United States v. Tse

United States Court of Appeals
For the First Circuit

No. 01-1669

UNITED STATES OF AMERICA,

Appellee,

v.

CLYDE TSE,

Defendant, Appellant.

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

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.

Robert L. Sheketoff for appellant.

Brian J. Leske, Assistant U.S. Attorney, with whom Michael J.
Sullivan, U.S. Attorney, was on brief, for appellee.

July 21, 2004
 LIPEZ, Circuit Judge. Defendant Clyde Tse was convicted

of distributing cocaine in violation of 21 U.S.C. § 841(a)(1). In

evaluating one of his claims on appeal relating to a limitation on

the cross-examination of the government's principal witness, we

must address the important differences in analysis between

admitting a prior conviction to impeach a defendant's testimony and

admitting such a conviction to impeach the testimony of a

government witness. We must also address Tse's challenges to the

admission of evidence of a subsequent drug transaction, the

adequacy of the district court's limiting instructions about that

transaction, two additional limitations on his ability to impeach

the testimony of the principal government witness, and the

admission of allegedly prejudicial testimony by that witness.

After full consideration of these issues, we affirm.

I.

On November 24, 1998, agents of the Drug Enforcement

Agency (DEA) attempted to record a drug transaction between Tse and

a cooperating witness, Stephen Williams. The DEA agents outfitted

Williams with an audio transmitter called a "kel." The device

allowed the agents to listen to and record Williams's

conversations, but did not allow them to communicate with Williams.

After searching Williams and his car to ensure that he did not have

any drugs or cash, the agents gave him $450 and instructed him to

purchase crack cocaine from Tse.

-2-
 At approximately 6:30 P.M., Williams drove to Tse's

residence in Mattapan, Massachusetts. The DEA recorded the ensuing

conversation in which Williams told Tse that he had only $450 and

that he wanted to buy a half ounce of crack cocaine for that

amount. Tse told Williams to return in ten minutes. Williams left

Tse's residence and again met with the DEA agents. They instructed

him to return to Tse's house to make the drug purchase. At

approximately 7:10 P.M. Williams returned to Tse's house where Tse

was on the phone, apparently receiving directions to a nearby

location. After the phone call, Tse told Williams "we're on," and

said that they needed to travel "just around the corner." Tse and

Williams left the house and entered Williams's car.

As Williams and Tse drove off, the DEA agents lost the

signal from Williams's kel transmitter. Despite their attempts to

follow Williams, the agents were not able to record any other

conversations between Williams and Tse that evening. However,

shortly after Williams and Tse drove off, a member of the DEA

surveillance team saw Williams's car parked on a nearby street,

only a few blocks from Tse's residence. At least one person was

sitting in the car.

At trial, Williams testified that he and Tse drove to a

house only a few minutes away. Williams remained in the car while

Tse spoke with a man in the doorway and entered the building.

According to Williams, Tse returned several minutes later and gave

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a bag of crack cocaine to Williams. Williams and Tse then drove

back to Tse's house, where Tse gave Williams a scrap of paper with

Tse's pager number written on it.

After Williams dropped Tse off at his residence, he met

with the DEA agents and handed over the drugs and the scrap of

paper on which Tse had written his pager number. DEA laboratory

tests confirmed that the drugs that Tse had allegedly supplied to

Williams included 11.2 grams of crack cocaine.

On February 2, 1999, Williams again participated in a DEA

operation targeting Tse. He used the pager number that Tse had

given him after the previous transaction to contact Tse. In a

recorded call, Williams and Tse spoke in a mutually understood code

about a drug transaction. Tse agreed to sell 62 grams of cocaine

to Williams for $1,800. Williams was again outfitted with a kel

transmitter, and DEA agents followed Williams to the meeting place

with Tse. When Tse arrived, he provided Williams with powder

cocaine. This time, the DEA agents were able to record the entire

transaction.

On September 27, 2000, a grand jury charged Tse with two

counts of distributing a controlled substance in violation of 21

U.S.C. § 841(a)(1). Count one alleged that Tse had distributed

crack cocaine during the November 24 transaction; count two alleged

that Tse had distributed powder cocaine during the February 2

-4-
transaction. On December 12, 2000, Tse pled guilty to count two

and proceeded to a jury trial on count one.

Because the DEA agents had been unable to record the

November 24 transaction, the government relied heavily on

Williams's testimony to describe the events of that evening.

Williams was not an ideal witness, and Tse's primary strategy was

to discredit Williams's testimony. Through both direct and cross-

examination, the jury heard, inter alia, that Williams had used and

sold drugs in the past, had been convicted of at least one crime,

had made inaccurate statements to the grand jury about his prior

involvement with drugs,1 had received substantial compensation for

his work as a DEA informant, and had purchased a new car shortly

after receiving payments from the DEA.

The trial lasted four days, ending on December 15, 2000.

Despite Tse's aggressive impeachment of Williams's testimony, the

jury found Tse guilty of distributing a controlled substance during

the November 24 transaction. On April 25, 2001, the district court

sentenced Tse to 120 months in prison on each count (as noted, he

had pled guilty to count two of the indictment) to be served

concurrently.

1
Before the grand jury, Williams testified that he had never
sold crack cocaine and that he had used marijuana only once. On
cross-examination Williams admitted that those statements were not
correct and that he had sold crack cocaine and had used marijuana
on several occasions.

-5-
 On appeal, Tse claims that the district court made a

number of errors. First, Tse argues that the district court erred

in admitting evidence of the February transaction. Second, Tse

argues that the court gave inadequate limiting instructions to the

jury about the proper use of evidence of the February transaction.

Third, he argues that the district court erred in limiting his

cross-examination of Williams by preventing him from (1) impeaching

Williams's credibility by introducing evidence that Williams had

been convicted of assault and battery against a police officer, (2)

introducing evidence that charges against Williams stemming from a

traffic stop were dismissed after Williams began cooperating with

the DEA, and (3) refreshing Williams's memory with an employment

application he had filled out several years earlier. Finally, Tse

argues that the district court impermissibly allowed the government

to solicit prejudicial evidence from Williams during redirect

examination. We address each of Tse's arguments in turn, relating

the relevant details of the trial where appropriate.

