlighted.

this reason

counsel

has

had objected

no application

sharply

to

Here, Cudlitz

because his

defense

the cross-examination

as

highly prejudicial and the government had already highlighted

the cross-examination by

asking three

times over

questions

about Wallace's alleged solicitation by Cudlitz.

We

nevertheless

reject

Cudlitz' broad-scale

position

because of the extraordinary importance we attach to the need

for

timely request.

litigation can know

No

how many

superintending a fast-paced

one

who lacks

things occupy a

criminal trial.

experience with

judge who

Nor

is

is it easy

to know without direct experience how sua sponte interference


__________

from the trial judge can disrupt counsel's own strategy, even

when

the purpose

hinder.

It is for

of the

judge is

these reasons

to

help rather

that we place

than to

such great

-25-25-

stress

on the

presence

or absence

contemporaneous instruction.

of

the request

for

It might

well be error in

some cases for the

judge to

fail to give a cautionary instruction at some point, but that


__________

is

hardly the situation here.

jury

at the

start that

evidence; and in his

jury

the questions

court told the

of counsel

were not

final charge, the trial judge

told the

that the statements

evidence.

The district

and arguments of

counsel were not

United States v. Copelin, 996 F.2d 379, 384 (D.C.


_____________
_______

Cir. 1993), relied upon by Cudlitz as authority for requiring

sua sponte
__________

contemporaneous instruction, was

overruled by

United States v. Rhodes, 62 F.3d 1449, 1454 (D.C. Cir. 1995).


_____________
______

In

the

case

of

Raposo's

cross-examination,

defense

counsel did ask for a contemporaneous instruction to the jury

that "the questions of counsel are not evidence."

This court

has said that the

instruction

52, 56

the

at the time.

n. 5 (1st

capacity of

"better practice" is to give

a cautionary

United States v. Currier, 821 F.2d


_____________
_______

Cir. 1987).

Whatever one's faith

in the

general instructions to offset harmful evidence,

chance that the instruction will do any good is enhanced

by offering the caution while the jury has immediately before

it the question or evidence it

is being told to disregard or

limit.

Although on retrial the

district court should give such

contemporaneous instruction where requested, this omission

-26-26-

would

The

not standing alone cause

district judge did

outset

and gave

us to reverse

give the general

somewhat similar,

in this case.

instruction at the

although

incomplete,

instruction at the close; and any damage done by the

such an instruction

damaging questions

lack of

as to Raposo was dwarfed by the far more

as to

the Wallace solicitation

where no

such contemporaneous instruction was requested or given.

Finally, on

retrial we encourage the

district court to

tell the jury, in

closing, that the "questions" of

as well as their statements and

Although an

that this

objection was

counsel,

arguments, are not evidence.

properly lodged, we

are doubtful

omission standing alone would comprise prejudicial

error, especially

in light

of the district

instruction that questions of counsel

court's opening

are not evidence.

But

given the importance of the government's cross-examination in

this case, we think that the district judge should on retrial

make

the

including

closing instruction

specific

as

statement

counsel are not evidence.

complete

that

the

as possible

by

"questions"

of

-27-27-

CONCLUSION

The

judgment of

remanded for new trial.


________

conviction is

vacated and
_______

the matter

-28-28-