dissenting:
As I said when writing my dissent to the original majority opinion, writing a dissenting opinion in the instant case is not a pleasant task. My name will be anathema to the hundreds of people who are seeking recoveries probably in excess of $1 billion, and my long-time friendship with Judge. Platt may suffer some stress. However, because I am convinced that Pan Am1 did not receive a fair trial, I would be shirking my duties as a judge if I did not say so. Before undertaking the unpleasant task of discussing where I *831believe the district court erred, I find it necessary to undertake the even more unpleasant task of commenting briefly upon my colleagues’ amended opinion, a substantial portion of which is devoted to a rebuttal of arguments that Pan Am never made.
Under the heading “The Alleged Oral Waiver” my colleagues state:
Defendants maintain that an FAA official granted them an oral waiver excusing strict compliance with certain FAA regulations, and that Chief Judge Platt abused his discretion when he disallowed their evidence purporting to demonstrate their belief in this waiver.
The fact of the matter is that Pan Am made absolutely no claim of waiver. It argued, and offered testimony to prove, that what it sought and obtained from FAA officials was not a waiver, but an “interpretation” of what it deemed an ambiguous regulation. One of the tasks of Raymond Salazar, Director-of Civil Aviation Security, and his staff was to promulgate regulations and thereafter to interpret them:
In that capacity we would — we, me, my staff would promulgate regulations, would provide interpretations, ...
Tr. 1254 (Salazar testimony). Interpretations of regulations were not required to be in writing. See United States v. Eastern Air Lines, Inc., 792 F.2d 1560, 1564 (11th Cir.1986). Richard Cozzi, Pan Am’s Director of Airport Security, described the practice as follows:
Q Is it your understanding, sir, that before a change can be made to the ACSSP there has to be an application in writing to the FAA?
A Yes.
Q And that only when there is a written process of-an application and an approval by the FAA, that the terms of the ACSSP can be changed?
A That’s true if an airline is requesting a waiver or something of that nature, yes. Not for an interpretation.
Tr. 5624-25.
As will be discussed below, the district court clearly erred in rejecting all evidence offered by Pan Am in support of its contention that it received and relied upon an oral interpretation from Salazar. Although my colleagues devote seventeen pages of their amended opinion to a discussion of the “oral waiver,” “government authorization,” and “mistake of law” defenses, none of these defenses was asserted by Pan Am or is relevant to the pertinent issue herein.
The following excerpt from the index of Pan Am’s brief is an accurate statement of the contentions that Pan Am actually made:
Introduction and Summary. .21
I. THE DISTRICT COURT ERRONEOUSLY EXCLUDED EVIDENCE SHOWING THAT 23 PAN AM LACKED THE STATE OF MIND NECESSARY FOR A FINDING OF WILFUL MISCONDUCT
A The Court Erroneously Excluded Evidence That Pan Am Believed That It Had 25 Obtained An FAA Interpretation That X-Ray Inspection Complied With The ACSSP
1. The Evidence of the Oral Interpretations Was Admissible to Show that Pan Am Did Not Have the State of Mind Necessary for a Finding of Wilful Misconduct. .26
2. The Evidence of Oral Interpretations Was Admissible to Show Pan Am’s Compliance with the ACSSP.29
a. The District Court Relied on Inapposite Decisions.29
b. No Written Application Was Required to Obtain an FAA Interpretation.. 31
Finally, on page 819 of their amended opinion, my colleagues come to the question of the defendant’s “State of Mind,” which they acknowledge to be “the ultimate issue in this Warsaw Convention ease.” The follow*832ing excerpt from Mr. Cozzi’s excluded testi-' mony will demonstrate exactly how the “ultimate issue” was reached and resolved and why the district court erred in not permitting the jury to hear the testimony:
Q When did the discussions of the Security Task Force take place?
A Discussions concerning the possibility of using x-ray to satisfy the ACSSP on interline baggage took place at the very first or at least second Security Task Force meeting.
The Security Task Force team was charged with writing sealed procedures, our developing manuals, and one of the very first things that Security Task Force needed to know is that did x-ray of interline baggage satisfy the ACSSP.
Q And what was done in that respect? A That question was presented to Mr. Dan Sonesen, and I must say that his first reaction was doubtful.
However, we requested that he contact our PSI [FAA.Principal Security Inspector] or whatever level was required within the FAA, and to report back to the task force as to whether x-ray met that intent.
At a subsequent meeting, Mr. Sonesen—
Mr. Pounian: Your Honor, I just want to note our objection on the record for hearsay from Mr. Sonesen.
The Court: Yes. It’s not admissible.
Mr. Shaughnessy: May I continue?
The Court: Yes.
Q Go ahead.
A Mr. Sonesen reported back at the subsequent task force meeting that he had had conversation with the FAA and requested interpretation of intent and he came back and told us that, yes, x-ray did in fact satisfy that section of the ACSSP. Q Why did the task force seek this clarification?
Mr. PouNiAN: Objection to the question, as clarification, your Honor. I think that it’s improper.
The Court: That’s the way they regard it, as a clarification of a statement that positive matching was required. That’s their interpretation.
Mr. Pounian: I just think that it’s leading, your Honor, in the context.
The Court: Sure, it is.
Q Why did you seek this clarification, Mr. Cozzi?
A We needed this clarification because the task force was charged with writing manuals and developing procedures, and we needed to know what direction those manuals and procedures were to take.
Q And were you anxious to have x-ray approved under Section XV.C.1.A?
A We were not anxious to have x-ray approved. We just needed to know what direction we were going in; if it had come .back that it was not approved, then we would have developed procedures without utilizing x-ray.
As it turned out, we were told that it was approved, and we wrote the procedures accordingly.
Mr. Pounian: Your Honor, I’m going to have to move to strike that answer, based upon hearsay from Mr. Sonesen.
The Court: None of this is, in my opinion, admissible either for hearsay reasons or for reasons you’ve indicated.
Mr. Pounian: I’m just saying for the purpose of presenting a record—
The Court: That’s his problem.
Mr. Pounian: I understand that, but I think Mr. Sonesen has to present the record, not Mr. Cozzi.
The Court: Even if they called Mr. Sonesen, it would still be hearsay.
Mr. Shaughnessy: Your Honor, the state of mind is the issue here.
The Court: It would still be hearsay.
Mr. Shaughnessy: Respectfully disagree, your Honor.
The Court: You can’t develop a unilateral state of mind.
Mr. Shaughnessy: It is not a unilateral state of mind. That’s the point.
Tr. 5617-19. The district court’s rulings on “hearsay” and “unilateral state of mind” -will be commented upon below.
Because, as in my dissent to the original majority opinion, I deem it necessary in the *833interest of uncontrovertible accuracy to quote at length from the record, I will not prolong this opinion by an extended eounterstatement of the facts. Indeed, what is perhaps the most crucial fact has been established by stipulation:
[Pan Am] insisted that a bomb contained in a suitcase would have been visible on x-ray. In fact, the parties stipulated to that fact.
