UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1099
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID CUDLITZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Selya and Boudin, Circuit Judges,
and Lisi,* District Judge.
Kimberly Homan with whom Sheketoff & Homan was on brief for
appellant.
Robert E. Richardson, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for the United
States.
January 8, 1996
*Of the District of Rhode Island, sitting by designation.
BOUDIN, Circuit Judge. David Cudlitz was indicted in
July 1993 and charged in four counts, respectively, with
conspiracy to commit arson, 18 U.S.C. 371, arson, id
844(i), mail fraud, id. 1341, and use of fire to commit a
felony, id. 844(h). In substance, the government alleged
that in 1992 Cudlitz, in order to obtain the insurance
proceeds, arranged to have set on fire an unprofitable
apartment building he owned at 7 Salisbury Street in New
Bedford, Massachusetts. Cudlitz was tried by a jury in March
1994.
At trial, the government offered the testimony of three
individuals--Craig Santos, Harold Burnham, and Daniel
Cornell--who in the summer and early fall of 1992 were living
as tenants at another apartment building owned by Cudlitz in
New Bedford located at 89 Austin Street. These three, and
Cornell's brother David Vieira, who also testified, did odd
jobs for Cudlitz in the various buildings he owned. All
except Burnham had criminal records, and Burnham drank a good
deal.
Cornell testified that in late August or early September
1992, Cudlitz twice asked Cornell to set 7 Salisbury Street
on fire, but he (Cornell) refused. Vieira testified that in
early September Cudlitz made similar requests of him and,
when he refused, asked whether Santos and Burnham would do it
and later said he was going to ask them to do the job.
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Vieira also testified that he vandalized one of the
apartments at Cudlitz' request prior to the fire. Santos and
Burnham both testified that Cudlitz had requested them to set
the fire and that they had agreed to do so for $1,500
(according to Santos) or $1,000 (according to Burnham).
Santos and Burnham testified that they did set the fire
at 7 Salisbury Street on the evening of September 18, 1992,
starting it with gasoline spread in the attic and down the
back stairs. The fire department put out the fire in the
attic, confining the damage; the fire captain testified to
smelling the odor of a flammable liquid. There was also
testimony that the following day Cudlitz complained to
Burnham and Santos that they had not done a good job, and
that he then set Vieira to vandalizing the third floor of 7
Salisbury Street to increase the damage.
Eventually, Cudlitz collected on insurance claims for
both the fire and the vandalism. Thereafter, Santos and
Burnham moved into 7 Salisbury Street but were eventually
evicted by Cudlitz when Santos stole some property from the
basement. Later Santos, interviewed in connection with the
fire, admitted his role. He and Burnham were both indicted
with Cudlitz, although only on the conspiracy and arson
counts, and both pled guilty in exchange for possible
leniency for cooperating with the government.
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Cudlitz testified in his own defense. He flatly denied
that he had ever solicited either the arson or the vandalism
at 7 Salisbury Street; he claimed a net worth of over $1
million, although he admitted on cross-examination that 7
Salisbury Street was not currently profitable because largely
vacant; and he gave testimony, described at greater length
below, indicating that he had not previously staged an arson
or ever before filed an insurance claim for fire damage on
any property he owned.
The jury convicted Cudlitz on all four counts. In
December 1994, Cudlitz was sentenced to 36 months in prison
on the first three counts, and a mandatory consecutive term
of 60 months on the final count. He now appeals, conceding
the sufficiency of the evidence but raising several other
claims of error. Three of them, all complicated, relate to
questions allowed on cross-examination of Cudlitz; the others
concern the trial court's instructions.
I.
Cudlitz asserts first that the district court erred by
allowing the prosecutor to cross-examine him about an alleged
prior attempt to solicit arson. The critical set of
questions, which the court permitted the prosecutor to ask in
three different versions and over Cudlitz' objection, was
whether Cudlitz had in 1991 solicited one Ron Wallace--
another tenant who was then doing odd jobs for Cudlitz--to
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burn down another one of Cudlitz' buildings. Cudlitz denied
doing so and, apart from some follow-up cross-examination
described below, the government made no attempt to prove the
solicitation.
