August 3, 1992
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No. 91-1536
UNITED STATES OF AMERICA,
Appellee,
v.
ARTHUR SUTTON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Lay,* Senior Circuit Judge,
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and Pieras,** District Judge.
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Brian J. McMenimen, with whom Boudreau, Burke & McMenimen
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was on brief, for appellant.
Paul G. Levenson, Assistant United States Attorney, with
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whom A. John Pappalardo, Acting United States Attorney, was on
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brief, for the United States.
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*Of the Eighth Circuit, sitting by designation.
**Of the District of Puerto Rico, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Arthur
SELYA, Circuit Judge.
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Sutton and a codefendant, James T. Cornwell, were indicted by a
federal grand jury and charged with various counts of mail and
wire fraud. See 18 U.S.C. 1341, 1343 (1988 & Supp. II 1991).
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According to the indictment, the charges arose out of "a scheme
and artifice to defraud investors by means of a fraudulent real
estate venture." Cornwell pleaded guilty. Sutton stood trial.
The district court dismissed the wire-fraud counts on a
technicality (the government having bollixed the dates of
relevant events in the charging papers). After considering the
four mail-fraud counts, the jury found appellant guilty on three
of them.
Appellant's main point on appeal involves the trial
judge's decision to allow the jury some freedom to participate in
the examination of witnesses during the trial. Although we think
that this practice may frequently court unnecessary trouble, we
find no error in the circumstances of this case. Because we
conclude that Sutton's other ground of appeal is also bootless,
we affirm the judgment below.
I.
I.
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Juror Participation in the Questioning of Witnesses
Juror Participation in the Questioning of Witnesses
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The issues raised on this appeal do not require an
exegetic account of the evidence. Thus, in approaching
appellant's principal contention, we begin by focusing the lens
of our inquiry on what transpired in connection with the judge's
adventurous enlargement of the jury's traditional role. Next, we
2
reviewthe applicable law. Finally, we tacklethe underlying issue.
A.
A.
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What Transpired
What Transpired
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After the jury was sworn, Judge Young gave some
preliminary instructions. In the course of those instructions,
he stated:
You can take notes. . . . You can ask
questions. If you want to ask a question,
you just rip a page out of your notebook,
write your question on the page, pass it . .
. to the foreman, who will give it to the
clerk, who will give it to me. I'm a lawyer,
I'll read it. If your question even possibly
could make any legal difference in the case,
if it's relevant as the lawyers say, I'll ask
it for you. Indeed, I'll ask some other
questions to follow up, to find out what this
witness has to say about what it is that
you're concerned about. . . . If I don't
think that your question could make any legal
difference, it doesn't mean it was wrong of
you to ask it, you can't go wrong by asking a
question, I simply won't ask it. Don't you
take that as some reflection on you. It's
not at all. I just don't think legally it
makes any difference. But what I do is put
the question out on the table here where the
lawyers can look at it. And they may think
of a way to get at the issue. At least
they'll know what's on your mind[s], which
may be helpful to them in the proper
presentation of the case.
No objections were lodged to this portion of the precharge. The
trial began.
The first significant mention of a juror question
occurred on February 25, 1991 (the fourth day of trial). During
the direct examination of a disappointed investor, Stephen
Ginsburg, Judge Young responded in open court to a note inquiring
about the jury's right to question witnesses:
3
Here's a good question . . ., and it's
addressed to me . . ., from a juror: May we
submit questions to be addressed to witnesses
while the witness is on the stand?
Yes. That really is the essence of your
right to ask questions. You can ask
questions of me. You can ask questions of me
about the law, but I really can't ask a
question on your behalf about the evidence,
unless a witness who could answer that
question is on the witness stand. I can't
just launch off, you see, asking questions.
And so your right to ask questions, your
right to use me as, as I am still a lawyer,
and hope I still know how to ask questions as
a lawyer, to ask questions of the witnesses.
. . . But really, the essence of your right
to ask questions is that right to question
these witnesses. It's just that you have to
question them through written questions,
because that's an orderly and a fair way to
do it, lest we get some question that's off
the mark. So, of course, you have the right
at any time to ask a question of any witness,
and really, you should pass the question up
while I've still got the witness on the
stand.
No one voiced an objection to the judge's response.
