USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1529
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN A. HOLMQUIST,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Selya and Boudin, Circuit Judges,
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and Carter,* District Judge.
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John H. LaChance, with whom Milly Whatley and LaChance &
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Whatley were on brief, for appellant.
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Robert L. Ullman, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, was on brief, for
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the United States.
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September 28, 1994
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*Of the District of Maine, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Stephen A.
SELYA, Circuit Judge.
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Holmquist appeals his convictions on six counts of importing
firearms by means of false statements in violation of 18 U.S.C.
542 and three counts of exporting restricted firearms in
violation of 22 U.S.C. 2778. Holmquist's case has a certain
labyrinthine quality. Having successfully negotiated the maze,
however, we find appellant's claims to be without legal merit
and, therefore, affirm the judgment below.
I. BACKGROUND
I. BACKGROUND
Appellant, a resident of Massachusetts, owned and
operated ARMCO, a firm engaged in the retail sale of firearms.
Apparently not content with the domestic market, and believing
his entrepreneurial skills to be of sufficient caliber, appellant
set his sights on the international scene. Between 1989 and
1991, he conducted several business transactions with individuals
in the People's Republic of China. Since these transactions
triggered the indictment in this case, we offer an overview of
them. Where appropriate, we resolve evidentiary conflicts, and
indulge reasonable inferences, in a manner compatible with the
jury verdict. See, e.g., United States v. Maraj, 947 F.2d 520,
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522-23 (1st Cir. 1991).
In May of 1989, the U.S. State Department granted
appellant's request for a license to export handguns to the
People's Republic of China. However, following the tragic events
that rocked Tiananmen Square in June of that year, the State
Department declared that most firearms no longer could be
2
exported to China. At the same time, the Department revoked or
suspended all existing export licenses (including appellant's)
and declared a moratorium on the issuance of new licenses. When
appellant thereafter sought just such a license, the State
Department sent back his application, unapproved and stamped
"returned without action." Appellant did not reapply.
Despite the lack of a license or other formal
authorization, appellant thrice smuggled restricted firearms to
China between October 1989 and July 1990. He carried the
weaponry on commercial flights out of Boston, nestled in his
suitcases amidst other, more orthodox travel items. After
arriving in China, appellant delivered the guns to either Mr. Ha,
a high-ranking government official,1 or Andrew Wong, a business
executive. Based on the evidence anent these transactions, the
jury convicted appellant on three counts of unlawful exportation.
China also served appellant as a source for importing
firearms and ammunition into the United States. These
importations, though not in themselves unlawful, ultimately
became so when accompanied by appellant's apocryphal statements
concerning the value of his wares. On six different occasions
during 1990 and 1991, appellant undervalued imports, presumably
to reduce the duty due. The prosecution was able to adduce
virtually irrefutable proof of this duplicity: dual sets of
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1Carrying the adversarial ethic to an extreme, the parties
are unable to agree on the spelling of Mr. Ha's first name; the
government spells it Solomon while appellant spells it Soloman.
We attempt a Solomonic resolution of the appellative appellate
contretemps, eschewing any textual reference to Ha's given name.
3
invoices, one containing the price disclosed to Customs and the
other containing the actual, higher price that appellant in fact
had paid. Based on this well-documented pattern of deceit, the
jury convicted appellant on six counts of entering goods by means
of false statements.
II. THE IMPORT CHARGES
II. THE IMPORT CHARGES
Taking matters in reverse chronological order, we turn
first to an examination of the import charges. These counts
arise under a criminal statute that provides in pertinent part:
Whoever enters or introduces, or attempts to
enter or introduce, into the commerce of the
United States any imported merchandise by
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means of any fraudulent or false invoice,
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declaration, affidavit, letter, paper, or by
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means of any false statement, written or
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verbal, or by means of any false or
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fraudulent practice or appliance, or makes
any false statement in any declaration
without reasonable cause to believe the truth
of such statement, or procures the making of
any such false statement as to any matter
material thereto without reasonable cause to
believe the truth of such statement, whether
or not the United States shall or may be
deprived of any lawful duties . . . [s]hall
be [punished as provided].
18 U.S.C. 542 (emphasis supplied).2
Appellant does not deny that he knowingly made false
statements to Customs officials, thereby undervaluing his
imports. Nonetheless, he contends that such statements do not
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2Complementing this first provision is a second, covering
deceptive importations that are designed to deprive the
government of duties. Although the prosecution in this case may
have missed the bull's-eye by charging appellant under the first,
rather than the second, of section 542's provisions, the
government is bound by its charging decision. Consequently, the
proviso we have quoted governs here.
4
fall within the scope of the statute of conviction because the
phrase "by means of" indicates that no violation occurs unless
the merchandise, absent the false invoice, statement, or
practice, would have been excludable. And he says this was not
the case regarding the Chinese munitions, as their importation
was lawful. The government, by contrast, puts no stock in a
causation requirement, dismissing appellant's argument as
involving too cramped a reading of the statutory language.
Because the parties' dispute boils down to a pure question of
statutory interpretation, our review is plenary. See United
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States v. Gifford, 17 F.3d 462, 471-72 (1st Cir. 1994); Liberty
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Mut. Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 757
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(1st Cir. 1992).
Whatever shadows cloud this record, one thing is very
clear: even though no materiality requirement appears on the
statute's face, section 542's first provision must be read to
contain such a requirement; to justify a conviction, the
prosecution must demonstrate that the false invoice, statement,
or practice is related to the importation in some material
respect. This is the construction recognized by virtually every
court that has directly addressed the issue. See, e.g., United
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States v. Corcuera-Valor, 910 F.2d 198, 199 (5th Cir. 1990);
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United States v. Bagnall, 907 F.2d 432, 435 (3d Cir. 1990);
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United States v. Teraoka, 669 F.2d 577, 579 (9th Cir. 1982). It
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also comports with our construction of the parallel civil
statute, 19 U.S.C. 1592, explicated in United States v. Ven-
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5
Fuel, Inc., 758 F.2d 741, 761-62 (1st Cir. 1985). We hasten to
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add that the inclusion of a materiality component is warranted by
more than habit; such a requirement is pragmatically desirable
because it permits courts to advance the statute's apparent
purposes and, if necessary, to exclude trivial lapses from the
statute's ambit. Cf., e.g., United States v. Corsino, 812 F.2d
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26, 30 (1st Cir. 1987) (explaining materiality requirement under
18 U.S.C. 1001, which prohibits, among other things, the
submission of false statements in matters within the jurisdiction
of any federal agency).