The rules governing this subject--cross-examining a
criminal defendant about prior wrongs--are among the most
complex and confusing in the entire law of evidence. The
main reason is that they represent not a logical pattern but
a series of ad hoc accommodations arrived at by the common
law over the course of centuries in dealing (differently)
with several related problems. Worse still, the Federal
Rules of Evidence have retained the common law structure,
with a few modifications, but expressed it in four different
rules--Fed. R. Evid. 404, 405, 608 and 609--whose
relationship and content are not models of clarity.
Cudlitz' main complaint is that there was no "basis" for
allowing the questions in dispute, but two different bases
support the questions. Ordinarily, the government cannot
elicit evidence of prior similar bad acts to show that the
defendant has a propensity to commit such acts and is thus
more likely to have committed the crime now charged. Rule
404(a). But this rule against so-called "character evidence"
by the prosecutor is waived where the defendant chooses to
offer "good" character evidence in his own defense. Rule
404(a)(2).
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Cudlitz did offer such evidence here by testifying on
direct examination that, when previously faced with an
unprofitable business venture, he had dutifully paid his
debts and had not had any fire connected with that
enterprise, nor made a claim for insurance for fire damage on
any other of his properties. In effect, Cudlitz was offering
evidence of good character by showing, quite pertinently,
that he lacked the propensity to commit arson and insurance
fraud in inviting circumstances. Under Rule 404(a)(2), the
government was therefore entitled "to rebut the same" by
seeking to elicit evidence of bad character.
Cudlitz' good character evidence was improper in form
since the rules limit the proponent to offering an opinion or
reputation witness rather than testifying to specific
instances or events, as Cudlitz did in denying any past
occurrence. Rule 405(a). But the detail simply made
Cudlitz' testimony more effective for him. The government's
attempt to rebut by asking Cudlitz about a specific prior
arson attempt was within the rules; for "[o]n cross
examination, inquiry is allowable into relevant specific
instances of conduct." Rule 405. E.g., United States v.
West, 58 F.3d 133, 141 (5th Cir. 1995).
Alternatively, the question as to the prior arson can be
justified on a theory of impeachment by contradiction.
Before asking about the specific attempt to solicit Ron
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Wallace to commit arson in 1991, the prosecutor asked without
objection whether Cudlitz had ever solicited anyone to commit
arson, and Cudlitz said that he had not. When a witness
testifies to a fact, he may--subject to certain limitations--
be cross-examined to elicit testimony contradicting his prior
testimony for the purpose of showing that the witness is a
liar and should not be believed. United States v. Havens,
446 U.S. 620, 627 (1980); United States v. Perez-Perez, No.
94-1781, slip op. at 7 (1st Cir. Dec. 26, 1995).1
The government and the district court thought that this
theory of impeachment is reflected in Rule 608(b), an
assumption that is shared by some courts. But Rule 608 is
centrally concerned with character for veracity, a mode of
accrediting or discrediting the witness that is based on the
same "propensity" reasoning of Rule 404 but is subject to
quite different rules. Rule 608 permits accrediting or
discrediting by opinion or reputation evidence as to
character for veracity, Rule 608(a), and, on cross-
examination only, by inquiry into specific instances of
conduct if "probative of truthfulness or untruthfulness."
Rule 608(b).
1There is no Federal Rule of Evidence labeled
"impeachment by contradiction" but the critical point to
remember about those rules is that they treat selected topics
and even then sometimes only selectively. Several of the
most familiar modes of impeachment (e.g., bias, prejudice,
interest, corruption) are never mentioned.
