United States v. Ackerly

United States Court of Appeals
For the First Circuit

No. 19-1967

UNITED STATES OF AMERICA,

Appellant,

v.

DONNA M. ACKERLY, a/k/a DONNA KULMACZEWSKI,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Howard, Chief Judge,
Selya and Barron, Circuit Judges.

Stephen E. Frank, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
appellant.
Michael Kendall, with whom Yakov Malkiel and White & Case LLP
were on brief, for appellee.

November 24, 2020
 SELYA, Circuit Judge. A jury convicted defendant-

appellee Donna M. Ackerly of three counts charging her with wire

fraud, honest services wire fraud, and conspiracy to commit both

types of wire fraud. The district court granted Ackerly's motion

for a new trial upon finding what it deemed to be a violation of

the Confrontation Clause. See U.S. Const. amend. VI. Concluding,

as we do, that the government has failed to show reversible error,

we affirm the grant of a new trial.

I. BACKGROUND

We begin by rehearsing the relevant facts and travel of

the case. On August 10, 2016, a federal grand jury sitting in the

District of Massachusetts indicted Ackerly, along with Charles

Garske, Richard Gottcent, and Michael Sedlak, on charges of wire

fraud, honest services wire fraud, and conspiracy to commit both

types of wire fraud. See 18 U.S.C. §§ 1343, 1346, 1349. The

indictment alleged that the defendants were employees of

Georgeson, Inc., a proxy-solicitation firm that advises publicly

traded companies on matters requiring shareholder approval; that,

between September 2007 and March 2012, the defendants conducted a

fraudulent scheme, which consisted of bribing an employee of

Institutional Shareholder Services, Inc. (ISS), a firm that

provides voting advice to shareholders, in exchange for nonpublic

information about ISS's proxy-voting advice; and that the

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defendants concealed the scheme by falsely invoicing Georgeson's

clients for at least a portion of the cost of the bribes.

Trial began on February 26, 2018, before a jury of twelve

(which had been empaneled along with two alternate jurors). United

States v. Garske, 939 F.3d 321, 326 (1st Cir. 2019), cert. denied,

140 S. Ct. 1121 (2020). During the trial, the district court

excused three jurors for various reasons. See id. Although

Garske, Gottcent, and Sedlak consented to proceed with a jury of

fewer than twelve, Ackerly withheld her consent. See id. at 326-

27.

Ackerly's refusal had a domino effect: the government

refused to proceed with a jury of eleven unless all four defendants

acquiesced. See id. at 326. Faced with this impasse, the district

court declared a mistrial. See id. at 327.

Garske, Gottcent, and Sedlak responded to the mistrial

by moving to dismiss the indictment against them on Double Jeopardy

grounds. See id. On August 16, 2018, the district court ruled

that the Double Jeopardy Clause barred the government from retrying

Garske, Gottcent, and Sedlak and dismissed the indictment against

them with prejudice. See United States v. Ackerly, 323 F. Supp.

3d 187, 200-03 (D. Mass. 2018). Following the government's appeal,

we reversed. See Garske, 939 F.3d at 327, 336.

While that appeal was pending, the government proceeded

to retry Ackerly. See id. at 336 n.4. Ackerly's separate trial

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began on January 7, 2019. In its opening statement, the government

told the jury that the evidence would show that an ISS employee,

"a man named Brian Zentmyer . . . secretly passed information about

how ISS's clients were voting to one of Ackerly's colleagues at

Georgeson, Michael Sedlak, and Sedlak passed that information on

to Donna Ackerly and others." Although Zentmyer had testified to

that effect in the first trial and the government included him on

its witness list for Ackerly's separate trial, the government chose

not to call him as a witness the second time around.

In his place, the government called a cooperating

witness, Keith Haynes. Haynes — like Ackerly — was a senior

account executive at Georgeson. Haynes testified that he

participated in a scheme to bribe Zentmyer with expensive tickets

to sporting events and concerts in exchange for confidential

information. He also testified that others at Georgeson were

involved in the scheme. Along the way, Haynes recounted how he

received emails from Sedlak containing confidential voting

information and how he falsely billed Georgeson clients for some

of the cost of the tickets.

On the last day of Haynes' testimony, defense counsel

cross-examined Haynes about his decision to plead guilty. Haynes

responded that, at the time of his decision, he was unaware of

provisions in ISS contracts that appear to presume voting

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information to be nonconfidential unless an ISS client specified

otherwise.

