United States v. Meserve

United States Court of Appeals
For the First Circuit

No. 00-2091

UNITED STATES OF AMERICA,

Appellee,

v.

BRIAN EUGENE MESERVE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Circuit Judge,

Coffin, Senior Circuit Judge,

and Young,* District Judge.

Matthew S. Robinowitz for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Paula D. Silsby, United States Attorney, was on brief,
for appellee.

*Of the District of Massachusetts, sitting by designation.
 November 16, 2001

YOUNG, District Judge. Brian Eugene Meserve

(“Meserve”) appeals from his conviction for robbery and firearms

offenses in the United States District Court for the District of

Maine. On appeal, Meserve claims four errors occurred during

the course of his two-day trial; specifically that (A) the

district court allowed a witness to repeat the out-of-court

statement of a third party in violation of Federal Rule of

Evidence 802, (B) the district court barred the defense from

cross-examining a government witness about the omission of

certain information stated at trial from her grand jury

testimony in violation of Meserve’s Sixth Amendment right of

confrontation, (C) the government used a stale conviction to

impeach a defense witness in violation of Federal Rule of

Evidence 609(b), and (D) the government cross-examined a defense

witness about his character for violence and his prior

convictions in violation of Federal Rules of Evidence 608 and

609. Meserve further asserts that even if these errors,

considered individually, do not necessitate a new trial, the

cumulative effect of the errors cannot be considered harmless.

I. Background

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 On April 24, 1998, the Ferris Market, a family-owned

convenience store in Vassalboro, Maine, was robbed at gunpoint.

In a four-count indictment, Meserve was charged with the robbery

and the associated firearms offenses.1

Viewing the evidence adduced at trial in the light most

favorable to the jury verdict, United States v. Josleyn, 99 F.3d

1182, 1185 n.1 (1st Cir. 1996), the facts are as follows: At

around 6:00 p.m. on the evening of the robbery, Meserve showed

his girlfriend and accomplice, Holly Grant (“Grant”), a

sawed-off shotgun and told her that he was going to rob the

Ferris Market. After nightfall, Meserve and Grant drove to the

Ferris Market together in Meserve’s car, where they waited until

the store became less busy. Meserve then got out of the car,

while Grant stayed behind.

Meserve, wearing a ski mask and carrying a black bag

and a short gun with a brown handle, entered the Ferris Market.

He forced Shawna Vashon, an employee, and Sumayah Ferris, the

mother of the owner, to the floor, and ordered Amy Craig

1Count I of the indictment charged Meserve with the use of
force and violence in the commission of a robbery that affected
commerce in violation of 18 U.S.C. § 1951(a). Count II charged
Meserve with carrying and using a firearm during and in relation
to a crime of violence in violation of 18 U.S.C § 924(c). Count
III charged Meserve with possession of an unregistered sawed-off
shotgun in violation of 26 U.S.C. § 5861(d). Count IV charged
Meserve with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1).

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(“Craig”), a second employee, to give him the money in the cash

register. Craig handed Meserve everything that was in the cash

register -- one hundred dollars. Meserve then fled from the

store, passing a customer on his way out of the building.

When Meserve returned to the car where Grant was

waiting, he told Grant that the robbery was a “piece of cake,”

and that the only problem was that “an old lady gave him a hard

time.” During the drive away from the scene, Meserve tossed his

gloves and ski mask, the bag used to carry the money, and the

gun out of the car. When Meserve and Grant arrived at Meserve’s

mother’s house, he gave Grant his sweatshirt and asked her to

burn it and buried his shoes in the woods.

Later that evening, Grant and Meserve went to the Chez

Paris and the Bob-In, two local bars, where they used the

robbery proceeds to buy drinks. While Meserve and Grant were at

the Chez Paris, Craig came into the bar and Meserve commented to

Grant that Craig was working at the Ferris Market when he robbed

it. Later that night, when a report about the robbery came on

the evening news, Meserve remarked to Grant, “If they only

knew.”

At trial, Grant supplied many of the details about the

robbery and Meserve’s conduct afterwards. Although Grant denied

any knowledge of the crime when first asked about it by

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Detective Sampson Pomerleau (“Detective Pomerleau”) in October

1998, she later came to an agreement with the government. Grant

met with prosecutors several times to go over her grand jury

testimony and police reports regarding her statements. She also

discussed the case with Sergeant Gerard Madden (“Sergeant

Madden”), a Maine State Trooper who testified on her behalf at

her child custody proceeding. Under direct examination, Grant

admitted to several prior bad acts, including fraudulently using

her grandmother’s credit card on multiple occasions and

obtaining Aid for Families with Dependent Children after she no

longer had custody of her child.

Meserve presented a defense based on alibi and mistaken

identity. Both Meserve’s mother, Lindsay Overlock (“Overlock”),

and his brother, Kevin Meserve (“Kevin”), testified that he was

at home until a little after 8:00 p.m. on the evening of the

robbery. Kevin testified that at approximately 8:10 p.m., he

and Meserve went to the Chez Paris, where they stayed for two

hours before heading to the Bob-In. Kevin also testified that

he had seen Grant at the Chez Paris during the last week of

August 1999, two months before the trial. Kevin stated that

Grant was drinking heavily at that time, and complained to him

that Sergeant Madden had been “keeping tabs on her,” and that

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every time she met or spoke with Sergeant Madden, he would

instruct her what to say at trial.

Meserve’s other alibi witness, Jane Morissette

(“Morissette”), a bartender at the Chez Paris, testified that

she saw Meserve and his brother, Kevin, enter the bar around

8:30 p.m., but that Grant was not with them. She stated that

later in the evening, Meserve told her that he was going to the

Bob-In with Kevin, and asked her to let Grant know where he was

when she arrived. According to Morissette, Grant entered the

Chez Paris shortly thereafter and Morissette told her that

Meserve had gone to the Bob-In. Morissette testified that

between 11:30 p.m. and midnight, a girl named Amy (Craig)

arrived at the Chez Paris. Morissette overheard Craig tell a

man about a robbery that had occurred earlier that evening at a

store at which she worked in Vassalboro.

