201 F.3d 953 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Miriam Santos,    Defendant-Appellant.
No. 99-2934
In the  United States Court of Appeals  For the Seventh Circuit
Argued November 10, 1999Decided January 19, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 99 CR 47--Charles R. Norgle, Sr., Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Posner, Chief Judge, and Rovner and Diane P. Wood, Circuit Judges.
Posner, Chief Judge.


1
Miriam Santos, the  Treasurer of the City of Chicago, was convicted  of having violated the federal mail fraud and  extortion statutes by extorting campaign  contributions from banks and securities firms  that hold or invest funds controlled by the  Treasurer's office. 18 U.S.C. sec.sec. 1341,  1951. She was sentenced to serve 40 months in  prison and to pay restitution in excess of  $50,000, and she appeals, raising a number of  issues. We begin with the issue of whether her  constitutional right to the assistance of counsel  was infringed.


2
She had been indicted on January 27, 1999,  shortly after retaining a lawyer named David  Stetler to defend her. At her arraignment on  February 3 the government's lawyer asked the  district judge to set the case for trial in late  April or early May. Stetler pointed out that he  was scheduled to begin a three- to four-month  trial before a different federal district judge  on February 15 and so couldn't represent Santos  if her trial began at the time suggested by the  government. The judge answered Stetler by  scheduling the trial for April 14, explaining  that he did "not intend to delay this case for  three or four months while you engage in other  matters." Stetler was not seeking a delayof  "three or four months." A four-month trial  beginning on February 15 would end in the middle  of June, little more than a month after the  latest date suggested by the government. Stetler  promised that during his other trial he would  prepare for the Santos trial and that he wouldn't  seek a further continuance. He had a trial  scheduled for July as well but was confident the  schedule would not hold (in fact it did not), and  so far as appears the issue did not figure in the  judge's denial of the motion for a continuance;  the judge gave many reasons for denying the  motion but not that one, perhaps because Stetler  had promised to stand aside if the other trial  went forward in July and to have another lawyer  represent Santos at her trial.


3
On February 10 Stetler filed a formal motion to  continue the Santos trial until July. Although  the government did not oppose the motion, the  district judge denied it. His grounds were that a  criminal trial should begin within 70 days after  indictment (that being the period of  "nonexcludable" time allowed by the Speedy Trial  Act, 18 U.S.C. sec. 3161(c)(1), though few  federal criminal trials take place so soon  because exclusions are generously granted for a  host of reasons authorized by the Act, sec.  3161(h)); that the federal judicial system would  collapse if judicial schedules had to accommodate  the prior commitments of busy lawyers; that any  defendant who wanted to avoid a speedy trial  could do so just by hiring a busy lawyer; that  Santos has a high salary and could therefore  afford to hire another good lawyer to replace  Stetler; that she has a right to a prompt trial;  that another lawyer in Stetler's office had filed  an appearance (though he was a young lawyer who  had never tried a case); and--the ground the  judge particularly stressed--that when a public  official is accused of abusing the office that he  occupies, "the public has a tremendous issue  [sic--the word must be 'interest'] in knowing  whether the government can prove these  allegations beyond a reasonable doubt."


4
So Stetler withdrew and on February 26 Chris  Gair, a lawyer with another law firm, filed his  appearance on Santos's behalf. The trial began as  scheduled on April 14 and concluded on May 3.


5
The Sixth Amendment entitles a federal criminal  defendant to the assistance of counsel. The  government concedes as it must in light of the  cases that this entitlement is infringed by the  arbitrary denial of a continuance when the effect  is to deny the defendant the lawyer of his  choice. This is so even if the defendant is able  to hire another competent, perhaps equally or  even more competent, lawyer--otherwise, of  course, there would not be a right to counsel of  one's choice. Though some cases contain language  inconsistent with this proposition--language  which suggests that the arbitrary denial of a  continuance is actionable only if it prevents the  defendant either from being represented by  counsel at all or from being effectively  represented, see, e.g., Morris v. Slappy, 461  U.S. 1, 11-12 (1983); United States v. Harris, 2  F.3d 1452, 1455 (7th Cir. 1993); United States v.  Arena, 180 F.3d 380, 397 (2d Cir. 1999)--these  cases assume, and other cases, e.g., Wheat v.  United States, 486 U.S. 153, 159 (1988), make  clear, that there is indeed a constitutional  right to counsel of one's choice, although it is  less extensive than the other rights to counsel  in the Sixth Amendment. See, e.g., id. at 159-60;  United States v. Hughey, 147 F.3d 423, 431 (5th  Cir. 1998); United States v. Sampson, 140 F.3d  585, 591 (4th Cir. 1998).