On redirect examination, the government sought to

address Haynes' characterization of his knowledge at the time of

his plea. The following exchange transpired:

Q. You were asked what you were aware of at the time

you chose to plead guilty, correct?

A. Correct.

Q. You were aware -- Mr. Kendall asked you about Brian

Zentmyer's cooperation agreement?

A. About --

Q. Do you recall being asked whether Brian Zentmyer

was cooperating with the government?

A. Yes.

Q. You were aware at the time you pled guilty that Mr.

Zentmyer had also pled guilty to being involved in

a conspiracy --

MR. KENDALL: Objection.

Q. -- to steal confidential ISS information in

exchange for bribes?

The court sustained the objection and instructed the jury that

"the admitted guilt of others really is not relevant to this

specific defendant's guilt or non-guilt, as the case may be."

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 Ackerly nonetheless moved for a mistrial at the next

break in the proceedings. The court denied the motion, suggesting

that its corrective instruction following defense counsel's

objection, combined with a reiteration in final instructions,

would suffice to ward off prejudice. On the sixth day of trial,

Ackerly renewed her motion for a mistrial. In a supporting brief,

she argued that the government had violated the Confrontation

Clause by "expos[ing] the jury to Mr. Zentmyer's plea through a

prosecutor's comment, not through testimony." Denying this

motion, the district court indicated that it had "revised the jury

instructions on that point to try to more directly address the

issue [Ackerly] raised in the motion."

The case went to the jury on the following day. True to

its word, the court instructed the jury that "[a]rguments and

statements by lawyers . . . are not evidence" and that "[q]uestions

to witnesses are not evidence." Getting down to specifics, the

court explained that "Mr. Haynes and anyone else who may have pled

guilty may be presumed to have acted after an assessment of their

own best interest, for reasons that are personal to them, but that

fact has no bearing on Ms. Ackerly's guilt or innocence." Guilt

by association, the court said, cannot support a conviction.

After the jury charge, Ackerly requested an instruction

that the government had "violated [her] constitutional rights by

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referring to [Zentmyer's] plea." The court denied that request,

insisting that its curative instructions had defused any issue.

After deliberating, the jury convicted Ackerly. She

subsequently moved, in the alternative, for a judgment of acquittal

or for a new trial. The district court granted her motion for a

new trial, and this timely appeal ensued. We have jurisdiction

under 18 U.S.C. § 3731.

II. ANALYSIS

The issue before us is whether the district court abused

its discretion in granting Ackerly's motion for a new trial. In

arguing the affirmative, the government mounts two principal

contentions. First, the government contends that the

Confrontation Clause is not implicated as a matter of law because

the testimonial statement that the district court found

prejudicial was never admitted into evidence. Second, the

government contends that a single unanswered question, followed by

multiple curative jury instructions, could not — as a matter of

law — have violated the Confrontation Clause. And if either of

these contentions is correct, the government says, it would mean

that the district court applied too strict a standard of harmless-

error review. Compare Chapman v. California, 386 U.S. 18, 24

(1967) (holding that an error of constitutional dimension can only

be harmless if it is shown to be "harmless beyond a reasonable

doubt"), with Kotteakos v. United States, 328 U.S. 750, 776 (1946)

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(holding that a non-constitutional error is harmless unless the

error is shown to have had a "substantial and injurious effect or

influence in determining the jury's verdict"). We evaluate each

contention in turn.

A. Statement Not in Evidence.

As we approach the government's first claim of error, a

threshold question looms. Ordinarily, we review a district court's

grant of a new trial for abuse of discretion. See United States

v. Theodore, 468 F.3d 52, 56 (1st Cir. 2006). Here, the government

entreats us to follow suit. Ackerly demurs, maintaining that the

government is now attempting to advance an argument that it never

advanced below. On that basis, Ackerly asks that we review the

government's claim solely for plain error. See United States v.

Madsen, 809 F.3d 712, 717 (1st Cir. 2016). We start, therefore,

by evaluating whether the government "raise[d] [the issue]

squarely in the lower court" so as to avoid the daunting plain

error standard. United States v. Lilly, 13 F.3d 15, 18 (1st Cir.

1994); see also United States v. Taylor, 54 F.3d 967, 972-73 (1st

Cir. 1995) (explaining that under plain error doctrine, "appellate

courts will notice unpreserved errors only in the most egregious

circumstances").

