Beruflich Dokumente
Kultur Dokumente
No. 95-1099
Appellee,
v.
DAVID CUDLITZ,
Defendant, Appellant.
____________________
____________________
Before
____________________
Kimberly Homan
______________
with
was on
brief
appellant.
Robert E. Richardson, Assistant United States Attorney, with
____________________
Donald K. Stern,
_______________
States.
____________________
January 8, 1996
____________________
____________________
BOUDIN, Circuit
Judge.
indicted in
______________
July
1993 and
conspiracy
844(i),
charged
to commit
arson, 18
felony, id.
___
844(h).
that in
Cudlitz,
proceeds,
in four
1992
arranged
apartment building
to
he
Bedford, Massachusetts.
counts, respectively,
with
U.S.C.
id
1341, and
In substance,
in
have
order to
set on
owned at
371, arson,
obtain
fire
the
an
7 Salisbury
insurance
unprofitable
Street in
New
1994.
individuals--Craig
Santos,
Harold
Burnham,
and
Daniel
New
Bedford located at 89
Austin Street.
Cornell's brother
jobs
in the
for Cudlitz
various buildings
he owned.
All
deal.
on
early
September Cudlitz
7 Salisbury Street
made similar
requests of
him and,
and later
said he
was
going to
-2-2-
ask them
to
do the
job.
Vieira
also
testified
that
he
vandalized
one
of
the
Santos and
the
fire
and that
they
had agreed
to
do
so for
$1,500
at 7 Salisbury Street
the fire
18, 1992,
starting
back
stairs.
The
attic, confining
smelling
testimony
Burnham
the damage;
the odor
that
of a
the
and Santos
that he then
in the attic
out the
fire in the
flammable liquid.
following
day
Cudlitz
not done a
testified to
There
was also
complained
to
floor of 7
Eventually,
both the
Burnham
fire
Cudlitz collected
and the
moved into
7 Salisbury
basement.
vandalism.
on insurance
claims for
Thereafter, Santos
Street but
were eventually
and
from the
with
Cudlitz,
counts,
and
although only
both
pled
on
guilty
the
in
conspiracy and
exchange
-3-3-
both indicted
for
arson
possible
He flatly denied
that
at 7
Salisbury Street;
million, although
he claimed
he admitted
on
a net
worth of
over $1
cross-examination that
vacant; and
he gave
testimony, described at
or
greater length
fire damage on
The
jury
convicted Cudlitz
on the first
all four
counts.
of 60 months on the
on
final count.
In
in prison
He now
appeals, conceding
the
sufficiency of
claims of error.
the evidence
but raising
several other
relate to
I.
Cudlitz asserts
court erred by
prior
attempt
to
solicit
arson.
The
critical
set
of
three different
whether
versions
Cudlitz
had in
and over
1991
solicited
-4-4-
Cudlitz' objection,
one Ron
was
Wallace--
Cudlitz--to
doing so
and,
apart from
buildings.
some follow-up
Cudlitz denied
cross-examination
solicitation.
The
criminal
rules
governing
defendant about
this
subject--cross-examining
prior wrongs--are
in the
entire law of
among the
most
evidence.
The
main
series of ad hoc
law
over the
with several
Rules
accommodations arrived at
course of
centuries in
related problems.
of Evidence
dealing (differently)
Worse
have retained
by the common
still, the
the common
law structure,
rules--Fed.
R.
Evid.
404,
405,
608
Federal
different
and
609--whose
allowing the
support the
elicit
questions in
questions.
Ordinarily,
defendant
has a propensity to
different bases
the government
bad acts to
cannot
and is thus
more
404(a).
by the
charged.
Rule
prosecutor is waived
offer "good"
character evidence in
404(a)(2).
-5-5-
his own
chooses to
defense.