On October 21, 1999, the jury convicted Meserve on all

four counts. Meserve filed a motion for a new trial, which was

denied on July 20, 2000. Accordingly, on August 29, 2000,

Meserve was sentenced to concurrent terms of one hundred months

imprisonment on Counts I, III, and IV of the indictment and to

a consecutive term of one hundred twenty months on Count II of

the indictment.

II. Analysis

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 A. Hearsay Evidence

Generally, questions of admissibility of evidence that

do not raise issues of law are reviewed for abuse of discretion.

E.g., Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 251-

52 (1st Cir. 1995). During the government’s case in chief,

Detective Pomerleau was permitted to testify over the objection

of the defense that he drove by Meserve’s house on the night of

the robbery “to see exactly where the subject was living.”

Detective Pomerleau further testified, again over objection,

that Meserve became a suspect in the case because he matched the

description of the robber and because Craig thought Meserve

might have been the robber because she knew him. Meserve

asserts that this testimony constitutes hearsay and is

inadmissible under Federal Rule of Evidence 802. The government

argues, however, that the district court admitted Craig’s

statement not for the truth of the matter asserted, but rather

to explain why Detective Pomerleau drove by Meserve’s home that

evening. Meserve counters that the statement was nevertheless

inadmissible because, if not hearsay, the fact that Detective

Pomerleau drove by Meserve’s home shortly after the robbery had

no tendency to prove any issue in the case.

Hearsay is an out-of-court statement offered to prove

the truth of the matter asserted. Fed. R. Evid. 801(c).

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Testimony that is not offered to prove the truth of an

out-of-court statement, but is instead offered to provide

relevant context or background, is not considered hearsay.

E.g., United States v. Mazza, 792 F.2d 1210, 1215 (1st Cir.

1986); accord United States v. Freeman, 816 F.2d 558, 563 (10th

Cir. 1987); United States v. Love, 767 F.2d 1052, 1063 (4th Cir.

1985). Moreover, the hearsay rule does not apply to statements

that are offered to show what effect they produced on the

actions of a listener. United States v. Castro-Lara, 970 F.2d

976, 981 (1st Cir. 1992).

In the instant case, however, the government’s espoused

reason for introducing the testimony -- to explain why Detective

Pomerleau drove by Meserve’s house on the evening of the robbery

-- is completely irrelevant to the government’s case. Detective

Pomerleau did not discover any evidence or valuable information

during his drive-by and made no observations pertinent to the

investigation; thus, the fact that he went on such a drive has

no “tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Fed. R.

Evid. 401. Detective Pomerleau’s motivation for driving by

Meserve’s home is likewise irrelevant. In light of the

government’s baldly pretextual basis for the introduction of

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Craig’s out-of-court statement, this court is not prepared to

say that the statement is admissible non-hearsay. The

government is thus reduced to its claim that the error is

harmless -- a matter considered below.

B. Exclusion of Cross-Examination Using Grand Jury
Testimony

Meserve claims that the district court erred by not

allowing the defense to cross-examine Grant concerning a

discrepancy between her trial testimony and her grand jury

testimony. At trial, Grant testified that Craig came into the

Chez Paris on the night of the robbery and that Craig’s entrance

prompted Meserve to mention that Craig was working at the store

when he robbed it. In contrast, although Grant testified before

the grand jury that after the robbery she went to two bars with

Meserve, the Chez Paris and the Bob-In, she never stated that

she saw Craig at the Chez Paris. Nor did she mention seeing

Craig that night at the Chez Paris even though, in response to

a question as to whether Meserve had recognized any of the

Ferris Market’s employees, Grant testified that Meserve told her

that he recognized a girl named Amy because she was dating a

friend of theirs.

When the defense sought to question Grant about why she

had not mentioned Craig’s presence at the Chez Paris in her

grand jury testimony, the district court barred this line of

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questioning because Grant was not specifically asked about the

incident before the grand jury. Meserve argues that this

restriction on Grant’s cross-examination violated his rights

under the Confrontation Clause of the Sixth Amendment. E.g.,

Delaware v. Van Arsdall, 475 U.S. 673, 679-80 (1986); Davis v.

Alaska, 415 U.S. 308, 318 (1974). The government responds that

Grant’s grand jury testimony was not inconsistent with her

testimony at trial and that even if error occurred, it was

harmless.

Pursuant to the Federal Rules of Evidence, a witness’s

credibility may be impeached by asking him about prior

inconsistent statements. Fed. R. Evid. 613(a); United States v.

Hudson, 970 F.2d 948, 953-54 (1st Cir. 1992). The rule applies

“when two statements, one made at trial and one made previously,

are irreconcilably at odds.” United States v. Winchenbach, 197

F.3d 548, 558 (1st Cir. 1999). Prior statements, such as the

grand jury testimony at issue here, that omit details included

in a witness’s trial testimony are inconsistent if it would have

been “natural” for the witness to include the details in the

earlier statement. United States v. Stock, 948 F.2d 1299, 1301

(D.C. Cir. 1991) (citing Jenkins v. Anderson, 447 U.S. 231, 239

(1980)). This test is an elastic one, because the “naturalness”

of a witness’s decision not to include certain information in an

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earlier statement may depend on the “nuances of the prior

statement’s context, as well as [the witness’s] own loquacity.”

Id.

District courts have broad discretion concerning

whether two statements are in fact inconsistent, and thus

whether the witness may be impeached by the prior statement.

Udemba v. Nicoli, 237 F.3d 8, 18 (1st Cir. 2001) (citing United

States v. Agajanian, 852 F.2d 56, 58 (2d Cir. 1988); United

States v. Jones, 808 F.2d 561, 568 (7th Cir. 1986)).

Nevertheless, under certain circumstances, a district court’s

refusal to permit a witness to be questioned about a prior

inconsistent statement may constitute reversible error. See,

e.g., Stock, 948 F.2d at 1301 (citing United States v. Standard

Oil Co., 316 F.2d 884, 891-92 (7th Cir. 1963); United States v.

Ayotte, 741 F.2d 865, 870-71 (6th Cir. 1984)).