The record tells the tale. The motion for a new trial

was not the first time that Ackerly raised the Confrontation Clause

as an objection to the prosecutor's question; she first articulated

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the argument in a written motion for a mistrial on the sixth day

of the trial. She again articulated the argument after the

district court had charged the jury, this time in the form of a

request that the jury instructions be amended to state that the

government had violated her confrontation rights. The district

court rejected both proffers without awaiting the government's

response. Consequently, the government's opposition to Ackerly's

motion for a new trial was the first opportunity for the government

to meet Ackerly's Confrontation Clause argument head-on.

In that motion, Ackerly set out her Sixth Amendment claim

with conspicuous clarity. Specifically, she asseverated that "the

government's disclosure of Zentmyer's plea violated her Sixth

Amendment rights" because an "alleged coconspirator's guilty plea

is a testimonial fact that cannot be admitted without an

opportunity for cross-examination." She also disputed the

effectiveness of the district court's curative instructions. All

in all, Ackerly made it luminously clear that she objected to the

prosecutor's question on Confrontation Clause grounds.

Responding, the government stated only that "Ackerly's

contention that the government 'improperly disclosed Zentmyer's

guilty plea' . . . is without merit." In this regard, it reminded

the court of the conclusions that the court had reached when

Ackerly raised the same objection earlier in the case: that "the

government's question 'was a brief one, and [the court's]

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instructions adequately addressed it.'" The government went on to

argue that "to the extent its question was error, that error was

arguably invited" by Ackerly's counsel's statements suggesting

that, when pleading guilty, Haynes was unaware that Zentmyer had

not committed a crime. In any event, the government said, the

error "was cured" by the court's instructions.

Taken as a whole, the most generous configuration of the

government's reasoning does not come within a country mile of a

denial that the prosecutor's question is a testimonial fact that

could not be revealed to the jury absent an opportunity for

confrontation. Although the government argued that the question

was not "improper," its rationale for that proposition never dealt

with whether asking the question presented a potential

Confrontation Clause issue. Instead — as the district court

observed when granting the motion for a new trial — the

government's response "essentially concede[d] the constitutional

violation."

The government counters that its arguments below were

adequately responsive under the ordinary new-trial standard

because they denied that the government's actions prejudiced

Ackerly. See United States v. Andrade, 94 F.3d 9, 14 (1st Cir.

1996) ("The remedy of a new trial . . . is warranted 'only where

there would be a miscarriage of justice' or 'where the evidence

preponderates heavily against the verdict.'" (quoting United

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States v. Indelicato, 611 F.2d 376, 386 (1st Cir. 1979))). In its

opposition to Ackerly's motion, it denied that the question

"irretrievably poisoned the proceedings," that the question

"caused a miscarriage of justice," or that the jury considered the

question in its deliberations. But whether the question was

prejudicial is a materially different issue from whether the

question violated Ackerly's constitutional rights. Cf. United

States v. Earle, 488 F.3d 537, 542 (1st Cir. 2007) ("If a

constitutional error has occurred, we must order a new trial unless

the government has shown that any error was 'harmless' beyond a

reasonable doubt."). And the government never contested the latter

issue before the district court.

The short of it is that the specific argument that the

government presses on appeal — that statements not admitted into

evidence cannot, as a categorical matter, work a Confrontation

Clause violation — is nowhere to be found in the record below.

The unvarnished fact is that, in its opposition to Ackerly's new-

trial motion, the government made no reference to the Confrontation

Clause at all. The government's orphaned claim of error is,

therefore, unpreserved. Cf. Lilly, 13 F.3d at 17-18 (finding claim

of error unpreserved when "current version" of party's argument

differed from that presented to district court). Accordingly, we

proceed to evaluate it under the plain error rubric. See id. at

18 n.6.

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 To prevail on plain error review, the government must

demonstrate "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected [its] substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001). Under this standard, the proponent

of "plain error must carry the devoir of persuasion as to all four

of these elements." United States v. Pinkham, 896 F.3d 133, 136-

37 (1st Cir. 2018).

In this instance, the government cannot clear the second

step of the "high" plain error "hurdle." United States v.

Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). At that step, the

government must show that the claimed error is "clear" or

"obvious." United States v. Olano, 507 U.S. 725, 734 (1993). And

to come within that taxonomy, the error must offend established

law. See United States v. Bennett, 469 F.3d 46, 50-51 (1st Cir.