Rule
Cudlitz did
direct
examination
unprofitable
debts
offer such
and
that,
evidence here by
when
business venture,
had
not
had
previously
he
any
testifying on
faced
had dutifully
fire
connected
with
paid
with
an
his
that
evidence
of good
character by
fraud in
government
showing, quite
inviting circumstances.
was therefore
pertinently,
entitled
Under
insurance
"to rebut
the same"
by
Cudlitz' good
character evidence
was improper in
form
reputation
witness
instances
or events,
occurrence.
rather
as
than
Cudlitz did
Rule 405(a).
But
attempt
arson
to rebut
attempt
examination,
by asking
was
inquiry
within
is
instances of conduct."
testifying
the
detail
405.
past
simply
made
The government's
Cudlitz about a
the
specific
denying any
for him.
rules;
allowable
Rule
in
to
specific prior
for
into
"[o]n
cross
relevant specific
E.g.,
____
United States
_____________
v.
justified
Before
on
asking
theory
about the
of
impeachment
specific
by
attempt
contradiction.
to solicit
Ron
-6-6-
arson, and
Cudlitz said
that he
had not.
When
a witness
testimony
witness is a
liar
believed.
No.
theory
of
impeachment
assumption that
is
reflected
is shared by
centrally concerned
in
some courts.
with character
quite
different
discrediting
character
examination
by
for
reasoning of Rule
rules.
opinion
veracity,
only, by
Rule
or
608
inquiry
404 but
Rule 608 is
mode of
is subject
to
permits accrediting
or
608(a),
into
an
reputation
Rule
But
608(b),
for veracity, a
same "propensity"
Rule
evidence
and,
specific
on
as
to
cross-
instances
of
conduct if
__
"probative
of truthfulness
or
untruthfulness."
Rule 608(b).
____________________
1There
"impeachment
is
by
no
Federal
Rule
contradiction"
of
but the
Evidence
critical
labeled
point to
most familiar
selectively.
modes of impeachment
(e.g., bias,
____
-7-7-
Several of
the
prejudice,
At
common law,
the quoted
allowed.
Rule
not always
Thus, Cudlitz
soliciting
is not "probative
does
restriction was
of
. .
. untruthfulness."2
But
neither
justified
on
another
_______
basis.
Here,
impeachment
by
Perez-Perez, slip
___________
op. at 6-7.
Cudlitz objects
that
the
government
was
seeking
to
contradict
a denial
(of
prior solicitations)
that it
had
in
105 (1992).
It is true that
solicitations
testimony,
occasion.
was very
denying
The
that
strongly implied by
he
government
had
may
Cudlitz' direct
set fires
have
of prior
on
sharpened
any
other
the
edge
not without
some
____________________
which is
where
the
building
United States v.
_____________
Cir. 1993).
was owned
by
the
arsonist.
-8-8-
slightly but
Cudlitz himself
United
______
Cudlitz
asserts that
the
questions should
have
been
R. Evid.
prejudice greatly
outweighed probative
to portray himself
risk of
value.
The
unfair
risk of
the
F.2d
district judge.
232, 235-36
Cudlitz
United States v.
______________
(1st Cir.
1988).
Mateos-Sanchez, 864
______________
Nor do
we agree
to be elicited
with
was in any
Finally,
Cudlitz
appears
to
government
surely knew
that
attack
the
prior-
As he suggests, the
Cudlitz would
deny the
prior
v.
456,
Innamorati,
__________
996 F.2d
Cudlitz'
appeal brief
in asking
479 (1st
An
Cir.
United States
______________
1993), cert.
_____
how it
could possibly
with
be
that
-9-9-
by the question.
The only
answer is
of this
kind is part a system of checks and balances that the law has
developed
perjury.
to
caution
Thus,
while
credulous
the
jury
question
may
against
be
possible
asked,
the
for the
evidence;
and the
instruction.
defendant
court
will normally
With these
must be
protections,
content.
As
extrinsic
provide a
and
the
limiting
Rule 403,
Justice Jackson
said
the
in
compromises
irrational
and
compensations
advantage to
one side
by
which
is offset
it has
workable even
by a
But
if clumsy
the hands of
pull
proved a
an
one
structure
a wise
misshapen
is
present balance
more
out of
the
likely
simply
to
court.
To
grotesque
upset
its
than to
II.
of a
cross-examination.
