United States v. Meserve , 271 F.3d 314 ( 2001 )

United States Court of Appeals
For the First Circuit
No. 00-2091
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN EUGENE MESERVE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin, Senior Circuit Judge,
and Young,* District Judge.
Matthew S. Robinowitz for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Paula D. Silsby, United States Attorney, was on brief,
for appellee.
*Of the District of Massachusetts, sitting by designation.
November 16, 2001
YOUNG, District Judge. Brian Eugene Meserve
(“Meserve”) appeals from his conviction for robbery and firearms
offenses in the United States District Court for the District of
Maine. On appeal, Meserve claims four errors occurred during
the course of his two-day trial; specifically that (A) the
district court allowed a witness to repeat the out-of-court
statement of a third party in violation of Federal Rule of
Evidence 802, (B) the district court barred the defense from
cross-examining a government witness about the omission of
certain information stated at trial from her grand jury
testimony in violation of Meserve’s Sixth Amendment right of
confrontation, (C) the government used a stale conviction to
impeach a defense witness in violation of Federal Rule of
Evidence 609(b), and (D) the government cross-examined a defense
witness about his character for violence and his prior
convictions in violation of Federal Rules of Evidence 608 and
609. Meserve further asserts that even if these errors,
considered individually, do not necessitate a new trial, the
cumulative effect of the errors cannot be considered harmless.
I. Background
-2-
On April 24, 1998, the Ferris Market, a family-owned
convenience store in Vassalboro, Maine, was robbed at gunpoint.
In a four-count indictment, Meserve was charged with the robbery
and the associated firearms offenses.1
Viewing the evidence adduced at trial in the light most
favorable to the jury verdict, United States v. Josleyn, 99 F.3d
1182, 1185 n.1 (1st Cir. 1996), the facts are as follows: At
around 6:00 p.m. on the evening of the robbery, Meserve showed
his girlfriend and accomplice, Holly Grant (“Grant”), a
sawed-off shotgun and told her that he was going to rob the
Ferris Market. After nightfall, Meserve and Grant drove to the
Ferris Market together in Meserve’s car, where they waited until
the store became less busy. Meserve then got out of the car,
while Grant stayed behind.
Meserve, wearing a ski mask and carrying a black bag
and a short gun with a brown handle, entered the Ferris Market.
He forced Shawna Vashon, an employee, and Sumayah Ferris, the
mother of the owner, to the floor, and ordered Amy Craig
1Count I of the indictment charged Meserve with the use of
force and violence in the commission of a robbery that affected
commerce in violation of 18 U.S.C. § 1951(a). Count II charged
Meserve with carrying and using a firearm during and in relation
to a crime of violence in violation of 18 U.S.C § 924(c). Count
III charged Meserve with possession of an unregistered sawed-off
shotgun in violation of 26 U.S.C. § 5861(d). Count IV charged
Meserve with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1).
-3-
(“Craig”), a second employee, to give him the money in the cash
register. Craig handed Meserve everything that was in the cash
register -- one hundred dollars. Meserve then fled from the
store, passing a customer on his way out of the building.
When Meserve returned to the car where Grant was
waiting, he told Grant that the robbery was a “piece of cake,”
and that the only problem was that “an old lady gave him a hard
time.” During the drive away from the scene, Meserve tossed his
gloves and ski mask, the bag used to carry the money, and the
gun out of the car. When Meserve and Grant arrived at Meserve’s
mother’s house, he gave Grant his sweatshirt and asked her to
burn it and buried his shoes in the woods.
Later that evening, Grant and Meserve went to the Chez
Paris and the Bob-In, two local bars, where they used the
robbery proceeds to buy drinks. While Meserve and Grant were at
the Chez Paris, Craig came into the bar and Meserve commented to
Grant that Craig was working at the Ferris Market when he robbed
it. Later that night, when a report about the robbery came on
the evening news, Meserve remarked to Grant, “If they only
knew.”
At trial, Grant supplied many of the details about the
robbery and Meserve’s conduct afterwards. Although Grant denied
any knowledge of the crime when first asked about it by
-4-
Detective Sampson Pomerleau (“Detective Pomerleau”) in October
1998, she later came to an agreement with the government. Grant
met with prosecutors several times to go over her grand jury
testimony and police reports regarding her statements. She also
discussed the case with Sergeant Gerard Madden (“Sergeant
Madden”), a Maine State Trooper who testified on her behalf at
her child custody proceeding. Under direct examination, Grant
admitted to several prior bad acts, including fraudulently using
her grandmother’s credit card on multiple occasions and
obtaining Aid for Families with Dependent Children after she no
longer had custody of her child.
Meserve presented a defense based on alibi and mistaken
identity. Both Meserve’s mother, Lindsay Overlock (“Overlock”),
and his brother, Kevin Meserve (“Kevin”), testified that he was
at home until a little after 8:00 p.m. on the evening of the
robbery. Kevin testified that at approximately 8:10 p.m., he
and Meserve went to the Chez Paris, where they stayed for two
hours before heading to the Bob-In. Kevin also testified that
he had seen Grant at the Chez Paris during the last week of
August 1999, two months before the trial. Kevin stated that
Grant was drinking heavily at that time, and complained to him
that Sergeant Madden had been “keeping tabs on her,” and that
-5-
every time she met or spoke with Sergeant Madden, he would
instruct her what to say at trial.
Meserve’s other alibi witness, Jane Morissette
(“Morissette”), a bartender at the Chez Paris, testified that
she saw Meserve and his brother, Kevin, enter the bar around
8:30 p.m., but that Grant was not with them. She stated that
later in the evening, Meserve told her that he was going to the
Bob-In with Kevin, and asked her to let Grant know where he was
when she arrived. According to Morissette, Grant entered the
Chez Paris shortly thereafter and Morissette told her that
Meserve had gone to the Bob-In. Morissette testified that
between 11:30 p.m. and midnight, a girl named Amy (Craig)
arrived at the Chez Paris. Morissette overheard Craig tell a
man about a robbery that had occurred earlier that evening at a
store at which she worked in Vassalboro.