Majority Opinion at 821.
It is worth noting, however, how this stipulation came into being. After Pan Am was satisfied that it could use x-ray examination of luggage, it purchased for the Frankfurt airport the most expensive up-to-date x-ray machine on the market, the Astrophysics Li-nescan X-ray Screening System.
Q Does your company make a larger machine than this?
A This is the largest machine we make. Q Does your company make a more expensive machine than this?
A No, sir.
Q At the time it was sold, was there a newer or more advanced state of the art machine than this?
A No, sir.
Tr. 5689 (testimony of Derek Kemp, an Astrophysics Company official).
Pan Am wanted the jury to see the machine and how it operated, and for this purpose it had the machine transported to the courthouse. For obvious reasons, plaintiffs’ counsel did not want the jury to have the benefit of this first-hand observation, and he stipulated what an examination of the machine would have shown. Although Pan Am should not have been required to accept this stipulation in lieu of actual observation, see United States v. Gantzer, 810 F.2d 349, 351 (2d Cir.1987), the district court gave it no choice. At the district court’s direction, the machine sat in the basement of the courthouse, alone and unobserved. The fact that plaintiffs’ counsel objected to a jury inspection is evidence in and of itself that the district court erred in not permitting it.
Solely to demonstrate the danger of unquestioned reliance upon my colleagues’ often-pejorative statement of facts, I address two excerpts from the majority opinion. Starting on line 22 of page 820, my colleagues say:
The most wilful disregard of passenger safety, bordering on the outrageous, was in December 1988 when Pan Am received an FAA Security Bulletin advising that the United States Embassy in Helsinki had received a telephone warning that a Pan Am flight from Frankfurt to London and on to New York would be bombed. (Helsinki Warning).
In pertinent part, the Helsinki Warning, with letters substituted for names, read as follows:
On December 5, 1988 an unidentified individual telephoned a U.S. diplomatic facility in Europe and stated that sometime within the next two weeks there would be a bombing attempt against a Pan American aircraft flying from Frankfurt, FRG to the U.S. An individual identified as “X”, who allegedly is in Finland, and a second individual identified only as “Y” and is in Frankfurt, are involved. According to the caller, “Y” will provide the device to “X” who will in turn provide it to an unidentified Finnish woman in Helsinki. The woman, would unwittingly take the device to Frankfurt and eventually onto the U.S. bound flight.
Plaintiffs’ Exhibit 33.
My colleagues’ discussion of the Helsinki Warning is in the nature of a half-truth that calls for exposition. Pan Am’s response to this warning, as described in the testimony of Wolfgang Schwab, a Pan Am supervisor at Frankfurt, was quite different than what my colleagues would have us believe:
Question: Prior to the Lockerbie disaster, had it been brought to your attention that there was a warning received by the United States Embassy in Helsinki to the effect that a Pan Am flight to the United States would be bombed?
ANSWER: Yes.
Question: Tell us, please, when and how that was brought to your attention?
Answer: I am not able to give you the exact point in time but it was certainly *834before Lockerbie, when we were told that a female Finnish passenger would try to smuggle a bomb aboard.
QUESTION: Where were you when this came to your attention?
ANSWER: At the airport.
Question: Where in the airport?
Answer: On the job.
Question: Were you warned to pay particular attention to all female passengers or only Finnish female passengers?
Answer: Particularly to a female Finnish passenger.
Question: Did you ever issue any instructions to look out for Finnish women or to pay particular attention to Finnish women?
Answer: Yes, I did.
Question: When was that?
Answer: Before Lockerbie.
Question-. What instructions or suggestions did you issue?
Answer: Now, I told the screeners and the staff that they were to pay particular attention to female Finnish passengers or woman [sic] coming from that region up there and I told them that one person would try to smuggle a bomb aboard a plane.
Question: Do you remember if you did it personally or if you asked someone else to do it?
Answer: I did it personally.
Tr. 1526-27.
Perhaps even more troubling to me is my colleagues’ statement at page 820, line 49 of their opinion that the Helsinki Warning was “deliberately” placed under a pile of papers on the desk of a Pan Am security officer. Needless to say, no page citation to the record accompanied the word “deliberately.”
Because no changes made in a majority opinion can alter the immutable record of the trial court, I now direct my attention once again to what occurred below.
•At one point near the end of the trial, Pan Am’s counsel said to the court:
Now, Judge, I would tell you, on a scale of 1 to 10, doing what I want' in this courtroom, I have been about a minus 2, or maybe imaginary numbers would be a better way to describe as the level to which I have gone.
Tr. 5104.
I have read the record dispassionately, and I completely agree with this observation. Plaintiffs’ attorneys were permitted to range far and wide with prejudicial, irrelevant testimony, while Pan Am’s counsel was precluded time and again from presenting relative and probative proof. Because I recognize that evidentiary rulings are largely discretionary, I will limit my discussion to what I deem the major reversible errors.
CONFLICT OF OPINION
At the outset, I want to state one clear and uncontrovertible fact: NO ONE KNOWS WHEN, WHERE OR HOW THE BOMB GOT ON THE PAN AM PLANE EXCEPT THE PERSON WHO PUT IT THERE.
The jury had to content itself with the expounding by plaintiffs’ “experts” of what my colleagues correctly term “Plaintiffs’ Causation Theory” (Majority opinion at 824). The accuracy of the supposition that a suit-ease carrying the bomb was sent unaccompanied from Malta to Frankfurt, was transferred there to a Pan Am plane in which it was flown to London, where it was transferred to the plane in which it subsequently exploded, was a crucial issue in the ease, because “Plaintiffs’ Causation Theory” was based upon Pan Am’s allegedly deficient baggage checks during the two transfers. If there were no transfers, there could not have been any wilfully deficient screenings. The district court permitted plaintiffs’ experts to testify in support of the supposition but precluded any testimony by defendant’s experts in opposition thereto. Having reviewed this proposed testimony of Pan Am’s experts that the district court kept from the jury, I am convinced that had the jury been permitted to hear this evidence, there is a strong likelihood it would have rejected plaintiffs’ contention that the bomb which exploded began its deadly journey in Malta.
*835The jurors who undoubtedly had suffered through the same experiences that many of us have, with missed planes and lost luggage during connecting airline flights, probably wondered how presumably clever and experienced terrorists reasonably could have expected an unaccompanied bag containing a bomb to travel from Malta to Frankfurt to London, through at least two sets of baggage checks, to be smuggled finally aboard Pan Am Flight 108 and explode only after the plane had left London. The jurors’ willingness to accept the plaintiffs’ theory undoubtedly would have been influenced in large measure by what Pan Am’s witnesses said.
Refutation of plaintiffs’ supposition was permitted from Wilfred Borg, the general manager of ground operations for Air Malta, one of the few witnesses produced by defendant whose testimony was admitted:
Q Let me show you what we have marked as Exhibits HF-1 through HF-15 in evidence. (Handing.)
A Thank you.