Here, however, the district court did not abuse its

wide discretion by refusing to allow Meserve to cross-examine

Grant regarding the omission from her grand jury testimony of

certain details about which she testified at trial. Before the

grand jury, Grant was not asked whether she remembered anyone

coming into the Chez Paris on the night of the crime nor whether

she saw any of the victims of the crime at any point. Although

Meserve argues that questions about whether Meserve recognized

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any of the workers at the Ferris Market and about Grant and

Meserve’s activities after they went to the Chez Paris should

have prompted Grant to mention that she saw Craig at the Chez

Paris that night, such nuances are peripheral and not directly

inconsistent. Thus, the district court did not abuse its

discretion by refusing to allow Grant to be questioned about her

prior omission. The right to confrontation through

cross-examination is not unlimited. A district court has “wide

latitude . . . to impose reasonable limits on . . .

cross-examination based on concerns about . . . interrogation

that is repetitive or only marginally relevant.” Van Arsdall,

475 U.S. at 679. The district court appropriately exercised its

authority under the circumstances of this case.

C. Impeachment by Stale Conviction

Meserve argues that the district court erred by

allowing the government to use a conviction for theft that was

over twenty years old to impeach Morissette. The government

raises three counter-arguments: First, as Meserve did not

contemporaneously object to the question, the issue was not

preserved for appeal. Second, because Federal Rule of Evidence

609 does not render such impeachment evidence per se

inadmissible, the lack of an objection deprived the district

court of the opportunity to make the appropriate rulings with

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respect to its admissibility. Third, even if error occurred, it

was harmless.

Meserve concedes that he failed to make a

contemporaneous objection at the time of Morissette’s

cross-examination. Thus, this court reviews the district

court’s allowance of this impeachment evidence for plain error.

Fed. R. Crim. P. 52(b); Fed. R. Evid. 103(d). Review for plain

error “entails a quadripartite showing: (1) that there was

error; (2) that it was plain; (3) that the error affect[ed]

substantial rights; and (4) that the error affected the

fairness, integrity, or public reputation of judicial

proceedings.” United States v. Eirby, 262 F.3d 31, 36 (1st Cir.

2001) (alteration in original) (internal quotation marks

omitted); see also Johnson v. United States, 520 U.S. 461,

465-67 (1997); United States v. Olano, 507 U.S. 725, 731-32

(1993). In a plain error argument, the defendant bears the

burden of persuasion. United States v. Rose, 104 F.3d 1408,

1414 (1st Cir. 1997).

Pursuant to Federal Rule of Evidence 609(b), evidence

of a conviction is not admissible to impeach a witness “if a

period of more than ten years has elapsed since the date of the

conviction or of the release of the witness from the confinement

imposed for that conviction, whichever is the later date

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. . . .” Id. Thus, because Morissette’s conviction for theft

occurred in 1978 and she had been released from any confinement

by 1980, the conviction was stale under the terms of Rule

609(b). See United States v. Orlando-Figueroa, 229 F.3d 33, 46

(1st Cir. 2000).

It is not clear, however, that the error was “plain.”

Rule 609(b) contains an exception, which establishes that

evidence of convictions over ten years old may be admissible if

“the court determines, in the interests of justice, that the

probative value of the conviction supported by specific facts

and circumstances substantially outweighs its prejudicial

effect.” Fed. R. Evid. 609(b). Meserve’s failure to make a

timely objection to the admission of the evidence deprived the

district court of the opportunity to determine whether the

probative value of the evidence substantially outweighed its

prejudicial effect. Thus, the “plainness” of the error cannot

be established on the current record.

And even if, by some stretch, this court were to

conclude that the admission of a conviction over ten years old

as impeachment evidence under the circumstances of this case

constituted plain error, Meserve cannot satisfy his burden of

showing that the error “seriously affect[ed] the fairness,

integrity or public reputation of [the] judicial proceeding[],”

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Johnson, 520 U.S. at 469 (quoting Olano, 507 U.S. at 736)

(internal quotation marks omitted). As the government points

out, “[t]he subject of Morissette’s prior conviction occupied a

single question, produced a single answer and neither party

returned to the topic again either in the testimony or in

summations.” See, e.g., United States v. Tse, 135 F.3d 200,

209-10 (1st Cir. 1998) (finding harmless error where the

improperly admitted evidence played an insignificant role in the

proceedings). Even Meserve seems to acknowledge that the

admission of a single piece of impeachment evidence against a

single defense witness is not capable of depriving him of

substantial rights. Instead, Meserve attempts to argue that the

impeachment evidence was particularly likely to be damaging

because it was “followed by the improper cross-examination of

[Kevin].” The argument that the cumulative effect of multiple

errors warrants reversal, however, is distinct from the argument

that the admission of impeachment evidence against Morissette --

in and of itself -- constitutes reversible error. Viewed alone,

the use of a stale conviction to impeach Morissette, even if

such evidence was admitted in violation of Rule 609(b), was not

a sufficiently egregious violation of Meserve’s rights to have

deprived the proceedings of their fundamental integrity and

fairness.

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-16-
 D. Cross-Examination of Kevin Meserve about his
Prior Convictions and Character for Violence

Meserve argues that the district court committed

reversible error by permitting the government to cross-examine

his brother, Kevin, about his disorderly person and assault

convictions and about his alleged violent reputation in the

community. The challenged portion of Kevin’s cross-examination

is as follows:

Q: Now, Mr. McKee asked you questions about
your conviction for unlawful sexual contact
in ‘94 and ‘95, but that’s not your only
conviction, is it?

A: I have a couple of assaults on my record.

Q: 1999-1979, disorderly conduct.

MR. McKEE: I object, Your Honor,
That’s improper cross-examination under Rule
609. It specifically precludes that. A
disorderly conduct?

MR. McCARTHY: I can lay a foundation
for it.

THE COURT: Go ahead.

BY MR. McCARTHY:

Q: You’re a tough guy, aren’t you Kevin?

MR. McKEE: I object.

THE COURT: Overruled.

BY MR. McCARTHY:

Q: You’re a tough guy, aren’t you?

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A: I wouldn’t classify myself as a tough
guy.

Q: Been in a lot of fights in your day?

MR. McKEE: I object, improper
character evidence, impeachment.

THE COURT: Just a minute. Objection’s
overruled.

A: How many would you classify as a lot?

BY MR. McCARTHY:

Q: More than one?

A: Yeah, I’ve been in more than one,
probably two.

Q: Okay. And as a result of that, people in
the community are afraid of you, aren’t
they?

A: No.