6
But appellate review of a ruling, denying a  continuance, that is alleged to infringe the  right to counsel of one's choice is deferential.  E.g., United States v. Harris, supra, 2 F.3d at  1455; United States v. Hughey, supra, 147 F.3d at  431; United States v. Sampson, supra, 140 F.3d at  591. In deciding whether there was an abuse of  discretion the appellate court must consider both  the circumstances of the ruling and the reasons  given by the judge for it. The salient  circumstances here are that the case was not old,  the indictment having come down only two and a  half months before the scheduled trial date, so  that if the continuance was granted the case  would be tried within five months of indictment;  the government did not oppose the continuance;  and the judge had no scheduling conflict that  would have led to a further delay had he granted  the continuance. Nothing in these circumstances  indicated that the grant would pose a hardship to  anyone, and on the other side there was the  defendant's interest, one of constitutional  dignity, in being represented by the lawyer of  her choice.


7
So we must attend carefully to the judge's  reasons for denying the continuance. With all due  respect, they do not hold water. The appearance  by an inexperienced associate of Stetler's was an  irrelevancy, as was the 70-day provision of the  Speedy Trial Act, which is intended to assure not  that federal criminal trials start in 70 days  (they rarely do) but that the unexcused delay in  bringing a case to trial not exceed that period.  18 U.S.C. sec.sec. 3161(c)(1), (h); United States  v. Spring, 80 F.3d 1450, 1456 (10th Cir. 1996).  An express basis for excusable delay is that it  is necessary in order for the defendant to obtain  counsel or to enable the defendant's counsel to  prepare adequately for trial. sec.  3161(h)(8)(B)(iv). As for a defendant's right to  a speedy trial, that is a right of the defendant.  18 U.S.C. sec. 3162(a)(2); cf. Barker v. Wingo,  407 U.S. 514, 528-29 (1972). And it has never  been suggested that Santos engaged Stetler for  the purpose of delaying her trial. If the fact  that she might be able to hire a good lawyer to  replace him (as she did) was a good reason for  denying the continuance, the right to counsel of  one's choice would be eviscerated for any person  with a high salary, which seems to us to take  class warfare too far.


8
We are also perplexed by the district judge's  belief that it is the duty of a federal district  judge to rush public officials to trial lest they  continue to abuse their office. Santos is a  municipal official rather than a federal  official, and it is up to the city or the state,  or to the United States in its capacity as  enforcer of federal laws designed to deter public  corruption at all levels of American government,  to decide whether an indicted official should be  permitted to retain her office until the charges  against her are resolved. See, e.g., Fla. Stat.  sec. 112.51(2) (authorizing the governor to  suspend any elected or appointed municipal  official who is indicted). No one but the  district judge thought it important that Santos's  trial begin in April rather than the end of June  or beginning of July. This answers, incidentally,  any contention that the government has its own  right to a speedy trial. Certainly the government  has an interest in the expeditious conduct of its  prosecutions, but remember that it did not object  to the continuance sought by Stetler. We conclude  that it was an abuse of discretion to deny the  continuance.


9
A more difficult question is the consequence of  an improper denial of the right to counsel of  one's own choice in a case in which the defendant  is able to hire a highly competent substitute  lawyer as a replacement and there is no  contention--for there is none here--that the  defendant would have had a better chance of  winning with her original lawyer. The judge's  error, in short, was harmless, but Santos argues  that the denial of the right to counsel of one's  choice is one of those so-called "structural"  errors that are reversible per se (as recently  reaffirmed in Neder v. United States, 119 S. Ct.  1827, 1833 (1999)), because the error either is  serious yet its effect on the outcome of the  particular case difficult to establish (an  example is the denial of the right to a jury  trial, e.g., Sullivan v. Louisiana, 508 U.S. 275,  280-82 (1993); Rose v. Clark, 478 U.S. 570, 578  (1986)) or infringes a right unrelated or only  distantly related to the interest in making sure  (so far as possible) that innocent people aren't  convicted; allowing racially motivated peremptory  challengesof prospective jurors is an example.  E.g., Neder v. United States, supra, 119 S. Ct.  at 1833; Smith v. Farley, 59 F.3d 659, 663 (7th  Cir. 1995).