On October 21, 1999, the jury convicted Meserve on all
four counts. Meserve filed a motion for a new trial, which was
denied on July 20, 2000. Accordingly, on August 29, 2000,
Meserve was sentenced to concurrent terms of one hundred months
imprisonment on Counts I, III, and IV of the indictment and to
a consecutive term of one hundred twenty months on Count II of
the indictment.
II. Analysis
-6-
A. Hearsay Evidence
Generally, questions of admissibility of evidence that
do not raise issues of law are reviewed for abuse of discretion.
E.g., Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 251-
52 (1st Cir. 1995). During the government’s case in chief,
Detective Pomerleau was permitted to testify over the objection
of the defense that he drove by Meserve’s house on the night of
the robbery “to see exactly where the subject was living.”
Detective Pomerleau further testified, again over objection,
that Meserve became a suspect in the case because he matched the
description of the robber and because Craig thought Meserve
might have been the robber because she knew him. Meserve
asserts that this testimony constitutes hearsay and is
inadmissible under Federal Rule of Evidence 802. The government
argues, however, that the district court admitted Craig’s
statement not for the truth of the matter asserted, but rather
to explain why Detective Pomerleau drove by Meserve’s home that
evening. Meserve counters that the statement was nevertheless
inadmissible because, if not hearsay, the fact that Detective
Pomerleau drove by Meserve’s home shortly after the robbery had
no tendency to prove any issue in the case.
Hearsay is an out-of-court statement offered to prove
the truth of the matter asserted. Fed. R. Evid. 801(c).
-7-
Testimony that is not offered to prove the truth of an
out-of-court statement, but is instead offered to provide
relevant context or background, is not considered hearsay.
E.g., United States v. Mazza, 792 F.2d 1210, 1215 (1st Cir.
1986); accord United States v. Freeman, 816 F.2d 558, 563 (10th
Cir. 1987); United States v. Love, 767 F.2d 1052, 1063 (4th Cir.
1985). Moreover, the hearsay rule does not apply to statements
that are offered to show what effect they produced on the
actions of a listener. United States v. Castro-Lara, 970 F.2d
976, 981 (1st Cir. 1992).
In the instant case, however, the government’s espoused
reason for introducing the testimony -- to explain why Detective
Pomerleau drove by Meserve’s house on the evening of the robbery
-- is completely irrelevant to the government’s case. Detective
Pomerleau did not discover any evidence or valuable information
during his drive-by and made no observations pertinent to the
investigation; thus, the fact that he went on such a drive has
no “tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Fed. R.
Evid. 401. Detective Pomerleau’s motivation for driving by
Meserve’s home is likewise irrelevant. In light of the
government’s baldly pretextual basis for the introduction of
-8-
Craig’s out-of-court statement, this court is not prepared to
say that the statement is admissible non-hearsay. The
government is thus reduced to its claim that the error is
harmless -- a matter considered below.
B. Exclusion of Cross-Examination Using Grand Jury
Testimony
Meserve claims that the district court erred by not
allowing the defense to cross-examine Grant concerning a
discrepancy between her trial testimony and her grand jury
testimony. At trial, Grant testified that Craig came into the
Chez Paris on the night of the robbery and that Craig’s entrance
prompted Meserve to mention that Craig was working at the store
when he robbed it. In contrast, although Grant testified before
the grand jury that after the robbery she went to two bars with
Meserve, the Chez Paris and the Bob-In, she never stated that
she saw Craig at the Chez Paris. Nor did she mention seeing
Craig that night at the Chez Paris even though, in response to
a question as to whether Meserve had recognized any of the
Ferris Market’s employees, Grant testified that Meserve told her
that he recognized a girl named Amy because she was dating a
friend of theirs.
When the defense sought to question Grant about why she
had not mentioned Craig’s presence at the Chez Paris in her
grand jury testimony, the district court barred this line of
-9-
questioning because Grant was not specifically asked about the
incident before the grand jury. Meserve argues that this
restriction on Grant’s cross-examination violated his rights
under the Confrontation Clause of the Sixth Amendment. E.g.,
Delaware v. Van Arsdall, 475 U.S. 673, 679-80 (1986); Davis v.
Alaska, 415 U.S. 308, 318 (1974). The government responds that
Grant’s grand jury testimony was not inconsistent with her
testimony at trial and that even if error occurred, it was
harmless.
Pursuant to the Federal Rules of Evidence, a witness’s
credibility may be impeached by asking him about prior
inconsistent statements. Fed. R. Evid. 613(a); United States v.
Hudson, 970 F.2d 948, 953-54 (1st Cir. 1992). The rule applies
“when two statements, one made at trial and one made previously,
are irreconcilably at odds.” United States v. Winchenbach, 197
F.3d 548, 558 (1st Cir. 1999). Prior statements, such as the
grand jury testimony at issue here, that omit details included
in a witness’s trial testimony are inconsistent if it would have
been “natural” for the witness to include the details in the
earlier statement. United States v. Stock, 948 F.2d 1299, 1301
(D.C. Cir. 1991) (citing Jenkins v. Anderson, 447 U.S. 231, 239
(1980)). This test is an elastic one, because the “naturalness”
of a witness’s decision not to include certain information in an
-10-
earlier statement may depend on the “nuances of the prior
statement’s context, as well as [the witness’s] own loquacity.”
Id.District courts have broad discretion concerning
whether two statements are in fact inconsistent, and thus
whether the witness may be impeached by the prior statement.
Udemba v. Nicoli, 237 F.3d 8, 18 (1st Cir. 2001) (citing United
States v. Agajanian, 852 F.2d 56, 58 (2d Cir. 1988); United
States v. Jones, 808 F.2d 561, 568 (7th Cir. 1986)).
Nevertheless, under certain circumstances, a district court’s
refusal to permit a witness to be questioned about a prior
inconsistent statement may constitute reversible error. See,
e.g., Stock, 948 F.2d at 1301 (citing United States v. Standard
Oil Co., 316 F.2d 884, 891-92 (7th Cir. 1963); United States v.
Ayotte, 741 F.2d 865, 870-71 (6th Cir. 1984)).