Yet, our recognition of a materiality requirement does
not solve the interpretive riddle that this appeal presents; it
is the nature of the materiality requirement not its mere
existence over which the parties grapple. Appellant invites us
to hold that materiality in this context is contingent on a
crabbed construction of the term "by means of." Specifically, he
argues that "by means of" is synonymous with "because of," and
that a false statement is material under the first part of
section 542 only if the importation of any particular item would
have been forbidden in its absence. We decline the invitation.
In discerning the meaning of this portion of section
542, "[w]e start as all statutory construction must start by
looking at the language of the law," United States v. Charles
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George Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987), and by
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examining the "ordinary, contemporary, common meaning" of the
words, Perrin v. United States, 444 U.S. 37, 42 (1979). Bearing
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6
this in mind, we are constrained to conclude that the phrase "by
means of" is not synonymous with "because of"; while the former
includes the latter, that hardly renders them coterminous.
Rather, understood in an unforced way, saying that someone has
effected an importation by means of a false statement is simply
to suggest that the person has introduced a false statement at
some significant stage in the process. The phrase does not mean
that the person could not have used a true statement in tandem
with the false statement, or that the importation could not
otherwise have been achieved. See, e.g., Webster's New Universal
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Unabridged Dictionary 1115 (2d ed. 1983) (defining "by means of"
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as "by using; with the aid of; through"); Richard A. Spears,
American Idioms Dictionary 43 (1987) (defining "by means of
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something" as "using something" or "with the use of something").
There is no basis for rejecting plain meaning here.
Indeed, contrary to appellant's importuning, the principal
problem with the "by means of" language is not ambiguity its
meaning is obvious but, rather, the language's potential
breadth. It is because of this problem that courts have read a
materiality requirement into this portion of section 542. This
requirement is intended to flesh out, not to eviscerate, the "by
means of" language as that phrase resonates in the context of
section 542. So viewed, it brings to the textual surface the
commonsense notion that, to ground a conviction, there must be a
significant nexus between the false statement and the
importation.
7
We hold, therefore, in basic agreement with the Third
Circuit, that a false statement is material under section 542 if
it has the potential significantly to affect the integrity or
operation of the importation process as a whole, and that neither
actual causation nor actual harm to the government need be
demonstrated. See Bagnall, 907 F.2d at 436 ("The language of
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542 suggests to us that its purpose is no less than to preserve
the integrity of the process by which foreign goods are imported
into the United States. As a result, we are inclined to believe
that a false statement is material not only if it is calculated
to effect the impermissible introduction of ineligible or
restricted goods, but also if it affects or facilitates the
importation process in any other way."); see also Corsino, 812
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F.2d at 30-31 (drawing similar conclusion in relation to the
judicially devised materiality requirement of 18 U.S.C. 1001);
United States v. Greenberg, 735 F.2d 29, 31 (2d Cir. 1984)
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(suggesting, in construing an analogous statute, that when "a
false statement is made to a public body or its representative,
materiality refers to the impact that the statement may
reasonably have on the ability of that agency to perform the
functions assigned to it by law").
It is thus apparent that the focus of an inquiry into
materiality is not what effect a false statement actually may
have, but whether it carries a serious potential risk for
obstructing the agency or substantially inhibiting the agency's
performance of its duties under the law. Transplanted to the
8
Customs milieu, a statement is material if it has the potential
significantly to affect the integrity or operation of the
importation process the manner in which Customs handles the
assessment of duties and passage of goods into the United States.
Having distilled the plain meaning of the disputed
phrase, we could end our inquiry at this point. See, e.g.,
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Charles George Trucking, 823 F.2d at 688 (explaining that, when
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the language of a statute "points unerringly in a single
direction, and produces an entirely plausible result, it is
unnecessary and improper to look for other signposts"). But,
here, to reinforce our conclusion that "material" means something
more than "causal," we think it is appropriate to note that this
conclusion is supported not only by the plain language of section
542, but also in three other ways: by the better reasoned case
law, by the adverse textual consequences that would result from
adopting appellant's proposed definition, and by the policy
underlying the statutory provision. See, e.g., United States v.
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O'Neil, 11 F.3d 292, 295-301 (1st Cir. 1993) (beginning
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interpretive analysis with plain language of statute and
verifying construction by reference to statutory structure,
logic, and public policy).
An examination of precedent reveals that we already
have rejected a narrow, causally oriented reading of the
materiality requirement found in the civil analog to section 542.
See Ven-Fuel, 758 F.2d at 762 (branding such a construction of 19
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U.S.C. 1592 "entirely baseless" and predicting that "[s]uch a
9
restrictive reading would largely eviscerate the statute,
rendering it meaningless in the vast majority of cases").3 Our
view of section 542's materiality requirement is also consonant
with the reasoning and/or resolution of several cases from other
jurisdictions. See, e.g., Bagnall, 907 F.2d at 436; United
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States v. Brown, 456 F.2d 293, 295 (2d Cir.), cert. denied, 407
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U.S. 910 (1972); United States v. Szwaczka, 769 F. Supp. 293, 296
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(E.D. Wis. 1991); see also United States v. Yip, 930 F.2d 142,
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147-49 (2d Cir.) (construing the second provision of section 542
in an equally broad manner), cert. denied, 112 S. Ct. 197
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(1991).4
A broad construction of section 542 is also supported
by accepted canons of statutory construction. If the first
provision in section 542 is construed as applying only to
ineligible imports, then the final sentence of the section,
discussing the legal irrelevance of depriving the government "of
any lawful duties," would be meaningless (for nonimportable items
are not dutiable, and hence, the government could never be
deprived). Accordingly, such a construction would transgress the
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3Indeed, although the precise issue was not before us, we
commented favorably upon our perception that "under 18 U.S.C.
542, criminal convictions have regularly been sustained where
generically importable goods had been entered by trick or
artifice." Ven-Fuel, 758 F.2d at 762 (citing United States v.