II.

At trial, the government sought to introduce evidence of

the February transaction, arguing that such evidence had "special

relevance" under Federal Rule of Evidence 404(b).2 The government

2
Federal Rule of Evidence 404(b) states:

"Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other

-6-
offered several theories of admissibility. First, it argued that

the February transaction demonstrated Tse's intent in meeting with

Williams on November 24. Because Tse had argued in his opening

statement that his November meeting with Williams did not involve

a drug transaction, the government reasoned that evidence of Tse's

intent was at issue in the case.3 Second, the government argued

that the February evidence was admissible to boost Williams's

credibility since the February transaction was similar to

Williams's description of the November transaction. Third, the

government argued that tape of the February transaction showed that

Tse had sold drugs to Williams on previous occasions because, when

Williams called to arrange the February deal, both he and Tse began

speaking about the transaction in a mutually understood code

without an initial discussion of whether Tse could procure drugs.

Finally, the government argued that the February transaction

demonstrated a "criminal association" between Tse and Williams,

creating an inference that, if their purpose for meeting on

February 2 was to carry out a drug transaction, their purpose for

purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or
accident . . . ."
3
At trial, Tse did not testify and did not offer any other
witnesses or evidence in his defense. Rather, during his opening
statement, Tse's counsel claimed that Tse's association with
Williams was innocent, stating that Tse "didn't sell crack to
Stephen Williams, couldn't sell crack to Stephen Williams on
November 24, 1998, or any other day."

-7-
meeting on November 24 was likely to carry out a similar

transaction.

Tse objected that evidence of the February transaction

had no special relevance because he had admitted that he and

Williams were together on November 24 during the time of the

alleged drug transaction. He argued that there was therefore no

need to admit evidence to demonstrate the relationship between

Williams and Tse. Rather, evidence of the February transaction

could only be used by the jury to draw a forbidden propensity

inference: if Tse had sold drugs to Williams on February 2, he

likely sold drugs to Williams on November 24.

After hearing arguments on this issue, the district court

admitted the evidence, ruling that the evidence had "special

relevance" within the scope of Rule 404(b) because it demonstrated

that Tse and Williams had a "criminal association" in February.4

The court did not specify the probative value of this "criminal

association," stating only that the criminal association was "one

that the government may have evidence of." The court also ruled

that the probative value of the February transaction was not

substantially outweighed by its prejudicial effect. Thus, the

4
While the court admitted evidence supporting the
prosecution's claim that Tse had sold cocaine to Williams in
February, neither the court nor the prosecution told the jury that
Tse had already pled guilty to charges stemming from the February
transaction.

-8-
court ruled that evidence of the February transaction was not

barred by Rule 403.5 The defense objected to these rulings.

We review for abuse of discretion the district court's

determination that prior bad act evidence was admissible pursuant

to Rules 404(b) and 403. See United States v. Varoudakis, 233 F.3d

113, 118 (1st Cir. 2000). A district court may admit evidence of

a defendant's other bad acts only if that evidence meets the

requirements of both Rule 404(b) and Rule 403. To be admissible

under Rule 404(b), "the evidence must have 'special relevance' to

an issue in the case such as intent or knowledge, and must not

include 'bad character or propensity as a necessary link in the

inferential chain.'" Varoudakis, 233 F.3d at 118 (quoting United

States v. Frankenhauser, 80 F.3d 641, 648 (1st Cir. 1996)); see

also United States v. Escobar-De Jesus, 187 F.3d 148, 169 (1st Cir.

1999) (permitting the introduction of bad act evidence "if the

evidence is relevant for purposes other than proof of a defendant's

bad character or criminal propensity"). Second, pursuant to Rule

403, the probative value of the bad act evidence must not be

"substantially outweighed by the danger of unfair prejudice." Fed.

R. Evid. 403; see also Varoudakis, 233 F.3d at 118. A trial court

5
Federal Rule of Evidence 403 states:

"Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence."

-9-
may admit evidence of other bad acts indicating a criminal

association even when the evidence describes an event that occurred

later than the charged crime. United States v. Procopio, 88 F.3d

21, 29 (1st Cir. 1996) ("A later criminal association increases the

likelihood of an earlier one--which is all that 'relevance'

requires . . . and numerous cases permit such reasoning from a

later event or condition to an earlier one.")(citations omitted).

In a conspiracy case, the district court may admit

evidence of other bad acts if they tend to suggest a criminal

association between the alleged conspirators. See Procopio, 88

F.3d at 29. Evidence of a criminal association among the alleged

conspirators can be probative in several respects. It can

demonstrate the background of a relationship, a collaboration among

several parties, or a mutual trust between conspirators. See

Varoudakis, 233 F.3d at 121 (admitting evidence of a prior bad act

to demonstrate mutual trust between alleged conspirators);

Escobar-De Jesus, 187 F.3d at 169 ("[E]vidence of other bad acts .

. . can be admitted to explain the background, formation and

development of the illegal relationship . . . and, more

specifically, to help the jury understand the basis for the co-

conspirators' relationship of mutual trust . . . .")(citations

omitted); Procopio, 88 F.3d at 29 (stating that evidence of a

subsequent criminal association "was helpful to the government's

claim that the two men had collaborated" in a prior robbery). It

-10-
can also rebut a defendant's claim that his association with the

alleged conspirators was innocent. See United States v. Rodriguez,

215 F.3d 110, 119 (1st Cir. 2000) ("In particular, the government's

evidence must overcome the possibility that a particular

defendant's association with criminal co-conspirators was wholly

innocent or that, if he was with them at the scene of criminal

activity, he was 'merely present,' without guilty knowledge or

intent.").

Tse argues that, because he was not charged with

conspiracy, his collaboration with other parties is not at issue.

We disagree. Tse's defense--that he was with Williams on November

24 but that he did not participate in a drug transaction on that

day--makes Tse's relationship with Williams "directly in issue and

material to the case" and thus permits the court to admit evidence

of a subsequent criminal association. Escobar-De Jesus, 187 F.3d

at 169. See also Rodriguez, 215 F.3d at 119 (holding admissible

evidence of another of defendant's drug ventures with the same

participants to rebut defendant's claim that, on the occasion of

the charged crime, he was an innocent bystander); United States v.