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At common law, the quoted restriction was not always
included, but Rule 608 deliberately narrowed type of conduct
allowed. Thus, Cudlitz might have been cross-examined under
Rule 608(b) as to prior instances of forgery or perjury; but
soliciting arson, although showing bad character generally,
is not "probative of . . . untruthfulness."2 But neither
does Rule 608(b) prohibit the questions so long as they were
justified on another basis. Here, impeachment by
contradiction was such a legitimate basis. Perez-Perez, slip
op. at 6-7.
Cudlitz objects that the government was seeking to
contradict a denial (of prior solicitations) that it had
itself improperly elicited, a practice that we warned against
in United States v. Ruiz-Batista, 956 F.2d 351, 352 n.1 (1st
Cir.), cert. denied, 113 S. Ct. 105 (1992). It is true that
the government's question on cross went marginally beyond the
scope of the direct. But we think that the denial of prior
solicitations was very strongly implied by Cudlitz' direct
testimony, denying that he had set fires on any other
occasion. The government may have sharpened the edge
2The government's response, which is not without some
force, is that arson may not impugn veracity; but that arson
in aid of insurance fraud would do so and that such fraud was
implicit where the building was owned by the arsonist.
Compare United States v. Wilson, 985 F.2d 348, 351-52 (7th
Cir. 1993). We need not resolve the issue here.
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slightly but Cudlitz himself proffered the weapon. United
States v. Eaton, 808 F.2d 72, 75-76 (D.C. Cir. 1987).
Cudlitz asserts that the questions should have been
barred under Fed. R. Evid. 403 because the risk of unfair
prejudice greatly outweighed probative value. The risk of
prejudice was certainly real but, given Cudlitz' own attempt
to portray himself as a businessman of upright character who
had never resorted to arson or insurance fraud, allowing the
questions was not an abuse of the broad discretion enjoyed by
the district judge. United States v. Mateos-Sanchez, 864
F.2d 232, 235-36 (1st Cir. 1988). Nor do we agree with
Cudlitz that the evidence sought to be elicited was in any
way made superfluous by the direct testimony against him.
Finally, Cudlitz appears to attack the prior-
solicitation question at its foundation. As he suggests, the
government surely knew that Cudlitz would deny the prior
arson solicitation; nor could it offer extrinsic evidence to
prove the solicitation if Cudlitz denied it. United States
v. Innamorati, 996 F.2d 456, 479 (1st Cir. 1993), cert.
denied, 114 S. Ct. 1073 (1994). An observer might well join
Cudlitz' appeal brief in asking how it could possibly be
proper for the government to ask a prejudicial question that
it knows will be answered negatively, that cannot be pursued
with extrinsic proof, and that serves only to suggest to the
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jury (contrary to the standard instruction) the fact implied
by the question.
The only answer is that the cross-examination of this
kind is part a system of checks and balances that the law has
developed to caution a credulous jury against possible
perjury. Thus, while the question may be asked, the
government must on demand supply a good faith basis for the
question; the witness may vigorously deny the suggestion and
explain the basis for the denial; with rare exceptions, the
government must accept the answer without offering extrinsic
evidence; and the court will normally provide a limiting
instruction. With these protections, and Rule 403, the
defendant must be content. As Justice Jackson said in
Michelson v. United States, 335 U.S. 469, 486 (1948):
[M]uch of this law is archaic, paradoxical and full
of compromises and compensations by which an
irrational advantage to one side is offset by a
poorly reasoned counterprivilege to the other. But
somehow it has proved a workable even if clumsy
system when moderated by discretionary controls in
the hands of a wise and strong trial court. To
pull one misshapen stone out of the grotesque
structure is more likely simply to upset its
present balance between adverse interests than to
establish a rational edifice.
II.
The most troublesome issue in the case arises out of a
related but distinct series of questions asked of Cudlitz on
cross-examination. The questions began as the prosecutor
laid the groundwork for asking Cudlitz whether he had earlier
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solicited Wallace to set fire to 212 State Street. He first
asked Cudlitz whether one Joe Camara had introduced Wallace
to Cudlitz at 212 State Street and Cudlitz responded: "Ron
Wallace lived in the house. He lived in -- he lived -- yes,
he did."