Q Looking at those exhibits, Mr. Borg, have you ever seen them before?
A Yes, I did.
Q Would you tell the ladies and gentlemen what those documents are, the whole package?
A That is the flight file or the ship’s papers for Flight KM-180, destined to Frankfurt in Germany on the 21st of December 1988.
Q When did you first see this particular flight file?
A I saw this flight file, the first time, in February ’89.
Q What were the circumstances under which you saw the flight file at that time? A Our office in Germany had received a request from the German police requesting us whether we had any passengers or baggage connecting to Pan American flights out of Frankfurt.
They said they were investigating this, they wanted this information in view of the Lockerbie incident in December, ’88.
Q And what did you do with respect to their request?
A The request was passed along to me by our office in Germany.
I requested the manager responsible to keep these records, to give me this relevant flight file. I went through it and gave the relevant replies to the German police. Q What were those replies?
A We had no passengers connecting on the flights out of Frankfurt.
We had no baggage destined to go in flights out of Frankfurt.
And, we had no unaccompanied luggage on that flight.
Tr. 5991-92.
Q. Now, sir, based upon everything that you’ve read and all the investigation that you did, are you able to tell this jury whether or not there was an unaccompanied bag on Flight 180?
A. No, there was no such bag.
Q. Were there any bags destined for Pan Am, any Pan Am flights? .
A. No, there are no bags.
Q. Any passengers destined for any Pan Am flights?
MR. Baumeister: Objection, leading.
The Court: Sustained. [???]
Tr. 6041.
The following testimony of Dr. Ariel Mer-ari of Tel Aviv University, an expert on terrorism and bombing, also would have shed unfavorable light on the Malta-origin “theory.” However, this testimony was kept from the jury.
Q. Do you think, sir, that it is conjectural how the bomb got on board?
A. Could you please rephrase the question.
Q. Do you know how the bomb got on board?
A. No, I don’t.
Q. Do you think any, based upon the readings you have done in this record, a fair-minded, honest, so-called expert, with a reasonable degree of professional certainty, could opine how the bomb got on board?
*836A. Well, of what I have read, including the trial transcripts, I cannot see how anybody can say with any degree of certainty how the bomb got on board.
Q. Do you have any level of familiarity with what our government has been saying with respect to the indictments of two Libyans?
A. Yes, I do.
Q. And have you had, to the extent you can discuss this in this forum, a conversation with any representatives of security or secret services of any governments on that subject?
A. Yes.
Q. Has whatever knowledge that has come to you through those discussions in any way changed your, view that an honest and reasonable chap cannot say to a reasonable degree of professional certainty how this bomb got on board?
A. No. I still feel that I don’t know how the bomb got on board and I don’t think that at this particular stage, before more intelligence information comes in, which may be a long time after the incident, in some cases, I still feel that I don’t know how the bomb got on board and I don’t think anybody knows for sure or even in any degree of reasonable certainty how the bomb got on board at this time, except for the terrorists, of course.
Tr. 6259-60.
Q. Is it possible that a bomb was smuggled on board Pan Am 103 by an unwitting cornier?
A. I think it is.
Q. Has that possibility been widely discussed secretly in the intelligence community?
A. Yes, it has.
Tr. 6258.
Even stronger refutation of the Malta the-, ory was given by Peter Gurney, a Scotland Yard bomb expert, whose testimony also was kept from the jury:
Q. Let me ask you this: Do you have an opinion based upon your review of the data made available to you of the existence of the fire system that existed in that Neus Toshiba bomb B 453 radio cassette?
A. I do have an opinion.
Q. What is it?
A. I cannot see how such a device could have been used on a multi leg journey with one of the earlier legs being of longer duration than the flight on which the explosion took place.
Tr. 4582.
Q. If you were a bomb designer wanting to blow up Pan Am 103 over the Atlantic Ocean on [sic] off the coast of the United Kingdom would you use the Air Malta routing suggested in this case?
A. I’m not a bomb designer. We often have to think like terrorist [sic] in order to combat them. I would think that that was very unlikely because air travel — there are many delays in air travel. Normally on the ground. So to work up the exact timing to get the thing to go off when you want it and not have it go off on the ground could be extremely difficult. This is used in a straightforward timer, sir.
Tr. 4588.
Finally, the defense made an unsuccessful offer of proof of testimony by Noel Koch, a security consultant for the United States Department of Defense. If Koch had been permitted to testify on the subject, he would have said that the Air Malta theory is “widely at variance with modus operandi of Middle Eastern Terrorist attacks and specifically attacks on U.S. airlines,” and that the “Air-Malta theory involves far too many variables to jibe with usual modus operandi.” He also would have testified that the Pentagon relies on x-rays to scan baggage.
Admittedly, a district judge has wide discretion in determining whether to admit evi-dencé. However, this discretion “may not be utilized to exclude the otherwise admissible opinion of a party’s expert on a critical issue, while allowing the opinion of his adversary’s expert on the same issue.” United States v. Sellers, 566 F.2d 884, 886 (4th Cir.1977); see also Breidor v. Sears, Roebuck & Co., 722 F.2d 1134, 1141 (3d Cir.1983). “Rule 403 requires even-handedness.” Goldberg v. Na*837tional Life Ins. Co., 774 F.2d 559, 565 (2d Cir.1985) (citing Sellers and Breidor, supra); see also United States v. Onumonu, 967 F.2d 782, 788-89 (2d Cir.1992). The district judge’s lack of even-handedness cannot be justified by his reliance on the indictment of two unapprehended, unquestioned and unapproachable Middle Eastern terrorists:
The CoüRT: And I must view the evidence that we’re talking about in that light, not in the light of a criminal ease, because we’re not in a criminal ease.
MR. Coddington: Exactly. And my submission to you is that you may not give any evidentiary weight to the fact of that indictment.
The Court: No. But I may give eviden-tiary weight, probable cause weight to the fact that a grand jury has returned the indictment. Not in a criminal case, but in the civil case, for purposes of, I may not so instruct the jury, but as a qualifier from my standpoint, I may give it that weight. In fact I .must.
Tr. 6187.
Neither can the lack of even-handedness be justified by the district court’s treatment as “facts” of evidence that my colleagues correctly characterize as theory and supposition.
The Court: The narrow question for this jury is given the facts in this case — and we know it’s a Toshiba radio and as to which there has been a specific warning and in which the bomb was, and there was a specific warning about the bomb being placed on a flight and so forth. Those specific warnings and not as to some other possible bomb, but as to that, how you handled it and how you handled it in Frankfurt and how you handled it in London Heathrow, the general lax procedures which they have described, if they find all of that to be wilful misconduct which was the proximate cause of the crash, that’s the issue for them to determine.
Tr. 5297-98. Needless to say, the “facts in this ease” were to be determined by the jury, not the judge.