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Murray, 621 F.2d 1163 (1st Cir.), cert. denied, 449 U.S. 837
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(1980); United States v. Brown, 456 F.2d 293 (2d Cir.), cert.
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denied, 407 U.S. 910 (1972)).
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4To be sure, two courts of appeals, the Fifth and the Ninth,
have reached the opposite conclusion. See Corcuera-Valor, 910
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F.2d at 199-200; Teraoka, 669 F.2d at 579. With respect, we find
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these opinions unpersuasive and we decline to follow them.
10
oft-stated interpretive rule that "[a]ll words and provisions of
statutes are intended to have meaning and are to be given effect,
and no construction should be adopted which would render
statutory words or phrases meaningless, redundant or
superfluous." Ven-Fuel, 758 F.2d at 751-52; accord O'Neil, 11
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F.3d at 297.
Finally, a statute must be read as a whole, with due
regard for its object, purposes, and underlying policy. See
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Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987). Here, a
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broad reading of the disputed language serves to advance the
fundamental purpose of the first part of section 542. That
purpose, as evidenced by Congress's choice of phrase
particularly the caveat that the government need not "be deprived
of any lawful duties" is to ensure full disclosure in
importation and thereby maintain the integrity of the importation
process as a whole. See Bagnall, 907 F.2d at 436. Adopting an
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isthmian standard would thwart this goal by making it more
attractive for importers to assume the persona of Holmes's "bad
man" and to practice strategic forms of deception under the guise
of immateriality. See Oliver Wendell Holmes, Jr., The Path of
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the Law, 10 Harv. L. Rev. 457, 459 (1897) ("If you want to know
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the law and nothing else, you must look at it as a bad man, who
cares only for the material consequences which such knowledge
enables him to predict . . . .").
To recapitulate, we hold that materiality is, in fact,
an element of the offense of conviction. This element serves to
11
explain, not to emasculate, the "by means of" language contained
in the first part of the statute. Particularly when viewed
against this backdrop, appellant's proposed equation of "by means
of" with "because of" betrays both common meaning and common
sense. By limiting the scope of section 542's first provision to
ineligible items, such an interpretation would effectively
convert the provision into an inoperative piece of parchment.
Accordingly, we reject appellant's narrow construction, and rule
that, in this context, "material" means having the potential
significantly to affect the integrity or operation of the
importation process as a whole, without regard to whether the
conduct at issue caused the importation and without regard to
whether the federal government suffered actual harm.
Appellant's false statements had this deleterious
potential. Undervaluations are by their nature materially
related to the importation process, both because they may
interfere with the government's efforts to monitor and regulate
the flow of goods into the United States and because they
undermine the integrity of the entire importation process.
Consequently, appellant's convictions under section 542 must be
upheld.5
III. THE EXCLUDED EVIDENCE
III. THE EXCLUDED EVIDENCE
We turn now to appellant's assertion that his
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5Appellant also assigns error to the district court's jury
instructions on the importation counts. This assignment of error
is constructed around the same misinterpretation of section 542's
materiality requirement. It, therefore, fails.
12
convictions under the Arms Export Control Act, 22 U.S.C. 2778,
are tainted because the trial court excluded evidence evidence
that we sometimes shall call "contacts evidence" that would
have established a defense of apparent public authority6 and/or
negated the element of specific intent. For the reasons
explained below, we find this assertion unavailing.
A. Proceedings Below.
A. Proceedings Below.
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Because the precise course of proceedings before and
during the trial is critical to the resolution of appellant's
challenge, we rehearse the pertinent details. Between April 27
and May 6, 1992, appellant served subpoenas duces tecum on three
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persons an agent of the Naval Intelligence Service, the keeper
of records at the National Security Agency, and a business
associate (whom we shall call "John Doe") who had accompanied
appellant on his excursions to China proposing to ensure their
availability as witnesses at his trial. Appellant alleged that
Doe (who, he said, was in the employ of a federal intelligence
agency) had authorized the arms exports.7 It was appellant's
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6The "defense" of apparent public authority is a defense
based on a mistaken but good-faith belief that one's conduct is
authorized by the government. Appellant's repeated references to
this defense constitute little more than a school of red
herrings. The defense is not a defense at all. See United
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States v. Duggan, 743 F.2d 59, 83-84 (2d Cir. 1984) (rejecting
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such a defense in a prosecution under 22 U.S.C. 2778); United
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States v. Anderson, 872 F.2d 1508, 1513-16 (11th Cir.) (similar),
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cert. denied, 493 U.S. 1004 (1989).
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7The nonexistent defense of apparent public authority, see
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supra note 6, must not be confused with the potentially viable
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defense of actual public authority, which may come into play when
a defendant undertakes certain acts, reasonably relying on the
statements of a government agent cloaked with actual authority.
13
legal theory that, even if Doe were not a spy, Doe's imprimatur
could undermine the government's case against appellant either by
providing a defense of apparent public authority, but see supra
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note 6, or by negating an element of the offense, namely,
specific intent.
The government responded by filing motions to quash the
subpoenas, followed on May 18 by both a memorandum of authorities
and an ex parte submission pursuant to the Classified Information
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Procedures Act, 18 U.S.C. app. III (CIPA), which limns a
procedure permitting classified information "to be inspected by
the court alone." Id. 4. On the same date, appellant made an
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oral ex parte proffer to the trial court, explaining the
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relationship between the subpoenas and his proposed trial
strategy.
On May 21, following an in camera hearing, Judge Keeton
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granted the government's motions to quash. He also granted the
government's oral motion in limine, made in anticipation that
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appellant might renew his efforts to proffer contacts evidence.
When reduced to writing on May 26, 1992, the in limine order
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required appellant, before "fil[ing] or disclos[ing] any
document, ask[ing] any question, or mak[ing] any statement
related to any alleged contact between any individual and any
intelligence agency," to "first present[] such matter directly to
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See United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18
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(11th Cir. 1994). Here, however, we have painstakingly checked
the materials tendered in camera and find no colorable or
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cognizable basis for a defense of actual public authority.
14
the [trial judge] in chambers or at sidebar and . . . receive[]
from [the judge] a ruling allowing the requested action . . . ."