The prosecutor then asked, "So you knew Ron Wallace,
correct?" and Cudlitz replied, "No, I didn't know him
really." There followed some questions aiming to show that
Wallace had done work at the building for Cudlitz; Cudlitz
said that he thought Wallace was helping Joe Camara clean out
the yard at 212 State Street, a task for which Cudlitz was
paying Camara. The prosecutor then asked--over objection--
"Had you ever heard as of that time [summer 1991] that Mr.
Wallace had been arrested on charges of arson?"
Cudlitz said "no" and the prosecutor then followed with
three questions, earlier mentioned, which in substance asked
Cudlitz whether he had twice solicited Wallace to set fire to
212 State Street, whether one of these requests had been made
in Camara's apartment, and whether Cudlitz had offered
Wallace $2,500 to do the job. When Cudlitz answered "no" to
each accusation, the prosecutor proceeded as follows:
Q Do you know where Ron Wallace it [sic] today, sir?
MR. LEE: Objection, please, your Honor.
THE COURT: Overruled.
A No, I don't.
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Q Have you ever heard that Ron Wallace is
down in Plymouth County --
MR. LEE: Objection, your Honor.
THE COURT: Overruled.
Q In the Plymouth House of Corrections?
A No, I didn't know that.
Q Did you ever hear that Mr. Wallace had
pled guilty to a charge of arson and
conspiracy to commit arson?
MR. LEE: Objection, please, your Honor.
THE COURT: Overruled.
A No, I haven't.
Q At no time have you ever heard that?
A No.
On this appeal, Cudlitz says that the cross-examination
as to Wallace's whereabouts and prior arson conviction was
error. The government says it was not. It argues further
that at trial Cudlitz made no specific objection to the
questions--that is, that the objections did not state their
precise legal basis--so that the highly forgiving standard of
plain error governs. Finally the government says that if
error occurred it was harmless, given the cumulative weight
of the evidence against Cudlitz. We address these three
issues in the same order.
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Resolving the first issue, we conclude that this branch
of the cross-examination should not have been allowed. The
questions on their face suggested that, at the time of
Cudlitz' trial in 1994, Wallace was then serving a jail
sentence for arson and conspiracy to commit arson. This
suggestion in turn lent credence to the far more damaging
suggestion that in 1991 Cudlitz had solicited Wallace to burn
down 212 State Street. Some jurors could have believed that
Wallace's current jail sentence was for the 1991 arson effort
allegedly involving Cudlitz; others, that at least Wallace
was an arsonist and so more likely than otherwise to be
plotting arsons with Cudlitz.
None of this might matter if the questioning about
Wallace's whereabouts and arson conviction had been proper.
But even with time to reflect, the government offers very
little basis for the questions. Its main argument is that
Cudlitz, in the lead-up to the disputed questions, was
seeking "to distance himself from Wallace." Therefore, says
the government, "it was appropriate to find out whether the
defendant at least knew Wallace well enough to know his
background," i.e., that he was charged and later imprisoned
for arson.
In fact, Cudlitz admitted at the outset that he knew
Wallace, that Wallace lived in his building and that Wallace
was helping Camara on a task that Camara was performing for
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Cudlitz. True, Cudlitz implied that he did not know Wallace
well; but the questions about knowledge of Wallace's arson
and jailing would not have proved a close acquaintanceship.
Far more important, the arguable but very slight relevance of
the questions can hardly be compared to the substantial
prejudice they were capable of inflicting, so they certainly
could not have passed the test of Rule 403 on this excuse.