10
That denying the counsel of one's choice falls  into either category is not an easy position to  maintain in this circuit after United States v.  Turk, 870 F.2d 1304, 1307-08 (7th Cir. 1989),  which says that proof of prejudice is required in  a case in which the defendant is complaining of  such a denial. See also United States v. Arena,  supra, 180 F.3d at 397. Most cases hold the  contrary, however, such as United States v.  Rankin, 779 F.2d 956, 960-61 (3d Cir. 1986),  which relies on Flanagan v. United States, 465  U.S. 259, 267-68 (1984)--not cited in Turk--where  the Supreme Court intimated that obtaining a  reversal of a conviction because of the denial of  the defendant's right to a lawyer of his choice  "does not require a showing of prejudice to the  defense, since the right reflects constitutional  protection of the defendant's free choice  independent of concern for the objective fairness  of the proceeding." A number of cases line up  with Rankin. See, e.g., Crandell v. Bunnell, 144  F.3d 1213, 1216 (9th Cir. 1998); United States v.  Voigt, 89 F.3d 1050, 1074 (3d Cir. 1996); United  States v. Childress, 58 F.3d 693, 736 (D.C. Cir.  1995) (per curiam); United States v. Panzardi  Alvarez, 816 F.2d 813, 818 (1st Cir. 1987).


11
The language that we have quoted from Flanagan  suggests that the right to counsel of one's  choice falls into the second subcategory of  "structural" errors that we have identified.  Subsequent cases, however, of which the most  recent is Neder v. United States, supra, 119 S.  Ct. at 1833, contain language that, consistent  with the limited and qualified nature of the  right to counsel of one's choice, see, e.g.,  Wheat v. United States, supra, 486 U.S. at 159-  60; Morris v. Slappy, supra, 461 U.S. at 11-14;  United States v. Messino, 181 F.3d 826, 830-31  (7th Cir. 1999), seems to confine the rule of  automatic reversal of denials of the right to  assistance of counsel to cases of complete  denial. Cf. United States v. Cronic, 466 U.S.  648, 658-59 (1984). That a district judge has a  broad discretion to extinguish the right to  counsel of one's choice for reasons of calendar  control suggests that this right, which in any  event no indigent criminal defendant has, Caplin  & Drysdale, Chartered v. United States, 491 U.S.  617, 624, 626 (1989); Wheat v. United States,  supra, 486 U.S. at 159; United States v. Messino,  supra, 181 F.3d at 831, is, like the right to  effective assistance of counsel (a right whose  vindication requires proof of prejudice,  Strickland v. Washington, 466 U.S. 668, 691-96  (1984)), not so fundamental as the rights  protected by the rule of automatic reversal.


12
The strongest argument for bringing the right to  counsel of one's choice under that rule is  practical, and also resembles a part at least of  the rationale for the first class of "structural"  errors. Prejudice will not be provable unless the  replacement counsel failed to render effective  assistance, an independent constitutional  violation, and so the right to the lawyer of  one's choice will be empty because unenforceable-  -had the district judge disqualified Stetler  because Stetler parts his hair on the right side  Santos would have no remedy. But this argument is  overstated in at least two respects. First, it  will sometimes be possible to prove prejudice  even though the replacement lawyer didn't render  ineffective assistance. If he is inexperienced,  or lacks some specialized knowledge that the  defendant's original choice of lawyer had, it may  be possible to show that even though his  representation of the defendant was not  ineffective it was substantially less likely to  achieve acquittal. Second, and more important,  mandamus is an available remedy when an abuse of  discretion by the trial judge cannot effectively  be remedied by appealing the final decision,e.g., Mallard v. United States District Court,  490 U.S. 296, 309 (1989); In re BBC Int'l, Ltd.,  99 F.3d 811, 812 (7th Cir. 1996); In re Rhone-  Poulenc Rorer Inc., 51 F.3d 1293, 1294-95 (7th  Cir. 1995); In re Papandreou, 139 F.3d 247, 250  (D.C. Cir. 1998), for example an abuse of  discretion in disqualifying a party's lawyer.  Firestone Tire & Rubber Co. v. Risjord, 449 U.S.  368, 378 n. 13 (1981) (dictum); In re Sandahl,  980 F.2d 1118, 1119-20 (7th Cir. 1992); In re  Barnett, 97 F.3d 181, 183-84 (7th Cir. 1996).  Mandamus would fit this case to a T, since the  district judge did abuse his discretion by  refusing to grant a continuance and Santos would  be unlikely to be able to prove prejudice since  she could and did hire a competent replacement  lawyer.