Mr. McKEE: Object, Your Honor. A
continuing objection to my client’s --
excuse me -- this witness’ alleged behavior
in the past as not being relevant, as not
being permissible character evidence under
Rule 608 or any other rule.

The COURT: Mr. McCarthy?

MR. McCARTHY: Well, Your Honor, I
disagree. If his reputation in the
community is basically as an assaultive
person about whom people are afraid, that’s
very significant when it comes to the other
people’s testimony about him and about
what’s happened.

THE COURT: I’m going to allow it over
objection. You’ll have a continuing
objection.

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 Mr. McKEE: Thank you, Your Honor.

BY MR. McCARTHY:

Q: In fact, you were convicted of assault as
recently as 1997, weren’t you.

MR. McKEE: Same objection, Your Honor.

THE COURT: You have a continuing
objection.

MR. McKEE: This is with respect to
Rule 609.

THE COURT: Overruled.

A: Yes.

BY MR. McCARTHY:

Q: Is that right?

A: Yes.

Meserve objects to this entire line of questioning,

asserting that the questions about Kevin’s disorderly person and

assault convictions were improper because these convictions were

not permissible subjects of cross-examination under Rule 609(a)

and that the questions about Kevin being a “tough guy” and

having been in a lot of fights in his day were improper

character evidence under Rule 608. The government counters that

Meserve failed to preserve these issues for review and that any

errors that may have occurred were harmless, given the

cumulative weight of the evidence against Meserve.

1. Preservation of the Issues for Review

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 The government devoted a great deal of space in its

brief and time at oral argument to defending the untenable

position that the issues raised by Meserve on appeal were not

preserved for review because the defense failed to make both

contemporaneous objections and motions to strike and because

Kevin did not answer many of the government’s questions, or

provided answers arguably favorable to the defense. Because of

the vehemence with which the government argues a position with

no seeming support in the law, this court pauses to discuss the

obligations placed on each of the parties to a trial by the

Federal Rules of Evidence.

It is a basic tenet of our law that in order to

preserve an evidentiary issue for review, the party opposing the

admission of the evidence must make a timely objection. Fed. R.

Evid. 103(a)(1); United States v. Auch, 187 F.3d 125, 130 (1st

Cir. 1999); United States v. Barone, 114 F.3d 1284, 1293 (1st

Cir. 1997); United States v. Wihbey, 75 F.3d 761, 770 & n.4 (1st

Cir. 1996); Willco Kuwait (Trading) S.A.K. v. deSavary, 843 F.2d

618, 625 (1st Cir. 1988); see also United States v. Taylor, 54

F.3d 967, 972 (1st Cir. 1995) (“In general, the law ministers to

the vigilant, not to those who sleep upon perceptible rights.”).

Thus, the government argues that the defense’s failure

immediately to object when Kevin was asked about convictions in

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addition to his unlawful sexual contact convictions constrains

this court from considering the matter on appeal absent plain

error. Fed. R. Crim. P. 52(b); Olano, 507 U.S. at 732-37.

Examination of the transcript, however, reveals that Meserve’s

attorney objected as soon as it became obvious that the

government’s line of questioning was in violation of Rule 609,

i.e., when the government indicated that the conviction about

which it was asking was a twenty-year-old disorderly conduct

conviction. To be timely, an objection must be “made as soon as

the ground of it is known, or reasonably should have been known

to the objector.” United States v. Check, 582 F.2d 668, 676 (2d

Cir. 1978) (quoting 21 Charles Alan Wright & Kenneth W. Graham,

Jr., Federal Practice and Procedure § 5037 (1977) (quoting John

Henry Wigmore, Code of Evidence 25 (3d ed. 1942)). The general

principle that an objection should be made after a question has

been asked but before an answer has been given, Hutchinson v.

Groskin, 927 F.2d 722, 725 (2d Cir. 1991), is flexible in

deference to the “heat of a hotly contested criminal trial,”

Check, 582 F.2d at 676. Thus, the defense was not required to

anticipate the government’s line of questioning in order for the

objection to be timely. Compare Hutchinson, 927 F.2d at 725

(holding that objection was timely, even though objection was

not made until after question was answered), and Inge v. United

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States, 356 F.2d 345, 350 n.17 (D.C. Cir. 1966) (holding that

defense counsel’s failure to object until after he learned the

nature of the document being used to refresh the defendant’s

recollection did not render objection nugatory), with United

States v. Benavente Gomez, 921 F.2d 378, 385 (1st Cir. 1990)

(holding that because at least three pages of transcript were

recorded before the defendant objected, the objection came too

late to preserve the objection for appeal), and W. Fire Ins. Co.

v. Word, 131 F.2d 541, 543-44 (5th Cir. 1942) (“It is a rule of

law so old that the memory of man runneth not to the contrary

that one may not sit by without objection to rulings or

instructions, and then after verdict and judgment, and when it

is too late for the court to change its rulings or charge, come

forward with objections on appeal and seek to put the court in

error.”), cited with approval in Putnam Res. v. Pateman, 958

F.2d 448, 457 n.6 (1st Cir. 1992). Meserve’s objection,

although delayed, was sufficiently contemporaneous to comport

with the Federal Rules of Evidence.

The government attempts to place an additional onus on

parties opposing the admission of such evidence, however, by

arguing that the defense was further obligated to move to strike

Kevin’s answers to the government’s questions in order to

preserve Meserve’s right to review. According to the

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government, once a question has been answered, even if that

answer was provided pursuant to a district court’s evidentiary

ruling, the proper procedural vehicle to preserve rights for

appeal is the motion to strike. The government was able to cite

no authority for this proposition during oral argument and the

court has found none.2

The rule governing objections to evidence states that

“error may not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is

affected, and . . . [i]n case the ruling is one admitting

evidence, a timely objection or motion to strike appears of

record.” Fed. R. Evid. 103(a)(1) (emphasis added). Because

Rule 103 is written in the disjunctive, the right to review may

be preserved either by objecting or by moving to strike and

offering specific grounds in support of that motion. The rule

is intended to ensure that the nature of an error was called to

the attention of the trial judge, so as to “alert him to the

proper course of action and enable opposing counsel to take

2 The case thrice cited in the government’s brief, United
States v. Morales-Cartagena, 987 F.2d 849 (1st Cir. 1993), does
not support the government’s position. Far from placing an
additional obligation on parties to move to strike, this case
merely states that because the appellants neither objected to
the admission of the challenged testimony at trial nor moved to
strike the testimony, the court was foreclosed from considering
the issue on appeal absent plain error. Id. at 853 n.5.