Later that same day, Judge Young asked Ginsburg a
series of questions prompted by a juror's note. The queries were
directed to when Ginsburg had last seen Sutton ("about three
months ago") and the nature of their relationship at that time
("strained"). After the witness vouchsafed these answers,
defense counsel approached the bench. A colloquy ensued:
[DEFENSE COUNSEL]: I want to object to the
Court having posed the question, the
questions asked by the juror. . . . I think
I probably would have had an objection as to
relevancy. I'm kind of frightened to object
to a question asked by a juror lest they
misconstrue and ascribe an improper motive to
it, and I would only ask if the Court would
consider conferring with counsel before
4
putting questions.
THE COURT: Well, if I think there's any
doubt about it, I will confer with counsel. .
. .
Defense counsel expressed no dissatisfaction with the trial
court's rejoinder. The court resumed its line of inquiry, asking
when Ginsburg learned that Cornwell had falsified certain
documents.1 Counsel thereupon renewed the objection and moved
for a mistrial. He hypothesized in an entirely conclusory
fashion that the court's interjection "could affect . . . how I'm
going to present my defense" and might, therefore, "be
troublesome for me." Judge Young overruled the objection and
refused to declare a mistrial.
The next relevant vignette occurred on February 26.
During the defense's cross-examination of a prosecution witness,
Philip Capello, Judge Young received a written question from a
juror. He posed it to Capello, along with a series of follow-up
questions. No objections were recorded. Some time later, Judge
Young directed another set of juror-inspired questions at
Capello. These questions dealt with when Capello had last seen
Sutton ("probably the summer [of 1989]") and the nature of their
relationship at that time ("still cordial"). After these answers
had been recorded, defense counsel asked to be heard and lodged a
general objection at sidebar:
[DEFENSE COUNSEL]: I would object to
some of those questions that the Court put to
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1Appellant conceded that the documents in question were not
only forged but also germane to the real estate venture.
5
. . . the witness on behalf of the jurors. I
think if [the prosecutor] or I had asked some
of them and there had been objection, that it
would have been excluded.
THE COURT: Why didn't you object to my
asking it?
[DEFENSE COUNSEL]: Because it's a
question from a juror, your Honor, being
asked by the Court.
At three more points during the trial, jurors asked
Judge Young to direct questions to a witness.2 Judge Young
obliged. Defense counsel did not object on any of these
occasions.
B.
B.
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Applicable Legal Principles
Applicable Legal Principles
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The appellant asserts that the questioning of witnesses
by jurors in a criminal trial is inherently prejudicial, invades
counsel's province, distorts the roles of judge and jury, and
unfairly inhibits objections. Accordingly, he urges us to ban
the practice outright and, in the bargain, vacate his conviction.
We do not treat this exhortation lightly. Allowing
jurors to pose questions during a criminal trial is a procedure
fraught with perils. In most cases, the game will not be worth
the candle. Nevertheless, we are fully committed to the
principle that trial judges should be given wide latitude to
manage trials. We are, moreover, supportive of reasoned efforts
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2Two of these incidents transpired in the course of defense
counsel's cross-examination of Saul Komessar and Donald Palmer,
respectively. The third, and final, incident occurred on March
1, 1991, while Sutton was testifying on redirect.
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by the trial bench to improve the truth-seeking attributes of the
jury system. Consistent with this overall approach, and mindful
that the practice of allowing jurors to participate in the
interrogation of witnesses may occasionally be advantageous,
especially in complex cases and under carefully controlled
conditions, we hold that allowing juror-inspired questions in a
criminal case is not prejudicial per se, but is a matter
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committed to the sound discretion of the trial court. Accord
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United States v. Lewin, 900 F.2d 145, 147 (8th Cir. 1990); United
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States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986); United
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States v. Callahan, 588 F.2d 1078, 1086 (5th Cir.), cert. denied,
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444 U.S. 826 (1979); United States v. Gonzalez, 424 F.2d 1055,
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1056 (9th Cir. 1970) (per curiam); United States v. Witt, 215
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F.2d 580, 584 (2d Cir.), cert. denied, 348 U.S. 887 (1954); see
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generally United States v. Nivica, 887 F.2d 1110, 1123 & n.9 (1st
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Cir. 1989) (discussing practice), cert. denied, 494 U.S. 1005
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(1990).