Immediately prior to trial, appellant filed a motion to
reconsider these rulings, accompanied by a written, sworn ex
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parte proffer. After a hearing that began on October 22, 1992,
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and continued into the next day, the district court denied the
motion. Trial commenced a few days later.
At trial, appellant called only one witness, a Customs
agent, and made no discernible effort to capitalize on the
court's invitation to examine his purported contacts evidence in
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camera.8 Still, at the close of his case appellant moved for a
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mistrial, claiming that the district court's pretrial rulings
denied him the opportunity to present a robust defense. The
court spurned the motion. In due course the jury convicted
appellant on all three exportation counts (as well as on the
charges of unlawful importation discussed in Part II, supra).
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B. Analysis.
B. Analysis.
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Appellant contests the district court's pretrial
rulings specifically, the orders entered in respect to the
government's motions to quash and motion in limine on the
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theory that those rulings precluded him from presenting to the
jury a complete and competent defense. He assails the district
court's denial of his motion for a mistrial for much the same
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8Even if we give appellant the benefit of his description of
it, the contacts evidence is entropic at best. Apart from the
claims about what Doe ostensibly said, the contacts evidence
consists entirely of gauzy generalities, inadmissible double
hearsay, and unsupported suppositions.
15
reason. In particular, he alleges that these rulings which for
our purposes coalesce into, and are subsumed by, the order in
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limine9 transgressed his rights under both the Due Process
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Clause of the Fifth Amendment and the Compulsory Process Clause
of the Sixth Amendment by foreclosing him from mounting a defense
to the charges. Having carefully deterrated the record, we find
that this challenge has not been properly perfected and,
therefore, evaporates into thin air.
On appeal, Holmquist claims that the contacts evidence
bore on two possible lines of defense: (1) that he acted on
Doe's instructions, and, hence, under the guise of apparent
public authority a defense that, in any event, would have
misfired, see supra note 6; and (2) that he lacked the requisite
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specific intent to commit the charged crime a strategy that, at
least in theory, had promise, see, e.g., United States v. Murphy,
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852 F.2d 1, 7 (1st Cir. 1988) (explaining that, in respect to
charges under 22 U.S.C. 2778, the prosecution must prove that
the defendant in fact "knew he had a legal duty not to export the
weapons"), cert. denied, 489 U.S. 1022 (1989); see also United
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States v. Anderson, 872 F.2d 1508, 1517 (11th Cir.) (rejecting
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9Because appellant's subpoenas sought the production of
evidence at trial, the district court's order in limine
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effectively controlled, and therefore subsumed, the quashal
order. By like token, the district court's denials of
appellant's eve-of-trial motion for reconsideration and mid-trial
motion for a mistrial lack independent significance; if the court
committed no antecedent error in the exclusion of evidence under
the aegis of the order in limine, then those motions were
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bootless. Thus, our analysis of this assignment of error may
appropriately focus upon the order in limine alone.
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16
apparent public authority defense, but acknowledging that
defendant's mistaken belief that his acts were authorized might
negate specific intent), cert. denied, 493 U.S. 1004 (1989).10
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There is some disagreement over the extent to which appellant
explicitly and clearly pursued the second of these two legal
theories during the course of the litigation. The best that can
be said is that passing reference to both theories is made in
appellant's opposition to the government's motion to quash; and
appellant's motion to reconsider and motion for mistrial each
purported to incorporate the contents of this initial opposition.
But at the pretrial hearings of May 18 and 21, 1992, which were
specifically devoted to assessing the propriety of the
government's motions to quash and motion in limine, appellant did
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not once bring the specific intent theory to the judge's
attention. Similarly, appellant made no explicit reference to
the theory when arguing his motion to reconsider.
Based on the overall record, appellant might well be
deemed to have abandoned the specific intent theory. As we have
previously admonished, "[a] party has a duty to put its best foot
forward . . . [and] to spell out its arguments squarely and
distinctly." Paterson-Leitch Co. v. Massachusetts Mun. Wholesale
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Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988); see also United
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10There is also some suggestion that appellant considered
raising a defense of estoppel by entrapment. See United States
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v. Smith, 940 F.2d 710, 714 (1st Cir. 1991) (discussing
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doctrine). On appeal, however, Holmquist offers no developed
argumentation in connection with this defense. Consequently, we
deem it waived. See United States v. Zannino, 895 F.2d 1, 17
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(1st Cir.) cert. denied, 494 U.S. 1082 (1990).
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17
States v. Boylan, 898 F.2d 230, 249 (1st Cir.) ("Litigants cannot
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expect a judge . . . to be clairvoyant."), cert. denied, 498 U.S.
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849 (1990).
Although the question of abandonment is close, we need
not resolve it, for at the trial itself, appellant eschewed any
attempt to offer evidence in camera in accordance with the
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district court's express invitation and the provisional nature of
the court's in limine ruling.11 The government maintains that,
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given this omission, appellant no longer can contest the
operation of the court's order in limine. We agree. Appellant's
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snubbing of the court's invitation to consider evidentiary
offerings during the trial effectively insulated from appellate
review any complaints he voiced in connection with the court's
pretrial evidentiary rulings. In the pages that follow, we
explain our rationale.
It is a bedrock principle of our adjudicatory system
that ostensible errors arising before and during trial must be
properly raised and preserved in order to be reviewable on
appeal. See United States v. Griffin, 818 F.2d 97, 104-06 (1st
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Cir.), cert. denied, 484 U.S. 844 (1987). In terms of
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evidentiary limitations, this principle is so important that we
find it partially codified in the third of our Federal Rules of
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11The transcript reflects only one point in the trial at
which appellant requested a sidebar for the purpose of attempting
to introduce evidence related to the order in limine and on
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that lone occasion, the district court granted appellant's
request. This demonstrates quite vividly an awareness on
appellant's part that the court had left the door open to
proffers of such evidence.
18
Evidence. "Error may not be predicated upon a ruling . . .
excluding evidence [unless] the substance of the evidence was
made known to the court by offer or was apparent from the context
within which questions were asked." Fed. R. Evid. 103(a).