The
questions
began as
the prosecutor
-10-10-
He first
asked Cudlitz
to Cudlitz at 212
He lived in --
"Ron
he lived -- yes,
he did."
The
prosecutor then
correct?"
really."
and
Cudlitz
asked, "So
replied,
Wallace had
done work at
"No,
you knew
Ron Wallace,
didn't
know
him
that
Cudlitz; Cudlitz
said that he thought Wallace was helping Joe Camara clean out
the yard
paying Camara.
"Had you
The
Cudlitz was
objection--
ever heard as of
substance asked
212 State Street, whether one of these requests had been made
in
Camara's
apartment,
and
whether
When
Cudlitz
had
offered
MR. LEE:
THE COURT:
Overruled.
No, I don't.
-11-11-
is
MR. LEE:
THE COURT:
Overruled.
Did you
pled
ever hear
guilty
to a
that Mr.
charge
Wallace had
of
arson and
MR. LEE:
THE COURT:
Overruled.
No, I haven't.
No.
as to
error.
that
Wallace's whereabouts
The
at trial
Cudlitz
questions--that is,
made no
not.
conviction was
It argues
specific
________
further
objection to
the
plain error
governs.
Finally the
government says
that if
error occurred
of
the evidence
against Cudlitz.
We
address these
three
-12-12-
of the cross-examination
questions
on
Cudlitz'
trial
sentence
for arson
suggestion in
their face
in 1994,
suggested
Wallace
that,
was then
and conspiracy
at the
to the
time
serving
to commit
of
a jail
arson.
far more
The
This
damaging
down
Wallace's current jail sentence was for the 1991 arson effort
allegedly involving
was
an
arsonist and
so more
likely
at least
Wallace
than otherwise
to be
the questioning
about
None
of
this might
Wallace's whereabouts
But even
with time to
matter
if
reflect, the
been proper.
government offers
very
little
Cudlitz,
in
the
lead-up
defendant at
least
background," i.e.,
____
Its main
to the
disputed
from Wallace."
argument is that
questions,
Therefore, says
knew Wallace
well
was
whether the
enough to
know
his
for arson.
In fact,
Cudlitz admitted
at the
outset that
-13-13-
he knew
that Wallace
performing for
Cudlitz.
well; but
the questions
and jailing
about knowledge of
Wallace's arson
a close acquaintanceship.
the
questions
can hardly
be
compared
to the
substantial
could not have passed the test of Rule 403 on this excuse.
The
government
also
says
that
"had
the
defendant
up in custody
would
have helped
people such as
to explain
why
to arson charges,
the defendant
turned to
Burnham when he
are
various
sufficient.
problems
Cudlitz
was
with
this
was asked
explanation
whether he knew
but
There
one
is
in 1991
of
that
was in jail
in 1992 when
the only
Defense
counsel
objected
questions at issue as to
to
virtually
all
of
the
are
therefore to
doctrine.
Fed.
specific ground be
be
R.
reviewed only
Evid. 103(a)(1)
under
the plain
does require
error
that the
not
-14-14-
apparent
objections--arguable
irrelevance
prejudice--were obvious.
and
certainly
undue
begun
question about
Cudlitz' alleged
solicitation of Wallace
to
commit arson.
Accordingly, we
think that
the more
the questions at
issue are
demanding requirements of
plain error.
by
Under the
verdict."
"contribute to the
The
16,
error,
the
the harder it is to
greater the
defendant,
weight of
the other
evidence
is that a
against the
the jury.3
The
Burnham, said
and two of
so, and
been
____________________
reaffirmed
governing standard
for
Supreme Court.
-15-15-
paid by Cudlitz.
one of
them, testified
Cudlitz after
set
the fire,
to incriminating statements
of financial motive.
girlfriend of
Further, at
Santos and
made by
Burnham were
on good
admittedly
terms with
But the
only four
linked together;
who
drank to excess;
and by
the time
of trial
stand, flatly
own
record
financial
denied the
as
an
base.
inculpated Cudlitz.