Here, however, the district court did not abuse its
wide discretion by refusing to allow Meserve to cross-examine
Grant regarding the omission from her grand jury testimony of
certain details about which she testified at trial. Before the
grand jury, Grant was not asked whether she remembered anyone
coming into the Chez Paris on the night of the crime nor whether
she saw any of the victims of the crime at any point. Although
Meserve argues that questions about whether Meserve recognized
-11-
any of the workers at the Ferris Market and about Grant and
Meserve’s activities after they went to the Chez Paris should
have prompted Grant to mention that she saw Craig at the Chez
Paris that night, such nuances are peripheral and not directly
inconsistent. Thus, the district court did not abuse its
discretion by refusing to allow Grant to be questioned about her
prior omission. The right to confrontation through
cross-examination is not unlimited. A district court has “wide
latitude . . . to impose reasonable limits on . . .
cross-examination based on concerns about . . . interrogation
that is repetitive or only marginally relevant.” Van Arsdall,
475 U.S. at 679. The district court appropriately exercised its
authority under the circumstances of this case.
C. Impeachment by Stale Conviction
Meserve argues that the district court erred by
allowing the government to use a conviction for theft that was
over twenty years old to impeach Morissette. The government
raises three counter-arguments: First, as Meserve did not
contemporaneously object to the question, the issue was not
preserved for appeal. Second, because Federal Rule of Evidence
609 does not render such impeachment evidence per se
inadmissible, the lack of an objection deprived the district
court of the opportunity to make the appropriate rulings with
-12-
respect to its admissibility. Third, even if error occurred, it
was harmless.
Meserve concedes that he failed to make a
contemporaneous objection at the time of Morissette’s
cross-examination. Thus, this court reviews the district
court’s allowance of this impeachment evidence for plain error.
Fed. R. Crim. P. 52(b); Fed. R. Evid. 103(d). Review for plain
error “entails a quadripartite showing: (1) that there was
error; (2) that it was plain; (3) that the error affect[ed]
substantial rights; and (4) that the error affected the
fairness, integrity, or public reputation of judicial
proceedings.” United States v. Eirby, 262 F.3d 31, 36 (1st Cir.
2001) (alteration in original) (internal quotation marks
omitted); see also Johnson v. United States, 520 U.S. 461,
465-67 (1997); United States v. Olano, 507 U.S. 725, 731-32
(1993). In a plain error argument, the defendant bears the
burden of persuasion. United States v. Rose, 104 F.3d 1408,
1414 (1st Cir. 1997).
Pursuant to Federal Rule of Evidence 609(b), evidence
of a conviction is not admissible to impeach a witness “if a
period of more than ten years has elapsed since the date of the
conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date
-13-
. . . .” Id. Thus, because Morissette’s conviction for theft
occurred in 1978 and she had been released from any confinement
by 1980, the conviction was stale under the terms of Rule
609(b). See United States v. Orlando-Figueroa, 229 F.3d 33, 46
(1st Cir. 2000).
It is not clear, however, that the error was “plain.”
Rule 609(b) contains an exception, which establishes that
evidence of convictions over ten years old may be admissible if
“the court determines, in the interests of justice, that the
probative value of the conviction supported by specific facts
and circumstances substantially outweighs its prejudicial
effect.” Fed. R. Evid. 609(b). Meserve’s failure to make a
timely objection to the admission of the evidence deprived the
district court of the opportunity to determine whether the
probative value of the evidence substantially outweighed its
prejudicial effect. Thus, the “plainness” of the error cannot
be established on the current record.
And even if, by some stretch, this court were to
conclude that the admission of a conviction over ten years old
as impeachment evidence under the circumstances of this case
constituted plain error, Meserve cannot satisfy his burden of
showing that the error “seriously affect[ed] the fairness,
integrity or public reputation of [the] judicial proceeding[],”
-14-
Johnson, 520 U.S. at 469 (quoting Olano, 507 U.S. at 736)
(internal quotation marks omitted). As the government points
out, “[t]he subject of Morissette’s prior conviction occupied a
single question, produced a single answer and neither party
returned to the topic again either in the testimony or in
summations.” See, e.g., United States v. Tse, 135 F.3d 200,
209-10 (1st Cir. 1998) (finding harmless error where the
improperly admitted evidence played an insignificant role in the
proceedings). Even Meserve seems to acknowledge that the
admission of a single piece of impeachment evidence against a
single defense witness is not capable of depriving him of
substantial rights. Instead, Meserve attempts to argue that the
impeachment evidence was particularly likely to be damaging
because it was “followed by the improper cross-examination of
[Kevin].” The argument that the cumulative effect of multiple
errors warrants reversal, however, is distinct from the argument
that the admission of impeachment evidence against Morissette --
in and of itself -- constitutes reversible error. Viewed alone,
the use of a stale conviction to impeach Morissette, even if
such evidence was admitted in violation of Rule 609(b), was not
a sufficiently egregious violation of Meserve’s rights to have
deprived the proceedings of their fundamental integrity and
fairness.
-15-
-16-
D. Cross-Examination of Kevin Meserve about his
Prior Convictions and Character for Violence
Meserve argues that the district court committed
reversible error by permitting the government to cross-examine
his brother, Kevin, about his disorderly person and assault
convictions and about his alleged violent reputation in the
community. The challenged portion of Kevin’s cross-examination
is as follows:
Q: Now, Mr. McKee asked you questions about
your conviction for unlawful sexual contact
in ‘94 and ‘95, but that’s not your only
conviction, is it?
A: I have a couple of assaults on my record.
Q: 1999-1979, disorderly conduct.
MR. McKEE: I object, Your Honor,
That’s improper cross-examination under Rule
609. It specifically precludes that. A
disorderly conduct?
MR. McCARTHY: I can lay a foundation
for it.
THE COURT: Go ahead.
BY MR. McCARTHY:
Q: You’re a tough guy, aren’t you Kevin?
MR. McKEE: I object.
THE COURT: Overruled.
BY MR. McCARTHY:
Q: You’re a tough guy, aren’t you?
-17-
A: I wouldn’t classify myself as a tough
guy.
Q: Been in a lot of fights in your day?
MR. McKEE: I object, improper
character evidence, impeachment.
THE COURT: Just a minute. Objection’s
overruled.
A: How many would you classify as a lot?