Lopez, 340 F.3d 169, 174 (3d Cir. 2003) (following decisions

"upholding the admission of evidence of prior drug involvement for

the purpose of rebutting defense claims of innocent association");

United States v. Ruiz-Estrada, 312 F.3d 398, 403 (8th Cir. 2002)

(admitting other act evidence to rebut defendant's defense that he

-11-
was "merely present" in an apartment that contained evidence of a

drug conspiracy).

In this case, the court properly admitted evidence of the

February transaction to refute Tse's claim that his meeting with

Williams in November was innocent. Evidence of the February

transaction between Williams and Tse, including their use of coded

language, indicated that they had collaborated on similar

transactions in the past and that they both understood the nature

of their meeting. Although the government did not have to

demonstrate an agreement, as it would have in a conspiracy case,

this evidence was still critical to demonstrate the nature of Tse's

association with Williams, which helped to refute Tse's claim that

their November meeting was innocent.

Evidence of other bad acts always carries with it a

danger of a forbidden propensity inference. But Rule 404(b)

requires only that there be some other permissible reason, subject

to the requirements of Rule 403, to admit the evidence. Here,

evidence of the February transaction refuted Tse's claim that his

association with Williams was innocent. Thus, the district court

properly admitted the evidence under Rule 404(b).6

6
After finding that evidence of the February transaction was
admissible under Rule 404(b), the district court also found that it
was admissible under the balancing test of Rule 403. On appeal,
Tse has not offered any argument challenging the district court's
ruling on the admissibility of the February evidence under Rule
403.

-12-
 III.

After ruling on the admissibility of the February

evidence, the district court gave the following limiting

instruction to the jury:

The defendant is charged in this indictment
with an offense said to have occurred on
November 24, 1998. The government is offering
evidence of another transaction in February of
1999 [that] the defendant is not charged with
in this case. The evidence is offered as it
may bear on your assessment of whether the
government's case regarding the November
incident is sufficient or not, including
whether the government has established that
the defendant knowingly and intentionally
participated in a drug transaction on November
24, as alleged in the indictment. The
evidence of the other incident may or may not,
in your judgment, support a conclusion that he
was a participant in such a transaction in
November. The February '99 incident, if it
occurred, if you find that it occurred, which
is the first question, and if you do, you may
consider it for that purpose if it bears on
the defendant's knowing and intentional
participation in a similar transaction in
November. You may not consider it as evidence
if it were that of the defendant's character
or general propensity to be involved in
criminal activity. This is not evidence about
the defendant or his instincts or propensity.
It is evidence that may or may not, as you
judge appropriate, be used in considering what
inferences you might make about the evidence
concerning the November transaction.

Following this instruction, the government solicited testimony from

one of the DEA agents who monitored the February transaction, and

played an audio tape of that transaction.

-13-
 Tse objected that the court's limiting instruction did

not state that the jury "can only use [evidence of the February

transaction] for the very specific purpose that the government has

suggested here, which is that there is some kind of relationship

between [Williams and Tse]." The court responded that "I don't

want to be arguing the government's case, so I don't want to

suggest there's a connection." The court then noted Tse's

objection.

On appeal, Tse challenges the adequacy of the district

court's limiting instructions to the jury. Upon request by the

defendant, a district court must instruct the jury on the

permissible use of other bad act evidence admitted against the

defendant. Fed. R. Evid. 105; Huddleston v. United States, 485

U.S. 681, 691-92 (1988) ("[T]he trial court shall, upon request,

instruct the jury that the similar acts evidence is to be

considered only for the proper purpose for which it was

admitted."). The First Circuit pattern jury instructions

explicitly state (1) that the bad act evidence cannot be used to

infer guilt based on the defendant's character and (2) that the

other act evidence may be used only for specific enumerated

purposes.7 See Pattern Crim. Jury Instr. 1st Cir. § 2.05 (1998).

7
The pattern instruction reads:

You have heard [will hear] evidence that
[defendant] previously committed acts similar
to those charged in this case. You may not

-14-
However, "[b]y their terms, those instructions are precatory, not

mandatory. A district court possesses wide discretion to instruct

in language that it deems most likely to ensure effective

communication with jurors." United States v. Gomez, 255 F.3d 31,

39 n.7 (1st Cir. 2001). See also Pattern Crim. Jury Instr. 1st

use this evidence to infer that, because of
his/her character, [defendant] carried out the
acts charged in this case. You may consider
this evidence only for the limited purpose of
deciding:

(1) Whether [defendant] had the state of mind
or intent necessary to commit the crime
charged in the indictment;

or

(2) Whether [defendant] had motive or the
opportunity to commit the acts charged in the
indictment;

or

(3) Whether [defendant] acted according to a
plan or in preparation for commission of a
crime;

or

(4) Whether [defendant] committed the acts
he/she is on trial for by accident or mistake.

Remember, this is the only purpose for which
you may consider evidence of [defendant's]
prior similar acts. Even if you find that
[defendant] may have committed similar acts in
the past, this is not to be considered as
evidence of character to support an inference
that [defendant] committed the acts charged in
this case.

Pattern Crim. Jury Instr. 1st Cir. § 2.05 (1998).

-15-
Cir., Preface (1998) ("Although we believe that the pattern

instructions . . . will be helpful in crafting a jury charge in a

particular case, it bears emphasis that no district judge is

required to use the pattern instructions, and that the Court of

Appeals has not in any way approved the use of a particular

instruction."); United States v. Palmer, 203 F.3d 55, 59 (1st Cir.

2000) ("The district court has considerable leeway as to the

phrasing and timing of a curative instruction."). Because Tse

objected below to the formulation of the instruction, "our review

is for abuse of discretion 'to determine whether the instructions

adequately explained the law or whether they tended to confuse or

mislead the jury on the controlling issues.'" United States v.

Ranney, 298 F.3d 74, 79 (1st Cir. 2002) (citations omitted); see

also United States v. Picciandra, 788 F.2d 39, 46 (1st Cir. 1986)

("We review the propriety of instructions to a jury under the abuse

of discretion standard.")

