
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-2005                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                     WALTER L. LACHMAN, MAURICE H. SUBILIA, JR.,                   FIBER MATERIALS, INC., MATERIALS INTERNATIONAL,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________               James  D. Herbert,  Assistant United  States Attorney,  with               _________________          whom Donald K. Stern, United States Attorney, and Despena Fillios               _______________                              _______________          Billings, Assistant United States Attorney, were on brief for the          ________          United States.               Nicholas  C.  Theodorou with  whom Anthony  Mirenda, Michael               _______________________            ________________  _______          Boudett,  Foley, Hoag  &  Eliot, Bruce  A.  Singal and  Ferriter,          _______   _____________________  _________________      _________          Scobbo,  Sikora, Singal, Caruso  & Rodophele were  on joint brief          _______________  ___________________________          for appellees.                                  ____________________                                  February 23, 1995                                 ____________________                 BOUDIN, Circuit Judge.   This is an interlocutory appeal                         _____________            by  the  government under  18  U.S.C.     3731 contesting  an            evidentiary ruling  made prior to  trial in a  criminal case.            In the  challenged ruling,  the district court  excluded from            the  government's   case-in-chief   13  exhibits   that   the            government  deems  of great  importance.    Finding that  the            district  court did  not  abuse the  discretion it  possesses            under Fed. R. Evid. 403, we affirm.                                          I.                 On July 8,  1993, a  grand jury  returned an  indictment            charging that  four named defendants conspired  to (count I),            and did in fact (count II), violate the Export Administration            Act of 1979 ("the Export Act"), 50 U.S.C. App.   2410(a), and            its  implementing  regulations.    The  defendants  were  two            corporations--Fiber  Materials,  Inc.,  and   its  subsidiary            Materials International--and the  two top executive  officers            of the companies: Walter L.  Lachman and Maurice H.  Subilia.            The  "facts"  that follow  largely  reflect the  government's            allegations (as yet unproved).                 Fiber Materials  has been  engaged for 25  years in  the            production   of  composite   materials  for   industrial  and            aerospace  applications.   Most  of its  business relates  to            technology  for the manufacture  of carbon/carbon, a category            of materials that can  be made to withstand intense  heat and            pressure.  Over  two-thirds of Fiber  Materials' work is  for                                         -2-                                         -2-            the  U.S.  military.    Materials International  markets  its            parent   company's   materials,  technologies   and  services            overseas.                 One  of the  technologies  in which  Fiber Materials  is            expert relates to  the hot  isostatic press; the  press is  a            complex  piece  of  industrial  equipment  that  contains  an            internal  cavity  and uses  high  pressure gas  or  liquid to            subject  materials  to  intense  pressure and  a  furnace  to            produce extreme  heat.   Carbon/carbon,  when "densified"  by            this process, becomes suitable  for use in rocket components,            including  ballistic missiles with nuclear capability.  Fiber            Materials generally subcontracts the manufacture of equipment            such as the press to others but provides the expertise.                 In 1984,  the Indian  government's Defense  Research and            Development  Laboratory  ("the  Indian  Defense  Laboratory")            issued  a request  for  proposals to  outfit a  carbon/carbon            facility in India for use in rocket  and missile development.            Fiber Materials won  the bid  and in 1985  signed a  contract            with  the  Defense  Laboratory.    Among  other  things,  the            contract called for Fiber Materials to supply a hot isostatic            press  with a  cavity 26  inches in  diameter, and  a control            panel  for the press; such a panel contains controls to heat,            pressurize and otherwise operate the press.                   Under the Export Act, various goods and technologies are            subject to different  levels of export control for reasons of                                         -3-                                         -3-            foreign policy, national security or scarcity.   As one facet            of this regime,  the Commerce Department maintains a  list of            commodities that  may not  be exported without  an individual            license.   Item ECCN 1312A on this  list, as the list existed            in  the late  1980s,  covered hot  isostatic  presses with  a            cavity  diameter of  5  inches or  more and  any "components,                                                    ___            accessories and controls" that  were "specially designed" for            such presses.  Export to any country except Canada required a            license;  and the  stated  reasons for  the restriction  were            "national  security" and  "nuclear  non-proliferation."    15            C.F.R.      399.1,   Supp.  1   (1988)  (later   revised  and            renumbered).                     