13
We need not pursue the issue further, since if  Santos is entitled to a new trial on other  grounds--and we are about to see that she is--the  issue washes out; she can hire Stetler to  represent her at the retrial. In the unlikely  event that the district court prevents her from  doing so for reasons that constitute an abuse of  discretion, she can, as just suggested, seek  correction by asking this court for a writ of  mandamus.


14
The other grounds pressed on this appeal  primarily concern errors allegedly committed by  the district judge during the trial; but there is  one pretrial ruling besides the denial of the  continuance that is challenged, and it turns out  to be infected by that denial. The central item  of evidence in the government's case, we were  told at argument by its lawyer (who was also the  prosecutor in the district court), was a tape  recording of a phone conversation between Santos  and an employee of one of the contractors from  whom she was seeking campaign contributions.  Statements made by Santos in that conversation  ("I don't understand why the firm is so  recalcitrant to help out the people that helped  them"; "When they came in here and sat in my  office and asked for business and asked for help,  we were there. Never asked for a damn thing";  "When they sat in here and asked for my time and  asked for my help and asked for my business I was  there. Now it's time for people to belly up") are  probative of extortion. She doesn't argue that  there was insufficient evidence to convict her on  any of the counts on which the jury rendered a  verdict against her.


15
But not content with the words, the prosecutor  asked the jury in opening argument to "notice her  tone and her demeanor," in order to help the jury  to interpret her words as extortionate; and in  closing argument he told the jury that Santos had  chosen the "tone" she had used in making the  allegedly extortionate demands. In so saying he  was perhaps reminding the jury that the other  party to the taped conversation had testified  that Santos was "hollering" at her and "was very  excited," and so in cross-examining Santos the  prosecutor asked her whether her tone had not  been "sarcastic" and said to her that "your voice  was raised." Anticipating that the prosecution  would make an issue of Santos's tone, her lawyer  had asked the judge two days before the trial  began to permit him to call a doctor to testify  that Santos's thyroid condition may have affected  her tone of voice. The district judge had refused  to permit this, on the ground that the lawyer  should have designated the witness earlier in  order to give the government a chance to counter  the witness's testimony.


16
Told that Santos sounded angry or excited, or  even just that her "tone" gave her away, jurors  might be more inclined to credit the prosecutor's  interpretation of the conversation as a threat  rather than a plea. Because, in consequence of  the judge's refusal to grant a continuance,  Santos had a lawyer who was new to the case, he  can't be blamed for not having tendered his  expert witness on tone of voice earlier. Nor is  it very plausible that the U.S. Attorney's Office  could not have found its own endocrinologist to  listen to the tape and review Santos's medical  records and offer an opinion on whether hervoice  might have been altered by her thyroid condition.  That might have been difficult to do in 48 hours,  but the trial lasted for almost three weeks and  the evidence about Santos's tone of voice could  have been postponed to a later stage of the  trial. In the circumstances, the judge should  have allowed Santos to present limited medical  evidence to help the jury interpret her tone. See  generally United States v. Hall, 93 F.3d 1337,  1341-44 (7th Cir. 1996). He did allow her to  testify that she was feeling irritable at the  time of the call, but by refusing to allow  evidence that would have made her self-serving  testimony plausible he prevented her from  countering the government's "tone" argument  effectively.


17
The tape-recorded call was one of several that  Santos and her deputy John Henry made to  contractors during June 1998, when Santos was a  candidate for Attorney General of Illinois, in an  effort to raise money for the Illinois Democratic  Party so that she could participate in a series  of polls that the Party was planning to  commission. The government presented evidence  that the contractors who were solicited by Henry  yet refused to contribute were denied new  business with the City Treasurer's office even  though they were the low bidders; the government  argued that until June 1998 the office always  gave the business to the low bidder. The district  judge refused to permit Santos to counter this  evidence with evidence that some of the  recalcitrant contractors were not cut off and  that nonextorted low bidders didn't always get  the office's business. The judge's ground for the  exclusion was that the evidence was merely  evidence of "good acts" and thus was irrelevant  to the charges in the indictment, since the  government was not contending that every  transaction by the City Treasurer's office during  the period covered by the indictment was corrupt.