2006) (discerning no clear or obvious error in light of conflicting

case law). In other words, only an "indisputable" error warrants

correction on plain error review. United States v. Jones, 748

F.3d 64, 69-70 (1st Cir. 2014). It is against this backdrop that

we proceed to examine the nature of the claimed error.

The government does not gainsay that a guilty plea

constitutes a testimonial statement under Crawford v. Washington,

541 U.S. 36 (2004). In Crawford, the Supreme Court held that the

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Confrontation Clause bars the admission of a witness's testimonial

statement against a criminal defendant unless the witness is

unavailable, and the defendant had a prior opportunity to cross-

examine the witness. See id. at 53-54. A guilty plea is the kind

of statement that we previously have found to fall within the

compass of the Confrontation Clause. See United States v. Ofray-

Campos, 534 F.3d 1, 23 (1st Cir. 2008) ("[W]here a missing co-

defendant does not testify, 'it is generally accepted that absent

agreement, courts and prosecutors generally are forbidden from

mentioning that a co-defendant has either pled guilty or been

convicted.'" (quoting United States v. Carraway, 108 F.3d 745, 756

(7th Cir. 1997))).

Even so, the parties diverge in their interpretations of

both Crawford and the reach of the Confrontation Clause. In the

government's view, the core function of the Confrontation Clause

is to foreclose the admission of testimonial statements when the

defendant has not been afforded an opportunity to cross-examine

his accuser. Under this view, "the Confrontation Clause is

implicated only where testimonial evidence is actually admitted

against the accused at trial." Ackerly, though, espouses a more

expansive reading. She submits that the Confrontation Clause bars

a criminal jury from considering statements by unconfronted,

absent, or silent witnesses. As relevant here, Ackerly says that

the Confrontation Clause not only prohibits the admission of

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unconfronted testimonial statements but also prohibits bringing

such statements to the jury's attention, regardless of whether

they are actually admitted into evidence.

On plain error review, we need not plot the exact

boundaries of the prophylaxis afforded by the Confrontation

Clause. Instead, it is enough for us to determine whether the

government's bright-line rule is one that is firmly settled in the

case law, such that the district court's purported error — finding

a constitutional violation even though an errant testimonial

statement was not admitted into evidence — was plain. We turn to

that determination.

Pre-Crawford case law suggests that statements not in

evidence sometimes can trigger a violation of a defendant's right

to confrontation. In Douglas v. Alabama, 380 U.S. 415 (1965), the

prosecution called to the witness stand the defendant's convicted

co-conspirator. Id. at 416. Because the co-conspirator intended

to appeal his conviction, he exercised his Fifth Amendment right

against self-incrimination and declined to respond to questions

about the alleged crime. See id. Treating the witness as hostile,

the prosecutor proceeded to cross-examine him. See id. The

prosecutor began to read the witness's purported confession in the

presence of the jury and paused every few sentences to ask the

witness if he had made the recited statements. See id. Still

invoking his privilege, the witness declined to answer these

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questions. See id. Although the document that embodied the

confession "was not offered in evidence," id. at 417, and both the

prosecutor's reading of the document and the witness's refusal to

answer "were not technically testimony," id. at 419, the Supreme

Court concluded that the defendant's inability to cross-examine

the witness deprived him of his right to confrontation because the

prosecutor's "reading may well have been the equivalent in the

jury's mind of testimony that [the witness] in fact made the

statement," id.

Shortly after Douglas was decided, we interpreted the

Confrontation Clause to bar the government from bringing to the

attention of the jury, in the form of questions, certain

information not admitted into evidence. See Robbins v. Small, 371

F.2d 793, 796 (1st Cir. 1967). There, the prosecution called a

witness who had signed a statement implicating the defendant. See

id. at 794. The prosecutor proceeded to ask the witness leading

questions about his statement, but he refused to answer on Fifth

Amendment grounds. See id. Following the defendant's conviction

in a state court, we noted on habeas review that the answer to

whether this exchange violated the Confrontation Clause

"depend[ed] on whether the prosecutor's conduct in the

interrogation of a witness at the trial deprived [the defendant]

of his right of cross-examination." Id. at 793. Applying Douglas,

we concluded that the proceedings contravened the defendant's

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right to confrontation because the prosecutor, through a series of

leading questions, "indirectly but effectively brought to the

jury's attention the substance of a statement that was not in

evidence and, therefore, not subject to cross-examination." Id.

at 795.

