Concurring:
I am pleased to join the majority in all but Section I.B of the opinion. The majority acknowledges that guilt-assuming hypothetieals may not properly be asked of opinion witnesses in every case. The majority holds that such a question was permissible in this case, however, based on a perceived distinction between reputation and opinion character witnesses. The majority concludes that the question asked of Pennington (who offered both opinion and reputation testimony) was relevant and its hypothetical nature was clear, thereby assuaging any concern with respect to the presumption of innocence. I respectfully disagree. However, because the error in permitting the questioning was harmless, I concur in the result.
“ ‘The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.’ ” Taylor v. Kentucky, 436 U.S. 478, 483, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978) (quoting Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895)). Because of the potential of guilt-assuming hypothetieals to impair this presumption, the majority of circuits have held that they are not permissible, whether asked of reputation or opinion witnesses. The distinction between reputation and opinion testimony may relate to the probative value of a guilt-assuming hypothetical, but any such distinction does not affect how such questions impact the presumption of innocence. See United States v. Oshatz, 912 F.2d 534, 539 (2d Cir.1990).
Contrary to the government’s argument, the challenged cross-examination of Pennington posed a guilt-assuming hypothetical, even though the defendant’s name was not mentioned. This hypothetical was directed to the crux of Kellogg’s defense. Kellogg maintained that there was insufficient evidence that he had the intent to defraud required to convict under the mail fraud statute. In his defense, Kellogg relied in part on witness testimony to the effect that, while the Johnston Laboratories computer system for assigning method numbers to repeat customers was difficult to change, Johnston would never have intentionally reported the wrong methodology, as well as that the EPA Method 624 used by Hydro-Analysis was sophisticated and tested for essentially the same contaminants as EPA Method 601/602, the method that Johnston Laboratories reported to customers.
The question posed to Pennington referred, in contrast, to “a person who knows that a laboratory used one particular analytical method, but then ... reports out a completely different analytical method on *204final reports of analysis to its customers .... ” In my view, this questioning was improper and should not have been permitted. It is not clear to me, as it is to the majority, that this guilt-assuming hypothetical was sufficiently hypothetical to be permissible.
Substantial other evidence supported a finding of guilt, however, such that the error in allowing the questioning of Pennington was harmless. As the majority explains in note 14, for example, multiple witnesses testified that Kellogg agreed to have Hydro-Analysis test using EPA Method 624, and Johnston Laboratories employees testified to having conversations with Kellogg about the discrepancies in the reports sent to customers. In addition, numerous Johnston customers attested that they had received reports and invoices from Johnston stating that Method 601/602 had been used. Because I find that substantial other evidence renders the error in permitting the guilt-assuming hypothetical harmless, I concur in the result.