We hasten to add that the practice, while not
forbidden, should be employed sparingly and with great
circumspection. The dynamics of a criminal trial are extremely
sensitive. Innovations that carry the potential for disrupting
those dynamics are risky. Juror participation in the examination
of witnesses represents a significant innovation, transforming
the jurors' role from a purely passive one to a partially
interactive one. The practice also delays the pace of trial,
creates a certain awkwardness for lawyers wishing to object to
7
juror-inspired questions, and runs a risk of undermining
litigation strategies. We suspect that, in most situations, the
risks inherent in the practice will outweigh its utility.3
Thus, juror participation in the examination of witnesses should
be the long-odds exception, not the rule. Cf., e.g., Nivica, 887
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F.2d at 1123 (citing DeBenedetto v. Goodyear Tire & Rubber Co.,
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754 F.2d 512, 516 (4th Cir. 1985)). We will judge the trial
court's affirmative exercise of its discretion under the totality
of the circumstances in each case.
We think it follows that trial courts should rarely
employ the praxis. Moreover, a judge who decides to utilize it
should take pains to lessen its inherent dangers by implementing
a series of prophylactic measures. While we decline to impose a
rigid format upon the trial bench, we suggest that, if jurors are
to be allowed to participate in the interrogation of witnesses in
a criminal case, counsel should be alerted to the court's
intention at the earliest practicable time and given an
opportunity to be heard in opposition to the practice. If the
court elects to proceed, the jury should be instructed that
questions are to be reserved for important points, that the rules
of evidence may frequently require the judge to eschew certain
questions, and that no implication should be drawn if a juror-
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3To be sure, the balance is not completely one-sided.
Juror-inspired questions may serve to advance the search for
truth by alleviating uncertainties in the jurors' minds, clearing
up confusion, or alerting the attorneys to points that bear
further elaboration. Furthermore, it is at least arguable that a
question-asking juror will be a more attentive juror.
8
inspired question withers on the vine. The judge should also
include a prophylactic instruction in his final charge to the
jury.
Actually handling jurors' questions requires an equally
deft touch. Jurors should not be permitted to blurt out queries
in the midst of trial. Rather, a screening mechanism should be
set in place. To that end, we recommend that jurors be
instructed to reduce their questions to writing and pass them to
the judge. When such questions eventuate, the judge should
ordinarily call counsel to sidebar, relate the particulars, and
rule on any objections.4 C.
C.
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Analysis
Analysis
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In the circumstances of this case, we discern no
reversible error stemming from the interrogation of various
witnesses. At least four factors bolster this conclusion.
First, the appellant effectively acquiesced in the
process. When the court announced during its precharge that it
would permit juror-inspired questions to be posed, and
thereafter, when the court reiterated the protocol in response to
a juror's inquiry, see supra pp. 3-4, appellant neither objected
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4Of course, once a juror-inspired question is posed to a
witness, the judge may ask proper follow-up questions of his own
volition. See Fed. R. Evid. 614(b) (authorizing trial judge to
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interrogate witnesses); see also United States v. Olmstead, 832
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F.2d 642, 648 (1st Cir. 1987) (discussing extent of district
court's discretion to question a witness in a criminal jury
trial), cert. denied, 486 U.S. 1009 (1988). Such follow-up
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questions will be subject to objection in the same manner, and to
the same extent, as other questions posed independently by the
judge.
9
nor requested any additional safeguards. When a trial judge
announces a proposed course of action which a party believes to
be erroneous, that party must act expeditiously to call the
perceived error to the judge's attention, on pain of forfeiting
the right subsequently to complain. See, e.g., Reilly v. United
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States, 863 F.2d 149, 160 (1st Cir. 1988); Austin v. Unarco
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Indus., Inc., 705 F.2d 1, 15 (1st Cir.), cert. dismissed, 463
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U.S. 1247 (1983). Here, appellant's acquiescence constituted a
waiver as to the court's use of the procedure.
Second, the alleged scheme to defraud involved a
considerable degree of sophistication. Because this was a
factually complex case in which a greater-than-average risk of
jury confusion existed, the positive value of allowing juror-
inspired questioning was relatively high. See generally Sand &
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Reiss, A Report on Seven Experiments Conducted by District Court
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Judges in the Second Circuit, 60 N.Y.U.L. Rev. 423, 444 (1985)
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(discussing participating judges' "general perception that
[authorizing] juror questioning of witnesses would be most useful
in complex cases").
Third, the district court adopted suitable procedural
safeguards. Rather than allowing the jurors to question
witnesses directly, a method which has been disapproved in this
circuit, see Nivica, 887 F.2d at 1123, the judge required the
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jurors to reduce their questions to writing and filter them
through the court. Judge Young also explained in advance that he
might not propound the questions the jurors suggested and
10
accepted the onus for such an eventuality. Appellant's
objections were heard at sidebar, out of the jury's earshot.5
The judge's follow-up questions were invariably discreet. In our
view, this panoply of prophylactic measures greatly reduced any
possibility of unfair prejudice.
