United States v. Holmquist

USCA1 Opinion









UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

_________________________

No. 93-1529

UNITED STATES OF AMERICA,

Appellee,

v.

STEPHEN A. HOLMQUIST,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]
___________________

_________________________

Before

Selya and Boudin, Circuit Judges,
______________

and Carter,* District Judge.
______________

_________________________

John H. LaChance, with whom Milly Whatley and LaChance &
_________________ ______________ __________
Whatley were on brief, for appellant.
_______
Robert L. Ullman, Assistant United States Attorney, with
_________________
whom Donald K. Stern, United States Attorney, was on brief, for
_______________
the United States.

_________________________

September 28, 1994

_________________________

____________
*Of the District of Maine, sitting by designation.



















SELYA, Circuit Judge. Defendant-appellant Stephen A.
SELYA, Circuit Judge.
_____________

Holmquist appeals his convictions on six counts of importing

firearms by means of false statements in violation of 18 U.S.C.

542 and three counts of exporting restricted firearms in

violation of 22 U.S.C. 2778. Holmquist's case has a certain

labyrinthine quality. Having successfully negotiated the maze,

however, we find appellant's claims to be without legal merit

and, therefore, affirm the judgment below.

I. BACKGROUND
I. BACKGROUND

Appellant, a resident of Massachusetts, owned and

operated ARMCO, a firm engaged in the retail sale of firearms.

Apparently not content with the domestic market, and believing

his entrepreneurial skills to be of sufficient caliber, appellant

set his sights on the international scene. Between 1989 and

1991, he conducted several business transactions with individuals

in the People's Republic of China. Since these transactions

triggered the indictment in this case, we offer an overview of

them. Where appropriate, we resolve evidentiary conflicts, and

indulge reasonable inferences, in a manner compatible with the

jury verdict. See, e.g., United States v. Maraj, 947 F.2d 520,
___ ____ _____________ _____

522-23 (1st Cir. 1991).

In May of 1989, the U.S. State Department granted

appellant's request for a license to export handguns to the

People's Republic of China. However, following the tragic events

that rocked Tiananmen Square in June of that year, the State

Department declared that most firearms no longer could be


2














exported to China. At the same time, the Department revoked or

suspended all existing export licenses (including appellant's)

and declared a moratorium on the issuance of new licenses. When

appellant thereafter sought just such a license, the State

Department sent back his application, unapproved and stamped

"returned without action." Appellant did not reapply.

Despite the lack of a license or other formal

authorization, appellant thrice smuggled restricted firearms to

China between October 1989 and July 1990. He carried the

weaponry on commercial flights out of Boston, nestled in his

suitcases amidst other, more orthodox travel items. After

arriving in China, appellant delivered the guns to either Mr. Ha,

a high-ranking government official,1 or Andrew Wong, a business

executive. Based on the evidence anent these transactions, the

jury convicted appellant on three counts of unlawful exportation.

China also served appellant as a source for importing

firearms and ammunition into the United States. These

importations, though not in themselves unlawful, ultimately

became so when accompanied by appellant's apocryphal statements

concerning the value of his wares. On six different occasions

during 1990 and 1991, appellant undervalued imports, presumably

to reduce the duty due. The prosecution was able to adduce

virtually irrefutable proof of this duplicity: dual sets of

____________________

1Carrying the adversarial ethic to an extreme, the parties
are unable to agree on the spelling of Mr. Ha's first name; the
government spells it Solomon while appellant spells it Soloman.
We attempt a Solomonic resolution of the appellative appellate
contretemps, eschewing any textual reference to Ha's given name.

3














invoices, one containing the price disclosed to Customs and the

other containing the actual, higher price that appellant in fact

had paid. Based on this well-documented pattern of deceit, the

jury convicted appellant on six counts of entering goods by means

of false statements.

II. THE IMPORT CHARGES
II. THE IMPORT CHARGES

Taking matters in reverse chronological order, we turn

first to an examination of the import charges. These counts

arise under a criminal statute that provides in pertinent part:

Whoever enters or introduces, or attempts to
enter or introduce, into the commerce of the
United States any imported merchandise by
__
means of any fraudulent or false invoice,
_________
declaration, affidavit, letter, paper, or by
__
means of any false statement, written or
_________
verbal, or by means of any false or
______________
fraudulent practice or appliance, or makes
any false statement in any declaration
without reasonable cause to believe the truth
of such statement, or procures the making of
any such false statement as to any matter
material thereto without reasonable cause to
believe the truth of such statement, whether
or not the United States shall or may be
deprived of any lawful duties . . . [s]hall
be [punished as provided].

18 U.S.C. 542 (emphasis supplied).2

Appellant does not deny that he knowingly made false

statements to Customs officials, thereby undervaluing his

imports. Nonetheless, he contends that such statements do not

____________________

2Complementing this first provision is a second, covering
deceptive importations that are designed to deprive the
government of duties. Although the prosecution in this case may
have missed the bull's-eye by charging appellant under the first,
rather than the second, of section 542's provisions, the
government is bound by its charging decision. Consequently, the
proviso we have quoted governs here.

4














fall within the scope of the statute of conviction because the

phrase "by means of" indicates that no violation occurs unless

the merchandise, absent the false invoice, statement, or

practice, would have been excludable. And he says this was not

the case regarding the Chinese munitions, as their importation

was lawful. The government, by contrast, puts no stock in a

causation requirement, dismissing appellant's argument as

involving too cramped a reading of the statutory language.

Because the parties' dispute boils down to a pure question of

statutory interpretation, our review is plenary. See United
___ ______

States v. Gifford, 17 F.3d 462, 471-72 (1st Cir. 1994); Liberty
______ _______ _______

Mut. Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 757
______________ __________________________

(1st Cir. 1992).