In entering the in limine order below, Judge Keeton
__ ______
made it clear that the only definite limitation on appellant's
ability to introduce contacts evidence was that he must first
present it out of the jurors' earshot, that is, to the judge,
either in chambers or at sidebar. Federal district judges enjoy
broad discretion in respect to the ordering and presentation of
proof and the handling of evidentiary questions. See, e.g., Fed.
___ ____
R. Evid. 104(c) (stating that hearings on preliminary matters
other than the admissibility of confessions may be conducted out
of the hearing of the jury "when the interests of justice
require"); Fed. R. Evid. 611(a) (empowering district courts to
exercise "reasonable control" over mode and presentation of
evidence); see also Luce v. United States, 469 U.S. 38, 41 n.4
___ ____ ____ _____________
(1984) (approving use of in limine rulings as an adjunct of "the
__ ______
district court's inherent authority to manage the course of
trials"); Douglas L. Colbert, The Motion in Limine in Politically
___________________________________
Sensitive Cases: Silencing the Defendant at Trial, 39 Stan. L.
___________________________________________________
Rev. 1271 (1987) (discussing, though bemoaning, the increased use
of motions in limine to preclude defendants from raising certain
__ ______
defenses altogether). In light of this discretion, we are unable
to conclude that the in limine order itself lay beyond the
__ ______
district court's proper purview, or that it was untenable in any
19
particular.
It follows inexorably that, since the in limine order
__ ______
represented a lawful exercise of judicial power, appellant's
failure to abide by its terms bars him from complaining in this
venue about evidence that could have been but was not
proffered to the court within the framework of the order. After
all, the trial judge's offer to consider proposed evidentiary
offerings in camera, as the occasion arose, was not a mere
__ ______
formality and appellant treated it as such at his peril. See
___
Conway v. Electro Switch Corp., 825 F.2d 593, 596 n.1 (1st Cir.
______ ____________________
1987) ("Under the best of circumstances, counsel must exercise
caution in relying exclusively upon rulings made in connection
with pretrial motions in limine as the basis for preserving
__ ______
claims of error in the admission and exclusion of evidence.");
Freeman v. Package Mach. Co., 865 F.2d 1331, 1337 (1st Cir. 1988)
_______ _________________
(offering similar admonition). In short, appellant's decision to
ignore the procedural device fashioned by the trial court
disabled him from mounting a subsequent challenge to what he now
dysphemistically calls the "exclusion" of evidence.
Our conclusion rests not only upon the fundamental
principles of judicial economy and attorney cognizance, but also
upon a well-defined corpus of federal appellate case law. The
touchstone, of course, is the Court's decision in Luce. The Luce
____ ____
Court held specifically that a defendant who chooses not to
testify at trial loses his right to appeal the district court's
ruling denying his in limine motion to forbid the impeachment use
__ ______
20
of a prior conviction. See Luce, 469 U.S. at 43. More
___ ____
generally, Luce teaches that there are concrete limits to a
____
party's right to request appellate review of evidentiary rulings,
and that these limits reflect two factors: (1) the legitimate
needs of appellate courts in the review of alleged evidentiary
errors stemming from trials, see id. at 41-42 (observing that
___ ___
"[a] reviewing court is handicapped in any effort to rule on
subtle evidentiary questions outside a factual context"); and (2)
the possibility that a defendant might exploit adverse rulings by
treating them essentially as legal jokers, to be pulled from his
sleeve should a conviction ensue, see id. at 42 (warning against
___ ___
setting the stage for a litigant, at no risk, to seed the record
with error).
In the instant case, both of these concerns are
implicated. Regarding the reviewability concern, it is precisely
because appellant comes before us not having attempted to offer
evidence during the trial that we cannot rule intelligently on
the underlying evidentiary questions; he presents us with an
abstract intellectual exercise, rife with conjecture, rather than
affording us an opportunity to inspect concrete evidence, offered
and excluded in an actual trial context. Regarding the
exploitation concern, we likewise have no reliable way of knowing
whether appellant's decision to forgo the trial judge's
invitation reflected a genuine sense of preclusion, a mere
oversight, an ill-fated stratagem (such as an attempt to infect
the trial with error), or simply a realization that the putative
21
contacts evidence was not likely to be helpful after all.
Our conclusion that appellant did not sufficiently
perfect a right to appeal in respect to contacts evidence draws
further support from the myriad cases that have seen fit to
extend the tenets of Luce into other contexts involving in limine
____ __ ______
motions. See Griffin, 818 F.2d at 105 (citing wide range of
___ _______
federal appellate cases extending principles articulated in
Luce). Griffin itself is a good example. In that case, we
____ _______
declined to review a conditional pretrial ruling under Fed. R.
Evid. 403, which prohibited a government witness from testifying
that a certain associate of the defendant had once threatened him
for cooperating with the government a threat which, according
to the witness, caused him to withhold information from the
government for over a year. The one condition on this pretrial
order, however, was that the prohibition would vanish if the
defense attempted to impeach the witness by referring to
cooperation. The defendant abided by the ruling, but then
challenged it following his conviction. In holding that he could
not test the evidentiary question on appeal, we observed:
"Although the court telegraphed what its ruling was likely to be
if defense counsel opened the door, the latter never knocked.
And, we will not venture to pass upon issues such as this in a
vacuum." Id. at 103. Based on this, and on related concerns,
___
including the "danger of encouraging a defendant, as a trial
tactic, to plant reversible error," id. at 104, we ruled that "to
___
raise and preserve for review the claim of [evidentiary error], a
22
party must obtain the order admitting or excluding the
controversial evidence in the actual setting of the trial," id.
____________________________________ ___
at 105 (emphasis supplied). While there are factual differences
between Griffin and the case at hand, Griffin's logic points
_______ _______
unerringly toward the conclusion that appellant in this case
never perfected his right to appeal the putative exclusion of
contacts evidence.
Two years after Griffin, we had another opportunity to
_______
apply the principles of Luce, this time to a case involving an
____
anticipatory motion to limit cross-examination of the defendant.
See United States v. Nivica, 887 F.2d 1110, 1115 (1st Cir. 1989),
___ _____________ ______
cert. denied, 494 U.S. 1005 (1990). After the district court
_____ ______
refused to grant the motion, the defendant chose not to testify.