Fourth, the questions themselves were few in number and
bland in character.6 Appellant did not object to most of them.
In the few instances when appellant objected, the objections were
jejune. The principal objection was on relevancy grounds. But,
"district courts have broad discretion as to discerning the
relevancy vel non of evidence," United States v. Tierney, 760
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F.2d 382, 387 (1st Cir.), cert. denied, 474 U.S. 843 (1985), and
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it strains credulity to argue that the perimeters of this
discretion were exceeded here. Sutton's other ground of
objection involved the naked claim that the questioning might
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5We are unimpressed with Sutton's claim that the chink in
the armor of the district court's prophylaxis lay in the court's
failure to allow counsel the opportunity to screen juror-inspired
questions prior to the court's asking those questions. While
pre-screening by counsel would have been preferable, appellant
failed to register an objection when the judge stated that he
would utilize pre-screening only if he had some doubt about the
validity of a proposed question. See supra Part I(A). In this
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case, moreover, pre-screening could not conceivably have made a
difference, since the district court ultimately overruled all of
appellant's objections to particular queries.
6We are keenly aware that, in a criminal case, juror-
inspired questioning becomes particularly troublesome when
questions are directed at the defendant. See United States v.
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Johnson, 892 F.2d 707, 711-13 (8th Cir. 1989) (Lay, C.J.,
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concurring). In general, we disapprove of that practice. Here,
however, only one such question was posed; appellant did not
object to it; and he has not argued on appeal that this specific
question was improper or harmful.
11
adversely affect the defense's trial strategy. Yet, appellant
never explained to the trial court or to us how or why this
was so.7
In any event, neither the questions nor the responses
struck close to the jugular. In all, the record demonstrates
beyond hope of contradiction that the juror-inspired questioning
was innocuous and did not compromise the trial's fairness. The
assignment of error must, therefore, fail. See, e.g., Lewin, 900
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F.2d at 148 (upholding district court's allowance of juror-
inspired questions where the questioning was not "allowed to
become disruptive or abusive"); Callahan, 588 F.2d at 1086.
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II.
II.
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Evidence of Subsequent Events
Evidence of Subsequent Events
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The mail-fraud counts charged appellant with performing
specific acts, in furtherance of the scheme to defraud, at
various times in July and August 1987. Appellant contends that
the court below erred when it allowed, over objection, the
testimony of (1) Robert Malesardi, a prospective investor, to the
effect that appellant tried repeatedly to recruit him in the
summer of 1988 (well after appellant was on unambiguous notice of
Cornwell's forgeries); (2) Joan Muse, a disgruntled investor,
regarding her telephone conversations with appellant in
September, 1988 (after she learned of the fraud); and (3) Saul
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7Appellant's claim that the court erred in permitting juror-
inspired questioning of Philip Capello because that line of
inquiry implicated events occurring after January of 1988
necessarily falters for the reasons discussed in Part II, infra.
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12
Komessar, see supra note 2, anent his dealings with appellant
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throughout 1988. Sutton says that this testimony was irrelevant
to the cardinal issue in the case whether or not he possessed
the requisite criminal intent in the summer of 1987 and that,
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even if relevant, the evidence's unfairly prejudicial effect
substantially outweighed its probative value.8 We do not agree
with either proposition.
A.
A.
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Relevancy
Relevancy
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We need not tarry in these precincts. Appellant's main
line of defense involved an asserted lack of scienter: he said,
in effect, that he, too, was an unwitting victim of Cornwell's
fabrications. We believe that the challenged testimony, though
it centered around later-occurring events, was relevant to show
appellant's intent at an earlier date; and that, therefore, the
district court did not commit an abuse of discretion in
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8Appellant also argues that admitting the challenged
evidence worked a fatal variance or constructive amendment of the
indictment vis-a-vis the mail-fraud counts. This argument is
sheer persiflage. For one thing, appellant identifies no
prejudice to his substantial rights in connection with any
asserted variance and the record reflects none. Hence, a claim
of error will not lie. See United States v. Fermin Castillo, 829
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F.2d 1194, 1196-97 (1st Cir. 1987); United States v. George, 752
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F.2d 749, 753-54 (1st Cir. 1985). For another thing, the
indictment fully apprised Sutton of the crimes with which he was
charged; the proof at trial was relevant to, and within the scope
of, those crimes, thus mirroring the allegations of the
indictment and defusing any cognizable claim of a constructive
amendment; and the district court's meticulous instructions
ensured that Sutton was not convicted of some other (uncharged)
crime. No more was exigible. See, e.g., United States v.