The court's instruction adequately limited the jury's

consideration of the February evidence. First, the court

specifically instructed that "[y]ou may not consider it as evidence

if it were that of the defendant's character or general propensity

to be involved in criminal activity. This is not evidence about

the defendant or his instincts or propensity." Second, the court

identified the proper use for evidence of the February transaction:

"The evidence of the other incident may or may not, in your

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judgment, support a conclusion that [Tse] was a participant in such

a transaction in November. . . . [Y]ou may consider [the February

evidence] for that purpose if it bears on the defendant's knowing

and intentional participation in a similar transaction in

November." Thus, the court instructed the jury that it could not

use evidence of the February transaction to make a propensity

inference and that it should use the evidence only to determine

Tse's knowledge and intent at the time of the alleged November

transaction.8 We find no abuse of discretion in the court's

instruction.

At the end of the trial, prior to jury deliberations, the

court again offered a limiting instruction regarding evidence of

the February transaction:

You may not consider evidence of the February
1999 transaction as indicating that the
defendant is of bad character and therefore
someone who had an inclination or propensity
to commit the crime that's charged. A person
may not be convicted of having a bad character
or inclination. He may only be convicted if
you are satisfied beyond a reasonable doubt
that he committed the offense as alleged in
the indictment.

8
While the court admitted evidence of the February transaction
as probative of Tse's "criminal association" with Williams, it
instructed the jury to use the February evidence only to determine
Tse's "knowing and intentional participation" in the November
transaction. Tse has not argued that this difference rendered the
instruction inadequate. Moreover, both of these rationales are
variations on the same theme: that Tse's relationship with Williams
was not innocent. Thus, it is not important to our analysis that
the judge spoke in his instruction about "knowing and intentional
participation" rather than about a "criminal association."

-17-
Although Tse objected to some portions of the instructions given

prior to jury deliberation, he did not object to the portion of

those instructions concerning evidence of the February transaction.

He raises an objection to this instruction for the first time on

appeal.

"When an objection to a jury instruction is forfeited, we

apply the plain error standard." Connelly v. Hyundai Motor Corp.,

351 F.3d 535, 545 (1st Cir. 2003). Relief under the plain error

standard requires (1) an error, (2) that is plain, (3) that is

likely to alter the outcome, and (4) that is sufficiently

fundamental to threaten the fairness, integrity, or public

reputation of judicial proceedings. Id.

The court's instruction on other bad act evidence at the

end of the trial only told the jury that it must not use evidence

of the February transaction to draw a propensity inference. Unlike

the earlier instruction just before the evidence was admitted, this

instruction did not tell the jury the limited purpose for which it

should use that evidence. While it would have been preferable for

the trial judge to use the more complete instruction again, the

plain error standard cannot be met. The jury had previously been

given a full instruction on the proper use of the February

evidence. We cannot conclude that the failure to specify proper

use of the February evidence during the second instruction altered

the outcome of this trial in any way.

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 IV.

"Confrontation Clause challenges are reviewed de novo in

order to verify that the trial court afforded the defendant a

reasonable opportunity to impeach adverse witnesses. When that

constitutional threshold is crossed, we examine the trial court's

restrictions on the manner and extent of cross-examination for

abuse of discretion." United States v. Perez-Ruiz, 353 F.3d 1, 11

(1st Cir. 2003).

Tse argues that the district court impermissibly limited

his cross-examination of Williams on three occasions. First, the

court did not allow Tse to impeach Williams with Williams's

previous conviction for assault and battery against a police

officer. Second, the court did not permit Tse to offer evidence of

charges against Williams, later dismissed, stemming from a traffic

stop on September 6, 1998. Tse sought to use these charges to

demonstrate that Williams had a motive to cooperate with the

government. Finally, the court did not allow Tse to attack

Williams's credibility by demonstrating that Williams had made

false statements on an employment application. We address each

argument in turn.

A. Conviction for Assault and Battery Against a Police Officer

Tse attempted to impeach Williams's credibility by

introducing evidence of Williams's prior conviction for assault and

battery against a police officer (ABPO). At first, the district

-19-
court agreed that the evidence was admissible pursuant to Federal

Rule of Evidence 609(a)(1).9 However, at a sidebar conference, the

court addressed a related matter: Tse's motion to exclude Tse's

own convictions, one of which was for ABPO, if Tse should choose to

testify. The court viewed the admissibility of Williams's

conviction as closely related to the admissibility of Tse's

conviction, stating that "[a]lthough it's not an identical

analysis, it's close enough that it may be that . . . if it's

allowed in this case, it would be allowed in the other as well."

The court later reiterated:

And if a particular offense is admitted as
impeachment for the witness under [Rule 609]
(a)(1), then that may -- consistency may
result in a similar ruling with respect to the

9
Fed. R. Evid. 609 states in relevant part:

(a) General Rule. For the purpose of
attacking the credibility of a witness,
(1) evidence that a witness other than
the accused has been convicted of a crime
shall be admitted, subject to Rule 403,
if the crime was punishable by death or
imprisonment in excess of one year under
the law under which the witness was
convicted, and evidence that an accused
has been convicted of such a crime shall
be admitted if the court determines that
the probative value of admitting this
evidence outweighs its prejudicial effect
to the accused; . . . .

In Massachusetts, ABPO is punishable by up to two and one half
years in prison. Mass. Gen. Laws ch. 265, § 13D. Thus, it
qualifies for admission under Rule 609 as a "crime punishable by .
. . imprisonment in excess of one year under the law under which
the witness was convicted."

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 defendant, although I note there is a
distinction in (a)(1) between an accused and
someone who is not an accused. But since they
both -- I don't -- I know the language makes a
distinction. I'm not sure it -- the
distinction -- pertains to the [Rule] 403
aspect of it.

After hearing counsel's arguments about whether any of Tse's

convictions should be admitted if he were to testify, the court

again compared Williams's ABPO conviction to Tse's ABPO conviction,

stating that "if it's probative enough in one case, it has to be

probative enough in the other, it seems to me. . . . There is a

difference [in standards of admissibility], but I'm not sure it's

a pertinent difference with respect to this." The court added: "I

don't know that there's, in fact, a different standard, except that

maybe it's a caution to make sure that it has probative value . .