18
This was a misunderstanding of the evidence, and  it persisted despite the repeated and lucid  attempts by Santos's lawyer to dispel it. As he  explained over and over again, the point of the  evidence was to cast doubt on the government's  theory that the contractors who were cut off by  the Treasurer's office were cut off because they  had refused to "belly up." If some of the  recalcitrants were spared and if low bidders  don't always get the office's business even if no  retaliatory motive is in play, this is some  evidence that the pleas for campaign  contributions were not threats. It was weak  evidence; the fact that a threat is not always  carried out is not strong evidence that it was  not made. But the judge, misunderstanding the  purpose for which the evidence was being offered,  never considered whether its probative value  might be clearly outweighed by its likely effect  in confusing the jury, thus warranting exclusion  under Fed. R. Evid. 403. Moreover, had he wished  to exclude the evidence on this basis, he would  have been required at the same time to forbid the  government to argue that until the period of the  alleged extortion the low bidders had always won  the contracts with the Treasurer's office. For it  is improper to prevent a party from countering  possibly false testimony favorable to his  opponent even if that testimony should not have  been admitted. E.g., United States v. Chaimson,  760 F.2d 798, 810 (7th Cir. 1985); Griffin v.  Washington Convention Center, 142 F.3d 1308, 1312  (D.C. Cir. 1998); United States v. Baird, 29 F.3d  647, 653-54 (D.C. Cir. 1994); 1 John W. Strong,  McCormick on Evidence sec. 57, p. 255 (5th ed.  1999). That aside, since the judge misunderstood  the purpose for which the evidence was being  offered and thus failed to exercise a properly  informed discretion, his Rule 403 ruling cannot  be upheld unless it would have been an abuse of  discretion for him to have admitted the evidence,  and it would not have been. Carr v. O'Leary, 167  F.3d 1124, 1127 (7th Cir. 1999); United States v.  Guy, 140 F.3d 735, 736 (7th Cir. 1998);  Eisenstadt v. Centel Corp., 113 F.3d 738, 744  (7th Cir. 1997).


19
A good deal of inadmissible testimony was  admitted. The actual cutoffs of recalcitrant  contractors were ordered byJohn Henry, but  employees of the Treasurer's office were  permitted to testify that they had "no doubt" or  a "personal feeling" that Santos had ordered  Henry to order the cut offs. With immaterial  exceptions, witnesses are permitted to testify  only to matters within their personal knowledge.  Fed. R. Evid. 701. The government defends the  admission of these employees' testimony on the  ground that they were familiar with Santos's  management style, which they described as  intrusive and dictatorial. They were indeed  entitled to so testify. United States v.  Williams, 81 F.3d 1434, 1442 (7th Cir. 1996);  United States v. Saulter, 60 F.3d 270, 276 (7th  Cir. 1995); United States v. Allen, 10 F.3d 405,  414 (7th Cir. 1993); Kaczmarek v. Allied Chemical  Corp., 836 F.2d 1055, 1061 (7th Cir. 1987);  United States v. Gaines, 170 F.3d 72, 77 (1st  Cir. 1999). The way in which Santos managed the  Treasurer's office--a small office--was a matter  within the range of these witnesses' personal  observation. Had they stopped with their  testimony about Santos's management style, the  prosecutor could have asked the jury to infer  that it was likely that Henry would not have  ordered the cutoffs himself, that he was just her  messenger boy. But instead the witnesses were  permitted to draw the inference themselves, and  in doing so they stepped outside the boundaries  of their personal knowledge and invaded the  province of the jury. Stagman v. Ryan, 176 F.3d  986, 995-96 (7th Cir. 1999).


20
It is true that Rule 701 does not interdict all  inference drawing by lay witnesses. That would be  absurd, since almost all testimony, even  testimony as to what one has seen, is inferential  in the sense that a reasoning process, however  rudimentary, is being applied to the raw sense  data. United States v. Giovannetti, 919 F.2d  1223, 1226 (7th Cir. 1990). But the inferences  must be tethered to perception, to what the  witness saw or heard. What the witnesses here saw  and heard was how Santos managed the office, but  it was an impermissible leap to infer the  existence of an express order by Santos on a  particular matter. Not because the witnesses were  not expert witnesses, who are permitted to  testify to matters of which they lack personal  knowledge, but because the inferences that they  tried to draw were too speculative to count as  evidence.