In January 1987, Fiber  Materials and the Indian Defense            Laboratory  modified  their  contract   to  call  for  a  hot            isostatic  press with a cavity  diameter of 4.9  inches and a            control panel for  the press.   According to the  government,            Subilia wrote to the Indian Defense Laboratory  to assure the            laboratory that  the control panel  to be supplied  under the            new contract could in  the future be used  with a larger  hot            isostatic  press.    In   early  1987,  the  defendants  were            allegedly told by the government  that certain other items in            their  contract,  which required  individual  licenses, would            probably not be licensed because of security concerns.                 In March  1988, Materials International  entered into  a            contract with  the Indian  Defense Laboratory  to have a  hot                                         -4-                                         -4-            isostatic press with a cavity diameter of 26 inches made by a            third  party  in Switzerland  (which  did  not prohibit  such            exports)  and shipped  directly  to India.    A month  later,            defendants exported  the original 4.9 inch  press, along with            its control  panel, from the  United States to  India without            seeking  or receiving a Commerce Department  license.  A year            and a half later, the 26 inch press was sent from Switzerland            to India.   In 1991  and 1992, defendants  sent employees  of            Fiber  Materials  to  India  to install  the  equipment  and,            specifically, to  connect the U.S.-made control  panel to the            large Swiss-made hot isostatic press.                   On July  8, 1993, the  four defendants were  indicted in            two counts  for knowingly conspiring to  violate, and knowing            violation  of, the Export Act and its regulations.  15 U.S.C.            App.   2410(a).  The commodity whose export was claimed to be            unlawful was not the 4.9 inch press but the control panel.                                         II.                 Pretrial proceedings were extensive.   In June 1994, the            district court set trial  to begin on July 25 and ordered the            government  to  provide  a   list  of  proposed  exhibits  to            defendants by July 1.  On July 1, the government filed a very            lengthy list of exhibits.  On July 19, the defendants filed a            motion in  limine aimed at  excluding many of  these exhibits                   __________            relating to the alleged  "end use" of the exported  items for            missiles and nuclear weapons.   The government then discarded                                         -5-                                         -5-            many  of  its exhibits  but opposed  the exclusion  of others            objected to  by  defendants.    In  the  meantime  trial  was            deferred until August.                 Perceiving  that  judgments  about  relevance  might  be            affected by the scienter  instructions at trial, the district            court addressed that issue.  With the government acquiescing,            the  court  ultimately  adopted  the  defendants'  theory  of            intent:  the  court  held  that the  "knowing[]  violat[ion]"            requirement  of  50  U.S.C.   App.     2410(a)  required  the            government to prove that the defendants knew that the control            panel required an individual  license.  Compare United States                                                    _______ _____________            v.  Gregg, 829 F.2d 1430, 1437 (8th Cir. 1987) (imposing such                _____            a knowledge requirement) with United States v. Shetterly, 971                                     ____ _____________    _________            F.2d 67,  73 (7th Cir. 1992)  (rejecting it).  This  issue is            not before us, and we express no view upon it.                   The district court held a hearing on August 3 and, in an            oral ruling,  excluded 13  of the governments'  exhibits from            use in its  case-in-chief.   As to nine  other exhibits,  the            court declined to  rule before the  exhibits were offered  at            trial, but it expressed  "intense skepticism" about admitting            some of them.   The government voluntarily  withdrew 21 other            challenged exhibits.   Although the excluded exhibits  number            13, they actually comprise four different collections, one of            which accounts for 10 of the exhibits:                                         -6-                                         -6-                 The  first (gov. ex. EK) is a 121-page file belonging to            the Institute  for Defense Analysis, a  U.S. industry working            group  that  assists  the  Defense Department  with  its  own            program  to identify  militarily critical technologies.   The            defendant  Subilia was a member  of the group.   The 121-page            file  contained records  of working  group meetings  in 1985.            The records  indicate that  at one meeting  Subilia attended,            carbon/carbon was  discussed  and a  copy of  ECCN 1312A  was            distributed.  The file  contains many references to munitions            and   weapons,  and   considerable   material   relating   to            commodities not at issue in this case.                 The  second file  of  excluded documents  (gov. exs.  DW            through EF)  consists of 10 newspaper clippings  found in the            files of Materials International.  