Whatever shadows cloud this record, one thing is very

clear: even though no materiality requirement appears on the

statute's face, section 542's first provision must be read to

contain such a requirement; to justify a conviction, the

prosecution must demonstrate that the false invoice, statement,

or practice is related to the importation in some material

respect. This is the construction recognized by virtually every

court that has directly addressed the issue. See, e.g., United
___ ____ ______

States v. Corcuera-Valor, 910 F.2d 198, 199 (5th Cir. 1990);
______ ______________

United States v. Bagnall, 907 F.2d 432, 435 (3d Cir. 1990);
______________ _______

United States v. Teraoka, 669 F.2d 577, 579 (9th Cir. 1982). It
_____________ _______

also comports with our construction of the parallel civil

statute, 19 U.S.C. 1592, explicated in United States v. Ven-
______________ ____


5














Fuel, Inc., 758 F.2d 741, 761-62 (1st Cir. 1985). We hasten to
___________

add that the inclusion of a materiality component is warranted by

more than habit; such a requirement is pragmatically desirable

because it permits courts to advance the statute's apparent

purposes and, if necessary, to exclude trivial lapses from the

statute's ambit. Cf., e.g., United States v. Corsino, 812 F.2d
___ ____ _____________ _______

26, 30 (1st Cir. 1987) (explaining materiality requirement under

18 U.S.C. 1001, which prohibits, among other things, the

submission of false statements in matters within the jurisdiction

of any federal agency).

Yet, our recognition of a materiality requirement does

not solve the interpretive riddle that this appeal presents; it

is the nature of the materiality requirement not its mere

existence over which the parties grapple. Appellant invites us

to hold that materiality in this context is contingent on a

crabbed construction of the term "by means of." Specifically, he

argues that "by means of" is synonymous with "because of," and

that a false statement is material under the first part of

section 542 only if the importation of any particular item would

have been forbidden in its absence. We decline the invitation.

In discerning the meaning of this portion of section

542, "[w]e start as all statutory construction must start by

looking at the language of the law," United States v. Charles
______________ _______

George Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987), and by
___________________

examining the "ordinary, contemporary, common meaning" of the

words, Perrin v. United States, 444 U.S. 37, 42 (1979). Bearing
______ _____________


6














this in mind, we are constrained to conclude that the phrase "by

means of" is not synonymous with "because of"; while the former

includes the latter, that hardly renders them coterminous.

Rather, understood in an unforced way, saying that someone has

effected an importation by means of a false statement is simply

to suggest that the person has introduced a false statement at

some significant stage in the process. The phrase does not mean

that the person could not have used a true statement in tandem

with the false statement, or that the importation could not

otherwise have been achieved. See, e.g., Webster's New Universal
___ ____ _______________________

Unabridged Dictionary 1115 (2d ed. 1983) (defining "by means of"
_____________________

as "by using; with the aid of; through"); Richard A. Spears,

American Idioms Dictionary 43 (1987) (defining "by means of
____________________________

something" as "using something" or "with the use of something").

There is no basis for rejecting plain meaning here.

Indeed, contrary to appellant's importuning, the principal

problem with the "by means of" language is not ambiguity its

meaning is obvious but, rather, the language's potential

breadth. It is because of this problem that courts have read a

materiality requirement into this portion of section 542. This

requirement is intended to flesh out, not to eviscerate, the "by

means of" language as that phrase resonates in the context of

section 542. So viewed, it brings to the textual surface the

commonsense notion that, to ground a conviction, there must be a

significant nexus between the false statement and the

importation.


7














We hold, therefore, in basic agreement with the Third

Circuit, that a false statement is material under section 542 if

it has the potential significantly to affect the integrity or

operation of the importation process as a whole, and that neither

actual causation nor actual harm to the government need be

demonstrated. See Bagnall, 907 F.2d at 436 ("The language of
___ _______

542 suggests to us that its purpose is no less than to preserve

the integrity of the process by which foreign goods are imported

into the United States. As a result, we are inclined to believe

that a false statement is material not only if it is calculated

to effect the impermissible introduction of ineligible or

restricted goods, but also if it affects or facilitates the

importation process in any other way."); see also Corsino, 812
___ ____ _______

F.2d at 30-31 (drawing similar conclusion in relation to the

judicially devised materiality requirement of 18 U.S.C. 1001);

United States v. Greenberg, 735 F.2d 29, 31 (2d Cir. 1984)
______________ _________

(suggesting, in construing an analogous statute, that when "a

false statement is made to a public body or its representative,

materiality refers to the impact that the statement may

reasonably have on the ability of that agency to perform the

functions assigned to it by law").

It is thus apparent that the focus of an inquiry into

materiality is not what effect a false statement actually may

have, but whether it carries a serious potential risk for

obstructing the agency or substantially inhibiting the agency's

performance of its duties under the law. Transplanted to the


8














Customs milieu, a statement is material if it has the potential

significantly to affect the integrity or operation of the

importation process the manner in which Customs handles the

assessment of duties and passage of goods into the United States.

Having distilled the plain meaning of the disputed

phrase, we could end our inquiry at this point. See, e.g.,
___ ____

Charles George Trucking, 823 F.2d at 688 (explaining that, when
_______________________

the language of a statute "points unerringly in a single

direction, and produces an entirely plausible result, it is

unnecessary and improper to look for other signposts"). But,

here, to reinforce our conclusion that "material" means something

more than "causal," we think it is appropriate to note that this

conclusion is supported not only by the plain language of section

542, but also in three other ways: by the better reasoned case

law, by the adverse textual consequences that would result from

adopting appellant's proposed definition, and by the policy

underlying the statutory provision. See, e.g., United States v.
___ ____ _____________

O'Neil, 11 F.3d 292, 295-301 (1st Cir. 1993) (beginning
______

interpretive analysis with plain language of statute and

verifying construction by reference to statutory structure,

logic, and public policy).

An examination of precedent reveals that we already

have rejected a narrow, causally oriented reading of the

materiality requirement found in the civil analog to section 542.

See Ven-Fuel, 758 F.2d at 762 (branding such a construction of 19
___ ________

U.S.C. 1592 "entirely baseless" and predicting that "[s]uch a


9














restrictive reading would largely eviscerate the statute,

rendering it meaningless in the vast majority of cases").3 Our

view of section 542's materiality requirement is also consonant

with the reasoning and/or resolution of several cases from other

jurisdictions. See, e.g., Bagnall, 907 F.2d at 436; United
___ ____ _______ ______

States v. Brown, 456 F.2d 293, 295 (2d Cir.), cert. denied, 407
______ _____ _____ ______

U.S. 910 (1972); United States v. Szwaczka, 769 F. Supp. 293, 296
_____________ ________

(E.D. Wis. 1991); see also United States v. Yip, 930 F.2d 142,
___ ____ ______________ ___