Cudlitz were
Santos and
honest businessman
There was no
__
The case
with
to his
comfortable
hard evidence
that directly
was in essence
a credibility
told
generally
consistent
stories
but
with
some
discrepancies.
it would have
been easy--if
the
suggestion that
Cudlitz had
previously sought
the
jury
was
told
evidence, although
survives
such
that
not
the
contemporaneously.
instructions,
impeaching questions
lawyer's
which
that they
-16-16-
know
is
to have
Of
course,
questions
are not
But
why
the
lawyers
will produce
sting
ask
denials.
That
government in this
212 State
Street.
If
that
____
easily say
have
line of
that it
questions
had been
error,
The jury
we would
could well
for which
Cudlitz
resolved
was
on trial,
when it learned,
Cudlitz
had been
another
building by
Yet as the
but
or thought
involved in
employing
a 1991
found
it had
those
learned, that
attempt to
another tenant
burn down
as henchman.
doubts
were not
to that implication
The
quantify, but
have
contest, the
in
the
especially
the
we think that
The case
same
conduct
was
quite
suggestion
was flatly
statements of
lawyers
is
impossible
to
may well
being a credibility
dangerous
to a blameless
denied,
that the
answer
the
to
Cudlitz,
past.
But
government had
to
were not
evidence.
Quite
aside.
-17-17-
suggestion
that
conspiracy
Cudlitz
did not
Wallace
deny
had
these
removed by the
actually
been convicted
now in jail
further
further
for
facts, but
only
his
knowledge of them; and the jury could fairly suppose that the
prosecutor
would
conviction
several
jury
not
make
statements
could
have
thought
that
as
to
Wallace's
knowledge.
By any of
these
new
facts
made
it
Wallace
No one
convicting Cudlitz,
jury
could have
convicted Cudlitz
that a reasonable
on this
used in
record even
if
And under
by
timely
objection,
only
where we
think
it
"highly
probable"
that is to
that the
say, that
regardless of
Given the
the error.
have been
Roullan-Rivera, 60
______________
potential impact of
the conviction,
identical
F.3d at 18-19.
the questions
-18-18-
repeated
because of questions
transcript,
But
all of
impeachment
by
which
resulted in
questions
a page of
exculpatory denials.
about prior
crimes
can
be
or she has
to take special
care to
is the
absent.
key
to the
case
and
and "hard"
as here, credibility
evidence of
guilt
is
III.
We
address here,
and
in part
IV, several
additional
contractor,
Cudlitz
the
who testified
on
direct that
the cross-
a construction
he had
provided
Salisbury Street
prosecutor
began to
building.
question
On
cross-examination, the
Raposo about
on how best to
whether he
counsel objected
inquiry, but
that no good
after a bench
had
Defense
for this
from the
-19-19-
allowed the
questions without
further
defense objection.
The
relevant portion
of
the cross-examination
follows:
Q:
to
cause
to
on
Salisbury
was as
Street?
A:
No, sir.
Q:
to
best
try
to
make--create
on
the
MR. LEE:
May we
THE COURT:
Yes.
Q:
Mr.
Raposo,
defendant
did
you
advice on how
in 7 Salisbury
ever
give
the
to cause damage
Street to make
it appear
A:
No, sir.
Q:
it wasn't enough
words
just
might just
had done in
A:
No, sir.
Q:
substance that to
the
insurance
company
you
had
to
do
A:
No, sir.
On appeal,
basis
and,
Cudlitz again
in addition,
asserts lack of
contends
-20-20-
that
a good-faith
no proper
purpose
defense
did not
prosecutor's
because
renew
proffer
no
government
this line
other
of questions.
its good-faith
and
the
objections
trial
were
Because
the
objection after
the
court's
raised
at
ruling,
and
trial,
the
Since
the lack of a good faith basis was the only ground offered by
the
standard
for
the questions, we
judging
any
other
objection
is
to
the
different grounds
for
testimony.
Here, the
is
that
Cudlitz'
alleged
procurement of
vandalism
One
at
Vieira testified
fire
inadequate, and
company.