Because the house of cards to the effect that the bomb entered the stream of commerce in Malta was constructed entirely of opinion testimony introduced by plaintiffs, simple justice required that defendant’s experts be given an opportunity to demolish it. Obviously any testimony concerning how the bomb got on the plane had to be conjectural. However, the burden of proof on this issue was on the plaintiffs, not the defendant. Pan Am nevertheless offered expert testimony to challenge plaintiffs’ contentions, which the district court refused to receive.
There can be no question but that conflicting expert testimony is admissible and that the jury, not the judge, decides how much weight to accord each expert’s testimony. United States v. Luschen, 614 F.2d 1164, 1170 (8th Cir.), cert. denied, 446 U.S. 939, 100 S.Ct. 2161, 64 L.Ed.2d 793 (1980). As one court put it, “court records are full of the conflicting opinions of doctors, engineers and accountants, to name just a few of the legions of expert witnesses.” United States v. Stifel, 433 F.2d 431, 438 (6th Cir.1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971); see also In re “Agent Orange” Product Liability Litigation, 818 F.2d 145, 172 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 647 (1988). “The mere fact that there may be conflicting testimony by experts is not a sufficient basis to exclude such evidence.” United States v. McBride, 786 F.2d 45, 51 (2d Cir.1986). Pan Am’s proposed experts did not attack the credibility of plaintiffs’ experts; they disagreed with the probative sufficiency of those experts’ testimony. The weight to be accorded the testimony of each expert was a matter for the jury to decide. United States v. Vitale, 549 F.2d 71, 74 (8th Cir.), cert. denied, 431 U.S. 907, 97 S.Ct. 1704, 52 L.Ed.2d 393 (1977).
If Pan Am’s experts were correct in opining that no expert could testify with any degree of reasonable certainty how the bomb got on the plane, the district court’s refusal to permit Pan Am’s experts to so testify meant that the district court deprived Pan Am of all means of contesting the testimony of plaintiffs’ experts on this important issue. The constitutional implications of such a result are obvious. “[T]he admission of a report containing ‘conclusions’ is subject to the *838ultimate safeguard — the opponent’s right to present evidence tending to contradict or diminish the weight of those conclusions.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 168, 109 S.Ct. 439, 449, 102 L.Ed.2d 445 (1988). Denial of this “ultimate safeguard” in the instant case was prejudicial reversible error.
WILFUL MISCONDUCT
A carrier covered by the Warsaw Convention cannot limit its liability to $75,000 if a plaintiff’s damages were caused by the carrier’s “wilful misconduct.” Wilfulness as thus used involves the issue- of intent, not an intent to violate an FAA regulation, but the intent to perform an act with knowledge that it probably will result in injury and with disregard of that probable consequence. See Grey v. American Airlines, Inc., 227 F.2d 282, 285 (2d Cir.1955), cert. denied, 350 U.S. 989, 76 S.Ct. 476, 100 L.Ed. 855 (1956); see also Ospina v. Trans World Airlines, Inc., 975 F.2d 35 (2d Cir.1992), cert. denied, — U.S.-, 113 S.Ct. 1944, 123 L.Ed.2d 650 (1993). The violation vel non of an FAA regulation, even if intentional, is not determinative of the issue of wilful misconduct under the Convention. Berner v. British Commonwealth Pacific Airlines, Ltd., 346 F.2d 532, 537 (2d Cir.1965), cert. denied, 382 U.S. 983, 86 S.Ct. 559, 15 L.Ed.2d 472 (1966). The issue of wilfulness or wrongful intent is an issue of fact to be resolved by the jury. Floyd v. Eastern Airlines, 872 F.2d 1462, 1489 (11th Cir.1989), rev’d on other grounds, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991); Pekelis v. Transcontinental & Western Air, Inc., 187 F.2d 122, 124 (2d Cir.), cert. denied, 341 U.S. 951, 71 S.Ct. 1020, 95 L.Ed. 1374 (1951); Hill v. United Airlines, 550 F.Supp. 1048, 1056 (D.Kan.1982); In re Pago Pago Aircrash of January 30, 1974, 419 F.Supp. 1158, 1160 (C.D.Cal.1976). Because the issue of intent, or state of mind, is crucial in any determination of wilful misconduct, the following generalizations concerning proof of intent will be helpful in the discussion that follows.
It is well established that a person’s state of mind is a fact question to be proved the same as any other fact. Chicago & N.W. Ry. Co. v. McKenna, 74 F.2d 155, 158 (8th Cir.1934). The state of a person’s mind is as much a fact as the state of the person’s digestion. Rogers v. Virginia-Carolina Chemical Co., 149 F. 1 (3d Cir.1906) (citing Edgington v. Fitzmaurice, 29 L.R.Ch.Div.459). Accordingly, a defendant generally is permitted to testify concerning his motive, belief and intent. McKenna, supra, 74 F.2d at 158. ‘Where a defendant’s intent is in issue he should be permitted to testify as to his motive and actual intent or state of mind.” United States v. Hayes, 477 F.2d 868, 873 (10th Cir.1973). Such evidence cannot be excluded on the ground that it is self-serving. United States v. Matot, 146 F.2d 197, 198 (2d Cir.1944).
In Crawford v. United States, 212 U.S. 183, 204-05, 29 S.Ct. 260, 268-69, 53 L.Ed. 465 (1909), which involved an alleged conspiracy to defraud the United States, the charge was made that the defendant took some correspondence from a corporate file for the purpose of destroying evidence against him. Defendant’s attempt to explain that he took the letter for a lawful purpose was rejected. The Supreme Court held that “[n]o material and proper evidence upon that issue should have been excluded, and the error committed was not, in our opinion, clearly shown to have been harmless.” In United States v. Harris, 942 F.2d 1125 (7th Cir.1991), which involved the question whether money paid to the defendant was intended as a gift, the court held that the trial court erred in rejecting letters that accompanied the payment on the ground they were hearsay. Id. at 1131. The court said that “[the defendant’s] belief about [the letter writer’s] intent decides the issue of willfulness, which is an element of the offense.” Id.; see also United States v. Detrich, 865 F.2d 17, 21 (2d Cir.1988); United States v. Kohan, 806 F.2d 18, 21-22 (2d Cir.1986); United States v. Kyle, 257 F.2d 559, 563 (2d Cir.1958), cert. denied, 358 U.S. 927, 79 S.Ct. 312, 3 L.Ed.2d 301 (1959); Fed.R.Evid. 803(3). In United States v. Rubin, 591 F.2d 278 (5th Cir.), cert. denied, 444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 87 (1979), the defendant was convicted of embezzling union funds by taking unauthorized salary increases. One of his defenses was lack of criminal intent. Because the facts of that case are *839strikingly similar to the facts of the instant case, I quote in full that portion of the Fifth Circuit’s opinion which found the rejection of the proffered evidence to be reversible error:
One of Rubin’s defenses in this case was lack of criminal intent. He claimed that because he interpreted the unions’ constitutions as allowing the salary increases, he was unaware that the increases were actually unauthorized. The constitutions, however, appear clearly to mandate a different procedure for obtaining salary increases from the procedure followed by Rubin. To explain why he nonetheless believed the salary increases were authorized, Rubin testified that his understanding was that the constitutions were not to be interpreted literally. Rubin wanted to explain further that both present and past presidents of the unions, those individuals given the duty of interpreting the constitutions, had told him that the constitutions were flexible, living documents that could be interpreted to fit the needs of a particular local. The trial judge excluded this testimony as hearsay.