21
Patricia Errera, another employee of the  Treasurer's office, filed several complaints  about Santos with the City's Board of Ethics. The  judge ruled that these complaints were admissible  under the business-records exception to the  hearsay rule. Fed. R. Evid. 803(6). This ruling  was clearly incorrect. Businesses have incentives  to keep accurate records germane to their  business, and so the material contained in those  records is more likely to be truthful than the  average hearsay. But that is provided that this  material--the statements sought to be used in  evidence for their truth value--was created or  adopted by the business record keeper. United  States v. Vigneau, 187 F.3d 70, 75-76 (1st Cir.  1999); United States v. Turner, 189 F.3d 712,  719-20 (8th Cir. 1999). The reason is  inapplicable to information received rather than  prepared by the business. The fact that  statements made by strangers to the business  become a part of its records, such as the  complaints which were placed in the Board of  Ethics' files, does not make them business  records unless they are verified by the business  and thus adopted and become the business's own  statements. United States v. Mitchell, 49 F.3d  769, 778 (D.C. Cir. 1995). That did not happen  here. The complaints were inadmissible hearsay  interleaved with admissible business records.  Another erroneous ruling by the district judge  was admitting into evidence a diary kept by an  employee of one of the contractors; it was not  the contractor's business record.


22
One of the complaints to the Board of Ethics was  admitted into evidence on the additional ground  that it was a "present sense" impression. Fed. R.  Evid. 803(1). A person writing a report of a  contemporaneous event has less time to forget  what actually happened or to edit or revise his  report of it. Advisory Committee Note to Fed. R.  Evid. 803(1); United States v. Parker, 936 F.2d  950, 954 (7th Cir. 1991); United States v.  Brewer, 36 F.3d 266, 271-72 (2d Cir. 1994). That  makes the report a reliable form of hearsay and  so admissible. But in this case the so-called  "present sense" impression was contained in a  handwritten note added to a typed draft. The  draft was contemporaneous but the handwritten  note, which is what contained the incriminating  material, appears to have been an afterthought.  Moreover, the typewritten draft was the third in  a series of very similar complaints, suggesting  that Errera had been mulling over Santos's  conduct for some time and that the handwritten  note may have been intended as a reflective  summary and characterization of that conduct  rather than a spontaneous reaction to an  immediate sensation. Only when the statement is  made in circumstances, not present here, in which  the declarant had little chance to revise his  initial reaction is it admissible. E.g., Bemis v.  Edwards, 45 F.3d 1369, 1372 (9th Cir. 1995).


23
The complaints, like another bit of challenged  evidence--a "suspicious activity report" composed  by one of the contractors--were admissible to  show that the contractors thought they were being  threatened, though not to prove that their  suspicions were accurate. The judge gave an  instruction to the jury properly limiting the use  the jury could make of the suspicious activity  report and one of the complaints, but he did not  limit the jury's use of the other two complaints.


24
One of the employees of the Treasurer's office  who testified against Santos was Laurie Dittman.  Dittman is a lesbian, and Santos's lawyer wanted  to establish through cross-examination that  Dittman was hostile to Santos because Santos had  broken up Dittman's relationship with Dittman's  female lover by firing the latter (Santos's  former campaign manager) and because the  gubernatorial candidate on the same ticket with  Santos held anti-gay positions. The district  judge refused to permit these subjects to be  raised in cross-examination. Obviously he would  have permitted this if Dittman were heterosexual.  Homosexuality is stigmatized by many Americans,  however, and in deciding questions of  admissibility a judge is permitted to consider a  witness's interest in being shielded from  embarrassment, though he cannot give it so much  weight that it may change the outcome of the  trial. See Fed. R. Evid. 611(a)(3) and Advisory  Committee Note thereto; United States v.  Scroggins, 939 F.2d 416, 420-21 (7th Cir. 1991).  The judge can also exclude such evidence under  Fed. R. Evid. 403 if he reasonably concludes that  it is much more likely to distract than to  enlighten the jurors, or to make the jury  irrationally doubt the witness's truthfulness.