The government also says that "had the defendant
admitted to knowing Wallace well enough to know that he ended
up in custody after pleading guilty to arson charges, that
would have helped to explain why the defendant turned to
people such as Cornell, Vieira, Santos, and Burnham when he
decided to have the Salisbury Street property burned." There
are various problems with this explanation but one is
sufficient. Cudlitz was asked whether he knew in 1991 of
Wallace's arrest and his incarceration as of 1994; but there
was no indication whether Wallace was in jail in 1992 when
the fire at Salisbury Street occurred, and that is the only
date relevant to the choice of accomplices.
Defense counsel objected to virtually all of the
questions at issue as to Wallace's location and prior crimes
but gave no reason. The government argues that the questions
are therefore to be reviewed only under the plain error
doctrine. Fed. R. Evid. 103(a)(1) does require that the
specific ground be stated, "if the specific ground was not
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apparent from the context." Here, we think that the central
objections--arguable irrelevance and certainly undue
prejudice--were obvious. Indeed, Cudlitz' counsel had begun
the morning by making those objections to the more defensible
question about Cudlitz' alleged solicitation of Wallace to
commit arson.
Accordingly, we think that the questions at issue are
fairly tested under the harmless error doctrine, and not by
the more demanding requirements of plain error. Under the
harmless error doctrine, cf. Kotteakos v. United States, 328
U.S. 750, 776 (1946), we are instructed to ask whether it is
"highly probable" that the error did not "contribute to the
verdict." E.g., United States v. Rullan-Rivera, 60 F.3d 16,
18-19 (1st Cir. 1995). The greater the likely impact of the
error, the harder it is to find harmless error; conversely,
the greater the weight of the other evidence against the
defendant, the less likely it is that a given error swayed
the jury.3
Thus to frame the issue only compounds our dilemma. The
evidence against Cudlitz was substantial: four witnesses said
that Cudlitz had solicited them to set the fire; and two of
them, Santos and Burnham, said they had done so, and been
3This gloss is hardly a precise standard but Kotteakos,
while repeatedly reaffirmed as the governing standard for
claims for non-constitutional error, e.g., United States v.
Lane, 474 U.S. 438 (1986), has rarely been elucidated by the
Supreme Court.
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paid by Cudlitz. The same witnesses, and the girlfriend of
one of them, testified to incriminating statements made by
Cudlitz after the fire, and the government offered evidence
of financial motive. Further, at the time they admittedly
set the fire, Santos and Burnham were on good terms with
Cudlitz; any hint of blackmail arose only later.
But the only four real witnesses against Cudlitz were
linked together; each had a criminal record except Burnham,
who drank to excess; and by the time of trial Santos and
Burnham had multiple reasons for hostility. Cudlitz took the
stand, flatly denied the allegations, and testified to his
own record as an honest businessman with a comfortable
financial base. There was no hard evidence that directly
inculpated Cudlitz. The case was in essence a credibility
contest between Cudlitz and four quite dubious witnesses, who
told generally consistent stories but with some
discrepancies.
Under these circumstances, it would have been easy--if
not strictly fair--for the jury to have given great weight to
the suggestion that Cudlitz had previously sought to have
Wallace burn down a different building he owned. Of course,
the jury was told that the lawyer's questions are not
evidence, although not contemporaneously. But the sting
survives such instructions, which is why lawyers ask
impeaching questions that they know will produce denials.
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That is just why the government in this case asked Cudlitz
whether in 1991 he had asked Wallace to burn down 212 State
Street.
If that line of questions had been error, we would
easily say that it was not harmless. The jury could well
have had trouble deciding who to believe about the 1992 fire
for which Cudlitz was on trial, but found those doubts
resolved when it learned, or thought it had learned, that
Cudlitz had been involved in a 1991 attempt to burn down
another building by employing another tenant as henchman.