The Federal Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801 (emphasis added). As Rubin explained at trial, he did not offer the statements to prove the truth of the matter asserted, but instead to prove that he had heard them and to establish their effect on his mind. See Dutton v. Evans, 400 U.S. 74, 88, 91 S.Ct. 210 [219], 27 L.Ed.2d 213 (1970). Thus, Rubin’s proffered testimony was not hearsay, and because it was relevant to his state of mind, it should have been admitted. See Fed.R.Evid. 401 & 402.
591 F.2d at 283.
A court has no right to reject testimony dealing with a person’s state of mind because it deems the testimony incredible or lacking in persuasive force. See Western Industries, Inc. v. Newcor Canada Ltd., 739 F.2d 1198, 1202 (7th Cir.1984); Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1154 (5th Cir.1981). Credibility and believability are for the jury, not the judge. United States v. Thompson, 615 F.2d 329, 332 (5th Cir.1980); see also Bowden v. McKenna, 600 F.2d 282, 284-85 (1st Cir.), cert. denied, 444 U.S. 899, 100 S.Ct. 208, 62 L.Ed.2d 135 (1979). “In the first place, credibility is a question for the jury; to permit the judge to exclude evidence on the ground that he thinks it incredible would be a remarkable innovation and may even be a violation of the right of trial by jury.” Wright & Graham, Federal Practice and Procedure: Evidence § 5214, at 265-66.
The concern expressed in the above authorities was reiterated by the' Supreme Court in the case of Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991); where it said, 498 U.S. at 203, 111 S.Ct. at 611:
Knowledge and belief are characteristically questions for the factfinder, in this case the jury. Characterizing a particular belief as not objectively reasonable transforms the inquiry into a legal one and would prevent the jury from considering it. It would of course be proper to exclude evidence having no relevance or probative value with respect to willfulness; but it is not contrary to common sense, let alone impossible, for a defendant to be ignorant of his duty based on an irrational belief that he has no duty, and forbidding the jury to consider evidence that might negate willfulness would raise a serious question under the Sixth Amendment’s jury trial provision.
The pertinence of the above legal generalizations in the instant ease is readily apparent. It cannot be gainsaid, for example, that resolution of the issue of wilfulness involves consideration by the jury of the mental processes of Pan Am officials. As stated above, the state of mind of these officials was a fact question to be proved the same as any other fact, and the district judge had no right to reject testimony dealing with this fact because he deemed it incredible or unpersuasive. As the Supreme Court said in Crawford v. United States, supra, no material and proper evidence upon the issue of the defendant’s intent should have been excluded, and the error committed by such exclusion was, not harmless. 212 U.S. at 205, 29 S.Ct. at *840268-69. We echoed this language in Vinieris. v. Byzantine Maritime Corp., 731 F.2d 1061 (2d Cir.1984), where we held that, because the issue of wilfulness was a crucial issue in the case, the trial court should have followed a liberal policy in admitting evidence directed toward that issue and that “[n]o evidence which bore even remotely on this issue should have been kept from the jury unless it interjected tangential and confusing elements which clearly outweighed its relevancy.” Id. at 1064. In United States v. Brandt, 196 F.2d 653 (2d Cir.1952), we reversed a mail fraud conviction, in language almost identical to that used in Vinieris, because the trial court rejected evidence aimed at establishing the defendant’s intentions. Id. at 657; cf. Mutual Life Ins. Co. v. Hillman, 145 U.S. 285, 294-98, 12 S.Ct. 909, 912-14, 36 L.Ed. 706 (1892). See also 29 Am.Jur.2d Evidence § 361, where the applicable rule is stated in language almost identical with that used in Vinieris:
Any evidence which has a material bearing upon the intent with which a person acted and which fairly tends to a disclosure thereof, or which is explanatory of the intent or purpose with which an act was done, or is to be done, is admissible.
The record is clear that both the district court and plaintiffs’ counsel had ample notice of Pan Am’s intention to offer evidence of Sonesen’s conversation with Salazar concerning the propriety of using x-ray screening. This intent was stated unambiguously in paragraphs 63-65 of the pretrial order:
63. In late 1986 or early 1987, Daniel Sonesen, System Director — Corporate Security and co-chairman of the Security Task Force, at the request of the other Security Task Force members, conferred • with the FAA concerning the use of X-ray security screening of interline baggage at Pan Am European stations and whether the X-ray security screening of such baggage met the requirements of Section XV. C.l.(a) of the ACSSP.
64. At that time, the FAA permitted X-ray security screening of many items, and the FAA advised Mr. Sonesen that X-ray security screening of interline baggage met the requirements of Section XV.C.l.(a) of the ACSSP.
65.Mr. Sonesen reported back to the Security Task Force that the FAA had said that X-ray screening of interline baggage met the requirements of Section XV. C.l.(a) of the ACSSP.
Moreover, both the court and plaintiffs’ counsel had copies of Sonesen’s pretrial depositions in which he testified about his conversation with Salazar. Plaintiffs’ counsel also had in his possession a copy of an E-mail message from Sonesen to Pan Am security officers that read as follows:
PER MESSAGE OF 10 MAR-88 ANSWER: THE DIR. FAA R. SALIZAR HAS GRANTED X RAY AS AND [sic] ALTERNATE TO SEARCHING PASS. BAGGAGE.
Knowing what Sonesen’s testimony would be, plaintiffs’ counsel decided to meet the evidence head on by placing the E-mail message in evidence as part of his affirmative case. He then offered the following testimony from Salazar:
Question: This document is something more than that, doesn’t it, sir? It says that you granted x-ray as an alternative, doesn’t it?
Answer: Yes, that is what the document says.
Question: You just said to me you never granted that to Mr. Sonesen?
Answer: That’s correct, I did not.
Question: You had never even spoken to Mr. Sonesen, did you?
Answer: About this issue, I have no specific recollection of speaking to Mr. So-nesen about this issue.
Question: Therefore, sir, if you didn’t grant permission to Mr. Sonesen, and he said in this document you did, isn’t that a lie?
Answer: It is an improper interpretation.
Question: It is an improper interpretation. I am not talking interpretation now of the procedures, I am talking about the statement: R. Salazar granted.
Is that statement accurate?
*841Answer: No, it is false.
Question: So that statement, as it goes, R. Salazar has granted, is a lie.
A VoiCE: Objection.
Answer: Again, it is only what — I can say it is here. It is a misrepresentation. It is not an accurate depiction of the requirements for air carriers operating out of those stations.
Question: Can we agree that when Mr. Sonesen said that you had granted, in this phrase, that that was a falsehood?
Answer: That was a falsehood.
Tr. 1279-80.