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proper corrective measures.” Fed. R. Evid. 103(a) advisory

committee’s note. Thus, both the plain language and underlying

goals of Rule 103(a) indicate that a party opposing the

admission of evidence may do so through either a timely

objection or motion to strike.3

Moreover, the position espoused by the government is

contrary to logic. According to the government, even if a

witness’s answer was given pursuant to a district court’s order

overruling an objection, the party opposing admission of the

evidence must move to strike the witness’s answer to escape

plain error review. Modern trial practice is unreceptive to

such procedural redundancies, and were this court to adopt the

government’s view, it would take several steps back from the

streamlining that the Judicial Conference, the Supreme Court,

and the Congress attempted to accomplish through the enactment

of the Federal Rules of Evidence in 1975. Because the law

imposes no obligation on a party opposing the admission of

evidence both to object and to move to strike, Meserve’s timely

objections were sufficient to preserve his rights for review.

3 If a party does not challenge the evidence in a timely
manner, however, an after-the-fact motion to strike usually
cannot “repair the forfeiture that flows from the failure to
interpose a contemporaneous objection.” A.J. Faigin v. Kelly,
184 F.3d 67, 83 n.10 (1st Cir. 1999) (citing McKnight v. Johnson
Controls, Inc., 36 F.3d 1396, 1408 (8th Cir. 1994)).

-24-
 In its final effort to prevent this court from reaching

the merits of Meserve’s claims, the government asserts that

where Kevin did not answer the question posed, or where the

answer elicited was arguably favorable to the defense, review is

not warranted. According to the government, “[n]o answer to the

challenged question having been given, no evidence was admitted,

and thus there is no error to correct.” This position is

without support in the law.

No court has ever held that review is forestalled if

a witness does not answer a question posed or answers that

question with a response favorable to the objecting party.

Although the government cites two cases to support this

proposition, United States v. Innamorati, 996 F.2d 456 (1st Cir.

1993) and United States v. Zaccaria, 240 F.3d 75 (1st Cir.

2001), these cases simply stand for the proposition that under

such circumstances, the harmless error analysis is likely to

weigh in favor of the appellee. See Innamorati, 996 F.2d at 485

(noting that because the challenged questions were not answered,

the prejudicial effect of the questions was lessened); see also

Zaccaria, 240 F.3d at 82-83 (holding that even if the district

court erred in sustaining the objection, the error was harmless

because the witness answered the question in the negative and

the court did not strike his answer).

-25-
 Even when a question elicits no answer or an answer

arguably favorable to the defense, the question itself may

nevertheless prejudice a defendant because of the weight a jury

gives to the questions asked by a prosecutor. E.g., United

States v. Simonelli, 237 F.3d 19, 23 (1st Cir. 2001) (“That [the

witness] denied these acts does not, of course, render the

questioning harmless. There is a lingering odor left by such

questions . . . .”); United States v. Cudlitz, 72 F.3d 992, 999

(1st Cir. 1996) (“Under these circumstances, it would have been

easy -- if not strictly fair -- for the jury to have given great

weight to the [government’s] suggestion . . . .”); see also 1

John Henry Wigmore, Wigmore on Evidence § 17 (Peter Tillers ed.,

1983) [hereinafter Wigmore] (“[F]acts of discreditable conduct

[may be] groundlessly asked about in the hope that though denied

they will be assumed by the jury to be well founded.”). The law

provides protection against illegitimately posed questions even

where they produce no answer.

Furthermore, the district court’s instruction to the

jury here that the lawyers’ questions were not evidence may not

eliminate the potential taint of the government’s questions.

Cudlitz, 72 F.3d at 999. The instruction did not occur during

the course of the challenged cross-examination, but rather as

part of the court’s final jury charge several hours later. The

-26-
court’s instruction was therefore unlikely to eradicate the

impression left on the jury by the government’s line of

questioning. Id. (“[T]he sting [of objectionable questions]

survives such instructions, which is why lawyers ask impeaching

questions that they know will produce denials.”).

The government’s various arguments that Meserve failed

to preserve his challenges to Kevin’s cross-examination for

review are therefore without merit. Because timely objections

to the government’s cross-examination of Kevin were raised at

trial and because objectionable questions may be reviewed even

where they produced no answer or an arguably favorable answer,

the court considers Meserve’s arguments under the harmless error

standard of review, not the more demanding plain error standard.

United States v. Joyner, 191 F.3d 47, 53 (1st Cir. 1999).

2. Review of Challenged Testimony

Having determined that Meserve’s challenges to the

government’s cross-examination of Kevin were properly preserved

for review, the court considers the testimony to which Meserve

objects, bearing in mind the following points:

First, the district court’s construction of
evidentiary rules is a question of law which
we review de novo. Second, the application
of an evidentiary rule to particular facts
is normally tested by an abuse of discretion
standard, which favors the prevailing party.
Finally, we may affirm the district court’s

-27-
 evidentiary rulings on any ground apparent
from the record on appeal.

United States v. Barone, 114 F.3d 1284, 1296 (1st Cir. 1997)

(internal quotation marks and citations omitted).

(a) Federal Rule of Evidence 609

Meserve’s first challenge to the government’s

cross-examination of Kevin is that the government’s questions

about Kevin’s disorderly conduct and assault convictions were

improper because these convictions were not permissible subjects

of cross-examination under Rule 609(a). Pursuant to Federal Rule

of Evidence 609(a):

For the purpose of attacking the
credibility of a witness,

(1) evidence that a witness other than
an accused has been convicted of a crime
shall be admitted, subject to Rule 403, if
the crime was punishable by . . .
imprisonment in excess of one year under the
law under which the witness was convicted,
and evidence that an accused has been
convicted of such a crime shall be admitted
if the court determines that the probative
value of admitting this evidence outweighs
its prejudicial effect to the accused; and

(2) evidence that any witness has been
convicted of a crime shall be admitted if it
involved dishonesty or false statement,
regardless of the punishment.