147-49 (2d Cir.) (construing the second provision of section 542

in an equally broad manner), cert. denied, 112 S. Ct. 197
_____ ______

(1991).4

A broad construction of section 542 is also supported

by accepted canons of statutory construction. If the first

provision in section 542 is construed as applying only to

ineligible imports, then the final sentence of the section,

discussing the legal irrelevance of depriving the government "of

any lawful duties," would be meaningless (for nonimportable items

are not dutiable, and hence, the government could never be

deprived). Accordingly, such a construction would transgress the

____________________

3Indeed, although the precise issue was not before us, we
commented favorably upon our perception that "under 18 U.S.C.
542, criminal convictions have regularly been sustained where
generically importable goods had been entered by trick or
artifice." Ven-Fuel, 758 F.2d at 762 (citing United States v.
________ _____________
Murray, 621 F.2d 1163 (1st Cir.), cert. denied, 449 U.S. 837
______ _____ ______
(1980); United States v. Brown, 456 F.2d 293 (2d Cir.), cert.
_____________ _____ _____
denied, 407 U.S. 910 (1972)).
______

4To be sure, two courts of appeals, the Fifth and the Ninth,
have reached the opposite conclusion. See Corcuera-Valor, 910
___ ______________
F.2d at 199-200; Teraoka, 669 F.2d at 579. With respect, we find
_______
these opinions unpersuasive and we decline to follow them.

10














oft-stated interpretive rule that "[a]ll words and provisions of

statutes are intended to have meaning and are to be given effect,

and no construction should be adopted which would render

statutory words or phrases meaningless, redundant or

superfluous." Ven-Fuel, 758 F.2d at 751-52; accord O'Neil, 11
________ ______ ______

F.3d at 297.

Finally, a statute must be read as a whole, with due

regard for its object, purposes, and underlying policy. See
___

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987). Here, a
___________________ _______

broad reading of the disputed language serves to advance the

fundamental purpose of the first part of section 542. That

purpose, as evidenced by Congress's choice of phrase

particularly the caveat that the government need not "be deprived

of any lawful duties" is to ensure full disclosure in

importation and thereby maintain the integrity of the importation

process as a whole. See Bagnall, 907 F.2d at 436. Adopting an
___ _______

isthmian standard would thwart this goal by making it more

attractive for importers to assume the persona of Holmes's "bad

man" and to practice strategic forms of deception under the guise

of immateriality. See Oliver Wendell Holmes, Jr., The Path of
___ ___________

the Law, 10 Harv. L. Rev. 457, 459 (1897) ("If you want to know
_______

the law and nothing else, you must look at it as a bad man, who

cares only for the material consequences which such knowledge

enables him to predict . . . .").

To recapitulate, we hold that materiality is, in fact,

an element of the offense of conviction. This element serves to


11














explain, not to emasculate, the "by means of" language contained

in the first part of the statute. Particularly when viewed

against this backdrop, appellant's proposed equation of "by means

of" with "because of" betrays both common meaning and common

sense. By limiting the scope of section 542's first provision to

ineligible items, such an interpretation would effectively

convert the provision into an inoperative piece of parchment.

Accordingly, we reject appellant's narrow construction, and rule

that, in this context, "material" means having the potential

significantly to affect the integrity or operation of the

importation process as a whole, without regard to whether the

conduct at issue caused the importation and without regard to

whether the federal government suffered actual harm.

Appellant's false statements had this deleterious

potential. Undervaluations are by their nature materially

related to the importation process, both because they may

interfere with the government's efforts to monitor and regulate

the flow of goods into the United States and because they

undermine the integrity of the entire importation process.

Consequently, appellant's convictions under section 542 must be

upheld.5

III. THE EXCLUDED EVIDENCE
III. THE EXCLUDED EVIDENCE

We turn now to appellant's assertion that his


____________________

5Appellant also assigns error to the district court's jury
instructions on the importation counts. This assignment of error
is constructed around the same misinterpretation of section 542's
materiality requirement. It, therefore, fails.

12














convictions under the Arms Export Control Act, 22 U.S.C. 2778,

are tainted because the trial court excluded evidence evidence

that we sometimes shall call "contacts evidence" that would

have established a defense of apparent public authority6 and/or

negated the element of specific intent. For the reasons

explained below, we find this assertion unavailing.

A. Proceedings Below.
A. Proceedings Below.
_________________

Because the precise course of proceedings before and

during the trial is critical to the resolution of appellant's

challenge, we rehearse the pertinent details. Between April 27

and May 6, 1992, appellant served subpoenas duces tecum on three
_____ _____

persons an agent of the Naval Intelligence Service, the keeper

of records at the National Security Agency, and a business

associate (whom we shall call "John Doe") who had accompanied

appellant on his excursions to China proposing to ensure their

availability as witnesses at his trial. Appellant alleged that

Doe (who, he said, was in the employ of a federal intelligence

agency) had authorized the arms exports.7 It was appellant's

____________________

6The "defense" of apparent public authority is a defense
based on a mistaken but good-faith belief that one's conduct is
authorized by the government. Appellant's repeated references to
this defense constitute little more than a school of red
herrings. The defense is not a defense at all. See United
___ ______
States v. Duggan, 743 F.2d 59, 83-84 (2d Cir. 1984) (rejecting
______ ______
such a defense in a prosecution under 22 U.S.C. 2778); United
______
States v. Anderson, 872 F.2d 1508, 1513-16 (11th Cir.) (similar),
______ ________
cert. denied, 493 U.S. 1004 (1989).
_____ ______

7The nonexistent defense of apparent public authority, see
___
supra note 6, must not be confused with the potentially viable
_____
defense of actual public authority, which may come into play when
a defendant undertakes certain acts, reasonably relying on the
statements of a government agent cloaked with actual authority.

13














legal theory that, even if Doe were not a spy, Doe's imprimatur

could undermine the government's case against appellant either by

providing a defense of apparent public authority, but see supra
___ ___ _____

note 6, or by negating an element of the offense, namely,

specific intent.

The government responded by filing motions to quash the

subpoenas, followed on May 18 by both a memorandum of authorities

and an ex parte submission pursuant to the Classified Information
__ _____

Procedures Act, 18 U.S.C. app. III (CIPA), which limns a

procedure permitting classified information "to be inspected by

the court alone." Id. 4. On the same date, appellant made an
___

oral ex parte proffer to the trial court, explaining the
__ _____

relationship between the subpoenas and his proposed trial

strategy.

On May 21, following an in camera hearing, Judge Keeton
__ ______

granted the government's motions to quash. He also granted the

government's oral motion in limine, made in anticipation that
__ ______

appellant might renew his efforts to proffer contacts evidence.