The jury found him guilty. He then appealed the court's denial
of his liminary motion. We gave him short shrift. Beginning
with the premise that "the concerns which undergird Luce and
____
Griffin control here," id. at 1116, we determined that:
_______ ___
Because Nivica did not take the stand, or ask
for voir dire, his exact testimony remains,
in the Luce phrase, "unknowable." The
____
alleged harm is "wholly speculative," both
because (a) the judge, in the give-and-take
of live testimony, might have changed his
mind and confined cross-examination more
closely, and (b) on this record, we have no
way of knowing the extent to which the
government would have sought to cross-
question Nivica (if at all) about other
matters. Moreover, in this case as in Luce,
____
there is no reliable method for divining the
genesis of defendant's decision not to
testify. . . . Furthermore, were we to relax
the rule, we would run the very risk ease
in "`plant[ing]' reversible error" that the
Luce Court aimed to avoid. Finally,
____
23
defendant's tactical choice in this case, as
in Luce, has thwarted our ability to judge
____
the harmfulness of the asserted error.
Id. at 1116-17 (citations omitted). In the bargain, we rejected
___
defendant's claim that, because the trial judge ruled as a matter
of law rather than expressly labelling his ruling as conditional,
Luce should not have governed the analysis. We emphasized that
____
the critical dimensions of a Luce scenario include timing and
____
context, and that, "[u]ltimately, the trier's decision, whatever
his initial inclination, had to depend upon particular questions
and their relation to the content of the direct examination."
Id. at 1117. In the same way, appellant in the case before us
___
inexplicably declined the opportunity to probe the trial judge's
provisional ruling by making a concrete proffer in a live
context, thus depriving this court of the opportunity
meaningfully to review his claim. Cf. Reilly v. United States,
___ ______ _____________
863 F.2d 149, 168 (1st Cir. 1988) (holding, in respect to a
discovery request, that "by ignoring the [judge's] clear
invitation to specify, face-up and squarely, what information it
continued to seek, appellant waived the right to protest the
denial of its [discovery motion]").
We also find instructive the experience of the Seventh
Circuit, which recently confronted a situation quite similar to
this one. In United States v. Addo, 989 F.2d 238 (7th Cir.
______________ ____
1993), the district court, over defendant's opposition,
provisionally granted the government's motion in limine barring
__ ______
the defendant from pursuing a particular line of argument at
24
trial. In so doing, the court made it clear that it would "allow
the defense counsel . . . [to] renew her opposition to the
government's motion before the conclusion of the trial." Id. at
___
241. Defense counsel did not take advantage of this offer. On
appeal, defendant challenged the district court's grant of the
motion in limine. The Seventh Circuit began with the premise
__ ______
that a party "may not lull the judge into thinking that [a
theory] has been abandoned and then, after he has lost, pull a
rabbit out of his pocket in the form of the forgotten motion."
Id. (quoting United States v. Taglia, 922 F.2d 413, 416 (7th
___ ______________ ______
Cir.), cert. denied, 500 U.S. 927 (1991)). The court then
_____ ______
concluded that the defense had failed to perfect its right to
contest the exclusion of the desired line of argument:
[T]he ball was in the defendant's court to
challenge the granting of the motion in
__
limine. For some reason, the defense failed
______
to respond to the judge's ruling again during
the trial. This may have been an oversight
on the part of defense counsel in the midst
of a busy trial or a well-calculated trial
strategy. Whatever the reason, the record
reflects that the defense was clearly given
the opportunity to raise the matter again
before the trial judge and failed to do so.
Accordingly, the defense may not challenge
the merits of this ruling on appeal.
Id. at 242; see also Favala v. Cumberland Engin'g Co., 17 F.3d
___ ___ ____ ______ ______________________
987, 991 (7th Cir. 1994) (explaining that a "court's invitation
to renew [an] issue" should be treated "as an indication that the
court's ruling on the motion in limine is not final and is open
to reconsideration; consequently, the failure to follow up on the
invitation constitutes a waiver"); United States v. Hoyos, 3 F.3d
_____________ _____
25
232, 236 (7th Cir. 1993) (applying Addo to a situation in which
____
the trial court granted the government's motion in limine,
__ ______
subject to reconsideration, and defendant neglected to raise the
relevant issue during trial); United States v. Romano, 849 F.2d
______________ ______
812, 815-16 (3d Cir. 1988) (declining to reverse defendant's
conviction "based on mere speculation as to what the district
court would have done" if defendant had proffered evidence at
trial in an effort to surmount the district court's in limine
__ ______
ruling); cf. United States v. Bonneau, 970 F.2d 929, 932-33 (1st
___ _____________ _______
Cir. 1992) (declining to review exclusion of testimony, alleged
by defendant to establish lack of willfulness under 26 U.S.C.
7201, because defendant made no offer of proof in the trial court
to establish the testimony's substance).
These principles and precedents necessarily control our
decision in this case. The district judge's ruling was patently
provisional. The court gave appellant ample opportunity to
reiterate his request to introduce evidence of purported
government contacts in the context of the actual trial. For
whatever reason, appellant chose not to take up the gauntlet.
One consequence of appellant's inertia is that we, as an
appellate tribunal, can only engage in rank speculation about
whether the trial judge would have allowed appellant to introduce
specific evidence (the exact nature of which is unknown to us,
see supra note 8) for a specific purpose (the exact nature of
___ _____
which is likewise unknown to us) had he attempted to do so during
the trial. An appeal that asks a reviewing court to decide
26
delicate questions of evidentiary error based not on a tangible,
well-defined record, but rather on conjecture and surmise, does
not deserve a favorable answer.