On the basis of Salazar’s testimony, the district judge made a colossal blunder by a sua sponte ruling that was so contrary to established legal precedent and simple justice that it smacked of a due process and Seventh Amendment violation — he declared that he would receive no testimony from Sonesen or any other Pan Am employee in support of Sonesen’s assertion of what Salazar had told him. Sonesen, whose proposed testimony was an important part of Pan Am’s defense, was branded a liar, and the district judge precluded Pan Am from attempting to prove that he was not. So far as the jury knew, a substantial part of Pan-Am’s defense was built upon a lie, or as plaintiffs’ counsel described it in summation, “a concocted piece of baloney.” Tr. 6895.
The district court correctly charged the jury that “the violation of FAA regulations and safety standards ... would not necessarily constitute willful misconduct.” Tr. 6557. However, because of the district court’s erroneous exclusions of evidence, this portion of its charge became meaningless. The district judge treated this case as if Pan Am were being prosecuted for criminally violating a federal statute and, relying on his erroneous interpretation of criminal law, precluded every attempt by Pan Am to demonstrate that it did not know or believe that the probable result of its conduct would be injury to the plaintiffs.
The Coukt: This whole thing starts at page 65 and it goes right on through to page 78 and it leads up to the very question we have been discussing now for days, namely, the FAA, the alleged FAA verbal authorization.
I don’t see what this has got to do with the price of beans, what his understanding of the ACSSP procedures are. He’s not in court here. The regulations speak for themselves.
I don’t see what basis this comes in under anyplace.
■ MR. Shaughnessy: Your Honor, this is a willful misconduct case.
The Court: I know it’s a willful misconduct ease, but willful misconduct is not excused by Sonesen’s version of an oral permission which is not admissible in the FAA. It is riot admissible. And that’s all this is.
Tr. 3958-59.
The Court: Whether it be offered for the purpose of authority or willfulness or anything else, it is out.
Tr. 3351.
The Court: It just doesn’t make any sense to me that anybody in his right mind would rely — would, in fact did rely on any such permission. It just didn’t exist.'
Tr. 4789.
Mr. Shaughnessy: So I take it that all of the conversations among these people are out?
The Court: Obviously they’re not objecting to it, but I’m going to sustain those three questions that he’s objected to and I’m going to — you might as well know now that I’m going to sustain the questions and answer on page 78.
Mr. Shaughnessy: I understand, your Honor.
The Court: And anything else that they object to in between Em going to sustain because I think it’s irrelevant.
Tr. 3962.
The district judge even precluded Pan Am from showing that FAA officials 'inspected Pan Am’s operations both before and after the bombing and made no complaints of irregularities. The district judge’s ruling on this issue is illustrative of his mind-set.
The Court: I’m satisfied, Mr. Shaugh-nessy, this is another back-door method of getting Mr. Sonesen’s unilateral interpretation of his authority to bury the FAA *842regulations before this jury. I don’t like you doing it.
I think the next time you attempt to do it you should alert the Court that this is what you’re attempting to do. I have ruled upon it.
Had you gotten this before the jury before alerting me and one had been asleep, I probably would have had to declare a mistrial. We’re six weeks into this trial.
The law has been stated by me to be that based upon two Second Circuit decisions, both of which went to the Supreme Court and certiorari was denied, you have promised me that you were going to show me the law was otherwise. You haven’t.
You may not do this.
I don’t know how I can make myself clearer.
MR. Shaughnessy: .All I wanted was to ask the witness—
The Court: You attempted to get this FAA report in before this jury with, knowing that this man was operating under this assumption, that what they were doing was correct and was in direct violátion of the FAA regulations, and he was doing it on the basis of this verbal authorization of Mr. Sonesen who said he had reached him.
According to FAA officials, testified he didn’t have, and the regulations themselves say he couldn’t have, and you can’t do it.
You do it again and I’m going to have to take appropriate action.
Tr. 4365-66.
FAA’s policy in looking for violations of its regulations is well known:
... [W]hen we feel there is a serious violation or serious numbers of violations that requires significant deterrent effect, we have been forced to go out and scrape up every possible violation of the Regulations that is appropriate in order to compute these large penalties.
Testimony of Clark Onstad, Chief Counsel, FAA before the Subcommittee on Aviation of the Committee on Public Works and Transportation, House of Representatives, 96th Cong., 2d Sess. July 1, 1980, Record of Hearing on H.R. 7488 at 38.
FAA v. Landy, 705 F.2d 624, 638 (2d Cir.) (Van Graafeiland, J., concurring in part and dissenting in part), cert. denied, 464 U.S. 895, 104 S.Ct. 243, 78 L.Ed.2d 232 (1983).
A threat of contempt for attempting to introduce evidence that FAA officials who, after personally inspecting Pan Am’s operations found no fault with them, is pretty strong medicine. However, it illustrates once again that the district judge was fully aware of what Sonesen’s testimony would have been. For further evidence of this knowledge, see the following excerpts from the record:
The Court:
As I understood, your position is somebody in the FAA, I don’t know who, told Sonesen or somebody in Pan Am verbally once they had the x-ray machine they didn’t have to physically search a couple of bags.
Mr. Shaughnessy: That’s correct.
The Court: That is your position.
Mr. Shaughnessy: I understand.
Tr. 1138-39.
The Court:
Mr. Sonesen’s testimony was, as I recall it, and it’s right here before us, Sonesen’s testimony was that I got this verbal permission from Salazar, we discussed it up and down the hierarchy which would include' these discussions here right up to what’s his name.
Tr. 3960.
The Court: Salazar had the authority, but there has been nothing produced in writing and Sonesen said he got it orally and he acted' on it orally and he told all of these people that he had the authority from the FAA and it’s irrelevant what he told people in the Pan American organization on this subject, because he didn’t have the authority.
Tr. 3961.
I regret that my colleagues, in their zeal to support the outcome of an obviously unfair trial, advance the fallacious argument that a formal proffer of Sonesen’s testimony was essential. See Massachusetts Mutual Life Ins. Co. v. Brei 311 F.2d 463, 465 n. 1 (2d Cir.1962); Charter v. Chleborad, 551 F.2d 246, 248-49 (8th Cir.), cert. denied, 434 U.S. 856, 98 S.Ct. 176, 54 L.Ed.2d 128 (1977).
My colleagues go equally astray in arguing that Pan Am waived its objection to the *843district judge’s erroneous exclusion of evidence by refusing to accept the following offer of the district court made after two months of trial:
On the so-called verbal authorization, I didn’t think they would be able to come up with any eases. Of course, they haven’t come up with any cases, which changes the law in this circuit.
If they want me to give the jury an instruction to disregard the testimony that came in at the outset of the case before I understood what the issue was, I will be glad to give that instruction.
But I rather suspect they don’t want me to highlight it at this point. But if they want me to, I will be glad to tell them that they are to disregard any such conversations between Salizar [sic] and they are to draw no inference one way or the other from it because it is irrelevant to this case, and Sorenson [sic]. But it is not admissible.