These articles discuss the            Indian government's  "AGNI" missile  program.  None  refer to            hot isostatic presses or  their control panels.  All  but one            of the articles are dated in 1989, more than a year after the            export of  the control panel  in this case.   Each of  the 10            newspaper articles was designated as a separate exhibit.                  The  third (gov.  ex.  AA1 through  5)  is a  group  of            documents  comprising  defendants' registrations  and renewal            applications  filed  with   the  State   Department.     That            department  maintains its own  "munitions" list of controlled            exports,  a   list  distinct   from  that  of   the  Commerce            Department.   The State  Department list  does not cover  hot                                         -7-                                         -7-            isostatic presses  or their control panels.   The defendants'            filings   with  the  State   Department  pertained  to  their            activities as exporters of carbon/carbon.   The  documents do            identify the U.S. military as customers of Fiber Materials.                 The  fourth   (gov.  ex.  AE)  is   the  Indian  Defense            Laboratory's 1984 request for proposals for the carbon/carbon            processing  facility.  This was  the proposal for which Fiber            Materials submitted  the winning  bid; as earlier  noted, the            original  arrangement for  a larger  hot isostatic  press was            modified in 1987 to call for one of 4.9 inches.   The exhibit            indicates that  the Indian  carbon/carbon  facility would  be            used in connection with rocket and missile development.                 The  district  court's   reasons  for  excluding   these            exhibits  have to  be discerned  from the  transcript of  the            hearing  on August  3,  a hearing  that  embraced issues  and            documents in addition  to the 13 exhibits now in dispute.  In            excluding the 121-page file, the  court referred to Rule  403            and   called  the   materials   duplicative,  redundant   and            potentially  misleading.   The State  Department registration            papers were described  more briefly  in the same  terms.   In            excluding the 1984 request  for proposals, the district court            called it "preliminary."                   We  think that  a fair  reading of  the transcript  as a            whole indicates that the trial court thought that some of the            material in  the  13  exhibits was  irrelevant  and  some  of                                         -8-                                         -8-            marginal relevance; that it saw in the references to missiles            and  nuclear weapons a potential for jury prejudice; and that            it was concerned also,  in the case of the  121-page document            and the State  Department materials, with  a problem of  jury            confusion because  of the references to  materials other than            the press  and controls at  issue and  references to  regimes            other than the Commerce Department licensing controls.                  At  the same  time, in  the course  of the  hearing, the            district court  told the defense that the government would be            given some latitude  to present to  the jury the  defendants'            "familiarity  with  the   regime  of  regulation"   and  "the            resistance that the Government may have to allowing awards of            licenses in an  area of  some sensitivity."   This, said  the            court, followed  from the  defendants' own success  in making            knowledge  of  the  legal  restrictions  an  element  of  the            government's case.   The court concluded  by warning that  "I            haven't finally ruled on this issue."                 On August  5, the government asked the district court to            reconsider its exclusion  of the  13 exhibits  and the  court            denied the  motion.   The government then  announced that  it            would appeal the  court's ruling, and the  trial scheduled to            begin three days later was continued indefinitely.  A further            request by the government to the district court to reconsider            its ruling also failed.  This appeal ensued.                                         III.                                         -9-                                         -9-                 Certain types of exclusionary rulings  in criminal cases            are  commonly  made before  trial,  such  as  rulings on  the            validity  of a search and  seizure or the  voluntariness of a            confession.  In most other cases, judges are hesitant to rule            finally on  evidentiary questions in  advance of trial.   The            role and  importance of the  disputed evidence, its  fit with            other  evidence in the case,  and even the  precise nature of            the evidence may all be affected by, or at least more clearly            understood within, the context of the trial itself.                 At  the same  time, determining  the admissibility  of a            piece of evidence may sometimes require a potentially lengthy            factual  inquiry (e.g.,  whether  a new  class of  scientific                              ____            evidence is  admissible).   Or  the entire  structure of  the            case, and  the parties' preparations,  may turn on  whether a            central piece of  evidence is  to be admitted.   Thus,  while            caution needs  to be exercised, trial  judges have discretion            to make purportedly final advance rulings to admit or exclude            evidence.   