For these reasons, we conclude that, when a judge
issues a provisional in limine pretrial order and clearly invites
__ ______
the adversely affected party to offer evidence at sidebar for the
purpose of reassessing the scope or effect of the order in the
setting of the actual trial, the exclusion of evidence pursuant
to that order may be challenged on appeal only if the party
unsuccessfully attempts to offer such evidence in accordance with
the terms specified in the order.12 Because appellant failed
to follow this well-marked path, we hold that he cannot now
complain about the trial court's handling of the contacts
____________________
12This rule is not without limits. For example, it will not
apply when the in limine order is itself final. Finality may
__ ______
inhere either in the nature of the judge's words, or in the
rationale of his ruling, or in both. See, e.g., Fusco v. General
___ ____ _____ _______
Motors Corp., 11 F.3d 259, 262-63 (1st Cir. 1993) ("Where a court
____________
rules in limine that certain evidence is excluded but the ruling
__ ______
is merely tentative or qualified, then the proponent might well
have to offer the evidence at trial in order to preserve an
appeal on the issue. But where the pretrial proffer is adequate
and evidence is excluded unconditionally by a pretrial order,
then we think that the proponent has preserved the issue for
appeal and (other circumstances being unchanged) need not . . .
proffer the evidence again at trial.") (citation omitted); Addo,
____
989 F.2d at 242 (distinguishing situations in which the trial
court stated that subsequent attempts to modify an in limine
__ ______
ruling would be useless or futile); see also Favala, 17 F.3d at
___ ____ ______
991 (noting rule that "the failure to follow up on the invitation
[to reconsider a motion in limine] constitutes a waiver" but
__ ______
finding no waiver in the particular case because the court
"clearly indicated" that its ruling was definitive); cf. United
___ ______
States v. Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir.)
______ _____________
(formulating three-part test to determine when the denial of a
pretrial motion in limine to exclude evidence, in the absence of
__ ______
a further objection at trial, will nonetheless preserve a right
of appellate review), cert. denied, 114 S. Ct. 334 (1993).
_____ ______
27
evidence.
IV. OTHER EVIDENTIARY ISSUES
IV. OTHER EVIDENTIARY ISSUES
In his final assignment of error, appellant suggests
that the district court erred in permitting the prosecution to
introduce, over objection, certain items of evidence that,
appellant says, were not satisfactorily authenticated. The
challenged evidence comprises a photocopy provided by Andrew Wong
(a purchaser of unlawfully exported firearms), and snapshots of
weapons displaying serial numbers matching for the most part
those listed on weapons in appellant's inventory. In addition to
questioning authentication, appellant also claims that, in all
events, the photocopy should have been excluded as hearsay. We
believe that this fusillade misses the mark.
A. The Photocopy.
A. The Photocopy.
_____________
In respect to the photocopy, we treat appellant's
authentication and hearsay challenges separately.
1. Authentication. Exhibit 17A purported to be a
1. Authentication.
______________
photocopy of a bank check in the amount of $2500, drawn on the
Bank of China at Hong Kong, bearing a date of December 20, 1988,
and made payable to appellant. To authenticate the proffer,
Dennis Kelly, a Customs agent, testified that Wong provided him,
via air courier from Hong Kong, with both the photocopy and a
three-page invoice in appellant's handwriting. This document,
admitted into evidence at trial as Exhibit 17, described, among
28
other things, a $2500 credit in Wong's favor.13
Appellant argues that the proof failed to eliminate a
googol of possibilities concerning the photocopy, e.g., that it
____
was a fake, or that the check was made at some time other than
the stated date, or that it was never delivered to appellant, or,
if delivered, that it was never negotiated. Additionally,
appellant argues that a finding of authenticity could not readily
be based on material emanating from Wong because Wong had soured
on him and was, therefore, a biased source.
It cannot be gainsaid that documentary evidence must be
authentic. The test of authenticity is straightforward: "The
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its
proponent claims." Fed. R. Evid. 901(a); see also United States
___ ____ _____________
v. Paulino, 13 F.3d 20, 23 (1st Cir. 1994); United States v.
_______ ______________
Arboleda, 929 F.2d 858, 869 (1st Cir. 1991).
________
There is no single way to authenticate evidence. In
particular, the direct testimony of a custodian or a percipient
witness is not a sine qua non to the authentication of a writing.
____ ___ ___
See Paulino, 13 F.3d at 23. Thus, a document's "[a]ppearance,
___ _______
contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances," can,
in cumulation, even without direct testimony, provide sufficient
____________________
13On appeal, Holmquist does not contest the admission of
Exhibit 17 as a full exhibit.
29
indicia of reliability to permit a finding that it is authentic.
Fed. R. Evid. 901(b)(4); see also Paulino, 13 F.3d at 23; United
___ ____ _______ ______
States v. Newton, 891 F.2d 944, 947 (1st Cir. 1989).
______ ______
Issues of authentication are almost always fact-
sensitive. Consequently, when such issues arise, the trial court
must act as a gatekeeper. See United States v. Ladd, 885 F.2d
___ _____________ ____
954, 956 (1st Cir. 1989); see generally Fed. R. Evid. 104(a).
___ _________
"If the court discerns enough support in the record to warrant a
reasonable person in determining that the evidence is what it
purports to be, then Rule 901(a) is satisfied and the weight to
be given to the evidence is left to the jury." Paulino, 13 F.3d
_______
at 23. And since rulings of this nature often depend on the
trial judge's intimate knowledge of the case and the
protagonists, we review rulings accepting or rejecting claims of
authenticity only for mistake of law or abuse of discretion. See
___
Paulino, 13 F.3d at 23; United States v. McMahon, 938 F.2d 1501,
_______ ______________ _______
1508 (1st Cir. 1991).
Here, the district court noted that the purported bank
check was dated "Dec. 20, 1988"; that it was payable to "Steve
Holmquist"; and that it was for $2500. The court also determined
that Exhibit 17 (the three-page invoice in appellant's
handwriting) strongly corroborated Exhibit 17A; after all, agent
Kelly received the invoice in the very same package as the
photocopy of the check, and the invoice mentioned a $2500 credit
to Wong, thereby lending considerable credence to the proposition
that Holmquist received a payment (the bank check), acknowledged
30
its receipt, and credited Wong's account in the amount of the
payment.14 Given the totality of the circumstances, especially
the ties binding Wong to Holmquist, we agree with the lower court
that a jury could draw reasonable inferences connecting the
photocopy of the bank check to the invoice.
To be sure, appellant's objections are not entirely
without force. It is possible that the photocopy had been
________
doctored, or constituted an instrument through which Wong, for
whatever reason, aspired to carry out an elaborately staged hoax.
But the burden of authentication does not require the proponent
of the evidence to rule out all possibilities inconsistent with
authenticity, or to prove beyond any doubt that the evidence is
what it purports to be. Rather, the standard for authentication,
and hence for admissibility, is one of reasonable likelihood.