When reduced to writing on May 26, 1992, the in limine order
__ ______

required appellant, before "fil[ing] or disclos[ing] any

document, ask[ing] any question, or mak[ing] any statement

related to any alleged contact between any individual and any

intelligence agency," to "first present[] such matter directly to


____________________

See United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18
___ _____________ __________________
(11th Cir. 1994). Here, however, we have painstakingly checked
the materials tendered in camera and find no colorable or
__ ______
cognizable basis for a defense of actual public authority.

14














the [trial judge] in chambers or at sidebar and . . . receive[]

from [the judge] a ruling allowing the requested action . . . ."

Immediately prior to trial, appellant filed a motion to

reconsider these rulings, accompanied by a written, sworn ex
__

parte proffer. After a hearing that began on October 22, 1992,
_____

and continued into the next day, the district court denied the

motion. Trial commenced a few days later.

At trial, appellant called only one witness, a Customs

agent, and made no discernible effort to capitalize on the

court's invitation to examine his purported contacts evidence in
__

camera.8 Still, at the close of his case appellant moved for a
______

mistrial, claiming that the district court's pretrial rulings

denied him the opportunity to present a robust defense. The

court spurned the motion. In due course the jury convicted

appellant on all three exportation counts (as well as on the

charges of unlawful importation discussed in Part II, supra).
_____

B. Analysis.
B. Analysis.
________

Appellant contests the district court's pretrial

rulings specifically, the orders entered in respect to the

government's motions to quash and motion in limine on the
__ ______

theory that those rulings precluded him from presenting to the

jury a complete and competent defense. He assails the district

court's denial of his motion for a mistrial for much the same

____________________

8Even if we give appellant the benefit of his description of
it, the contacts evidence is entropic at best. Apart from the
claims about what Doe ostensibly said, the contacts evidence
consists entirely of gauzy generalities, inadmissible double
hearsay, and unsupported suppositions.

15














reason. In particular, he alleges that these rulings which for

our purposes coalesce into, and are subsumed by, the order in
__

limine9 transgressed his rights under both the Due Process
______

Clause of the Fifth Amendment and the Compulsory Process Clause

of the Sixth Amendment by foreclosing him from mounting a defense

to the charges. Having carefully deterrated the record, we find

that this challenge has not been properly perfected and,

therefore, evaporates into thin air.

On appeal, Holmquist claims that the contacts evidence

bore on two possible lines of defense: (1) that he acted on

Doe's instructions, and, hence, under the guise of apparent

public authority a defense that, in any event, would have

misfired, see supra note 6; and (2) that he lacked the requisite
___ _____

specific intent to commit the charged crime a strategy that, at

least in theory, had promise, see, e.g., United States v. Murphy,
___ ____ _____________ ______

852 F.2d 1, 7 (1st Cir. 1988) (explaining that, in respect to

charges under 22 U.S.C. 2778, the prosecution must prove that

the defendant in fact "knew he had a legal duty not to export the

weapons"), cert. denied, 489 U.S. 1022 (1989); see also United
_____ ______ ___ ____ ______

States v. Anderson, 872 F.2d 1508, 1517 (11th Cir.) (rejecting
______ ________


____________________

9Because appellant's subpoenas sought the production of
evidence at trial, the district court's order in limine
__ _____ __ ______
effectively controlled, and therefore subsumed, the quashal
order. By like token, the district court's denials of
appellant's eve-of-trial motion for reconsideration and mid-trial
motion for a mistrial lack independent significance; if the court
committed no antecedent error in the exclusion of evidence under
the aegis of the order in limine, then those motions were
__ ______
bootless. Thus, our analysis of this assignment of error may
appropriately focus upon the order in limine alone.
__ ______

16














apparent public authority defense, but acknowledging that

defendant's mistaken belief that his acts were authorized might

negate specific intent), cert. denied, 493 U.S. 1004 (1989).10
_____ ______

There is some disagreement over the extent to which appellant

explicitly and clearly pursued the second of these two legal

theories during the course of the litigation. The best that can

be said is that passing reference to both theories is made in

appellant's opposition to the government's motion to quash; and

appellant's motion to reconsider and motion for mistrial each

purported to incorporate the contents of this initial opposition.

But at the pretrial hearings of May 18 and 21, 1992, which were

specifically devoted to assessing the propriety of the

government's motions to quash and motion in limine, appellant did
__ ______

not once bring the specific intent theory to the judge's

attention. Similarly, appellant made no explicit reference to

the theory when arguing his motion to reconsider.

Based on the overall record, appellant might well be

deemed to have abandoned the specific intent theory. As we have

previously admonished, "[a] party has a duty to put its best foot

forward . . . [and] to spell out its arguments squarely and

distinctly." Paterson-Leitch Co. v. Massachusetts Mun. Wholesale
___________________ ____________________________

Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988); see also United
_________ ___ ____ ______

____________________

10There is also some suggestion that appellant considered
raising a defense of estoppel by entrapment. See United States
___ _____________
v. Smith, 940 F.2d 710, 714 (1st Cir. 1991) (discussing
_____
doctrine). On appeal, however, Holmquist offers no developed
argumentation in connection with this defense. Consequently, we
deem it waived. See United States v. Zannino, 895 F.2d 1, 17
___ _____________ _______
(1st Cir.) cert. denied, 494 U.S. 1082 (1990).
_____ ______

17














States v. Boylan, 898 F.2d 230, 249 (1st Cir.) ("Litigants cannot
______ ______

expect a judge . . . to be clairvoyant."), cert. denied, 498 U.S.
_____ ______

849 (1990).

Although the question of abandonment is close, we need

not resolve it, for at the trial itself, appellant eschewed any

attempt to offer evidence in camera in accordance with the
__ ______

district court's express invitation and the provisional nature of

the court's in limine ruling.11 The government maintains that,
__ ______

given this omission, appellant no longer can contest the

operation of the court's order in limine. We agree. Appellant's
__ ______

snubbing of the court's invitation to consider evidentiary

offerings during the trial effectively insulated from appellate

review any complaints he voiced in connection with the court's

pretrial evidentiary rulings. In the pages that follow, we

explain our rationale.