. ." Finally, the court determined that it would "keep them both

out," ruling that neither Williams's ABPO conviction nor Tse's ABPO

conviction was admissible. Tse objected and now argues on appeal

that the court improperly excluded Williams's ABPO conviction.10

Rule 609 provides different standards for admitting prior

convictions to impeach the accused and to impeach witnesses other

than the accused. When the witness is the accused, evidence of a

prior conviction "shall be admitted if the court determines that

the probative value of admitting this evidence outweighs its

10
Tse does not argue on appeal that the court's ruling deterred
him from testifying. He argues only that he should have been
allowed to impeach Williams with his prior ABPO conviction.

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prejudicial effect to the accused." Fed. R. Evid. 609. When the

witness is other than the accused, such evidence "shall be

admitted, subject to Rule 403." Id. Rule 403 in turn states that

"evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue

delay, waste of time or needless presentation of cumulative

evidence." Fed. R. Evid. 403.

This dual approach is the result of a 1990 amendment to

Rule 609. Prior to that amendment, the rule did not explicitly

distinguish between the accused and witnesses other than the

accused. Rather, a district court could admit prior convictions

against any witness if it determined that "the probative value of

admitting this evidence outweigh[ed] its prejudicial effect to the

defendant." See 4 Jack B. Weinstein & Margaret A. Berger,

Weinstein's Federal Evidence, § 609App.03[1] (Joseph M. McLaughlin,

ed., Matthew Bender 2d ed. 2004) (stating the language of Rule 609

prior to the 1990 amendment). The language of the rule, explicitly

protecting only against prejudice to the defendant in a criminal

case, seemingly provided no protection to litigants in civil cases

or to prosecution witnesses in criminal cases. See Green v. Bock

Laundry Mach. Co., 490 U.S. 504, 509, 527 (1989) (holding that the

pre-1990 version of Rule 609 required courts to admit prior

convictions against civil litigants regardless of prejudice, and

-22-
noting that "impeaching evidence detrimental to the prosecution in

a criminal case 'shall be admitted' without any such balancing [of

probative value against prejudice]").

The 1990 amendment "[did] not disturb the special

balancing test for the criminal defendant who chooses to testify."

Fed. R. Evid. 609 advisory committee's notes on 1990 amendment.

Rather, the amendment made prior convictions of witnesses other

than the accused explicitly subject to the Rule 403 analysis. See

id. ("[T]he ordinary balancing test of Rule 403 . . . is

appropriate for assessing the admissibility of prior convictions

for impeachment of any witness other than a criminal defendant.").

This change may not have been aimed explicitly at

providing protection for witnesses other than the accused in a

criminal trial. See H. Richard Uviller, Essay: Credence,

Character, and the Rules of Evidence: Seeing Through the Liar's

Tale, 42 Duke L.J. 776, 798 (1993) ("A solid argument might be made

that the entire purpose to the amendment to Rule 609(a) was to

clarify its application to civil cases . . . ."). Nevertheless,

"whether intended or not, . . . the amendment of Rule 609(a) has

had a dramatic impact on the impeachment of prosecution witnesses

in criminal cases." Id. at 798. "[P]rosecution witnesses should

be shielded from impeachment by prior conviction if revealing the

prior conviction would result in prejudice to the prosecution."

Id. at 801 (emphasis in original). Indeed, the Advisory Committee

-23-
Notes indicate that the drafters were aware of the amendment's

impact on government witnesses:

Some courts have read Rule 609(a) as giving
the government no protection for its
witnesses. This approach is . . . rejected by
the amendment. There are cases in which
impeachment of government witnesses with prior
convictions that have little, if anything, to
do with credibility may result in unfair
prejudice to the government's interest in a
fair trial and unnecessary embarrassment to a
witness.

Fed. R. Evid. 609 advisory committee's notes on 1990 amendment

(citations omitted). Thus, there is no doubt that we must apply a

Rule 403 analysis to prior convictions of government witnesses in

a criminal prosecution.11

Although Rule 609 sets out two different evidentiary

standards for admitting prior convictions for impeachment, it does

not make clear whether the court's application of each standard

requires a substantively different analysis. Some commentators

have suggested that Rule 609 provides greater protection to the

accused than it does to other witnesses in the use of prior

convictions for impeachment. See Weinstein, supra, § 609.02 ("If

11
Separate from admitting prior convictions to impeach a
government witness under Rule 609, "the Confrontation Clause of the
Sixth Amendment requires a defendant to have some opportunity to
show bias on the part of a prosecution witness." United States v.
Abel, 469 U.S. 45, 50 (1984). "In any case in which the trial
court believes that confrontation rights require admission of
impeachment evidence, obviously the Constitution would take
precedence over [Rule 609]." Fed. R. Evid. 609 advisory
committee's notes on 1990 amendment.

-24-
the witness to be impeached is the accused in a criminal case, the

rule establishes a more stringent discretionary standard [for

admissibility]."). Others are skeptical that the difference

between the two balancing tests is sufficiently different to draw

a practical distinction in the evidentiary showing required for

admission of a prior conviction. See Uviller, supra, at 800

(suggesting that "the practical possibility of such fine

calibration of the danger of prejudice is dubious."). Although

"the nature of the distinction is elusive," Uviller, supra, at 799,

the drafting of the rule suggests that the distinction is

intentional. If the drafters had wanted to apply the same

evidentiary test to all prior convictions, they could easily have

stated a universal rule instead of differentiating between the

accused and all other witnesses. We therefore examine closely the

two standards to determine the precise nature of their differences.

To describe accurately the distinctions in Rule

609(a)(1), however, we must first unravel a linguistic oddity in

its language. With respect to a witness other than the accused,

the rule provides that a conviction "shall be admitted, subject to

Rule 403." The instruction that convictions "shall be admitted"

indicates that Rule 609 is a rule of inclusion; any conviction

meeting Rule 609's requirements will be admitted. However, the

reference to Rule 403 complicates the analysis. That rule,

applicable when a party objects to otherwise relevant evidence,

-25-
provides that evidence "may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice." Fed.