Decades later, the Supreme Court decided Crawford and

"depart[ed] from prior Confrontation Clause precedent in [some]

respects." Williams v. Illinois, 567 U.S. 50, 70 (2012). But it

is not readily apparent that Crawford abrogated Douglas. See

Crawford, 541 U.S. at 57 (citing Douglas with approval for the

proposition that the opportunity to cross-examine is dispositive).

The upshot is that it remains unclear whether Crawford drew a line

to exclude from Confrontation Clause protection testimonial

statements not admitted into evidence but nonetheless communicated

to the jury. We explain briefly.

The unconfronted statement before the Court in Crawford

had been admitted into evidence under the so-called indicia-of-

reliability test previously announced in Ohio v. Roberts, 448 U.S.

56 (1980). See Crawford, 541 U.S. at 40. The question of whether

a statement not admitted into evidence might violate the

Confrontation Clause was not before the Court. Rather, the Court

was asked to determine only whether the admission of the statement

was consistent with the Confrontation Clause. The Court held that

the Confrontation Clause reflects a concern with "testimonial"

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statements, id. at 51-52, and that such statements are not

admissible unless the witness is unavailable to testify and the

defendant had a prior opportunity for cross-examination, id. at

53-54. These holdings do not inform a court in deciding whether

a statement that was never admitted into evidence can — or cannot

— violate a defendant's right to confrontation.

Here, moreover, the government concedes that the

prosecutor's question constituted a testimonial statement. Thus,

the government must show, at a bare minimum, that not all hearsay

testimonial statements demand a prior opportunity for

confrontation. The government offers not a shred of authority in

this respect, and Crawford does the government no favors. See id.

at 68 ("Where testimonial evidence is at issue, . . . the Sixth

Amendment demands . . . unavailability and a prior opportunity for

cross-examination."); id. at 68-69 ("Where testimonial statements

are at issue, the only indicium of reliability sufficient to

satisfy constitutional demands is the one the Constitution

actually prescribes: confrontation."); cf. Jones, 748 F.3d at 69-

70 (concluding that because defendant "does not cite — and we

cannot find — any case . . . deciding [the issue] in his favor .

. . we are worlds away from a plain error").

The government tries to prop up its proposed bright-line

rule by reliance on the Supreme Court's post-Crawford decision in

Williams. Williams, 567 U.S. at 50. But Williams is at best

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peripheral to the rule for which the government is advocating in

this case. There, the prosecution called an expert witness to

testify about a forensic report not admitted into evidence. Id.

at 61-62. The Court found no Confrontation Clause violation

because the expert referenced the report to offer a basis for her

expert opinion, and not to show the truth of the matter asserted.

See id. at 71. The government here suggests that the fact that

the expert report targeted as testimonial hearsay in Williams was

not introduced into evidence, see id., was "significant" in the

Court's rejection of the defendant's Confrontation Clause claim.

But even assuming, for argument's sake, that the report's non-

introduction into evidence was a significant factor — as opposed

to a dispositive one — that assumed fact would not establish the

categorical bar that the government seeks to have us impose. The

more salient fact, we think, is that in Williams — just as in

Crawford — the Court was not tasked with evaluating the

applicability of the Confrontation Clause to statements not in

evidence. See id. at 56-57. The critical circumstance in Williams

was that the out-of-court statement was not admitted for its truth

and, therefore, fell categorically outside the protection of the

Confrontation Clause.1 See id. at 72; see also id. at 79 ("[T]he

1 Because the Williams Court considered the likelihood that
the trier of fact would mistakenly take an inadmissible
unconfronted testimonial statement as proof of the matter
asserted, see Williams, 567 U.S. at 72-73 ("[I]f petitioner had

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Confrontation Clause applies only to out-of-court statements that

are 'use[d]' to 'establis[h] the truth of the matter asserted.'"

(quoting Crawford, 541 U.S. at 59-60 n.9)).

Consistent with this view of the Court's reasoned

Confrontation Clause jurisprudence, post-Crawford cases in this

circuit have not read Supreme Court precedent to foreclose a

Confrontation Clause violation simply because an unconfronted

statement was not admitted into evidence. In Ofray-Campos, for

example, the trial judge, in response to a jury note, disclosed to

the jury the convictions of the defendant's alleged co-

conspirators. 534 F.3d at 15-16. Although that disclosure was

not in evidence, we ruled that the jury's exposure to this

information violated the defendant's right to confrontation. See

id. at 19. Nearly a decade later, we described that principle as

well-established. See United States v. Morosco, 822 F.3d 1, 12

(1st Cir. 2016) ("[C]aselaw has long recognized that a jury's

exposure to extrinsic information deprives a criminal defendant of

. . . his right of confrontation." (internal quotations omitted)).