Id. Thus, the government could only inquire about Kevin’s

convictions for disorderly conduct and assault if the crimes

-28-
were punishable by a term of imprisonment greater than one year

or involved dishonesty or false statement.

Under Maine law, disorderly conduct is a Class E crime,

Me. Rev. Stat. Ann. tit. 17-A § 501(6), punishable by a maximum

term of six months, id. § 1252(2)(E), and assault is a Class D

crime, id. § 207(2), punishable by a term of imprisonment less

than one year, id. § 1252(2)(D). Because the sentences for

these crimes do not exceed one year, Meserve argues that

evidence of these crimes is per se inadmissible under Rule

609(a)(1). In opposition, the government asserts that assault

is not always a misdemeanor punishable by imprisonment for less

than one year in Maine; section 207(2) provides that when the

perpetrator is at least eighteen years of age and the assault

produced bodily injury to a child under six years of age, the

crime is classified as a Class C crime, punishable by a prison

term of up to five years. Id. § 207(2).

The record before this court does not resolve the

question whether Kevin’s assault conviction was for bodily

injury to a child less than six, an omission for which the

government blames Meserve: “[I]t is Meserve’s failure [to]

develop a record that leaves this court with inadequate facts to

resolve the issue definitively.” Through this simple sentence,

the government attempts to shift the burden of proving

-29-
admissibility from the proponent of evidence to the party

opposing the admission of the evidence.

It is a principle too simple to seem to need stating,

however, that the government, as the party seeking to introduce

evidence of a prior conviction for impeachment purposes under

Rule 609, was obligated to have researched Kevin’s prior

offenses and to have determined that they were admissible.

E.g., 1 Wigmore, supra § 17. Upon Meserve’s challenge, the

government should have been prepared to produce to the district

court concrete proof that Kevin had been convicted of a crime

punishable by more than one year within the previous ten years.

Admittedly, the government may have been in possession of

precisely such proof, and merely failed to produce it because

the district court did not demand it upon Meserve’s objection.

Even so, the failure of the district court to press the

government on this issue does not shift the burden to Meserve.

Nor do the convictions for disorderly conduct and

assault introduced by the government against Kevin fall within

Rule 609(a)(2), as the legislative history of the rule makes

clear:

[T]he phrase “dishonesty and false
statement” . . . means crimes such as
perjury or subornation of perjury, false
statement, criminal fraud, embezzlement, or
false pretense, or any other offense in the
nature of crimen falsi, the commission of

-30-
 which involves some element of deceit,
untruthfulness, or falsification bearing on
the accused's propensity to testify
truthfully.

H.R. Conf. Rep. No. 93-1597, at 9 (1974), reprinted in 1974

U.S.C.C.A.N. 7098, 7103. To be admissible under Rule 609(a)(2),

a prior conviction must involve “some element of deceit,

untruthfulness, or falsification which would tend to show that

an accused would be likely to testify untruthfully,” United

States v. Seamster, 568 F.2d 188, 190 (10th Cir. 1978), elements

not readily apparent in the crimes of disorderly conduct and

assault.4

Because the government failed to develop an adequate

predicate for admitting the convictions for disorderly conduct

and assault, it was error to permit interrogation concerning

these convictions for the purposes of impeaching Kevin.

(b) Federal Rule of Evidence 608

Meserve further argues that the questions the

government posed to Kevin about being a “tough guy” and having

“[b]een in a lot of fights in [his] day” were improper under

4Kevin’s 1979 conviction for disorderly conduct is also
stale under Rule 609(b). Thus, the government bore a further
obligation, which it does not appear to have satisfied, to
provide notice to the defense of its intent to introduce
evidence of the conviction and to show that this evidence was
more probative than prejudicial.

-31-
Federal Rule of Evidence 608. The government counters that it
was entitled

to introduce evidence that Kevin had previously been involved in

fights as impeachment by contradiction following Kevin’s denial

that he was a “tough guy.”

Pursuant to Federal Rule of Evidence 608(a):

The credibility of a witness may be attacked
or supported by evidence in the form of
opinion or reputation, but subject to these
limitations: (1) the evidence may refer only
to character for truthfulness or
untruthfulness, and (2) evidence of truthful
character is admissible only after the
character of the witness for truthfulness
has been attacked by opinion or reputation
evidence or otherwise.

Id. The government’s questions about Kevin’s status as a “tough

guy” and his reputation in the community for violence were

completely irrelevant on the facts here to this jury’s

credibility determination. Even if, as suggested by the

government at trial, people in the community were afraid of

Kevin because he was an “assaultive person,” this has no bearing

on Kevin’s credibility as a witness, given the issues in this

case. No other theory of admissibility is offered.

As the government’s questions about Kevin being a

“tough guy” were impermissible, they cannot serve as a launching

pad for the admission of additional evidence. Moreover, the

government’s questions about Kevin’s involvement in a couple of

-32-
fights are impermissible in their own right. Under Rule 608(b):

Specific instances of the conduct of a
witness . . . . may . . . in the discretion
of the court, if probative of truthfulness
or untruthfulness, be inquired into on
cross-examination of the witness . . .
concerning the witness’ character for
truthfulness or untruthfulness . . . .

Id. The specific instances of prior conduct about which the

government questioned Kevin bore no relation whatsoever to his

character for truthfulness or untruthfulness. As Meserve

correctly states, the government wanted to suggest, and

succeeded in suggesting, that Kevin was a man with a violent

disposition.

E. Harmless Error?

Since we conclude that the district court erred in

admitting evidence against Meserve violative of Federal Rules of

Evidence 608, 609, and 802, the government perforce is reduced

to arguing that these errors, both individually and

collectively, were “harmless.” Fed. R. Crim. P. 52(a) (“Any

error, defect, irregularity or variance which does not affect

substantial rights shall be disregarded.”); Fed R. Evid. 103(a)

(“Error may not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is

affected.”). In Kotteakos v. United States, 328 U.S. 750

-33-
(1946), the Supreme Court elucidated the harmless error standard

for cases involving non-constitutional errors, stating, “if one

cannot say, with fair assurance, after pondering all that

happened without stripping the erroneous action from the whole,

that the judgment was not substantially swayed by the error, it

is impossible to conclude that substantial rights were not

affected,” id. at 765. The applicable standard is thus

different than that applied when determining whether the

evidence is sufficient to sustain a verdict: “The inquiry cannot

be merely whether there was enough to support the result, apart

from the phase affected by the error. It is rather, even so,

whether the error itself had substantial influence.” Id.