We  say "purportedly"  because judges  in ongoing            proceedings normally have some  latitude to revisit their own            earlier rulings.                 In this  case, neither  side disputes that  the district            court was  entitled to rule in  limine on the 13  exhibits in                                        __________            question.   The only question is whether the court abused its            discretion under Rule 403  in determining that these exhibits            should be excluded.   The government admits that the standard                                         -10-                                         -10-            of  appellate review as to such rulings is deferential to the            district court,  but says  that discretion is  not unlimited.            It is  certainly true  that essentially  legal issues  may be            embedded  in  such a  decision; and  we  agree that  even the            exercise  of  discretionary  judgment  is  subject  to  outer            limits.  See United  States v. Roberts, 978 F.2d 17,  21 (1st                     ___ ______________    _______            Cir. 1992).                   Rule 403  calls  upon the  district court  to weigh  the            probative  value of  evidence against  the harms that  it may            cause--unfair  prejudice,  confusion,  misleading  the  jury,            delay  or  repetition--and to  exclude  the  evidence if  the            probative value is "substantially  outweighed" by the  harms.            The government does not argue that the trial judge  misstated            Rule 403 or  misunderstood the factors; rather,  the claim is            that the  court struck the wrong balance.   One can start the            analysis at either end of the  balance scale.  In this  case,            it is convenient to begin  our discussion with the  probative            value of the evidence in question.                 Normally,  in order  to have  probative  value, evidence            must  be "relevant" under  Fed. R. Evid. P.  401, that is, it            must  tend  to  make  an  issue  in  the  case  ("a  fact  of            consequence") more or  less likely than  would be so  without            the evidence.   United States  v. Tavares, 21 F.3d  1, 5 (1st                            _____________     _______            Cir.  1994)  (en  banc).   Other  factors  that  may bear  on            probative value are the importance of the issue and the force                                         -11-                                         -11-            of the evidence.  22 C. Wright & K.  Graham, Federal Practice                                                         ________________            and  Procedure   5214 (1978).  In this case, the government's            ______________            most difficult problem throughout has been explaining why and            how the exhibits in question are relevant to an issue  in the            case.                 The core of the  charges in the indictment are  that the            defendants knowingly  agreed to,  and did  in fact, export  a            commodity   that  requires  an   individual  license  without            obtaining  such  a  license.   A  commodity  requires  such a            license if it appears on the Commerce Department list of such            commodities.   See 50  U.S.C. App.     2403(b), 24049(a);  15                           ___            C.F.R.   372.2(b)(1) (1988).   The listed item in question--a            specially designed control  panel--is described primarily  in            terms of  its relationship to another,  technically described            item  (a hot  isostatic press with  a cavity  of 5  inches or            more).  The end use of the products to be made by the control            panel and press is not an explicit element in the definition.                 By contrast, the most  prominent feature of the exhibits            in question--and the aspect  most objected to by defendants--            is their tendency to  show that the control panel  might well            be  used  to foster  the  development  of weaponry  including            nuclear  missiles.   This  is the  gist  of the  10 newspaper            clippings concerning  the  Indian government's  AGNI  missile            program.    Military  uses  of  the  carbon/carbon  materials            produced  by the hot isostatic  press are one  subject of the                                         -12-                                         -12-            121-page  file.   The  State  Department  registration papers            serve to  associate Fiber Materials with  military projects.             The  1984 request  for  proposals suggest  that the  original            larger press was sought for missile development.                 The  government seeks  to connect  the offense  with the            exhibits primarily by arguing that the evidence helps to show            scienter.  The government here has acquiesced in a stringent,            and  relatively  rare,   instruction  that--to  make  out   a            violation--the defendants must not  only have known what they            did,  but also have known  that it was  forbidden.  Where the            offense  is one  grounded  in technical  regulations and  the            conduct not  inherently likely to be  unlawful--the legal tag            is malum prohibitum--this  burden will often  be a heavy  one               ________________            for the government.                 Although the  government's brief does not  spell out the            connections systematically,  we  think that  such a  scienter            requirement might  arguably make portions of  the exhibits in            question relevant  in several  different ways.   