It is a bedrock principle of our adjudicatory system

that ostensible errors arising before and during trial must be

properly raised and preserved in order to be reviewable on

appeal. See United States v. Griffin, 818 F.2d 97, 104-06 (1st
___ _____________ _______

Cir.), cert. denied, 484 U.S. 844 (1987). In terms of
_____ ______

evidentiary limitations, this principle is so important that we

find it partially codified in the third of our Federal Rules of

____________________

11The transcript reflects only one point in the trial at
which appellant requested a sidebar for the purpose of attempting
to introduce evidence related to the order in limine and on
__ ______
that lone occasion, the district court granted appellant's
request. This demonstrates quite vividly an awareness on
appellant's part that the court had left the door open to
proffers of such evidence.

18














Evidence. "Error may not be predicated upon a ruling . . .

excluding evidence [unless] the substance of the evidence was

made known to the court by offer or was apparent from the context

within which questions were asked." Fed. R. Evid. 103(a).

In entering the in limine order below, Judge Keeton
__ ______

made it clear that the only definite limitation on appellant's

ability to introduce contacts evidence was that he must first

present it out of the jurors' earshot, that is, to the judge,

either in chambers or at sidebar. Federal district judges enjoy

broad discretion in respect to the ordering and presentation of

proof and the handling of evidentiary questions. See, e.g., Fed.
___ ____

R. Evid. 104(c) (stating that hearings on preliminary matters

other than the admissibility of confessions may be conducted out

of the hearing of the jury "when the interests of justice

require"); Fed. R. Evid. 611(a) (empowering district courts to

exercise "reasonable control" over mode and presentation of

evidence); see also Luce v. United States, 469 U.S. 38, 41 n.4
___ ____ ____ _____________

(1984) (approving use of in limine rulings as an adjunct of "the
__ ______

district court's inherent authority to manage the course of

trials"); Douglas L. Colbert, The Motion in Limine in Politically
___________________________________

Sensitive Cases: Silencing the Defendant at Trial, 39 Stan. L.
___________________________________________________

Rev. 1271 (1987) (discussing, though bemoaning, the increased use

of motions in limine to preclude defendants from raising certain
__ ______

defenses altogether). In light of this discretion, we are unable

to conclude that the in limine order itself lay beyond the
__ ______

district court's proper purview, or that it was untenable in any


19














particular.

It follows inexorably that, since the in limine order
__ ______

represented a lawful exercise of judicial power, appellant's

failure to abide by its terms bars him from complaining in this

venue about evidence that could have been but was not

proffered to the court within the framework of the order. After

all, the trial judge's offer to consider proposed evidentiary

offerings in camera, as the occasion arose, was not a mere
__ ______

formality and appellant treated it as such at his peril. See
___

Conway v. Electro Switch Corp., 825 F.2d 593, 596 n.1 (1st Cir.
______ ____________________

1987) ("Under the best of circumstances, counsel must exercise

caution in relying exclusively upon rulings made in connection

with pretrial motions in limine as the basis for preserving
__ ______

claims of error in the admission and exclusion of evidence.");

Freeman v. Package Mach. Co., 865 F.2d 1331, 1337 (1st Cir. 1988)
_______ _________________

(offering similar admonition). In short, appellant's decision to

ignore the procedural device fashioned by the trial court

disabled him from mounting a subsequent challenge to what he now

dysphemistically calls the "exclusion" of evidence.

Our conclusion rests not only upon the fundamental

principles of judicial economy and attorney cognizance, but also

upon a well-defined corpus of federal appellate case law. The

touchstone, of course, is the Court's decision in Luce. The Luce
____ ____

Court held specifically that a defendant who chooses not to

testify at trial loses his right to appeal the district court's

ruling denying his in limine motion to forbid the impeachment use
__ ______


20














of a prior conviction. See Luce, 469 U.S. at 43. More
___ ____

generally, Luce teaches that there are concrete limits to a
____

party's right to request appellate review of evidentiary rulings,

and that these limits reflect two factors: (1) the legitimate

needs of appellate courts in the review of alleged evidentiary

errors stemming from trials, see id. at 41-42 (observing that
___ ___

"[a] reviewing court is handicapped in any effort to rule on

subtle evidentiary questions outside a factual context"); and (2)

the possibility that a defendant might exploit adverse rulings by

treating them essentially as legal jokers, to be pulled from his

sleeve should a conviction ensue, see id. at 42 (warning against
___ ___

setting the stage for a litigant, at no risk, to seed the record

with error).

In the instant case, both of these concerns are

implicated. Regarding the reviewability concern, it is precisely

because appellant comes before us not having attempted to offer

evidence during the trial that we cannot rule intelligently on

the underlying evidentiary questions; he presents us with an

abstract intellectual exercise, rife with conjecture, rather than

affording us an opportunity to inspect concrete evidence, offered

and excluded in an actual trial context. Regarding the

exploitation concern, we likewise have no reliable way of knowing

whether appellant's decision to forgo the trial judge's

invitation reflected a genuine sense of preclusion, a mere

oversight, an ill-fated stratagem (such as an attempt to infect

the trial with error), or simply a realization that the putative


21














contacts evidence was not likely to be helpful after all.

Our conclusion that appellant did not sufficiently

perfect a right to appeal in respect to contacts evidence draws

further support from the myriad cases that have seen fit to

extend the tenets of Luce into other contexts involving in limine
____ __ ______

motions. See Griffin, 818 F.2d at 105 (citing wide range of
___ _______

federal appellate cases extending principles articulated in

Luce). Griffin itself is a good example. In that case, we
____ _______

declined to review a conditional pretrial ruling under Fed. R.

Evid. 403, which prohibited a government witness from testifying

that a certain associate of the defendant had once threatened him

for cooperating with the government a threat which, according

to the witness, caused him to withhold information from the

government for over a year. The one condition on this pretrial

order, however, was that the prohibition would vanish if the

defense attempted to impeach the witness by referring to

cooperation. The defendant abided by the ruling, but then

challenged it following his conviction. In holding that he could

not test the evidentiary question on appeal, we observed:

"Although the court telegraphed what its ruling was likely to be

if defense counsel opened the door, the latter never knocked.

And, we will not venture to pass upon issues such as this in a

vacuum." Id. at 103. Based on this, and on related concerns,
___

including the "danger of encouraging a defendant, as a trial

tactic, to plant reversible error," id. at 104, we ruled that "to
___

raise and preserve for review the claim of [evidentiary error], a


22














party must obtain the order admitting or excluding the

controversial evidence in the actual setting of the trial," id.
____________________________________ ___

at 105 (emphasis supplied). While there are factual differences

between Griffin and the case at hand, Griffin's logic points
_______ _______

unerringly toward the conclusion that appellant in this case

never perfected his right to appeal the putative exclusion of

contacts evidence.