Yet as the questions that carried that implication were not
error, we are left to ask what was added to that implication
by the related questions at issue concerning Wallace's arson
conviction and jailing. The answer is impossible to
quantify, but we think that the additional effect may well
have been more than trivial. The case being a credibility
contest, the suggestion that Cudlitz had previously engaged
in the same conduct was quite dangerous to Cudlitz,
especially given his prior claim to a blameless past. But
the suggestion was flatly denied, the government had to
accept the answer, and the jury was to be told in due course
that the statements of lawyers were not evidence. Quite
possibly, despite the detail in the questions about the prior
solicitation, the jury would in doubt have put the suggestion
aside.
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The doubt could well have been removed by the further
suggestion that Wallace had actually been convicted for
conspiracy and arson and was now in jail for those crimes.
Cudlitz did not deny these further facts, but only his
knowledge of them; and the jury could fairly suppose that the
prosecutor would not make statements as to Wallace's
conviction and jailing without actual knowledge. By any of
several inferences--we have already given two examples--the
jury could have thought that these new facts made it
substantially more likely that Cudlitz had solicited Wallace
to commit an earlier arson.
No one knows what reasoning the jury actually used in
convicting Cudlitz, nor have we any doubt that a reasonable
jury could have convicted Cudlitz on this record even if
Wallace's name had never been mentioned. But the jury, which
deliberated for two days, apparently did not view the matter
as open and shut. And under the harmless error doctrine, we
can uphold the conviction, in the teeth of an error preserved
by a timely objection, only where we think it "highly
probable" that the error played no role in the conviction,
that is to say, that the result would have been identical
regardless of the error. Roullan-Rivera, 60 F.3d at 18-19.
Given the potential impact of the error, and the questions
that the jury could legitimately have about the government's
proof, we cannot with confidence so conclude in this case.
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It is a shame that a lengthy trial should now have to be
repeated because of questions totaling less than a page of
transcript, all of which resulted in exculpatory denials.
But impeachment by questions about prior crimes can be
devastating, and when the prosecutor embarks on their use, he
or she has to take special care to keep the questions and
devastation within bounds. Doubtless the temptation to press
an advantage is harder to resist where, as here, credibility
is the key to the case and "hard" evidence of guilt is
absent. But that is just why the harmless error argument has
failed in this instance.
III.
We address here, and in part IV, several additional
claims that--although not determinative of this appeal--could
affect the retrial. Cudlitz next complains about the cross-
examination of defense witness Albert Raposo, a construction
contractor, who testified on direct that he had provided
Cudlitz with an estimate of the fire and vandalism damage at
the Salisbury Street building. On cross-examination, the
prosecutor began to question Raposo about whether he had
offered Cudlitz advice on how best to create the appearance
of vandalism in order to collect insurance proceeds. Defense
counsel objected that no good faith basis existed for this
inquiry, but after a bench conference and proffer from the
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prosecutor the judge allowed the questions without further
defense objection.
The relevant portion of the cross-examination was as
follows:
Q: Did you ever give Mr. Cudlitz advice on
how to cause damage to 7 Salisbury
Street?
A: No, sir.
Q: Did you ever give Mr. Cudlitz advice on
how to best try to make--create the
appearance that vandalism had been done?
MR. LEE: Objection your honor. May we
approach the bench?
THE COURT: Yes.
[BENCH CONFERENCE OMITTED]
Q: Mr. Raposo, did you ever give the
defendant advice on how to cause damage
in 7 Salisbury Street to make it appear
that vandalism had been done there?
A: No, sir.
Q: Did you ever tell the defendant in words
or substance that it wasn't enough just
to rip up rugs, because that might just
look like something a tenant had done in
leaving the building?
A: No, sir.
Q: Did you ever tell the defendant in words
or substance that to collect money from
the insurance company you had to do
things like break plumbing fixtures?
A: No, sir.
On appeal, Cudlitz again asserts lack of a good-faith
basis and, in addition, contends that no proper purpose
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existed for allowing this line of questions. Because the
defense did not renew its good-faith objection after the
prosecutor's proffer and the trial court's ruling, and
because no other objections were raised at trial, the
government urges that we limit review to plain error. Since
the lack of a good faith basis was the only ground offered by
Cudlitz for excluding the questions, we agree that this is
the standard for judging any other objection to the
testimony.