R. Evid. 403. Thus, by its language, Rule 403 is a rule of

exclusion. These conflicting formulations of inclusion in rule 609

and exclusion in Rule 403 raise some uncertainty about whether the

impeaching party (here Tse, who sought to impeach Williams with his

prior conviction) bears the burden of demonstrating the superior

probative value of the prior convictions to justify admission of

the evidence, or whether the impeached party (here the government,

which sought to avoid the impeachment of Williams with his prior

conviction) bears the burden of demonstrating the danger of unfair

prejudice to justify exclusion of the evidence. See Uviller,

supra, at 799-800 (noting this distinction).

The advisory committee notes offer some clarification

regarding the use of a prior conviction to impeach government

witnesses.12 The notes state that the "[Rule 403] balancing test

protects . . . the government in criminal cases" and that "[o]nly

when the government is able to point to a real danger of prejudice

that is sufficient to outweigh substantially the probative value of

12
Although Rule 609 distinguishes between "an accused" and any
"witness other than an accused" (thereby including witnesses in
civil cases), the advisory committee notes also discuss
specifically a "government witness" in a criminal case. The
distinction at issue in this case is between "an accused" and a
"government witness," and we therefore focus the remainder of our
discussion on that distinction, drawing from the comments in the
advisory committee notes that are specific to the attempt to
impeach a government witness.

-26-
the conviction for impeachment purposes will the conviction be

excluded." Fed. R. Evid. 609 advisory committee's notes on 1990

amendment. Therefore, although the proponent of the admission of

the evidence of a prior conviction is the accused who seeks to

impeach the government witness, the government bears the burden of

protecting its witnesses from such impeachment by demonstrating to

the court, pursuant to Rule 403's exclusionary rule, that the

probative value of the conviction at issue is substantially

outweighed by the danger of unfair prejudice, or the other grounds

for exclusion noted in Rule 403.13

This standard of prejudice differs from the standard of

prejudice applicable to the court's consideration of requests by

the government to impeach a defendant with prior convictions. The

court may exclude a prior conviction of the accused, offered for

the purpose of impeachment, if the prejudicial effect of the

13
These other grounds for exclusion available to government
witnesses include "confusion of the issues," "misleading of the
jury," and "considerations of undue delay, waste of time or
needless presentation of cumulative evidence." Fed. R. Evid. 403.
Rule 609 does not explicitly mention these grounds for excluding
the prior convictions of an accused. Instead, it refers only to
the "prejudicial effect to the accused." "From the imbalance, some
might claim that the impeaching convictions might be excluded when
offered against a witness other than the accused by operation of
the distraction or delay factor, whereas a prior criminal
conviction of the defendant will always be efficient." Uviller,
supra, at 800. "[S]uch a construction of the distinction between
defendant-witnesses and other witnesses would be inconsistent with
the policy . . . that a higher standard should protect the
testifying defendant in a criminal case against impeachment by
prior conviction." Id. at 801. Although the issue noted is an
important one, this case does not require us to resolve it.

-27-
conviction merely outweighs its probative value; the court may

exclude a conviction of a government witness, offered by the

accused for the purpose of impeachment, only if the danger of

unfair prejudice from the conviction substantially outweighs its

probative value.

In addition, Rule 403 protects government witnesses only

against the danger of "unfair prejudice," while Rule 609 protects

the accused against any "prejudicial effect." See United States v.

Smith, 292 F.3d 90, 99 (1st Cir. 2002) (noting that Rule 403

protects only against unfair prejudice rather than all prejudice);

United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir.

1989) ("[A]ll evidence is meant to be prejudicial; it is only

unfair prejudice which must be avoided."). "Usually, courts use

the term 'unfair prejudice' for evidence that invites the jury to

render a verdict on an improper emotional basis." Varoudakis, 233

F.3d at 122; see also United States v. Currier, 836 F.2d 11, 18

(1st Cir. 1987) (noting that "unfair prejudice" is prejudice that

causes "a jury to base its decision on something other than the

established proposition in the case" (quoting 1 Weinstein's

Evidence § 403[03], 36-39 (1986))). Thus, while a court must weigh

all potential "prejudicial effect" to the defendant when deciding

whether to admit a prior conviction of the accused, it must weigh

only the kind of prejudice that can be deemed "unfair" when

-28-
deciding whether to admit the prior conviction of a government

witness.

These distinctions--"substantially outweighs" versus

"outweighs," and "unfair prejudice" versus "prejudicial effect"--

support the assertion of the Weinstein treatise that the standard

for the admission of prior convictions of the accused is stricter

than the standard for the admission of prior convictions of a

government witness. These distinctions also recognize that the

potential prejudice to the defendant from the admission of prior

convictions is simply not the same as the potential prejudice to a

government witness. In particular, there is a heightened risk that

a jury will use evidence of a prior conviction of the accused to

draw an impermissible propensity inference:

[I]n virtually every case in which prior
convictions are used to impeach the testifying
defendant, the defendant faces a unique risk
of prejudice--i.e., the danger that
convictions that would be excluded under Fed.
R. Evid. 404 will be misused by a jury as
propensity evidence despite their introduction
solely for impeachment purposes.

Fed. R. Evid. 609 advisory committee's notes on 1990 amendment.

See also Uviller, supra, at 802-803 ("[T]he outstanding difference

between harm to a defendant and harm to other witnesses is

undeniable: A jury might conclude from the testifying defendant's

criminal career (despite vociferous instructions from the court to

the contrary) that he committed the crime charged because of a

demonstrated propensity to engage in criminal conduct. That kind

-29-
and degree of damage cannot be suffered by the prosecution or its

witnesses . . . ."). Moreover, revelations of past convictions may

inflame the jury. See, e.g., United States v. Beahm, 664 F.2d 414,

419 (4th Cir. 1981) (excluding evidence of a prior conviction in

part because "it was likely to inflame the jury and thus prejudice

the defendant").

In contrast, the prior convictions of a government

witness are unlikely to inflame the jury or invite a propensity

inference:

The probability that prior convictions of an
ordinary government witness will be unduly
prejudicial is low in most criminal cases.
Since the behavior of the witness is not the
issue in dispute in most cases, there is
little chance that the trier of fact will
misuse the convictions offered as impeachment
evidence as propensity evidence.