The broadest            utility would be  to suggest that,  knowing of the  potential            military  use  of  the  press  and  the  Indian  government's            interest in such  a use,  the defendants had  more reason  in            prudence,  and were  therefore more likely  in fact,  to have            reviewed  and considered the general state of the law and the            specific regulations governing the export of the commodity.                                         -13-                                         -13-                 Of course, a  jury might  assume that a  company in  the            business of  high-tech  developments and  their export  would            make itself aware  of the pertinent export  regulations.  But            the government is expected to prove each separate element  of            the offense  beyond a  reasonable doubt; and  where knowledge            must be  proved by inference,  the government is  quite right            not to  take a  casual view of  its burden.   The  skull-and-            crossbones  insignia on  the medicine  bottle does  not prove            that the  defendant read the small print instructions; but it            does tend to increase the likelihood.                 Two other, more specific uses have been suggested by the            government for certain materials in the exhibits: to show, in            the  case of  one  page  in  the 121-page  compilation,  that            Subilia was given a copy of item ECCN 1312A; and to indicate,            by  showing  who  signed  the State  Department  registration            papers,  which  persons  in  the  corporate  defendants  took            responsibility for compliance.  These uses, however, could be            satisfied  by  far  less  the  full  offerings  made  by  the            government--the  item  page  in   the  former  case  and  the            signature  page   in  the   latter,  together   with  context            testimony.                 Lastly, the government's brief suggests  or implies that            the  exhibits (especially  the  news clippings  and the  1984            request  for proposals)--by  implicating the  likely military            end uses  of the  larger press  and control panel--support  a                                         -14-                                         -14-            double proposition:   that the Commerce  Department would not            have granted  a license for the control panel in this case if            a license  had been  sought, and  that the  defendants (being            aware of  the exhibits) knew this to  be true.  This argument            raises the subtlest problem in the case.                 The defendants say indignantly  (and correctly) that the            crime charged relates to exporting listed commodities without            a license,  not to exporting commodities  that the government            would decline to license.  Put differently, if a commodity is            not  listed,  its export  does  not violate  this  statute no            matter how vehemently the government objects to its export or            how   swiftly  it  would  deny  a  license  if  asked.    The            government's  opening brief  is so framed  as to  invite this            response  and to make it  difficult to tell  what other, more            defensible use of the double inference might be available.                 The government's  reply  brief, however,  offers  (in  a            lengthy  footnote)  two  rebuttal  arguments.   One  is  that            defendants' knowledge that a  license would likely be refused            helps,  as part of a pattern of  other evidence, to show that            the defendants' failure to  apply for the license was  out of            design and not a mistake of law.  The other is that the known            intended  end use has some  bearing on the  purpose for which            the control panel  was designed  and thus on  whether it  was            "specially  designed" for use with a  larger press; this last                                         -15-                                         -15-            argument, needless to  say, turns  partly on  how the  phrase            "specially designed" is to be read.                 Against these  arguments for  relevance must be  set two            major  concerns  voiced by  the  district court.    The first            involves  the   likelihood  of  undue  prejudice,  which  the            district  judge summed up by  saying that he  would not allow            this  to become  a  missile case.    Evidence is  not  unduly            prejudicial merely because  it tends toward conviction;  most            useful evidence for the government does that.  The concern is            with any pronounced  tendency of evidence  to lead the  jury,            often for emotional reasons, to desire to convict a defendant            for reasons other than the  defendant's guilt.  United States                                                            _____________            v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982).                 ______                 In this case the  district court had every reason  to be            alert  to  this  possibility.     The  government's  disputed            exhibits  (apart from  the State  Department papers)  tend to            suggest that  the  defendants knew  that they  were aiding  a            project  to  develop   missile  technology  for   the  Indian            government.    We  can  ignore,  for  present  purposes,  the            arguable chronological flaw in  relying on the nine clippings            that post-date the exports  in question (and the government's            interesting   counter-argument).     