See United States v. McGlory, 968 F.2d 309, 328-29 (3d Cir.
___ ______________ _______
1992), cert. denied, 113 S. Ct. 1388 (1993); United States v.
_____ ______ _____________
Collado, 957 F.2d 38, 39 (1st Cir. 1992); see also 5 J. Weinstein
_______ ___ ____
& M. Berger, Weinstein's Evidence 901(a)[01], at 901-19 (1994)
____________________
(explaining that the trial court should admit evidence as
authentic "if sufficient proof has been introduced so that a
reasonable juror could find in favor of authenticity").
Here, mindful of the deference accorded to the trial
court's exercise of its discretion, we cannot say that the court
erred in declaring the photocopy of the bank check to be
____________________
14The handwritten invoice used the words "minus $2500,
12/29/88."
31
sufficiently authenticated, or in admitting it into evidence.
2. Hearsay. Appellant also suggests that, because the
2. Hearsay.
_______
photocopy was introduced to prove the truth of the matter
asserted, it was hearsay and, therefore, inadmissible unless it
fell within one of the exceptions to the hearsay rule. We need
not probe this point too deeply, for close perlustration of the
record makes it plain that appellant never advanced this
objection below.
During the trial, appellant made a cluster of
objections with regard to the photocopy of the bank check.
However, these objections focused on authentication, and
contained no developed argumentation in regard to hearsay
principles. To be sure, defense counsel at one point called the
photographs "totem pole hearsay," and, in a later colloquy,
applied the same epithet to the photocopy. But we think that
this elliptical reference carries little weight. Under
prevailing federal practice, objections to evidentiary proffers
must be reasonably specific in order to preserve a right to
appellate review. See, e.g., United States v. Walters, 904 F.2d
___ ____ _____________ _______
765, 769 (1st Cir. 1990); see also Fed. R. Evid. 103(a)(1). In
___ ____
other words, a litigant is obliged to "call [his specific
objection] to the attention of the trial judge, so as to alert
[the judge] to the proper course of action." United States v.
_____________
Piva, 870 F.2d 753, 759 (1st Cir. 1989) (quoting Notes of the
____
Advisory Committee on Evidence Rule 103(a)). A lack of
specificity bars the party aggrieved by the admission of the
32
evidence from raising more particularized points for the first
time on appeal. See Walters, 904 F.2d at 769; Piva, 870 F.2d at
___ _______ ____
759.
The rule is not a mere technicality, but is solidly
grounded in considerations of fairness and judicial economy. As
we said in Walters, 904 F.2d at 769: "The reason for such a
_______
requirement is to alert the trial court and the other party to
the grounds of the objection so that it may be addressed or
cured." Applying these precepts, appellant's hearsay argument is
by the boards.15
B. The Photographs.
B. The Photographs.
_______________
The district court also permitted the prosecution to
introduce nine photographs purporting to depict firearms that
appellant illegally exported to China. Each photograph showed
the serial number on the weapon portrayed therein. In the main,
these serial numbers matched two other sets of serial numbers:
the serial numbers of firearms that were transferred from ARMCO's
inventory to appellant, and the serial numbers listed in wire
transmissions from appellant to Wong. Agent Kelly testified that
he received these photographs during a meeting with Wong in Hong
Kong early in 1992.
____________________
15Of course, even without a sufficient objection, appellant
can obtain relief on appeal if the admission of the so-called
"hearsay evidence" sinks to the level of plain error. See
___
Griffin, 818 F.2d at 99-100. There was no plain error here. See
_______ ___
id. at 100 (describing plain errors as "those errors so shocking
___
that they seriously affect the fundamental fairness and basic
integrity of the proceedings conducted below," or, put another
way, those errors which must be noticed in order to prevent a
"clear miscarriage of justice").
33
In admitting the photographs, the district court
stated:
[B]ecause serial numbers appear on the
photographs and can be compared with the
serial numbers on other documents in evidence
in this case, it would be an extraordinary
inference that the guns that contained those
serial numbers could have been assembled at a
time before the documents were prepared that
are in evidence here.
* * *
[A] fact finder may reasonably draw the
inference that it's most unlikely that those
guns came into the hands of somebody who
could assemble them together, take those
photographs and those photographs then came
into the hands of the Government agent from
some source that would undercut the inference
that they were taken over by Steve Holmquist.
Appellant inveighs against this assessment, asserting
that the prosecution presented no evidence to show when, where,
why, and under what circumstances the photographs were taken.
This assertion is true but it is beside any pertinent point. A
photograph's contents, buttressed by indirect or circumstantial
evidence, can form a sufficient basis for authentication even
without the testimony of the photographer or some other person
who was present at the time it was taken. See, e.g., United
___ ____ ______
States v. Stearns, 550 F.2d 1167, 1171 (9th Cir. 1977); see also
______ _______ ___ ____
United States v. Clayton, 643 F.2d 1071, 1074 (5th Cir. 1981) ("A
_____________ _______
witness qualifying a photograph need not be the photographer or
see the picture taken; it is sufficient if he recognizes and
identifies the object depicted and testifies that the photograph
fairly and correctly represents it."). So here. At any rate,
34
the defense had a fair opportunity to cross-examine Kelly
concerning both the delivery of the photographs and his lack of
personal knowledge regarding their preparation. In the
circumstances at hand, no more was exigible.
We will not prattle. The lower court's assessment of
the situation is plausible; indeed, it makes abundant sense.
Based on it, the court concluded that the photographs were most
likely authentic, and permitted their introduction into evidence.
We think that this finding falls well within the realm of the
court's discretion.
V. CONCLUSION
V. CONCLUSION
We summarize succinctly. As for the importation
statute, 18 U.S.C. 542, appellant's proposed interpretation of
the materiality requirement is simply too restrictive; the better
definition is one that accounts for the possible effects of false
statements on the importation process as a whole. As for the in
__
limine order, which affects only the export charges, appellant
______
failed to perfect the exclusion-of-evidence challenge he now
seeks to advance. Finally, we find no merit in appellant's
complaints about the admission of other evidence.
We need go no further. Appellant's arguments are
legally impuissant and, therefore, his convictions must be
Affirmed.
Affirmed.
________
35