Fed. R. Evid. 609 advisory committee's notes on 1990 amendment.

Rather, the prior convictions of government witnesses are more

likely to cause "unfair prejudice to the government's interest in

a fair trial and unnecessary embarrassment to [the] witness." Id.

While these are important concerns, see United States v. Orlando-

Figueroa, 229 F.3d 33, 46 (1st Cir. 2000) (affirming district

court's decision to exclude prior crime of government witness

involving dishonesty where defense was able to impeach the witness

with evidence of more recent dishonest acts), "trial courts will be

skeptical when the government objects to impeachment of its

-30-
witnesses with prior convictions." Fed. R. Evid. 609 advisory

committee's notes on 1990 amendment.

We summarize. With respect to the use of prior

convictions for impeachment, Rule 609 distinguishes between the

accused and mere witnesses. A court may admit a conviction of the

accused only if the probative value "outweighs its prejudicial

effect to the accused." By contrast, a court shall admit a

conviction of a government witness unless that conviction should be

excluded under Rule 403. The burden under Rule 403 is on the party

opposing admission, who must show that the probative value "is

substantially outweighed by the danger of unfair prejudice." In

this case, in considering the admission of a prior conviction of

Tse and a prior conviction of Williams, the government's principal

witness, the district court appeared to apply a uniform standard of

exclusion. If so, the failure to apply the different standards for

exclusion was an error of law.14

However, any such error was harmless. "[A] non-

constitutional evidentiary error will be treated as harmless if it

is highly probable that the error did not contribute to the

verdict." United States v. Rose, 104 F.3d 1408, 1414 (1st Cir.

14
Moreover, explicit rulings on these separate evidentiary
issues are important to facilitate review on appeal. See United
States v. Oakes, 565 F.2d 170, 173 n.12 (1st Cir. 1977) ("[T]he
district court's explicit statements in the record revealing its
knowledge of Rule 609(a) and the basis for its resolution of the
balancing required by it are most helpful to this court in carrying
out our review.").

-31-
1997). The government bears the burden of persuasion to show that

the error is harmless. Id. "In conducting a harmless error

analysis, the court 'must mull the ruling in context, giving due

weight to the totality of the circumstances'" and avoid

"'unnecessarily interven[ing] in a process that--although

imperfect--adequately protected defendant's rights.'" United

States v. Wilkerson, 251 F.3d 273, 280 (1st Cir. 2001) (citations

omitted).

The excluded evidence of Williams's prior conviction was

unmistakably cumulative. Id.; see also Rose, 104 F.3d at 1414.

The jury heard evidence that Williams had been convicted of at

least one crime; that he had made false statements to the grand

jury and on a job application;15 that he had been paid a significant

sum for his work as a DEA informant and had bought a new car soon

after the November transaction; that he had not reported his

earnings from the DEA on his tax return, despite having been told

to do so; and finally, that he had dealt and used illicit drugs in

the past. The jury had ample reason to closely scrutinize

Williams's credibility in this case. It is highly probable that

any error in excluding Williams's ABPO conviction had no impact on

the verdict.

15
On cross-examination, Williams admitted stating on an
employment application that he had attended Bunker Hill Community
College even though he had never enrolled there as a full-time
student.

-32-
B. Traffic Stop

As a general matter, a defendant has the right to cross-

examine a prosecution witness about matters that might cause the

witness to be biased against the defendant. See, e.g., United

States v. Barrett, 766 F.2d 609, 614 (1st Cir. 1985) ("[A]

defendant has a right to cross-examine an accomplice as to the

nature of any agreement he had with the government or any

expectation or hope that he may have that he will be treated

leniently in exchange for his cooperation."). However, a defendant

must lay a proper foundation before evidence of bias is admitted.

Bui v. DiPaolo, 170 F.3d 232, 245 (1st Cir. 1999) ("[A] defendant

. . . must present a satisfactory foundation for the critical

elements on which his hypothesis of bias depends.").

Moreover, once the defendant's Sixth Amendment right to

establish bias has been satisfied, the district court has the

discretion to limit the scope of the bias inquiry. See Bui, 170

F.3d at 242 ("[T]o the extent that the petitioner is suggesting

that a criminal defendant has license to cross-question a

prosecution witness concerning every conceivable theory of bias, .

. . he is plainly wrong."); Barrett, 766 F.2d at 614 ("[T]he court

has the discretion to limit cross-examination once the defendant's

Sixth Amendment right to establish the potential bias of the

accomplice-witness has been satisfied."). The district court's

discretion allows it to exclude evidence of previously dismissed

-33-
criminal charges against the witness. United States v. Marrero-

Ortiz, 160 F.3d 768, 775 (1st Cir. 1998) (finding no abuse of

discretion where the district court prohibited the defendant from

cross-examining a prosecution witness about a dismissed charge of

weapons possession).

Tse laid no foundation for his line of questioning about

the traffic stop. The record does not indicate that charges

against Williams were dropped in return for Williams's cooperation

with the DEA, and Tse never attempted to offer evidence to this

effect. Indeed, if such an agreement did exist, the government

would have been obligated to disclose it along with its disclosures

about Williams's compensation for his role in the DEA stings. See

Giglio v. United States, 405 U.S. 150, 154-55 (1972) (holding that

failure to disclose impeachment material against a government

witness is a violation of due process). Tse's questioning relied

solely on a theory of quid pro quo entirely unsupported by

evidence.

Moreover, Tse's right to question Williams about his

potential bias in favor of the government was satisfied by other

lines of questioning. Tse established that Williams began working

at the Boston Housing Authority--the same organization that

employed one of the DEA task force members in the Tse sting

operation--after he had testified as a cooperating witness in a

previous trial. He established that Williams had been

-34-
intermittently unemployed prior to working for the DEA, and that

the DEA had, on certain occasions, helped him pay routine bills and

expenses. He further established that Williams had purchased a new

car in the fall of 1999, and that he had signed a loan application

listing the DEA as his employer and a monthly income of $2,700.