The  1984   request  for            proposals,  the 121-page compilation  and the  earliest press            clipping are potent enough.                                         -16-                                         -16-                 A jury, conscious of  the risks of nuclear proliferation            and of  U.S.  government efforts  to  halt it,  could  easily            regard the defendants' alleged conduct as highly unattractive            even if it turned out to be technically legal.  Other aspects            of the defendants'  conduct (the 4.9 inch  figure, the export            from  Switzerland) could  reinforce  the adverse  impression.            Any  effort to  dwell at  length on  the  Indian government's            nuclear  missile program and  potential use of  the press and            control  panel in  this  case risks  throwing  gasoline on  a            flickering flame.   A judge  would be blind  not to see  this            danger and to fear it.                 Prejudice  is  not the  only threat.    There is  also a            potential for confusing and misleading the jury.  Quite apart            from prejudice, there is a risk that an undue emphasis on the            end  use of the exported commodities  could divert the jury's            attention  from whether the commodity  is listed and known to            be so, to  whether the commodity is  to be used for  military            purposes.   This  deflection might  seem like a  gross error,            fairly  easy to guard against  in the instructions  so far as            confusion is concerned (prejudice is a different matter); but            it is not the only problem.                 As our  discussion has already shown,  the government is            interested in  proving the  known and intended  military uses            not  only  to  support  its  skull-and-crossbones  theory  of            heightened  awareness but  also to  show that  the government                                         -17-                                         -17-            would  have  denied  a  license.    This,  in  turn,  invokes            arguments  as to  how this  alleged fact--at  first seemingly            irrelevant  to  the offense  of  not  asking for  a  required            license--may help the government  show scienter and even help            it  show  why the  control panel  should  be deemed  a listed            commodity.  These arguments, raised tersely in the government            reply brief, may or may not have some basis in law and logic.                 What is clear is that ample opportunity  exists for jury            confusion if exhibits are justified and used in order to show            that  the government  would not  have issued  a license.   It            would be quite a task  to explain to a jury that  this "fact"            is  not an  element  in the  violation but  merely part  of a            subtle and debatable chain of inferences designed to use this            license  denial to  show scienter  and, more  doubtfully, the            character of the control  panel.  We ourselves have  had some            difficulty  disentangling  the  government's  theory  of  the            offense from these more recherche relevance arguments.                 What we have said so far is that the district court  was            balancing claims in which  there was weight on both  sides of            the scale.  The evidence in question has some relevance--most            clearly  on  the  skull-and-crossbones theory;  but  (putting            aside the single document page quoting item ECCN 1312A) it is            not direct  evidence of knowledge  of the law.   At  the same            time, the  risks of undue  prejudice are  quite evident;  and            risks of confusion are real too, especially if the government                                         -18-                                         -18-            is  allowed to develop and argue  some of its more subtle and            questionable inferences.   This dual threat  of prejudice and            confusion is  alone enough  to lend  support to  the district            court's decision.                 Our  discussion  thus  far  has  not  touched  upon  the            government's need  for this evidence and  the closely related                         ____            question  of alternatives available to  it.  In applying Rule            403, it  is  plainly pertinent  whether a  litigant has  some            alternative way to establish  a fact that involves no  (or at            least  a lesser) risk of prejudice or confusion.  22 Wright &            Graham,  supra,    5214  (citing cases).    But here,  in  an                     _____            interlocutory appeal, we do not know very much about how else            the  government   might  at  trial  seek   to  establish  the            defendants' knowledge of the  regulatory regime and the finer            shades of its likely interpretation.                 What  we do know is that the district court thought that            the government did have some less dangerous,  if perhaps less            potent,  means of  establishing  the defendants'  familiarity            with the regulations and with the delicacy of their position.            As already noted, the court said that it was prepared to give            the  government some  leeway in  this area.   One  can hardly            doubt that some evidence is available:  merely as an example,            the selection of a 4.9 inch figure for the  press pretty much            shows  that someone in the organization  knew about item ECCN            1312A.                                         -19-                                         -19-                 We think that the  district court further showed  a wise            flexibility  in two other respects.  