BY MR. McCARTHY:
Q: More than one?
A: Yeah, I’ve been in more than one,
probably two.
Q: Okay. And as a result of that, people in
the community are afraid of you, aren’t
they?
A: No.
Mr. McKEE: Object, Your Honor. A
continuing objection to my client’s --
excuse me -- this witness’ alleged behavior
in the past as not being relevant, as not
being permissible character evidence under
Rule 608 or any other rule.
The COURT: Mr. McCarthy?
MR. McCARTHY: Well, Your Honor, I
disagree. If his reputation in the
community is basically as an assaultive
person about whom people are afraid, that’s
very significant when it comes to the other
people’s testimony about him and about
what’s happened.
THE COURT: I’m going to allow it over
objection. You’ll have a continuing
objection.
-18-
Mr. McKEE: Thank you, Your Honor.
BY MR. McCARTHY:
Q: In fact, you were convicted of assault as
recently as 1997, weren’t you.
MR. McKEE: Same objection, Your Honor.
THE COURT: You have a continuing
objection.
MR. McKEE: This is with respect to
Rule 609.
THE COURT: Overruled.
A: Yes.
BY MR. McCARTHY:
Q: Is that right?
A: Yes.
Meserve objects to this entire line of questioning,
asserting that the questions about Kevin’s disorderly person and
assault convictions were improper because these convictions were
not permissible subjects of cross-examination under Rule 609(a)
and that the questions about Kevin being a “tough guy” and
having been in a lot of fights in his day were improper
character evidence under Rule 608. The government counters that
Meserve failed to preserve these issues for review and that any
errors that may have occurred were harmless, given the
cumulative weight of the evidence against Meserve.
1. Preservation of the Issues for Review
-19-
The government devoted a great deal of space in its
brief and time at oral argument to defending the untenable
position that the issues raised by Meserve on appeal were not
preserved for review because the defense failed to make both
contemporaneous objections and motions to strike and because
Kevin did not answer many of the government’s questions, or
provided answers arguably favorable to the defense. Because of
the vehemence with which the government argues a position with
no seeming support in the law, this court pauses to discuss the
obligations placed on each of the parties to a trial by the
Federal Rules of Evidence.
It is a basic tenet of our law that in order to
preserve an evidentiary issue for review, the party opposing the
admission of the evidence must make a timely objection. Fed. R.
Evid. 103(a)(1); United States v. Auch, 187 F.3d 125, 130 (1st
Cir. 1999); United States v. Barone, 114 F.3d 1284, 1293 (1st
Cir. 1997); United States v. Wihbey, 75 F.3d 761, 770 & n.4 (1st
Cir. 1996); Willco Kuwait (Trading) S.A.K. v. deSavary, 843 F.2d
618, 625 (1st Cir. 1988); see also United States v. Taylor, 54
F.3d 967, 972 (1st Cir. 1995) (“In general, the law ministers to
the vigilant, not to those who sleep upon perceptible rights.”).
Thus, the government argues that the defense’s failure
immediately to object when Kevin was asked about convictions in
-20-
addition to his unlawful sexual contact convictions constrains
this court from considering the matter on appeal absent plain
error. Fed. R. Crim. P. 52(b); Olano, 507 U.S. at 732-37.
Examination of the transcript, however, reveals that Meserve’s
attorney objected as soon as it became obvious that the
government’s line of questioning was in violation of Rule 609,
i.e., when the government indicated that the conviction about
which it was asking was a twenty-year-old disorderly conduct
conviction. To be timely, an objection must be “made as soon as
the ground of it is known, or reasonably should have been known
to the objector.” United States v. Check, 582 F.2d 668, 676 (2d
Cir. 1978) (quoting 21 Charles Alan Wright & Kenneth W. Graham,
Jr., Federal Practice and Procedure § 5037 (1977) (quoting John
Henry Wigmore, Code of Evidence 25 (3d ed. 1942)). The general
principle that an objection should be made after a question has
been asked but before an answer has been given, Hutchinson v.
Groskin, 927 F.2d 722, 725 (2d Cir. 1991), is flexible in
deference to the “heat of a hotly contested criminal trial,”
Check, 582 F.2d at 676. Thus, the defense was not required to
anticipate the government’s line of questioning in order for the
objection to be timely. Compare Hutchinson, 927 F.2d at 725(holding that objection was timely, even though objection was
not made until after question was answered), and Inge v. United
-21-
States, 356 F.2d 345, 350 n.17 (D.C. Cir. 1966) (holding that
defense counsel’s failure to object until after he learned the
nature of the document being used to refresh the defendant’s
recollection did not render objection nugatory), with United
States v. Benavente Gomez, 921 F.2d 378, 385 (1st Cir. 1990)
(holding that because at least three pages of transcript were
recorded before the defendant objected, the objection came too
late to preserve the objection for appeal), and W. Fire Ins. Co.
v. Word, 131 F.2d 541, 543-44 (5th Cir. 1942) (“It is a rule of
law so old that the memory of man runneth not to the contrary
that one may not sit by without objection to rulings or
instructions, and then after verdict and judgment, and when it
is too late for the court to change its rulings or charge, come
forward with objections on appeal and seek to put the court in
error.”), cited with approval in Putnam Res. v. Pateman, 958
F.2d 448, 457 n.6 (1st Cir. 1992). Meserve’s objection,
although delayed, was sufficiently contemporaneous to comport
with the Federal Rules of Evidence.
The government attempts to place an additional onus on
parties opposing the admission of such evidence, however, by
arguing that the defense was further obligated to move to strike
Kevin’s answers to the government’s questions in order to
preserve Meserve’s right to review. According to the
-22-
government, once a question has been answered, even if that
answer was provided pursuant to a district court’s evidentiary
ruling, the proper procedural vehicle to preserve rights for
appeal is the motion to strike. The government was able to cite
no authority for this proposition during oral argument and the
court has found none.2
The rule governing objections to evidence states that
“error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is
affected, and . . . [i]n case the ruling is one admitting
evidence, a timely objection or motion to strike appears of
record.” Fed. R. Evid. 103(a)(1) (emphasis added). Because
Rule 103 is written in the disjunctive, the right to review may
be preserved either by objecting or by moving to strike and
offering specific grounds in support of that motion. The rule
is intended to ensure that the nature of an error was called to
the attention of the trial judge, so as to “alert him to the
proper course of action and enable opposing counsel to take
2 The case thrice cited in the government’s brief, United
States v. Morales-Cartagena, 987 F.2d 849 (1st Cir. 1993), does
not support the government’s position. Far from placing an
additional obligation on parties to move to strike, this case
merely states that because the appellants neither objected to
the admission of the challenged testimony at trial nor moved to
strike the testimony, the court was foreclosed from considering
the issue on appeal absent plain error. Id. at 853 n.5.
