concurring and dissenting.
I concur in that portion of the court’s opinion which holds that the district court did not err in excluding testimony concerning Moore’s practices in handling financial statements.
I respectfully disagree with the court’s holding that the district court abused its discretion in excluding Exhibit C. If this case presented a close question on the sufficiency of the evidence, I might well agree that Mulder suffered prejudice as a result of the district court’s ruling. When viewed in the light of the overall strength of the government’s case, however, Exhibit C’s probative value would have been so slight that its exclusion does not undermine my confidence in the verdict. As the government points out, Exhibit C was prepared by a bank in Russell, Minnesota, and not by Moore. Moreover, five of the six financial statements submitted by Mulder to Corn Exchange Bank were dated after October 18, 1991, the date shown on Exhibit C.
At best, then, Exhibit C would have constituted a straw floating on the massive sea of evidence against Mulder. Thus, the district court’s error in excluding the exhibit, if error at all, was harmless.
I would affirm the conviction.