That this circuit has long recognized Confrontation

Clause protection against extrinsic information disclosed to

elected to have a jury trial . . . there would have been a danger
of the jury's taking [the expert's] testimony as proof [of the
matter asserted]."), Williams seems to lend credence to Ackerly's
contention that an improper testimonial statement communicated to
a criminal jury — whether admitted into evidence or not — may
support a Confrontation Clause claim.

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juries, whether admitted into evidence or not, strongly suggests

that the government's bright-line rule is open to question. Adding

to the plausibility of this suggestion is our conclusion that no

controlling case law firmly establishes that only statements

admitted into evidence can violate the Confrontation Clause. On

plain error review, these uncertainties are sufficient to tip the

balance. We hold that to the extent the district court may have

erred in treating the prosecutor's improper statement as working

a Confrontation Clause violation — a matter that we do not decide

— that error was neither clear nor obvious. And because the

government has failed to carry the devoir of persuasion with

respect to the second element of the plain error construct, plain

error is plainly absent. See Pinkham, 896 F.3d at 136-37.

B. Effect of Subsequent Instructions.

The government's second claim of error is that a single

improper question, never answered and which was followed by

curative instructions from the district court, could not amount to

a violation of the Confrontation Clause. Once again, some stage-

setting is useful.

The district court reached two distinct conclusions in

ordering a new trial. First, the court concluded that the

prosecutor's improper question violated Ackerly's Sixth Amendment

right to confrontation. Second, the court applied the defendant-

friendly harmlessness standard applicable to claims of

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constitutional error, see Chapman, 386 U.S. at 24; Earle, 488 F.3d

at 542, and concluded that the discerned violation was not harmless

beyond a reasonable doubt.

During oral argument before this court, the government

waived any objection to the district court's determination that

the "harmless beyond a reasonable doubt" standard was not

satisfied. But the government says that what transpired in this

case did not sink to the level of a constitutional violation (and

that the harmlessness standard the district court applied was

therefore incorrect) because, inter alia, the prosecutor asked and

withdrew a single question before the witness could answer it and

the judge issued curative instructions.

Ackerly argues that the government's contention — that

no error of constitutional dimension can result when the witness

did not have an opportunity to answer the prosecutor's "isolated

question" and curative instructions followed — is new on appeal.

Accordingly, Ackerly asks that we review the government's second

claim, like its first, only for plain error. See Madsen, 809 F.3d

at 717. The government responds that its second claim is not new

and, thus, asks that we review it for abuse of discretion. See

Theodore, 468 F.3d at 56.

The government's boast that it preserved this claim of

error below is belied by the record. In support, the government

insists that the argument it now presents originated in the same

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language that we assessed in connection with its first claim of

error. This is wishful thinking: the government's reasoning below

did not posit that the district court's curative instructions

eliminated any possibility of a constitutional violation but,

rather, posited only that the curative instructions nullified any

prejudicial effect attributable to the improper question. And it

is crystal clear that the government's specific argument — that a

single question the witness did not have an opportunity to answer,

immediately followed by curative instructions, did not as a matter

of law violate the Confrontation Clause — was not made (or even

hinted at) in the court below. We therefore review the

government's second claim of error only for plain error.

Here, too, we start — and end — with the second step of

the plain error construct. The government, in essence, contends

that a single unanswered question presenting an unconfronted

testimonial statement was an infraction too minimal to rise to the

level of a constitutional violation when curative instructions

followed the question. But the government's suggestion that the

number of questions from the prosecutor factors into whether he

violated a defendant's right to confrontation and that a single

question is necessarily more innocent than a double whammy is

simply not supported by the case law. See United States v.

Marquez, 898 F.3d 1036, 1047-48 (10th Cir. 2018) (finding that "a

single question and a single answer" violated the defendant's right

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to confrontation); United States v. Spriggs, 591 F. App'x 149,

151-52 (3d Cir. 2014) (finding constitutional error because the

"single statement" at issue "was testimonial"); see also Ryan v.