-23-
proper corrective measures.” Fed. R. Evid. 103(a) advisory
committee’s note. Thus, both the plain language and underlying
goals of Rule 103(a) indicate that a party opposing the
admission of evidence may do so through either a timely
objection or motion to strike.3
Moreover, the position espoused by the government is
contrary to logic. According to the government, even if a
witness’s answer was given pursuant to a district court’s order
overruling an objection, the party opposing admission of the
evidence must move to strike the witness’s answer to escape
plain error review. Modern trial practice is unreceptive to
such procedural redundancies, and were this court to adopt the
government’s view, it would take several steps back from the
streamlining that the Judicial Conference, the Supreme Court,
and the Congress attempted to accomplish through the enactment
of the Federal Rules of Evidence in 1975. Because the law
imposes no obligation on a party opposing the admission of
evidence both to object and to move to strike, Meserve’s timely
objections were sufficient to preserve his rights for review.
3 If a party does not challenge the evidence in a timely
manner, however, an after-the-fact motion to strike usually
cannot “repair the forfeiture that flows from the failure to
interpose a contemporaneous objection.” A.J. Faigin v. Kelly,
184 F.3d 67, 83 n.10 (1st Cir. 1999) (citing McKnight v. Johnson
Controls, Inc., 36 F.3d 1396, 1408 (8th Cir. 1994)).
-24-
In its final effort to prevent this court from reaching
the merits of Meserve’s claims, the government asserts that
where Kevin did not answer the question posed, or where the
answer elicited was arguably favorable to the defense, review is
not warranted. According to the government, “[n]o answer to the
challenged question having been given, no evidence was admitted,
and thus there is no error to correct.” This position is
without support in the law.
No court has ever held that review is forestalled if
a witness does not answer a question posed or answers that
question with a response favorable to the objecting party.
Although the government cites two cases to support this
proposition, United States v. Innamorati, 996 F.2d 456 (1st Cir.
1993) and United States v. Zaccaria, 240 F.3d 75 (1st Cir.
2001), these cases simply stand for the proposition that under
such circumstances, the harmless error analysis is likely to
weigh in favor of the appellee. See Innamorati, 996 F.2d at 485(noting that because the challenged questions were not answered,
the prejudicial effect of the questions was lessened); see also
Zaccaria, 240 F.3d at 82-83 (holding that even if the district
court erred in sustaining the objection, the error was harmless
because the witness answered the question in the negative and
the court did not strike his answer).
-25-
Even when a question elicits no answer or an answer
arguably favorable to the defense, the question itself may
nevertheless prejudice a defendant because of the weight a jury
gives to the questions asked by a prosecutor. E.g., United
States v. Simonelli, 237 F.3d 19, 23 (1st Cir. 2001) (“That [the
witness] denied these acts does not, of course, render the
questioning harmless. There is a lingering odor left by such
questions . . . .”); United States v. Cudlitz, 72 F.3d 992, 999
(1st Cir. 1996) (“Under these circumstances, it would have been
easy -- if not strictly fair -- for the jury to have given great
weight to the [government’s] suggestion . . . .”); see also 1
John Henry Wigmore, Wigmore on Evidence § 17 (Peter Tillers ed.,
1983) [hereinafter Wigmore] (“[F]acts of discreditable conduct
[may be] groundlessly asked about in the hope that though denied
they will be assumed by the jury to be well founded.”). The law
provides protection against illegitimately posed questions even
where they produce no answer.
Furthermore, the district court’s instruction to the
jury here that the lawyers’ questions were not evidence may not
eliminate the potential taint of the government’s questions.
Cudlitz, 72 F.3d at 999. The instruction did not occur during
the course of the challenged cross-examination, but rather as
part of the court’s final jury charge several hours later. The
-26-
court’s instruction was therefore unlikely to eradicate the
impression left on the jury by the government’s line of
questioning. Id. (“[T]he sting [of objectionable questions]
survives such instructions, which is why lawyers ask impeaching
questions that they know will produce denials.”).
The government’s various arguments that Meserve failed
to preserve his challenges to Kevin’s cross-examination for
review are therefore without merit. Because timely objections
to the government’s cross-examination of Kevin were raised at
trial and because objectionable questions may be reviewed even
where they produced no answer or an arguably favorable answer,
the court considers Meserve’s arguments under the harmless error
standard of review, not the more demanding plain error standard.
United States v. Joyner, 191 F.3d 47, 53 (1st Cir. 1999).
2. Review of Challenged Testimony
Having determined that Meserve’s challenges to the
government’s cross-examination of Kevin were properly preserved
for review, the court considers the testimony to which Meserve
objects, bearing in mind the following points:
First, the district court’s construction of
evidentiary rules is a question of law which
we review de novo. Second, the application
of an evidentiary rule to particular facts
is normally tested by an abuse of discretion
standard, which favors the prevailing party.
Finally, we may affirm the district court’s
-27-
evidentiary rulings on any ground apparent
from the record on appeal.
United States v. Barone, 114 F.3d 1284, 1296 (1st Cir. 1997)
(internal quotation marks and citations omitted).
(a) Federal Rule of Evidence 609
Meserve’s first challenge to the government’s
cross-examination of Kevin is that the government’s questions
about Kevin’s disorderly conduct and assault convictions were
improper because these convictions were not permissible subjects
of cross-examination under Rule 609(a). Pursuant to Federal Rule
of Evidence 609(a):
For the purpose of attacking the
credibility of a witness,
(1) evidence that a witness other than
an accused has been convicted of a crime
shall be admitted, subject to Rule 403, if
the crime was punishable by . . .