Tr. 4787-88.
This offer was an obvious, but inevitably unsuccessful, attempt by the district court to mitigate its earlier blunder. The district court knew that plaintiffs’ expert witness, Rodney Wallis, had the pertinent portions of Salazar’s testimony recorded on acetate, which Wallis displayed to the jury during what Pan Am’s counsel accurately described as Wallis’s pre-summation summation. In the course of this lengthy summation, a questionable practice at best, Wallis made the following comments concerning Salazar’s testimony:
And the reason I selected these was because I talked of violation, and this was showing me what the violation was.
Tr. 2945.
And I picked that out because, as I say, to me, it pointed me in a direction. It indicated what was the requirement.
Tr. 2947.
So. This was saying to me what the rules were, what the requirement was.
Tr. 2948.
So, that was the message that I was getting from the Salazar testimony, ...
Tr. 2949.
The above-quoted testimony, which constituted a “positive assessment of the trustworthiness and accuracy” of Salazar s testimony, clearly should not have been admitted. United States v. Scop, 846 F.2d 135, 142 (2d Cir.1988), and see modified opinion in Scop, 856 F.2d 5 (2d Cir.1988), emphasizing inadmissibility. However, it was admitted, and neither the district court nor plaintiffs’ counsel suggested that the jury might be instructed to disregard it. This was understandable, of course, because of the important role that Salazar’s testimony played in Wallis’s opinion. .
Moreover, the suggested instruction that the jury disregard “any such conversations between Salazar and they are to draw no inference one way or the other from it because it is irrelevant to this case,” followed by the statement that Sonesen’s testimony remains inadmissible, simply demonstrates the district court’s misunderstanding of the law. An instruction to the jury that the conversation between Sonesen and Salazar was irrelevant and should be disregarded would deprive Pan Am of one of its major defenses, i.e., its lack of wilfulness based on that very conversation. The undeniable fact is that the subjective proof of Sonesen’s understanding was highly relevant, and Pan Am’s counsel would have been foolish to stipulate otherwise. Pan Am’s counsel’s refusal to leap at the court’s suggestion demonstrates that he had a better understanding of the applicable law than the district court or my colleagues have demonstrated.
Time and again, Pan Am’s counsel explained his position to the district court, all to no avail:
The meetings that are referred to there, testimony of Mr. Sonesen, I don’t know whether Mr. Baumeister is going to read any of his deposition, was that there was a discussion at that meeting and that at that meeting Mr. Salazar said specifically that in connection with ICAO 514 and London Heathrow Airport in particular, that x-ray was a suitable alternative to the bag match.
Now this is a willful misconduct case, your Honor, in which Mr. Sonesen, the *844plaintiffs are claiming they willfully disregarded this provision, 1501(a). If the jury believes Mr. Salazar that in fact the discussion was limited to ICAO 514, they still could believe that Mr. Sonesen, based on the meeting and what was discussed, could have believed, legitimately believed, that x-ray was a suitable alternative and that Mr. Salazar had said that.
This is a willful case, your Honor.
Tr. 1294-95.
The district judge never budged from his misunderstanding of the law:
The COURT:
The proposition before us is that Sone-sen says — Sonesen not being Pan Am corporation, about whom we are talking, but only an employee of Pan Am. Sonesen says he got verbal permission from Salazar. The cases are quite clear, that that is inadmissible under the issue of lawfulness or otherwise, and I have never seen anything at the moment, recently, that casts any doubt on it.
Tr. 3376.
The Court: Ever heard the expression, an individual may not bind the government?
Mr. Coddington: Ever heard the expression that an individual may not bind the government? Yes, I have.
The Court: The government enacted a regulation or promulgated a regulation, I may not take off my robe, I may not work until executive capacity authorizes to make that. United States against Sorenson [sic] regulates, while on this subject, said: Whoever had the authorization from the DIA and C.I.A. to smuggle guns to Russia, and so forth and so on, and the 2d. Circuit upheld, may not do that verbally. That’s the law.
This theory of yours, if you have verbal authorization from somebody to violate a regulation, I will have to charge the jury that an individual may not do that.
Mr. Coddington: Well, certainly I’m happy to brief that.
The Court: Brief it all you want, because I sweated blood over this issue, because this was really quite serious. This was the business of taking armaments from this country and swapping it over from Russia, all on the okay of D.I.A. and C.I.A., And I wouldn’t let them put that defense before the jury, and the 2d. Circuit said I was right. I went through a tremendous amount of research and wrote an opinion on this, and it was published, United States -vs- Schwartz. You may not as an individual authorize somebody to do something against the regulation, whether you are high-ranking. I don’t think the President may do it. I didn’t have to decide.
Tr. 3219-20.
The Court: In any event, nobody approved this in writing.
So the whole defense is a non-entity.
I know you don’t want to get rid of it from your mind, but there it is. If you want to stop the trial and mandamus me to the Second Circuit and have your ears pinned back, fine.
But that’s it, that’s the ruling, you’ve got to live with it. You’ve got to stop trying to sneak it in through the back door or I’m going to have to take appropriate action.
Tr. 3965.
The Court-.
You might have some validity to it if — if there was any kind of an acknowledgment from Salazar that he — that he had any such conversation, but he emphatically denies it.
Everybody says it is not within anybody’s power to give it or — and the regulation itself says you’ve got to have any modification in writing.
It just doesn’t make any sense to me that anybody in his right mind would rely — -would, in fact did rely on any such permission. It just didn’t exist.
Tr. 4789.
The cases of United States v. Duggan, 743 F.2d 59 (2d Cir.1984), United States v. Schwartz, 924 F.2d 410 (2d Cir.1991) and United States v. Berg, 658 F.Supp. 253 (E.D.N.Y.1987) (affirmed in part by Schwartz, supra), so heavily relied upon by the district court and my colleagues, do not *845support their interpretation of the applicable law. Those cases involved alleged violations of criminal statutes, not the tort issue of whether the defendant wilfully placed the decedents in a position of danger. Moreover, as we stated in Duggan, 743 F.2d at 83, “[t]here is an exception [to the mistake of law rule] for legitimate reliance on an official interpretation of law.” See, e.g., United States v. Laub, 385 U.S. 475, 487, 87 S.Ct. 574, 581, 17 L.Ed.2d 526 (1967) (“Ordinarily, citizens may not be punished for actions undertaken in good faith reliance upon authoritative assurance that punishment will not attach.”); see also United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 675, 93 S.Ct. 1804, 1817, . 36 L.Ed.2d 567 (1973). Finding in Duggan that the defendants had not received an “official interpretation of the law” we held that the defense of mistake of law was not available to them. See 743 F.2d at 83-84. We returned to that theme in United States v. Schwartz, supra, where we said:
Since Schwartz had no authority to authorize the crimes charged against them, Berg and Lisbona may not claim reliance on whatever account he might have given them.