Miller, 303 F.3d 231, 248-249 (2d Cir. 2002) ("[I]t is well

established in this Circuit that lawyers may not circumvent the

Confrontation Clause by introducing the same substantive testimony

in a different form," id. at 248). Critically, the Supreme Court's

watershed decision in Crawford does not turn in any way on the

number of times that a prosecutor insults a defendant's

Confrontation Clause rights. See Crawford, 541 U.S. at 68 ("Where

testimonial evidence is at issue, . . . the Sixth Amendment demands

. . . unavailability and a prior opportunity for cross-

examination."). Rather, Crawford suggests that the substance of

the statement at issue, namely, whether that statement is

testimonial, can alone trigger Confrontation Clause protections.

Where, as here, the government does not dispute that a statement

was testimonial, a fair reading of Crawford supports a conclusion

that a single unconfronted testimonial statement may work a

violation of a defendant's right to confrontation.

What is more, the notion that curative instructions may

downgrade a constitutional violation to some lesser status

conflates the question of whether an error occurred with the

question of whether the error was prejudicial. See Earle, 488

F.3d at 542. Effective curative instructions surely may lessen

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the deleterious impact of an unconfronted testimonial statement,

but they do not, as a matter of law, preclude a court from finding

a Confrontation Clause violation. See, e.g., United States v.

Maher, 454 F.3d 13, 23 (1st Cir. 2006) (finding Confrontation

Clause violation when "testimony was immediately followed by a sua

sponte [curative] instruction"). It is the unconfronted

testimonial statement that comprises the Confrontation Clause

violation, and curative instructions cannot suffice to put the

genie back into the bottle.

In mounting this novel argument, the government relies

heavily on Greer v. Miller, 483 U.S. 756 (1987). The government

tells us that Greer stands for the proposition that a court's

curative instructions ensure that the jury does not consider

statements presented in questions in rendering its verdict. That

is true as far as it goes — but it does not take the government

very far.

The government overreaches when it says that such

instructions "eliminate any possibility of a constitutional

violation to begin with." This gloss misreads Greer.

Greer built upon an earlier case, in which the Supreme

Court held that it would be "fundamentally unfair and a deprivation

of due process to allow the arrested person's silence to be used

to impeach an explanation subsequently offered at trial" where

Miranda warnings communicate the right to that silence. Doyle v.

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Ohio, 426 U.S. 610, 618 (1976). Relying on this rationale, the

Greer Court held that a Doyle violation occurs only when the trial

court "permit[s] the prosecution during trial to call attention to

[the defendant's] silence." Greer, 483 U.S. at 763. The sequence

of events in Greer — "a single question, an immediate objection,

and two curative instructions" — forestalled a finding of the

requisite attention. See id. at 766.

Because the claim in Greer was one of general "unfairness

as to make the resulting conviction a denial of due process," id.

at 765, an examination of whether an error occurred entailed a

different standard than the one applicable here. When a defendant

complains that the prosecutor's conduct rendered the trial

fundamentally unfair, a court must examine "the entire

proceedings" including any "special pains" taken by the trial court

to correct errors. See Donnelly v. DeChristoforo, 416 U.S. 637,

643-44 (1974) (determining whether "remarks, in the context of the

entire trial, were sufficiently prejudicial to violate

respondent's due process rights," id. at 639); Greer, 483 U.S. at

766; see also Hardy v. Maloney, 909 F.3d 494, 501 (1st Cir. 2018).

By contrast, when — as in this case — "specific guarantees of the

Bill of Rights are involved, [a court must take] special care to

assure that prosecutorial conduct in no way impermissibly

infringes them." Donnelly, 416 U.S. at 643. Consequently,

curative instructions do not wipe the prosecution's slate clean

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when the Sixth Amendment right to confrontation is implicated.

See Maher, 454 F.3d at 21-23. So viewed, it is apparent that no

applicable case law forbade the district court, as a matter of

law, from concluding that an error of constitutional dimension had

occurred. It follows — as night follows day — that we cannot find

plain error. See Jones, 748 F.3d at 69-70.

III. CONCLUSION

We need go no further. The district court found that,

in the circumstances at hand, the prosecutor's improper question

cannot be said to be harmless beyond a reasonable doubt. The

government has challenged the standard of harmlessness employed by

the district court, but it has eschewed any challenge to the

substance of the district court's finding. Given our conclusion

that no plain error inhered in the district court's choice of the

applicable standard of harmlessness, the judgment of the district

court must be

Affirmed.

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