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; and
(2) evidence that any witness has been
convicted of a crime shall be admitted if it
involved dishonesty or false statement,
regardless of the punishment.
Id. Thus, the government could only inquire about Kevin’s
convictions for disorderly conduct and assault if the crimes
-28-
were punishable by a term of imprisonment greater than one year
or involved dishonesty or false statement.
Under Maine law, disorderly conduct is a Class E crime,
Me. Rev. Stat. Ann. tit. 17-A § 501(6), punishable by a maximum
term of six months, id. § 1252(2)(E), and assault is a Class D
crime, id. § 207(2), punishable by a term of imprisonment less
than one year, id. § 1252(2)(D). Because the sentences for
these crimes do not exceed one year, Meserve argues that
evidence of these crimes is per se inadmissible under Rule
609(a)(1). In opposition, the government asserts that assault
is not always a misdemeanor punishable by imprisonment for less
than one year in Maine; section 207(2) provides that when the
perpetrator is at least eighteen years of age and the assault
produced bodily injury to a child under six years of age, the
crime is classified as a Class C crime, punishable by a prison
term of up to five years. Id. § 207(2).
The record before this court does not resolve the
question whether Kevin’s assault conviction was for bodily
injury to a child less than six, an omission for which the
government blames Meserve: “[I]t is Meserve’s failure [to]
develop a record that leaves this court with inadequate facts to
resolve the issue definitively.” Through this simple sentence,
the government attempts to shift the burden of proving
-29-
admissibility from the proponent of evidence to the party
opposing the admission of the evidence.
It is a principle too simple to seem to need stating,
however, that the government, as the party seeking to introduce
evidence of a prior conviction for impeachment purposes under
Rule 609, was obligated to have researched Kevin’s prior
offenses and to have determined that they were admissible.
E.g., 1 Wigmore, supra § 17. Upon Meserve’s challenge, the
government should have been prepared to produce to the district
court concrete proof that Kevin had been convicted of a crime
punishable by more than one year within the previous ten years.
Admittedly, the government may have been in possession of
precisely such proof, and merely failed to produce it because
the district court did not demand it upon Meserve’s objection.
Even so, the failure of the district court to press the
government on this issue does not shift the burden to Meserve.
Nor do the convictions for disorderly conduct and
assault introduced by the government against Kevin fall within
Rule 609(a)(2), as the legislative history of the rule makes
clear:
[T]he phrase “dishonesty and false
statement” . . . means crimes such as
perjury or subornation of perjury, false
statement, criminal fraud, embezzlement, or
false pretense, or any other offense in the
nature of crimen falsi, the commission of
-30-
which involves some element of deceit,
untruthfulness, or falsification bearing on
the accused's propensity to testify
truthfully.
H.R. Conf. Rep. No. 93-1597, at 9 (1974), reprinted in 1974
U.S.C.C.A.N. 7098, 7103. To be admissible under Rule 609(a)(2),
a prior conviction must involve “some element of deceit,
untruthfulness, or falsification which would tend to show that
an accused would be likely to testify untruthfully,” United
States v. Seamster, 568 F.2d 188, 190 (10th Cir. 1978), elements
not readily apparent in the crimes of disorderly conduct and
assault.4
Because the government failed to develop an adequate
predicate for admitting the convictions for disorderly conduct
and assault, it was error to permit interrogation concerning
these convictions for the purposes of impeaching Kevin.
(b) Federal Rule of Evidence 608
Meserve further argues that the questions the
government posed to Kevin about being a “tough guy” and having
“[b]een in a lot of fights in [his] day” were improper under
4Kevin’s 1979 conviction for disorderly conduct is also
stale under Rule 609(b). Thus, the government bore a further
obligation, which it does not appear to have satisfied, to
provide notice to the defense of its intent to introduce
evidence of the conviction and to show that this evidence was
more probative than prejudicial.
-31-
Federal Rule of Evidence 608. The government counters that it
was entitled
to introduce evidence that Kevin had previously been involved in
fights as impeachment by contradiction following Kevin’s denial
that he was a “tough guy.”
Pursuant to Federal Rule of Evidence 608(a):
The credibility of a witness may be attacked
or supported by evidence in the form of
opinion or reputation, but subject to these
limitations: (1) the evidence may refer only
to character for truthfulness or
untruthfulness, and (2) evidence of truthful
character is admissible only after the
character of the witness for truthfulness
has been attacked by opinion or reputation
evidence or otherwise.
Id. The government’s questions about Kevin’s status as a “tough
guy” and his reputation in the community for violence were
completely irrelevant on the facts here to this jury’s
credibility determination. Even if, as suggested by the
government at trial, people in the community were afraid of
Kevin because he was an “assaultive person,” this has no bearing
on Kevin’s credibility as a witness, given the issues in this
case. No other theory of admissibility is offered.
As the government’s questions about Kevin being a
“tough guy” were impermissible, they cannot serve as a launching
pad for the admission of additional evidence. Moreover, the
government’s questions about Kevin’s involvement in a couple of
-32-
fights are impermissible in their own right. Under Rule 608(b):
Specific instances of the conduct of a
witness . . . . may . . . in the discretion
of the court, if probative of truthfulness
or untruthfulness, be inquired into on
cross-examination of the witness . . .
concerning the witness’ character for
truthfulness or untruthfulness . . . .
Id. The specific instances of prior conduct about which the
government questioned Kevin bore no relation whatsoever to his
character for truthfulness or untruthfulness. As Meserve
correctly states, the government wanted to suggest, and
succeeded in suggesting, that Kevin was a man with a violent
disposition.