Here, the government offers two different grounds for
permitting the questions, assuming a good faith basis. One
is that Cudlitz' alleged procurement of vandalism at 7
Salisbury Street was an issue in this case. Vieira testified
that he was solicited to vandalize one apartment prior to the
fire and another one afterwards when the fire damage proved
inadequate, and the government's case treated the arson and
vandalism as part of the same effort to defraud the insurance
company. The questions to Raposo were pertinent to this
showing, although arguably they were well outside the scope
of the direct (an objection not made by Cudlitz).
Additionally, the government argues that these questions
were permissible under Rule 608(b) to impeach Raposo himself
by showing that he had participated in insurance fraud.
Here, the alleged advice was given by Raposo for the very
purpose of perpetuating such fraud, and thus was allowable in
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the trial judge's discretion. See Wilson, 985 F.2d at 351-
52. It is not clear to us that Raposo had given direct
evidence that the government needed to impeach, but Cudlitz
did not offer such an objection, which would have been
pertinent to the trial court's exercise of discretion under
both Rule 403 and Rule 608(b).
In sum, reserving the question of a good faith basis, we
think that the district court did not commit plain error by
allowing the cross-examination. Here, Cudlitz did not make a
general objection but a specific one--lack of good faith--and
the district court had no reason to think that other possible
lines of objection were being urged by Cudlitz as obvious
from context. Given that none of the other possible
objections is clearly meritorious but only arguable, we see
no basis for thinking that any plain error, or manifest
injustice, occurred. United States v. Olano, 113 S. Ct.
1770, 1777-779 (1993).
Turning to the question of good faith basis, the issue
is somewhat closer both as to the standard and the result.
Cudlitz' counsel clearly objected that there was no "good
faith basis for these questions," adding that counsel was not
aware of an connection between Raposo and any prior
government witness. The government then explained its basis-
-that Vieira had told the government that an associate of
Cudlitz named "Al" had been present with Vieira and had been
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giving advice on how to vandalize--Cudlitz' counsel did not
argue further the lack of a good faith basis but switched to
complaining that no such statement had been given to the
defense.
Both the "merits" and the standard to apply are thus
open to dispute. There is a pretty good argument that
something more than a reference to "Al" was warranted before
allowing the government to ask a highly damaging question; it
would have been easy enough to have Vieira called to identify
Raposo as "Al" outside the presence of the jury. After all,
a good faith basis is a very important safeguard to assure
that such highly prejudicial questions, if asked at all in
the teeth of a likely denial, are not unfairly prejudicial.
On the other hand, the district judge enjoys great
latitude in deciding whether a good faith basis exists.
United States v. Ovalle-Marquez, 36 F.3d 212, 219 (1st Cir.
1994), cert. denied, 115 S. Ct. 1322 (1995). Perhaps the
result might be different if Cudlitz' counsel had protested
that the proffer was inadequate, explaining the basis for his
doubt and urging that at the very least Vieira should be
summoned. Here, however, the trial judge got no such help
and might easily have thought that Cudlitz' own counsel had
been satisfied by the proffer and was no longer disputing the
presence of a good faith basis.
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In all events, our reversal of the convictions in this
case on other grounds makes it unnecessary to decide this
"what if" point definitively. On any retrial, we think that
the government ought to make a somewhat stronger showing that
it has reason to believe that "Al" and Raposo are the same
person. We do not say that we would reverse on this ground
on the present record. But the issue has now been
highlighted clearly and if Raposo is "Al," then a stronger
proffer should be available, a consideration that deserves
some weight in determining how much of a proffer is enough.
IV.