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Medina, 761 F.2d 12, 16 (1st Cir. 1985); United States v. Kelly,
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722 F.2d 873, 876 (1st Cir. 1983), cert. denied, 465 U.S. 1070
_____ ______
(1984).
13
permitting the testimony to be introduced.
We think it is an accepted proposition, logically and
legally, that subsequent events may shed light upon, and be
relevant in determining, what transpired at an earlier time.
See, e.g., Foley v. Lowell, 948 F.2d 10, 14 (1st Cir. 1991);
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United States v. Mena, 933 F.2d 19, 25 & n.5 (1st Cir. 1991);
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Bordanaro v. McLeod, 871 F.2d 1151, 1157 (1st Cir.), cert.
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denied, 493 U.S. 820 (1989); Tierney, 760 F.2d at 387-89; United
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States v. McDonald, 576 F.2d 1350, 1356 (9th Cir.), cert. denied,
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439 U.S. 830, 927 (1978); United States v. Wright, 573 F.2d 681,
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683 (1st Cir.), cert. denied, 436 U.S. 949 (1978). In this
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instance, proof of Sutton's state of mind his specific intent
was a required element of the charged offenses. Appellant's
continued promotion of the investment scheme after acquiring
certain knowledge that the documents on which the plan rested
were forged could plausibly be viewed by a rational factfinder as
bespeaking complicity and guilty knowledge from the start. See
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Nivica, 887 F.2d at 1114; United States v. Krowen, 809 F.2d 144,
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147-48 (1st Cir. 1987); cf. United States v. Cintolo, 818 F.2d
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980, 989-91 (1st Cir.) (a defendant's intent can be inferred from
his conduct, seen in light of all the surrounding circumstances),
cert. denied, 484 U.S. 913 (1987). Evidence of appellant's words
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and deeds during the later period was, therefore, relevant.
B.
B.
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Probative Worth/Prejudicial Impact
Probative Worth/Prejudicial Impact
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Appellant also argues that, even if relevant, the
14
evidence should have been excluded on grounds of undue prejudice.
The Evidence Rules authorize a trial judge to bar the
introduction of relevant evidence "if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or [certain other considerations]."
Fed. R. Evid. 403. The trial judge's discretion in calibrating
the Rule 403 scales is very broad. See, e.g. United States v.
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Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989); United
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States v. Ingraham, 832 F.2d 229, 231 (1st Cir. 1987), cert.
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denied, 486 U.S. 1009 (1988); Tierney, 760 F.2d at 387. "Only
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rarely and in extraordinarily compelling circumstances will
we, from the vista of a cold appellate record, reverse a district
court's on-the-spot judgment concerning the . . . weighing of
probative value and unfair effect." Freeman v. Package Machinery
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Co., 865 F.2d 1331, 1340 (1st Cir. 1988).
___
We are unconvinced that this is the rare case in which
we should attempt to refigure the trial court's assessment of the
probative worth/prejudicial impact calculus. To be sure, the
evidence of subsequent activities played into the prosecution's
theory of the case. But, that was the point of offering the
testimony. By design, "all evidence is meant to be prejudicial;
it is only unfair prejudice which must be avoided." Rodrigeuz-
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Estrada, 877 F.2d at 156. Mindful, as we are, that the trial
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court "is more directly familiar than a court of appeals with the
need for the evidence and its likely effect on the jury," United
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States v. Lau, 828 F.2d 871, 874 (1st Cir. 1987), cert. denied,
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15
486 U.S. 1005 (1988), and mindful, too, that one of the few
reliable means of ascertaining an actor's mental state is by
drawing reasonable inferences from his comments and conduct, we
decline to take the highly unusual step of second-guessing the
trial judge's determination under Rule 403.
III.
III.
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Conclusion
Conclusion
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We need go no further. We conclude that in the
circumstances of this case the lower court's use of a small
number of juror-inspired questions, under carefully controlled
conditions, did not impinge upon the defendant's substantial
rights or tarnish the fundamental fairness of his trial. We also
conclude that the
evidence of subsequent events was properly admitted to prove
appellant's knowledge and intent during the time frame in which
he undertook the mailings described in the counts of conviction.
Affirmed.
Affirmed.
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16