E. Harmless Error?
Since we conclude that the district court erred in
admitting evidence against Meserve violative of Federal Rules of
Evidence 608, 609, and 802, the government perforce is reduced
to arguing that these errors, both individually and
collectively, were “harmless.” Fed. R. Crim. P. 52(a) (“Any
error, defect, irregularity or variance which does not affect
substantial rights shall be disregarded.”); Fed R. Evid. 103(a)
(“Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is
affected.”). In Kotteakos v. United States, 328 U.S. 750-33-
(1946), the Supreme Court elucidated the harmless error standard
for cases involving non-constitutional errors, stating, “if one
cannot say, with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error, it
is impossible to conclude that substantial rights were not
affected,” id. at 765. The applicable standard is thus
different than that applied when determining whether the
evidence is sufficient to sustain a verdict: “The inquiry cannot
be merely whether there was enough to support the result, apart
from the phase affected by the error. It is rather, even so,
whether the error itself had substantial influence.” Id.Therefore, “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.” Cudlitz, 72 F.3d at 1000
(citing United States v. Rullan-Rivera, 60 F.3d 16, 18-19 (1st
Cir. 1995)); see also Rose, 104 F.3d at 1414 (citing United
States v. Rodriguez Cortes, 949 F.2d 532, 543 (1st Cir. 1991);
Benavente Gomez, 921 F.2d at 386).
Unlike the plain error analysis, the government bears
the burden of persuasion with respect to showing that the error
-34-
was harmless. Olano, 507 U.S. at 734-35. “[T]he greater the
weight of the other evidence against the defendant, the less
likely it is that a given error swayed the jury,” but the
greater the probable impact of the error, the less likely it is
that the court can conclude that the error was harmless.
Cudlitz, 72 F.3d at 999. We consider factors such as “[t]he
centrality of the evidence, its prejudicial effect, whether it
is cumulative, the use of the evidence by counsel and the
closeness of the case.” Kowalski v. Gagne, 914 F.2d 299, 308
(1st Cir. 1990) (quoting Lataille v. Ponte, 754 F.2d 33, 37 (1st
Cir. 1985)) (internal quotation marks omitted). Where evidence
is admitted in violation of Rule 608, we examine additional
factors such as whether the admission permitted completely new
evidence to go before the jury and whether the disputed evidence
was likely to arouse passion or prejudice. Deary v. City of
Gloucester, 9 F.3d 191, 197 (1st Cir. 1993). Ultimately, the
harmless error analysis “must be made in the context of the case
as gleaned from the record as a whole.” DeVasto v. Faherty, 658
F.2d 859, 863 (1st Cir. 1981); accord United States v.
Mateos-Sanchez, 864 F.2d 232, 237 (1st Cir. 1988) (citing United
States v. Currier, 821 F.2d 52, 56 (1st Cir. 1987)).
Applying these principles, we consider the evidentiary
errors committed during Meserve’s trial:
-35-
1. The Hearsay Evidence
Detective Pomerleau’s statement that Craig identified
Meserve as a possible suspect in the case was not itself central
to the case, as it was less damaging than the properly admitted
testimony of other witnesses, including Craig, whose statements
directly implicated Meserve in the robbery. At worst, the jury
may have credited the testimony of these witnesses somewhat more
because of Detective Pomerleau’s repetition of Craig’s
out-of-court statement. The weight of the government’s case
against Meserve was such, however, that Craig’s out-of-court
statement was but a small contribution to the font of evidence.
“[A]fter pondering all that happened without stripping the
erroneous action from the whole,” Mazza, 792 F.2d at 1216-17(quoting Kotteakos, 328 U.S. at 765) (internal quotation marks
omitted), we conclude that it is highly probable that the
admission of Craig’s out-of-court statement did not contribute
to the jury’s verdict.
2. The Rule 608 and 609 Violations
Kevin, however, was a pivotal figure in the
construction of Meserve’s defense. Not only did Kevin provide
Meserve with an alibi, he also offered testimony that impeached
the testimony of the government’s star witness, Grant. Even
though there were two additional alibi witnesses -- Overlook and
-36-
Morissette -- Kevin was the only witness who testified about
Grant’s alleged coaching by the police.
Although certain impeachment evidence was elicited on
direct examination, such as Kevin’s prior convictions for
unlawful sexual conduct and Kevin and Meserve’s familial
relationship, the government’s impeachment evidence far exceeded
that which had already entered the record. The government
managed, in violation of the rules of evidence, to introduce
evidence of two additional convictions, two prior bad acts for
which no conviction resulted, and Kevin’s reputation in the
community for violence. The cumulative weight of the
government’s impeachment evidence against Kevin was therefore
augmented by the impermissible line of questioning. Moreover,
as Meserve’s counsel aptly argued in both his brief and oral
argument, by bringing up prior offenses that the defense,
correctly believing to be inadmissible, would not have
preemptively placed before the jury, the government succeeded in
making Kevin and, by association, his brother, appear
unforthcoming. The impermissible line of questioning therefore
enabled the government to suggest to the jury that Kevin was not
entirely truthful about his criminal history when he testified
on direct examination and may have led the jury to conclude that
Kevin was an untrustworthy witness. This court is entitled to
-37-
conclude that the government set out to impeach Kevin by
admitting evidence of past crimes and a character for violence
and that “the methods which were used [had] the effect which
they were obviously intended to have.” United States v. Ling,
581 F.2d 1118, 1122 (4th Cir. 1978), quoted in United States v.
Pisari, 636 F.2d 855, 859-60 (1st Cir. 1981). In sum, the
evidence illegitimately elicited by the government regarding
Kevin’s prior convictions and character for violence likely
figured in the jury’s credibility determination.
The harmless error standard, however, requires not that
the error had an effect on the jury’s evaluation of a single
witness’s testimony, but rather that the error had an effect on
the case as a whole. DeVasto, 658 F.2d at 863. Thus, if this
court can conclude that it is “highly probable” that the jury
would have convicted Meserve, even had the challenged evidence
been excluded, then reversal is not warranted.