The questions
showing, although
to Raposo
were
pertinent to
this
by
showing
that he
had
participated
advice was
in insurance
given by Raposo
for the
fraud.
very
-21-21-
52.
It
is not
evidence that
did
not offer
pertinent to
clear to
us that
Raposo had
such
an
objection,
given direct
which would
at 351-
have
been
of discretion under
error by
lines of
from
objection were
context.
Given
being urged
that
none
by Cudlitz
of
the
objections is
no
thinking
basis for
injustice,
occurred.
that any
plain
United States
_____________
as obvious
other
possible
arguable, we see
error, or
v. Olano,
_____
manifest
113
S. Ct.
issue
is
Cudlitz'
counsel clearly
to the standard
objected that
there was
no "good
faith basis for these questions," adding that counsel was not
aware
of
an
connection
government witness.
-that Vieira
Cudlitz
between
Raposo
and
any
prior
government that
an associate
of
named "Al" had been present with Vieira and had been
-22-22-
giving advice
on how to vandalize--Cudlitz'
argue further
complaining
that no
such statement
had been
given to
the
defense.
Both the
open
"merits" and
to dispute.
There is
the standard
to apply
pretty good
are thus
argument
that
Raposo
a very important
After all,
safeguard to assure
that such
if asked at
all in
On
the
latitude
in
other hand,
the
district
deciding whether
good
result might
115 S.
judge enjoys
faith basis
exists.
be different if Cudlitz'
great
Perhaps
the
that the proffer was inadequate, explaining the basis for his
doubt
and urging
summoned.
and might
that at
the very
least Vieira
should be
no such help
-23-23-
case on
"what
other grounds
makes it unnecessary
in this
to decide
this
it has reason
person.
on
We
the
present
highlighted
proffer
record.
clearly and if
should be available,
But
the
the same
issue
Raposo is "Al,"
has
now
been
then a stronger
a consideration
that deserves
IV.
alleged
inadequacy, of
cautionary instructions
relating to
sua sponte
__________
to the
cross-examination of Cudlitz
been given as
regarding Ron
Wallace;
second, that
the final
included a
at
the
offered.
time
that
evidence
of
limited
admissibility
is
-24-24-
evidence admitted
parallel, and
would
we think
plainly be
at all.
that while a
proper at
the time
But the
situations are
cautionary instruction
that the
question is
Cudlitz' argues
sponte
is
the defense
counsel
may have
a standard reason
instruction sua
___
made
a strategic
______
judgment not to
says,
this reason
counsel
has
had objected
no application
sharply
to
Here, Cudlitz
because his
defense
the cross-examination
as
the cross-examination by
asking three
times over
questions
We
nevertheless
reject
Cudlitz' broad-scale
position
for
timely request.
No
how many
superintending a fast-paced
one
who lacks
things occupy a
criminal trial.
experience with
judge who
Nor
is
is it easy
from the trial judge can disrupt counsel's own strategy, even
when
the purpose
hinder.
It is for
of the
judge is
these reasons
to
help rather
that we place
than to
such great
-25-25-
stress
on the
presence
or absence
contemporaneous instruction.
of
the request
for
It might
well be error in
judge to
is
jury
at the
start that
jury
the questions
of counsel
were not
told the
evidence.
The district
and arguments of
sua sponte
__________
overruled by
In
the
case
of
Raposo's
cross-examination,
defense
This court
instruction
52, 56
the
at the time.
n. 5 (1st
capacity of
a cautionary
Cir. 1987).
in the
limit.
-26-26-
would
The
outset
and gave
us to reverse
somewhat similar,
in this case.
instruction at the
although
incomplete,
such an instruction
damaging questions
lack of
as to
where no
Finally, on
district court to
Although an
that this
objection was
counsel,
properly lodged, we
are doubtful
error, especially
in light
of the district
court's opening
But
make
the
including
closing instruction
specific
as
statement
complete
that
the
as possible
by
"questions"
of
-27-27-
CONCLUSION
The
judgment of
conviction is
vacated and
_______
the matter
-28-28-