Therefore, “we can uphold the conviction, in the teeth of an

error preserved by a timely objection, only where we think it

‘highly probable’ that the error played no role in the

conviction, that is to say, that the result would have been

identical regardless of the error.” Cudlitz, 72 F.3d at 1000

(citing United States v. Rullan-Rivera, 60 F.3d 16, 18-19 (1st

Cir. 1995)); see also Rose, 104 F.3d at 1414 (citing United

States v. Rodriguez Cortes, 949 F.2d 532, 543 (1st Cir. 1991);

Benavente Gomez, 921 F.2d at 386).

Unlike the plain error analysis, the government bears

the burden of persuasion with respect to showing that the error

-34-
was harmless. Olano, 507 U.S. at 734-35. “[T]he greater the

weight of the other evidence against the defendant, the less

likely it is that a given error swayed the jury,” but the

greater the probable impact of the error, the less likely it is

that the court can conclude that the error was harmless.

Cudlitz, 72 F.3d at 999. We consider factors such as “[t]he

centrality of the evidence, its prejudicial effect, whether it

is cumulative, the use of the evidence by counsel and the

closeness of the case.” Kowalski v. Gagne, 914 F.2d 299, 308

(1st Cir. 1990) (quoting Lataille v. Ponte, 754 F.2d 33, 37 (1st

Cir. 1985)) (internal quotation marks omitted). Where evidence

is admitted in violation of Rule 608, we examine additional

factors such as whether the admission permitted completely new

evidence to go before the jury and whether the disputed evidence

was likely to arouse passion or prejudice. Deary v. City of

Gloucester, 9 F.3d 191, 197 (1st Cir. 1993). Ultimately, the

harmless error analysis “must be made in the context of the case

as gleaned from the record as a whole.” DeVasto v. Faherty, 658

F.2d 859, 863 (1st Cir. 1981); accord United States v.

Mateos-Sanchez, 864 F.2d 232, 237 (1st Cir. 1988) (citing United

States v. Currier, 821 F.2d 52, 56 (1st Cir. 1987)).

Applying these principles, we consider the evidentiary

errors committed during Meserve’s trial:

-35-
 1. The Hearsay Evidence

Detective Pomerleau’s statement that Craig identified

Meserve as a possible suspect in the case was not itself central

to the case, as it was less damaging than the properly admitted

testimony of other witnesses, including Craig, whose statements

directly implicated Meserve in the robbery. At worst, the jury

may have credited the testimony of these witnesses somewhat more

because of Detective Pomerleau’s repetition of Craig’s

out-of-court statement. The weight of the government’s case

against Meserve was such, however, that Craig’s out-of-court

statement was but a small contribution to the font of evidence.

“[A]fter pondering all that happened without stripping the

erroneous action from the whole,” Mazza, 792 F.2d at 1216-17

(quoting Kotteakos, 328 U.S. at 765) (internal quotation marks

omitted), we conclude that it is highly probable that the

admission of Craig’s out-of-court statement did not contribute

to the jury’s verdict.

2. The Rule 608 and 609 Violations

Kevin, however, was a pivotal figure in the

construction of Meserve’s defense. Not only did Kevin provide

Meserve with an alibi, he also offered testimony that impeached

the testimony of the government’s star witness, Grant. Even

though there were two additional alibi witnesses -- Overlook and

-36-
Morissette -- Kevin was the only witness who testified about

Grant’s alleged coaching by the police.

Although certain impeachment evidence was elicited on

direct examination, such as Kevin’s prior convictions for

unlawful sexual conduct and Kevin and Meserve’s familial

relationship, the government’s impeachment evidence far exceeded

that which had already entered the record. The government

managed, in violation of the rules of evidence, to introduce

evidence of two additional convictions, two prior bad acts for

which no conviction resulted, and Kevin’s reputation in the

community for violence. The cumulative weight of the

government’s impeachment evidence against Kevin was therefore

augmented by the impermissible line of questioning. Moreover,

as Meserve’s counsel aptly argued in both his brief and oral

argument, by bringing up prior offenses that the defense,

correctly believing to be inadmissible, would not have

preemptively placed before the jury, the government succeeded in

making Kevin and, by association, his brother, appear

unforthcoming. The impermissible line of questioning therefore

enabled the government to suggest to the jury that Kevin was not

entirely truthful about his criminal history when he testified

on direct examination and may have led the jury to conclude that

Kevin was an untrustworthy witness. This court is entitled to

-37-
conclude that the government set out to impeach Kevin by

admitting evidence of past crimes and a character for violence

and that “the methods which were used [had] the effect which

they were obviously intended to have.” United States v. Ling,

581 F.2d 1118, 1122 (4th Cir. 1978), quoted in United States v.

Pisari, 636 F.2d 855, 859-60 (1st Cir. 1981). In sum, the

evidence illegitimately elicited by the government regarding

Kevin’s prior convictions and character for violence likely

figured in the jury’s credibility determination.

The harmless error standard, however, requires not that

the error had an effect on the jury’s evaluation of a single

witness’s testimony, but rather that the error had an effect on

the case as a whole. DeVasto, 658 F.2d at 863. Thus, if this

court can conclude that it is “highly probable” that the jury

would have convicted Meserve, even had the challenged evidence

been excluded, then reversal is not warranted.

We do so conclude here. Most importantly, the

cumulative weight of the evidence against Meserve was

substantial, and “[u]nder such circumstances, it would be a

waste of judicial resources to require a new trial where the

result is likely to be the same.” Rose, 104 F.3d at 1414

(quoting Rodriguez Cortes, 949 F.2d at 543) (internal quotation

marks omitted). The government’s case included highly damaging

-38-
testimony by Meserve’s former girlfriend and accomplice, Grant,

who testified that Meserve planned the robbery, drove with her

to the crime scene, fled the scene with her while discarding

pieces of evidence along the roadway, and spoke of the crime

afterwards. Moreover, Grant, although the government’s

strongest witness, was far from the only person to provide

evidence implicating Meserve in the crime. Specifically, the

government introduced testimony that Meserve had access to the

weapon used in the crime, several witnesses described a man

meeting Meserve’s description, and the weapon was found

precisely where Grant testified that Meserve discarded it. In

contrast, the defense case largely consisted of the testimony of

three witnesses with a strong incentive to fabricate on

Meserve’s behalf -- his mother, his brother, and his

self-described “best friend.” And, as discussed above, the

evidence to which Meserve raises an objection was not the sole

piece of impeachment evidence introduced against Kevin. The

jury also knew about Kevin’s familial relationship with Meserve

and his recent convictions for sexual misconduct. Finally, in

the context of this case, the evidence improperly admitted to

impeach Kevin is unlikely to have made much of a difference.