We do so conclude here. Most importantly, the
cumulative weight of the evidence against Meserve was
substantial, and “[u]nder such circumstances, it would be a
waste of judicial resources to require a new trial where the
result is likely to be the same.” Rose, 104 F.3d at 1414(quoting Rodriguez Cortes, 949 F.2d at 543) (internal quotation
marks omitted). The government’s case included highly damaging
-38-
testimony by Meserve’s former girlfriend and accomplice, Grant,
who testified that Meserve planned the robbery, drove with her
to the crime scene, fled the scene with her while discarding
pieces of evidence along the roadway, and spoke of the crime
afterwards. Moreover, Grant, although the government’s
strongest witness, was far from the only person to provide
evidence implicating Meserve in the crime. Specifically, the
government introduced testimony that Meserve had access to the
weapon used in the crime, several witnesses described a man
meeting Meserve’s description, and the weapon was found
precisely where Grant testified that Meserve discarded it. In
contrast, the defense case largely consisted of the testimony of
three witnesses with a strong incentive to fabricate on
Meserve’s behalf -- his mother, his brother, and his
self-described “best friend.” And, as discussed above, the
evidence to which Meserve raises an objection was not the sole
piece of impeachment evidence introduced against Kevin. The
jury also knew about Kevin’s familial relationship with Meserve
and his recent convictions for sexual misconduct. Finally, in
the context of this case, the evidence improperly admitted to
impeach Kevin is unlikely to have made much of a difference.
Grant, the government’s chief witness, was by her own admission
a participant in the crime and was guilty of several prior bad
-39-
acts including stealing her grandmother’s credit card and
receiving welfare benefits illegitimately; John Nicholas, who
testified about Meserve’s access to the gun used during the
robbery, had previously been convicted of being a felon in
possession of ammunition and had been served with a search
warrant to look for marijuana; Robert Vashon, who testified as
a rebuttal witness, had been convicted of marijuana trafficking
and rape. Despite these reasons to discredit the government’s
witnesses, however, the jury apparently believed their testimony
over that of Meserve’s witnesses. Because it cannot be stated
“with fair assurance . . . that the judgment was . . .
substantially swayed by the error,” Kotteakos, 328 U.S. at 765,
the government’s violations of Rules 608 and 609 were harmless
and reversal is not warranted on this basis.
3. Cumulative Errors
Meserve asserts that the cumulative effect of the
errors to which counsel timely objected, which resulted in the
admission of evidence that bolstered the credibility of the
government’s witnesses while demeaning the credibility of
Meserve’s witnesses, requires that a new trial be granted. See,
e.g., United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir.
1993).
-40-
In Sepulveda, this circuit explicitly accepted the
theoretical underpinnings of the cumulative error argument.
This court observed that “[i]ndividual errors, insufficient in
themselves to necessitate a new trial, may in the aggregate have
a more debilitating effect.” 15 F.3d at 1195-96 (citing United
States v. Dwyer, 843 F.2d 60, 65 (1st Cir. 1988); Dunn v.
Perrin, 570 F.2d 21, 25 (1st Cir. 1978)). “[A] column of errors
may sometimes have a logarithmic effect, producing a total
impact greater than the arithmetic sum of its constituent
parts.” Id. at 1196. Among the factors considered in assessing
the cumulative effect of the errors are “the nature and number
of errors committed; their interrelationship, if any, and
combined effect; how the district court dealt with the errors as
they arose (including the efficacy -- or lack of efficacy -- of
any remedial efforts); and the strength of the government’s
case.” Id. (citing United States v. Mejia-Lozano, 829 F.2d 268,
274 n.4 (1st Cir. 1987)). To determine whether cumulative
errors are harmless, we conduct the same inquiry as for
individual error, i.e., we consider whether Meserve’s
substantial rights were affected. United States v. Rivera, 900
F.2d 1462, 1470 (10th Cir. 1990) (en banc) (citing United States
v. Kartman, 417 F.2d 893, 894, 898 (9th Cir. 1969)). Thus our
-41-
cumulative error analysis focuses on “the underlying fairness of
the trial.” Van Arsdall, 475 U.S. at 681.
Meserve’s appeal to the cumulative error doctrine is
unavailing. The errors committed during Meserve’s trial were
independent of each other. While the admission of Craig’s
out-of-court identification of Meserve as a possible suspect
involved the government’s case in chief, the errors that
occurred during Kevin’s cross-examination involved the
impeachment of but one of Meserve’s alibi witnesses. The
cumulative effect of these errors therefore differs from a
situation in which, for example, each of Meserve’s alibi
witnesses was impeached by impermissible means.
Moreover, on the other side of the Sepulveda equation,
the government’s case was strong. In addition to Grant’s
inculpatory testimony, several eye witnesses described a man
fitting Meserve’s description, Meserve was linked to the gun
used during the robbery, and the gun was found in the location
where Grant stated Meserve had thrown it. In contrast,
Meserve’s defense was weak, consisting of three alibi witnesses
with an incentive to lie -- Meserve’s mother, brother, and best
friend -- and speculations about other individuals who could
have committed the crime. Because of the strength of the
government’s case, the errors for which Meserve seeks reversal
-42-
“do not come close to achieving the critical mass necessary to
cast a shadow upon the integrity of the verdict.” Sepulveda, 15
F.3d at 1196. In other words, it is highly unlikely, in light
of the substantial evidence implicating Meserve in the crime,
that the errors committed here, even taken cumulatively, made an
appreciable difference in the outcome of the trial. E.g.,
Mejia-Lozano, 829 F.2d at 274 n.4. Although in an ideal world
every defendant would receive a trial free from error, “[t]he
Constitution entitles a criminal defendant to a fair trial, not
to a mistake-free trial.” Sepulveda, 15 F.3d at 1196 (citing
Van Arsdall, 475 U.S. at 681; United States v. Polito, 856 F.2d
414, 418 (1st Cir. 1988)). It would therefore be inappropriate
for this court to place undue emphasis on the flaws in Meserve’s
trial and “unnecessarily intervene[] in a process that --
although imperfect -- adequately protected [Meserve’s] rights.”
United States v. Glantz, 810 F.2d 316, 321 (1st Cir. 1987). We
do, however, note that the errors that occurred here were easily
preventable by government counsel. None arose in the heat of an
unexpected development at trial; each reflects a deliberate
choice at trial -- a choice which but slight reflection should
have indicated was inappropriate. Government counsel especially
bear an individual responsibility to engage in such reflection.
See Berger v. United States, 295 U.S. 78, 88 (1935) (“The United
-43-
States Attorney is the representative not of an ordinary party
to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice shall be
done.”).
III. Conclusion
Although errors occurred during the course of Meserve’s
trial, these errors, considered both individually and
cumulatively, were harmless. Accordingly, the judgment of
conviction is affirmed.
-44-