Two years after Griffin, we had another opportunity to
_______

apply the principles of Luce, this time to a case involving an
____

anticipatory motion to limit cross-examination of the defendant.

See United States v. Nivica, 887 F.2d 1110, 1115 (1st Cir. 1989),
___ _____________ ______

cert. denied, 494 U.S. 1005 (1990). After the district court
_____ ______

refused to grant the motion, the defendant chose not to testify.

The jury found him guilty. He then appealed the court's denial

of his liminary motion. We gave him short shrift. Beginning

with the premise that "the concerns which undergird Luce and
____

Griffin control here," id. at 1116, we determined that:
_______ ___

Because Nivica did not take the stand, or ask
for voir dire, his exact testimony remains,
in the Luce phrase, "unknowable." The
____
alleged harm is "wholly speculative," both
because (a) the judge, in the give-and-take
of live testimony, might have changed his
mind and confined cross-examination more
closely, and (b) on this record, we have no
way of knowing the extent to which the
government would have sought to cross-
question Nivica (if at all) about other
matters. Moreover, in this case as in Luce,
____
there is no reliable method for divining the
genesis of defendant's decision not to
testify. . . . Furthermore, were we to relax
the rule, we would run the very risk ease
in "`plant[ing]' reversible error" that the
Luce Court aimed to avoid. Finally,
____

23














defendant's tactical choice in this case, as
in Luce, has thwarted our ability to judge
____
the harmfulness of the asserted error.

Id. at 1116-17 (citations omitted). In the bargain, we rejected
___

defendant's claim that, because the trial judge ruled as a matter

of law rather than expressly labelling his ruling as conditional,

Luce should not have governed the analysis. We emphasized that
____

the critical dimensions of a Luce scenario include timing and
____

context, and that, "[u]ltimately, the trier's decision, whatever

his initial inclination, had to depend upon particular questions

and their relation to the content of the direct examination."

Id. at 1117. In the same way, appellant in the case before us
___

inexplicably declined the opportunity to probe the trial judge's

provisional ruling by making a concrete proffer in a live

context, thus depriving this court of the opportunity

meaningfully to review his claim. Cf. Reilly v. United States,
___ ______ _____________

863 F.2d 149, 168 (1st Cir. 1988) (holding, in respect to a

discovery request, that "by ignoring the [judge's] clear

invitation to specify, face-up and squarely, what information it

continued to seek, appellant waived the right to protest the

denial of its [discovery motion]").

We also find instructive the experience of the Seventh

Circuit, which recently confronted a situation quite similar to

this one. In United States v. Addo, 989 F.2d 238 (7th Cir.
______________ ____

1993), the district court, over defendant's opposition,

provisionally granted the government's motion in limine barring
__ ______

the defendant from pursuing a particular line of argument at


24














trial. In so doing, the court made it clear that it would "allow

the defense counsel . . . [to] renew her opposition to the

government's motion before the conclusion of the trial." Id. at
___

241. Defense counsel did not take advantage of this offer. On

appeal, defendant challenged the district court's grant of the

motion in limine. The Seventh Circuit began with the premise
__ ______

that a party "may not lull the judge into thinking that [a

theory] has been abandoned and then, after he has lost, pull a

rabbit out of his pocket in the form of the forgotten motion."

Id. (quoting United States v. Taglia, 922 F.2d 413, 416 (7th
___ ______________ ______

Cir.), cert. denied, 500 U.S. 927 (1991)). The court then
_____ ______

concluded that the defense had failed to perfect its right to

contest the exclusion of the desired line of argument:

[T]he ball was in the defendant's court to
challenge the granting of the motion in
__
limine. For some reason, the defense failed
______
to respond to the judge's ruling again during
the trial. This may have been an oversight
on the part of defense counsel in the midst
of a busy trial or a well-calculated trial
strategy. Whatever the reason, the record
reflects that the defense was clearly given
the opportunity to raise the matter again
before the trial judge and failed to do so.
Accordingly, the defense may not challenge
the merits of this ruling on appeal.

Id. at 242; see also Favala v. Cumberland Engin'g Co., 17 F.3d
___ ___ ____ ______ ______________________

987, 991 (7th Cir. 1994) (explaining that a "court's invitation

to renew [an] issue" should be treated "as an indication that the

court's ruling on the motion in limine is not final and is open

to reconsideration; consequently, the failure to follow up on the

invitation constitutes a waiver"); United States v. Hoyos, 3 F.3d
_____________ _____


25














232, 236 (7th Cir. 1993) (applying Addo to a situation in which
____

the trial court granted the government's motion in limine,
__ ______

subject to reconsideration, and defendant neglected to raise the

relevant issue during trial); United States v. Romano, 849 F.2d
______________ ______

812, 815-16 (3d Cir. 1988) (declining to reverse defendant's

conviction "based on mere speculation as to what the district

court would have done" if defendant had proffered evidence at

trial in an effort to surmount the district court's in limine
__ ______

ruling); cf. United States v. Bonneau, 970 F.2d 929, 932-33 (1st
___ _____________ _______

Cir. 1992) (declining to review exclusion of testimony, alleged

by defendant to establish lack of willfulness under 26 U.S.C.

7201, because defendant made no offer of proof in the trial court

to establish the testimony's substance).

These principles and precedents necessarily control our

decision in this case. The district judge's ruling was patently

provisional. The court gave appellant ample opportunity to

reiterate his request to introduce evidence of purported

government contacts in the context of the actual trial. For

whatever reason, appellant chose not to take up the gauntlet.

One consequence of appellant's inertia is that we, as an

appellate tribunal, can only engage in rank speculation about

whether the trial judge would have allowed appellant to introduce

specific evidence (the exact nature of which is unknown to us,

see supra note 8) for a specific purpose (the exact nature of
___ _____

which is likewise unknown to us) had he attempted to do so during

the trial. An appeal that asks a reviewing court to decide


26














delicate questions of evidentiary error based not on a tangible,

well-defined record, but rather on conjecture and surmise, does

not deserve a favorable answer.