Cudlitz' remaining claims all relate to the absence, or
alleged inadequacy, of cautionary instructions relating to
the cross-examination of Cudlitz and Raposo described in the
prior sections of this decision. Cudlitz claims first that a
sua sponte cautionary instruction should have been given as
to the cross-examination of Cudlitz regarding Ron Wallace;
second, that the final instructions should have included a
requested instruction that the "questions" of counsel are not
evidence; and finally that such a specific instruction should
have been given during the cross-examination of Raposo.
As Cudlitz himself concedes, the general rule is that a
trial judge need not give a cautionary instruction sua sponte
at the time that evidence of limited admissibility is
offered. Fed. R. Evid. 105; United States v. De La Cruz, 902
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F.2d 121, 124 (1st Cir. 1990). Here, the issue is not one of
evidence admitted for a limited purpose; it is a matter of a
question not being evidence at all. But the situations are
parallel, and we think that while a cautionary instruction
would plainly be proper at the time that the question is
asked and denied, its omission is not normally error where no
such contemporaneous instruction was requested.
Cudlitz' argues with some force that a standard reason
why appeals courts do not insist on such an instruction sua
sponte is the defense counsel may have made a strategic
judgment not to have the matter highlighted. Here, Cudlitz
says, this reason has no application because his defense
counsel had objected sharply to the cross-examination as
highly prejudicial and the government had already highlighted
the cross-examination by asking three times over questions
about Wallace's alleged solicitation by Cudlitz.
We nevertheless reject Cudlitz' broad-scale position
because of the extraordinary importance we attach to the need
for a timely request. No one who lacks experience with
litigation can know how many things occupy a judge who is
superintending a fast-paced criminal trial. Nor is it easy
to know without direct experience how sua sponte interference
from the trial judge can disrupt counsel's own strategy, even
when the purpose of the judge is to help rather than to
hinder. It is for these reasons that we place such great
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stress on the presence or absence of the request for a
contemporaneous instruction.
It might well be error in some cases for the judge to
fail to give a cautionary instruction at some point, but that
is hardly the situation here. The district court told the
jury at the start that the questions of counsel were not
evidence; and in his final charge, the trial judge told the
jury that the statements and arguments of counsel were not
evidence. United States v. Copelin, 996 F.2d 379, 384 (D.C.
Cir. 1993), relied upon by Cudlitz as authority for requiring
a sua sponte contemporaneous instruction, was overruled by
United States v. Rhodes, 62 F.3d 1449, 1454 (D.C. Cir. 1995).
In the case of Raposo's cross-examination, defense
counsel did ask for a contemporaneous instruction to the jury
that "the questions of counsel are not evidence." This court
has said that the "better practice" is to give a cautionary
instruction at the time. United States v. Currier, 821 F.2d
52, 56 n. 5 (1st Cir. 1987). Whatever one's faith in the
capacity of general instructions to offset harmful evidence,
the chance that the instruction will do any good is enhanced
by offering the caution while the jury has immediately before
it the question or evidence it is being told to disregard or
limit.
Although on retrial the district court should give such
a contemporaneous instruction where requested, this omission
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would not standing alone cause us to reverse in this case.
The district judge did give the general instruction at the
outset and gave a somewhat similar, although incomplete,
instruction at the close; and any damage done by the lack of
such an instruction as to Raposo was dwarfed by the far more
damaging questions as to the Wallace solicitation where no
such contemporaneous instruction was requested or given.
Finally, on retrial we encourage the district court to
tell the jury, in closing, that the "questions" of counsel,
as well as their statements and arguments, are not evidence.
Although an objection was properly lodged, we are doubtful
that this omission standing alone would comprise prejudicial
error, especially in light of the district court's opening
instruction that questions of counsel are not evidence. But
given the importance of the government's cross-examination in
this case, we think that the district judge should on retrial
make the closing instruction as complete as possible by
including a specific statement that the "questions" of
counsel are not evidence.
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CONCLUSION
The judgment of conviction is vacated and the matter
remanded for new trial.
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