924 F.2d at 422. The authority of Raymond Salazar, Director of FAA Office of Civil Aviation Security, to interpret regulations which he and his staff had promulgated cannot be disputed.
My colleagues, I suggest, also err in their interpretation of Cheek, supra, to the effect that the holding therein applies only to tax cases. Cheek stands for the general proposition that “the standard for the statutory willfulness requirement is the ‘voluntary, intentional violation of a known legal duty.’ ” 498 U.S. at 201, 111 S.Ct. at 610 (citations omitted). It also holds that a good-faith belief that one is not violating the law, if it is to negate wilfulness, need not be objectively reasonable.
Knowledge and belief are characteristically questions for the factfinder, in this ease the jury. Characterizing a particular belief as not objectively reasonable transforms the inquiry into a legal one and would prevent the jury from considering it.
Id. at 203, 111 S.Ct. at 611.
Wilfulness, in short, is a question of fact for the jury. See Floyd v. Eastern Airlines, Inc., supra, 872 F.2d at 1489; Pekelis v. Transcontinental & Western Air, Inc., supra, 187 F.2d at 124; see also United States v. Ingredient Technology Corp., 698 F.2d 88, 97 (2d Cir.), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983). A trial judge cannot take the question from the jury and answer it himself by applying his own objective standard of wilfulness. This is the clear holding of Cheek. See also Ratzlaf v. United States, — U.S.-, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), where the Supreme Court interpreted the language of 31 U.S.C. § 5322, which forbids a person from wilfully violating the antistructuring provisions of sections 5322(a) and 5324. Justice Ginsburg, writing for a five-judge' majority, said: “To establish that a defendant ^willfully violated]’ the antistructuring law, the Government must prove that the' defendant acted with knowledge that his’ conduct was unlawful.” Id. at-, 114 S.Ct. at 657; see also id. at -, 114 S.Ct. at 663 n. 19.
We would be blinking reality if we did not hold that the district judge’s erroneous rulings were prejudicial. Indeed, as disclosed by the following excerpt from the argument on appeal, plaintiffs’ counsel admitted as much:
Judge Van GraafeilaND: Let me ask you this, Mr. Kreindler: If I read the record, I listen to your argument and I read the record, and I decide that Judge Platt said I’m not going to hear from Mr. Sonesen no matter what, would you concede that that is very prejudicial error in this case?
Mu. KREINDLER: Under those circumstances, yes. But that’s not what happened. That’s—
Judge VAN Graafeiland.- I’m not asking you that. I’m asking you if I read this record and I decide that that is what happened — leave this offer of proof business out — if I decide that Judge Platt just simply said, I’m not going to hear Mr. Sone-*846sen, that would be prejudicial error; wouldn’t it, in this case?
MR. Kreindler-. Your Honor, even—
Judge Van Graafeiland: Counsel, wouldn’t it be prejudicial error?
Mr. Kreindler: Of course, if the judge were hearing—
Judge Van Graafeiland: Of course, it would. Then we have got the issue: did he refuse to hear him, or didn’t he?
Mr. Kreindler: No.
Judge Van Graafeiland: All right, that’s the issue. I’ll read the record very carefully, Mr. Kreindler.
Moreover, the district judge himself recognized the crucial importance of Sonesen’s testimony when he said, “You’re in trouble if this is your defense.” Tr. 3355-66.
No one, I suggest, can dispute the proposition that even-handedness is the sine qua non of a fair trial. A trial is not a “game of blindman’s buff.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). It is a “search for the truth.” 8 Wright & Miller, Federal Practice and Procedure § 2001, at 14. That search will succeed only if the trial court recognizes the right of each party to present its evidence and to rebut that of its opponent, a right that “is a fundamental element of due process of law.” See Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). It is a rule as old as the proverbial hills that when a party opens a subject in its case in chief, its opponent is entitled to offer evidence on the same subject, i.e., to explain, repel, counteract or disprove the evidence that the party introduced. See, e.g., United States v. Touloumis, 771 F.2d 235,241 (7th Cir.1985); United States v. Finis P. Ernest, Inc., 509 F.2d 1256, 1263 (7th Cir.), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 124 (1975); United States v. Mallis, 467 F.2d 567, 569 (3d Cir.1972); Luttrell v. United States, 320 F.2d 462, 464 (5th Cir.1963); 1 Wigrmre on Evidence § 15, at 740.
In view of the. definitive holding of the Supreme Court in Cheek, supra, that a good-faith misunderstanding of the law or a good-faith belief that one is not violating the law need not be objectively reasonable in order to negate wilfulness, the district court’s ruling for the “425th time” that Salazar’s verbal permission was “not in this case,” Tr. 3959, was clearly and prejudicially erroneous.
Even my colleagues concede that the district court erred in excluding evidence of British Airway regulations which, in the face of bombings by Irish terrorist organizations, permitted Pan Am and other carriers to x-ray unaccompanied baggage at Heathrow Airport. I regret that in my colleagues’ apparent eagerness to affirm, they hold this error to be harmless. It was not harmless. It went squarely to a crucial issue in the ease, i.e., whether Pan Am knew that its use of x-ray screening probably would result in injury.
Evidence that, shortly after the Lockerbie accident the FAA amended its regulations so as to clarify the permissible use of x-ray screening, also went squarely to the issue of whether Pan Am should have anticipated danger in its pre-amendment use of x-rays. The district court’s refusal to permit the jury to receive this evidence exacerbated all of the court’s similar rulings that pervaded the trial. In short, it was another indication that the district court misunderstood the law. The issue was not whether Pan Am violated the regulation; it was whether Pan Am used x-ray screening with knowledge that its use would probably result in injury or in reckless disregard of the probable consequences.
DAMAGES
In my dissent to the original majority opinion, I expressed concern over my colleagues’ handling of the question of damages. However, since my colleagues now agree that the cases must be returned to the district court for retrial on the issue of damages for loss of society and parental care, I will not repeat what I have already said.
CONCLUSION
Whenever, as here, an appellate court affirms a judgment based on opinion and conjecture, it faces the nagging possibility that someday the truth will out and prove the conjecture wrong. If the erroneous judg*847ment was the culmination of a fair trial, the appellate court, although unhappy with its role in the error, need have no feeling of guilt or remorse. This would not be true if the errors below either were ignored or termed “harmless.” Needless to say, I do not want someday to find myself in the latter unhappy situation.
If all of the irrelevant and prejudicial evidence dealing with such matters as television commercials and the private lives of Pan Am employees, together with the colloquies of court and counsel arising out of the district court’s “425”- erroneous rulings, were eliminated from this case, it could be retried in several weeks. My colleagues now agree that the case must be retried in part on the issue of damages. Particularly in view of the fact that the outcome in over two hundred claims hinges upon the judgment in the instant case, justice demands that the matter be remanded in its entirety so that it can be tried fairly.
Except for the remand to the district court on the damages issue, I dissent.
. The dissent will hereinafter refer to defendants Pan American World Airways, Inc. and Alert Management Systems, Inc. as Pan Am or defendant.