For these reasons, we conclude that, when a judge

issues a provisional in limine pretrial order and clearly invites
__ ______

the adversely affected party to offer evidence at sidebar for the

purpose of reassessing the scope or effect of the order in the

setting of the actual trial, the exclusion of evidence pursuant

to that order may be challenged on appeal only if the party

unsuccessfully attempts to offer such evidence in accordance with

the terms specified in the order.12 Because appellant failed

to follow this well-marked path, we hold that he cannot now

complain about the trial court's handling of the contacts

____________________

12This rule is not without limits. For example, it will not
apply when the in limine order is itself final. Finality may
__ ______
inhere either in the nature of the judge's words, or in the
rationale of his ruling, or in both. See, e.g., Fusco v. General
___ ____ _____ _______
Motors Corp., 11 F.3d 259, 262-63 (1st Cir. 1993) ("Where a court
____________
rules in limine that certain evidence is excluded but the ruling
__ ______
is merely tentative or qualified, then the proponent might well
have to offer the evidence at trial in order to preserve an
appeal on the issue. But where the pretrial proffer is adequate
and evidence is excluded unconditionally by a pretrial order,
then we think that the proponent has preserved the issue for
appeal and (other circumstances being unchanged) need not . . .
proffer the evidence again at trial.") (citation omitted); Addo,
____
989 F.2d at 242 (distinguishing situations in which the trial
court stated that subsequent attempts to modify an in limine
__ ______
ruling would be useless or futile); see also Favala, 17 F.3d at
___ ____ ______
991 (noting rule that "the failure to follow up on the invitation
[to reconsider a motion in limine] constitutes a waiver" but
__ ______
finding no waiver in the particular case because the court
"clearly indicated" that its ruling was definitive); cf. United
___ ______
States v. Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir.)
______ _____________
(formulating three-part test to determine when the denial of a
pretrial motion in limine to exclude evidence, in the absence of
__ ______
a further objection at trial, will nonetheless preserve a right
of appellate review), cert. denied, 114 S. Ct. 334 (1993).
_____ ______

27














evidence.

IV. OTHER EVIDENTIARY ISSUES
IV. OTHER EVIDENTIARY ISSUES

In his final assignment of error, appellant suggests

that the district court erred in permitting the prosecution to

introduce, over objection, certain items of evidence that,

appellant says, were not satisfactorily authenticated. The

challenged evidence comprises a photocopy provided by Andrew Wong

(a purchaser of unlawfully exported firearms), and snapshots of

weapons displaying serial numbers matching for the most part

those listed on weapons in appellant's inventory. In addition to

questioning authentication, appellant also claims that, in all

events, the photocopy should have been excluded as hearsay. We

believe that this fusillade misses the mark.

A. The Photocopy.
A. The Photocopy.
_____________

In respect to the photocopy, we treat appellant's

authentication and hearsay challenges separately.

1. Authentication. Exhibit 17A purported to be a
1. Authentication.
______________

photocopy of a bank check in the amount of $2500, drawn on the

Bank of China at Hong Kong, bearing a date of December 20, 1988,

and made payable to appellant. To authenticate the proffer,

Dennis Kelly, a Customs agent, testified that Wong provided him,

via air courier from Hong Kong, with both the photocopy and a

three-page invoice in appellant's handwriting. This document,

admitted into evidence at trial as Exhibit 17, described, among






28














other things, a $2500 credit in Wong's favor.13

Appellant argues that the proof failed to eliminate a

googol of possibilities concerning the photocopy, e.g., that it
____

was a fake, or that the check was made at some time other than

the stated date, or that it was never delivered to appellant, or,

if delivered, that it was never negotiated. Additionally,

appellant argues that a finding of authenticity could not readily

be based on material emanating from Wong because Wong had soured

on him and was, therefore, a biased source.

It cannot be gainsaid that documentary evidence must be

authentic. The test of authenticity is straightforward: "The

requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what its

proponent claims." Fed. R. Evid. 901(a); see also United States
___ ____ _____________

v. Paulino, 13 F.3d 20, 23 (1st Cir. 1994); United States v.
_______ ______________

Arboleda, 929 F.2d 858, 869 (1st Cir. 1991).
________

There is no single way to authenticate evidence. In

particular, the direct testimony of a custodian or a percipient

witness is not a sine qua non to the authentication of a writing.
____ ___ ___

See Paulino, 13 F.3d at 23. Thus, a document's "[a]ppearance,
___ _______

contents, substance, internal patterns, or other distinctive

characteristics, taken in conjunction with circumstances," can,

in cumulation, even without direct testimony, provide sufficient


____________________

13On appeal, Holmquist does not contest the admission of
Exhibit 17 as a full exhibit.

29














indicia of reliability to permit a finding that it is authentic.

Fed. R. Evid. 901(b)(4); see also Paulino, 13 F.3d at 23; United
___ ____ _______ ______

States v. Newton, 891 F.2d 944, 947 (1st Cir. 1989).
______ ______

Issues of authentication are almost always fact-

sensitive. Consequently, when such issues arise, the trial court

must act as a gatekeeper. See United States v. Ladd, 885 F.2d
___ _____________ ____

954, 956 (1st Cir. 1989); see generally Fed. R. Evid. 104(a).
___ _________

"If the court discerns enough support in the record to warrant a

reasonable person in determining that the evidence is what it

purports to be, then Rule 901(a) is satisfied and the weight to

be given to the evidence is left to the jury." Paulino, 13 F.3d
_______

at 23. And since rulings of this nature often depend on the

trial judge's intimate knowledge of the case and the

protagonists, we review rulings accepting or rejecting claims of

authenticity only for mistake of law or abuse of discretion. See
___

Paulino, 13 F.3d at 23; United States v. McMahon, 938 F.2d 1501,
_______ ______________ _______

1508 (1st Cir. 1991).

Here, the district court noted that the purported bank

check was dated "Dec. 20, 1988"; that it was payable to "Steve

Holmquist"; and that it was for $2500. The court also determined

that Exhibit 17 (the three-page invoice in appellant's

handwriting) strongly corroborated Exhibit 17A; after all, agent

Kelly received the invoice in the very same package as the

photocopy of the check, and the invoice mentioned a $2500 credit

to Wong, thereby lending considerable credence to the proposition

that Holmquist received a payment (the bank check), acknowledged


30














its receipt, and credited Wong's account in the amount of the

payment.14 Given the totality of the circumstances, especially

the ties binding Wong to Holmquist, we agree with the lower court

that a jury could draw reasonable inferences connecting the

photocopy of the bank check to the invoice.

To be sure, appellant's objections are not entirely

without force. It is possible that the photocopy had been
________

doctored, or constituted an instrument through which Wong, for

whatever reason, aspired to carry out an elaborately staged hoax.