It limited its exclusion            of the 13  exhibits in question to  the government's case-in-            chief, knowing  that positions taken or  testimony offered by            the defense might warrant  the court in relaxing the  ban for            purposes of cross-examination or  rebuttal.  On a substantial            number of other exhibits objected to by defendants, the court            reserved  its  ruling,  most  likely until  the  evidence  is            actually  offered at  trial.   The  court's  exclusion of  13            exhibits  certainly  did  not  reflect  a  heavy-handed   and            inflexible constraint.                 We turn  finally to a  narrow concern that  bolsters the            district court's decision  on one remaining  open point.   In            the 121-page file a  copy appears of item ECCN  1312A itself.            Unlike  much of the excluded material,  this page is directly            pertinent  to  the  knowledge  of  at  least  one  individual            defendant as to  the existence  of this item,  and one  might            think  that this part  of the exhibit  ought to have  made it            through the filter.   The  government mentions  the page  but            lays no special stress upon  it.  Perhaps it does not  expect            the  defendants  to   deny  that  they  were   aware  of  the            regulations.                 The  district court expressed  concern that this exhibit            as a whole  was a  jumble of material,  some rather  patently            unrelated  to anything in this case.  The government had, and                                         -20-                                         -20-            presumably  still  has, the  option  of  identifying specific            pieces  of information in the exhibit and urging that they be            considered separately  from the rest.   Without  generalizing            too  broadly, it  is  normally the  case  that this  kind  of            segregation is the job of counsel and not an already burdened            district judge.  See Brooks v. Chrysler Corp., 786 F.2d 1191,                             ___ ______    ______________            1199 (D.C. Cir.), cert. denied, 479 U.S. 853 (1986).                              ____________                 We conclude that the district  court had an ample  basis            under Rule 403 for excluding the 13 exhibits in question.  We            commend the trial judge's thoughtful approach to the problems            presented and his efforts to balance the legitimate interests            on both side.  The government may on reflection think that it            has cause  to be  grateful  to the  district court--both  for            eliminating possible  errors that  could infect a  trial and,            hopefully,  for  forcing  the  government   to  consider  its            theories  of  the  offense  and of  relevance  with  somewhat            greater precision before they are exposed to a jury.                                         IV.                 Problems  that can  be treated  with some  confidence in            context are often very difficult to solve before other pieces            of the puzzle have been assembled.  This, as we have said, is            why district courts are  often hesitant to decide evidentiary            questions  before trial.   A  like difficulty  arises for  an            appellate  court  where,  as  here,  an  interlocutory appeal            brings to the  court only a part of the case.  Thus, our task                                         -21-                                         -21-            might be simplified  if we could  speak with assurance  about            the  standard of scienter or, for that matter, the definition            of "specially designed."                 But  these are not issues that have been briefed in this            court, we have  not sought  to address them,  and nothing  in            this  opinion should be taken to suggest any view whatever as            to how those issues should be resolved.  Similarly, we stress            again  that what  we have  taken to  be facts  depends almost            entirely on the indictment and other descriptions of what the            government  thinks it can prove.  Any assertions of "fact" in            this  opinion,  including descriptions  of  documents or  the            inferences to  be drawn from  them, are without  prejudice to            what the trial may show or what may emerge after more context            has been supplied.                 All  that we  hold is  that the  district court  did not                               ____            abuse  its  discretion in  excluding  at this  time  from the            government's  case in  chief the  13 disputed  exhibits, each            taken as a  whole.   Within very broad  limits, the  district            court  is free to reexamine its position  on any issue as the            case develops.   See  generally United States  v. Uccio,  940                             ______________ _____________     _____            F.2d 753, 758 (2d Cir. 1991).  We say this not to suggest any            disagreement whatever with  the district court's rulings  but            simply  to  underscore the  limits  on  what this  court  has                                                         ____            decided.                                         -22-                                         -22-                 With   these  stipulations,   the  order   under  review            excluding the 13 exhibits is affirmed.                                         ________                                         -23-                                         -23-