Grant, the government’s chief witness, was by her own admission

a participant in the crime and was guilty of several prior bad

-39-
acts including stealing her grandmother’s credit card and

receiving welfare benefits illegitimately; John Nicholas, who

testified about Meserve’s access to the gun used during the

robbery, had previously been convicted of being a felon in

possession of ammunition and had been served with a search

warrant to look for marijuana; Robert Vashon, who testified as

a rebuttal witness, had been convicted of marijuana trafficking

and rape. Despite these reasons to discredit the government’s

witnesses, however, the jury apparently believed their testimony

over that of Meserve’s witnesses. Because it cannot be stated

“with fair assurance . . . that the judgment was . . .

substantially swayed by the error,” Kotteakos, 328 U.S. at 765,

the government’s violations of Rules 608 and 609 were harmless

and reversal is not warranted on this basis.

3. Cumulative Errors

Meserve asserts that the cumulative effect of the

errors to which counsel timely objected, which resulted in the

admission of evidence that bolstered the credibility of the

government’s witnesses while demeaning the credibility of

Meserve’s witnesses, requires that a new trial be granted. See,

e.g., United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir.

1993).

-40-
 In Sepulveda, this circuit explicitly accepted the

theoretical underpinnings of the cumulative error argument.

This court observed that “[i]ndividual errors, insufficient in

themselves to necessitate a new trial, may in the aggregate have

a more debilitating effect.” 15 F.3d at 1195-96 (citing United

States v. Dwyer, 843 F.2d 60, 65 (1st Cir. 1988); Dunn v.

Perrin, 570 F.2d 21, 25 (1st Cir. 1978)). “[A] column of errors

may sometimes have a logarithmic effect, producing a total

impact greater than the arithmetic sum of its constituent

parts.” Id. at 1196. Among the factors considered in assessing

the cumulative effect of the errors are “the nature and number

of errors committed; their interrelationship, if any, and

combined effect; how the district court dealt with the errors as

they arose (including the efficacy -- or lack of efficacy -- of

any remedial efforts); and the strength of the government’s

case.” Id. (citing United States v. Mejia-Lozano, 829 F.2d 268,

274 n.4 (1st Cir. 1987)). To determine whether cumulative

errors are harmless, we conduct the same inquiry as for

individual error, i.e., we consider whether Meserve’s

substantial rights were affected. United States v. Rivera, 900

F.2d 1462, 1470 (10th Cir. 1990) (en banc) (citing United States

v. Kartman, 417 F.2d 893, 894, 898 (9th Cir. 1969)). Thus our

-41-
cumulative error analysis focuses on “the underlying fairness of

the trial.” Van Arsdall, 475 U.S. at 681.

Meserve’s appeal to the cumulative error doctrine is

unavailing. The errors committed during Meserve’s trial were

independent of each other. While the admission of Craig’s

out-of-court identification of Meserve as a possible suspect

involved the government’s case in chief, the errors that

occurred during Kevin’s cross-examination involved the

impeachment of but one of Meserve’s alibi witnesses. The

cumulative effect of these errors therefore differs from a

situation in which, for example, each of Meserve’s alibi

witnesses was impeached by impermissible means.

Moreover, on the other side of the Sepulveda equation,

the government’s case was strong. In addition to Grant’s

inculpatory testimony, several eye witnesses described a man

fitting Meserve’s description, Meserve was linked to the gun

used during the robbery, and the gun was found in the location

where Grant stated Meserve had thrown it. In contrast,

Meserve’s defense was weak, consisting of three alibi witnesses

with an incentive to lie -- Meserve’s mother, brother, and best

friend -- and speculations about other individuals who could

have committed the crime. Because of the strength of the

government’s case, the errors for which Meserve seeks reversal

-42-
“do not come close to achieving the critical mass necessary to

cast a shadow upon the integrity of the verdict.” Sepulveda, 15

F.3d at 1196. In other words, it is highly unlikely, in light

of the substantial evidence implicating Meserve in the crime,

that the errors committed here, even taken cumulatively, made an

appreciable difference in the outcome of the trial. E.g.,

Mejia-Lozano, 829 F.2d at 274 n.4. Although in an ideal world

every defendant would receive a trial free from error, “[t]he

Constitution entitles a criminal defendant to a fair trial, not

to a mistake-free trial.” Sepulveda, 15 F.3d at 1196 (citing

Van Arsdall, 475 U.S. at 681; United States v. Polito, 856 F.2d

414, 418 (1st Cir. 1988)). It would therefore be inappropriate

for this court to place undue emphasis on the flaws in Meserve’s

trial and “unnecessarily intervene[] in a process that --

although imperfect -- adequately protected [Meserve’s] rights.”

United States v. Glantz, 810 F.2d 316, 321 (1st Cir. 1987). We

do, however, note that the errors that occurred here were easily

preventable by government counsel. None arose in the heat of an

unexpected development at trial; each reflects a deliberate

choice at trial -- a choice which but slight reflection should

have indicated was inappropriate. Government counsel especially

bear an individual responsibility to engage in such reflection.

See Berger v. United States, 295 U.S. 78, 88 (1935) (“The United

-43-
States Attorney is the representative not of an ordinary party

to a controversy, but of a sovereignty whose obligation to

govern impartially is as compelling as its obligation to govern

at all; and whose interest, therefore, in a criminal prosecution

is not that it shall win a case, but that justice shall be

done.”).

III. Conclusion

Although errors occurred during the course of Meserve’s

trial, these errors, considered both individually and

cumulatively, were harmless. Accordingly, the judgment of

conviction is affirmed.

-44-