But the burden of authentication does not require the proponent

of the evidence to rule out all possibilities inconsistent with

authenticity, or to prove beyond any doubt that the evidence is

what it purports to be. Rather, the standard for authentication,

and hence for admissibility, is one of reasonable likelihood.

See United States v. McGlory, 968 F.2d 309, 328-29 (3d Cir.
___ ______________ _______

1992), cert. denied, 113 S. Ct. 1388 (1993); United States v.
_____ ______ _____________

Collado, 957 F.2d 38, 39 (1st Cir. 1992); see also 5 J. Weinstein
_______ ___ ____

& M. Berger, Weinstein's Evidence 901(a)[01], at 901-19 (1994)
____________________

(explaining that the trial court should admit evidence as

authentic "if sufficient proof has been introduced so that a

reasonable juror could find in favor of authenticity").

Here, mindful of the deference accorded to the trial

court's exercise of its discretion, we cannot say that the court

erred in declaring the photocopy of the bank check to be


____________________

14The handwritten invoice used the words "minus $2500,
12/29/88."

31














sufficiently authenticated, or in admitting it into evidence.

2. Hearsay. Appellant also suggests that, because the
2. Hearsay.
_______

photocopy was introduced to prove the truth of the matter

asserted, it was hearsay and, therefore, inadmissible unless it

fell within one of the exceptions to the hearsay rule. We need

not probe this point too deeply, for close perlustration of the

record makes it plain that appellant never advanced this

objection below.

During the trial, appellant made a cluster of

objections with regard to the photocopy of the bank check.

However, these objections focused on authentication, and

contained no developed argumentation in regard to hearsay

principles. To be sure, defense counsel at one point called the

photographs "totem pole hearsay," and, in a later colloquy,

applied the same epithet to the photocopy. But we think that

this elliptical reference carries little weight. Under

prevailing federal practice, objections to evidentiary proffers

must be reasonably specific in order to preserve a right to

appellate review. See, e.g., United States v. Walters, 904 F.2d
___ ____ _____________ _______

765, 769 (1st Cir. 1990); see also Fed. R. Evid. 103(a)(1). In
___ ____

other words, a litigant is obliged to "call [his specific

objection] to the attention of the trial judge, so as to alert

[the judge] to the proper course of action." United States v.
_____________

Piva, 870 F.2d 753, 759 (1st Cir. 1989) (quoting Notes of the
____

Advisory Committee on Evidence Rule 103(a)). A lack of

specificity bars the party aggrieved by the admission of the


32














evidence from raising more particularized points for the first

time on appeal. See Walters, 904 F.2d at 769; Piva, 870 F.2d at
___ _______ ____

759.

The rule is not a mere technicality, but is solidly

grounded in considerations of fairness and judicial economy. As

we said in Walters, 904 F.2d at 769: "The reason for such a
_______

requirement is to alert the trial court and the other party to

the grounds of the objection so that it may be addressed or

cured." Applying these precepts, appellant's hearsay argument is

by the boards.15

B. The Photographs.
B. The Photographs.
_______________

The district court also permitted the prosecution to

introduce nine photographs purporting to depict firearms that

appellant illegally exported to China. Each photograph showed

the serial number on the weapon portrayed therein. In the main,

these serial numbers matched two other sets of serial numbers:

the serial numbers of firearms that were transferred from ARMCO's

inventory to appellant, and the serial numbers listed in wire

transmissions from appellant to Wong. Agent Kelly testified that

he received these photographs during a meeting with Wong in Hong

Kong early in 1992.

____________________

15Of course, even without a sufficient objection, appellant
can obtain relief on appeal if the admission of the so-called
"hearsay evidence" sinks to the level of plain error. See
___
Griffin, 818 F.2d at 99-100. There was no plain error here. See
_______ ___
id. at 100 (describing plain errors as "those errors so shocking
___
that they seriously affect the fundamental fairness and basic
integrity of the proceedings conducted below," or, put another
way, those errors which must be noticed in order to prevent a
"clear miscarriage of justice").

33














In admitting the photographs, the district court

stated:

[B]ecause serial numbers appear on the
photographs and can be compared with the
serial numbers on other documents in evidence
in this case, it would be an extraordinary
inference that the guns that contained those
serial numbers could have been assembled at a
time before the documents were prepared that
are in evidence here.

* * *

[A] fact finder may reasonably draw the
inference that it's most unlikely that those
guns came into the hands of somebody who
could assemble them together, take those
photographs and those photographs then came
into the hands of the Government agent from
some source that would undercut the inference
that they were taken over by Steve Holmquist.

Appellant inveighs against this assessment, asserting

that the prosecution presented no evidence to show when, where,

why, and under what circumstances the photographs were taken.

This assertion is true but it is beside any pertinent point. A

photograph's contents, buttressed by indirect or circumstantial

evidence, can form a sufficient basis for authentication even

without the testimony of the photographer or some other person

who was present at the time it was taken. See, e.g., United
___ ____ ______

States v. Stearns, 550 F.2d 1167, 1171 (9th Cir. 1977); see also
______ _______ ___ ____

United States v. Clayton, 643 F.2d 1071, 1074 (5th Cir. 1981) ("A
_____________ _______

witness qualifying a photograph need not be the photographer or

see the picture taken; it is sufficient if he recognizes and

identifies the object depicted and testifies that the photograph

fairly and correctly represents it."). So here. At any rate,


34














the defense had a fair opportunity to cross-examine Kelly

concerning both the delivery of the photographs and his lack of

personal knowledge regarding their preparation. In the

circumstances at hand, no more was exigible.

We will not prattle. The lower court's assessment of

the situation is plausible; indeed, it makes abundant sense.

Based on it, the court concluded that the photographs were most

likely authentic, and permitted their introduction into evidence.

We think that this finding falls well within the realm of the

court's discretion.

V. CONCLUSION
V. CONCLUSION

We summarize succinctly. As for the importation

statute, 18 U.S.C. 542, appellant's proposed interpretation of

the materiality requirement is simply too restrictive; the better

definition is one that accounts for the possible effects of false

statements on the importation process as a whole. As for the in
__

limine order, which affects only the export charges, appellant
______

failed to perfect the exclusion-of-evidence challenge he now

seeks to advance. Finally, we find no merit in appellant's

complaints about the admission of other evidence.

We need go no further. Appellant's arguments are

legally impuissant and, therefore, his convictions must be



Affirmed.
Affirmed.
________






35