Williams's direct examination testimony established that the DEA

had paid him $17,000 for his work as an informant. In light of

this other evidence of bias, the district court acted well within

its discretion in excluding evidence of the traffic stop.

C. Employment Application

Tse attempted to attack Williams's character for

truthfulness by asking Williams about allegedly false statements

that Williams had made on an employment application in 1997.

Although the court initially ruled that Tse could not question

Williams about the application, it agreed to revisit the issue on

the next day of trial. When Tse renewed his request the following

day, he said he would use the employment application to refresh

Williams's memory if Williams could not recall the statements he

had made on the application. The government argued that Tse could

question Williams about the application but could not use the

application to refresh Williams's memory because doing so would be

tantamount to using extrinsic evidence to impeach, which is

-35-
expressly prohibited by Federal Rule of Evidence 608(b).16 The

court agreed with the government, noting that the alleged

misrepresentations at issue in this case were collateral because

they did not relate directly to any matter at issue in the case.

The court allowed Tse to question Williams about the employment

application but prohibited Tse from using the application itself to

refresh Williams's memory. Tse's counsel asked Williams about only

two statements on the employment application: the dates of his

employment at the Gillette company, and the statement that he had

been a student at Bunker Hill Community College.17

District courts have broad discretion to determine

whether to permit the refreshing of a witness's memory. See 28

Wright & Gold, Federal Practice and Procedure: Evidence § 6184

(1993). In this case, the district court was not obligated to

allow Tse to refresh Williams's memory on the collateral issue of

the content of the employment application.18 Tse's questions about

16
Federal Rule of Evidence 608(b) states in relevant part:

"Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness' character for truthfulness,
other than conviction of crime as provided in Rule 609, may not be
proved by extrinsic evidence."
17
These lines of questioning garnered mixed results. Tse did
not establish whether Williams had made false statements about his
dates of employment at Gillette. As stated supra at note 15,
however, Williams did admit that he had not been a full time
student at Bunker Hill Community College.
18
"A matter is considered collateral if 'the matter itself is
not relevant in the litigation to establish a fact of consequence,

-36-
the employment application had no conceivable relevance other than

to impeach Williams as untruthful. Using the employment

application for this purpose would be a clear violation of Rule

608(b). The court acted well within its discretion in refusing to

allow Tse to refresh Williams's memory on matters entirely

collateral to the case. See United States v. Marino, 277 F.3d 11,

24 (1st Cir. 2002) (excluding testimony contradicting the witness's

characterization of his activities as a drug dealer as extrinsic

evidence on a collateral matter in violation of Rule 608(b), even

though the truthfulness of the witness's testimony was critical to

the prosecution's case).

V.

During redirect examination the prosecution asked

Williams if the DEA had offered him relocation money as part of his

compensation for acting as a cooperating witness. Tse objected.

The court initially sustained the objection, but the prosecution

asked to be heard on the matter. At sidebar, the prosecution

explained that, as part of his agreement with the DEA, if Williams

lied on the stand during his testimony, the DEA would not provide

him with any relocation funds. Without those funds, Williams would

be stuck in Massachusetts even if he feared retaliation from some

i.e. not relevant for a purpose other than mere contradiction of
the in court testimony of the witness.'" United States v.
Beauchamp, 986 F.2d 1, 4 (1st Cir. 1993) (quoting 1 McCormack on
Evidence § 45, at 169 (4th ed. 1992)).

-37-
of the drug traffickers that he had helped the DEA arrest. Thus,

Williams had an incentive to testify truthfully. The court changed

its earlier ruling and allowed the prosecution to proceed. The

subsequent exchange was as follows:

Q. Mr. Williams, has the DEA offered you money to

relocate you?

A. Yes.

Q. Why?

A. Because they didn't think I should be staying in the

same place, and sometimes I hear a lot of things that's

coming from jail --

DEFENSE COUNSEL: Objection.

A. -- from these guys --

DEFENSE COUNSEL: Objection, Your Honor.

THE COURT: No. Go ahead. Go ahead.

A. -- and little side talks about these guys telling

people they're getting me and all of this stuff.

Q. [Defense counsel] asked you a series of questions this

morning that you did some DEA control buys from people

you knew?

A. Yes.

Q. And you still live in the Boston area?

A. Yes, I do.

-38-
 Q. Let me ask you Mr. Williams, do you know what happens

if you lie to the DEA agents during an undercover

operation? What happens to your status as an informant?

A. I don't know what they do about it, but lying as

telling them lies?

Q. Yes. Do they continue to use you?

DEFENSE COUNSEL: Objection, Your Honor.

THE COURT: Overruled.

Q. Would the DEA continue to use you if they find out

that you're lying to them?

A. No, they wouldn't.

Q. Would they continue to pay you money?

A. No, they wouldn't.

Q. Would they continue to offer you relocation benefits?

A. Not that I know about that.

Tse argues that Williams's references to "a lot of things

that's coming from jail" and "these guys telling people they're

getting me and all of this stuff" were prejudicial because they

insinuated that Tse was or had been in prison and that Tse was the

source of threats against Williams's life.19 This argument is not

19
Tse also argued before the district court and on appeal that
he had not been notified of Williams's relocation agreement and
that the disclosure during trial was thus a late disclosure in
violation of Giglio v. United States, 405 U.S. 150, 154-55 (1972)
(holding that non-disclosure of impeachment evidence may require a
new trial where the witness's testimony may have determined guilt
or innocence). The record demonstrates that the prosecution sent

-39-
convincing. Williams's redirect testimony did not suggest that Tse

was in prison or that Tse had been the source of death threats

against Williams. During his earlier testimony, Williams made

clear that he had participated in several other operations with the

DEA, buying drugs both from people that he already knew and from

people whom he met only when he attempted to purchase drugs from

them at the DEA's direction. Neither Williams nor the prosecution

suggested that Tse was the source of the threats against Williams's

life. Thus, we find no error in the court's decision to allow

Tse's redirect testimony.

VI.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

So ordered.

Tse's counsel a letter dated May 30, 2000, stating that "[Williams]
has also been promised some form of relocation assistance in the
event it becomes necessary due to threats to his person." Thus,
Tse's Giglio claim fails.

-40-