25
The interest in protecting witnesses from  gratuitous embarrassment can have no weight in  the present case, because Dittman is openly  lesbian and a lesbian activist to boot. See,  e.g., Andrew Herrmann, "Gays Taking to Streets  for Respect, Recognition," Chicago Sun-Times,  April 19, 1993, p. 6 (identifying Laurie Dittman  as executive director of "IMPACT, a statewide gay  and lesbian political action committee"). The  Rule 403 question is closer, but what tells  decisively against the judge's ruling is that the  government contended that Dittman's only motive  in testifying against Santos was disgust at  Santos's criminal behavior. Once again the judge  allowed contested testimony adverse to the  defendant to be presented while precluding the  defendant from offering contrary evidence. It is  true that the government offered to permit  Santos's lawyer to cross-examine Dittman about  whether she had a grudge against Santos because  the latter had fired the campaign manager whom  Dittman had recruited. But a grudge arising from  the firing of an employee whom one had recruited  is a far less plausible basis for inferring  perjury than a grudge arising from the breaking  up of one's marriage or an equivalent  relationship.


26
Each of the errors that we have identified if  taken in isolation may have been (though this we  need not decide) harmless in the sense, which is  the relevant sense, of being unlikely to have  made a difference to the outcome. E.g., United  States v. Caputo, 978 F.2d 972, 974 (7th Cir.  1992). But in assessing whether a conviction  should be upheld despite the presence of error, a  court is required to assess the harm done by the  errors considered in the aggregate. E.g., United  States v. Rivera, 900 F.2d 1462, 1470-71 (10th  Cir. 1990) (en banc); United States v. Frederick,  78 F.3d 1370, 1381 (9th Cir. 1996). We have even  said that "the cumulative effect of trial errors  may deprive a defendant of his constitutional  right to a fair trial." United States v. Rogers,  89 F.3d 1326, 1338 (7th Cir. 1996); to the same  effect see, e.g., United States v. Copple, 24  F.3d 535, 547 n. 17 (3d Cir. 1994); United States  v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir.  1993). (There appears to be no practical  difference between the two approaches, at least  when a federal conviction is being reviewed on  direct appeal, and indeed they are treated as  interchangeable in United States v. Munoz, 150  F.3d 401, 418 (5th Cir. 1998).) Although the  evidence against Santos was considerable, the  case was not so completely one-sided against her  that we can call the veritable avalanche of  errors that we have identified harmless. The jury  acquitted Santos of about half the counts in the  indictment and might have acquitted her of some  or even all of the rest had the trial judge not  committed the litany of errors that we have  enumerated.


27
And if all this is not enough, the judge  committed another serious error though the  prejudice from it is impossible to estimate. The  direct examination of Santos was completed late  in the afternoon of one of the trial days, and  her cross-examination was scheduled to take place  (and did) the next morning. The judge told  Santos's lawyer that the substance of his  client's testimony "should not be the subject of  further inquiry with counsel" during the  overnight recess, though "this does not mean to  say you cannot converse with your client  regarding strategy, the calling of witnesses, and  so on," and he added that the lawyer should  reread Perry v. Leeke, 488 U.S. 272 (1989), and  "if I am in error, go along with the Supreme  Court." (He didn't actually name Perry, but  described the case he had in mind with sufficient  particularity to point the lawyer to that  decision.)


28
Perry, see id. at 284-85, along with Geders v.  United States, 425 U.S. 80, 91 (1976), holds that  a flat prohibition against a criminal defendant's  conferring with his lawyer during an overnight or  otherwise substantial recess violates the Sixth  Amendment. The prohibition here was not flat, but  (leaving aside for a moment the significance of  the judge's reference to Perry) it went further  than the law permits, by forbidding any  discussion of the witness's testimony. Perry  makes clear, as do the cases before and after it  (though some of the "before" cases go too far, by  forbidding any limit on discussions between  lawyer and client), that while the judge may  instruct the lawyer not to coach his client, he  may not forbid all "consideration of the  defendant's ongoing testimony" during a  substantial recess, 488 U.S. at 284, since that  would as a practical matter preclude the  assistance of counsel across a range of  legitimate legal and tactical questions, such as  warning the defendant not to mention excluded  evidence. See, e.g., Mudd v. United States, 798  F.2d 1509, 1512 (D.C. Cir. 1986); United States  v. Cobb, 905 F.2d 784, 792 (4th Cir. 1990).


29
We do not think that the judge's telling counsel  to read Perry and follow it if it was  inconsistent with what he had just told counsel  (it was) saved the day. Had the judge given the  lawyer an opportunity to read Perry and advise  the judge of his interpretation of it, the lawyer  could have gotten the judge to modify the  instruction. The judge did not give him that  opportunity, which meant that if the lawyer  discussedSantos's testimony with her in  accordance with the lawyer's understanding rather  than the judge's recollection of Perry, and later  the judge rejected that interpretation, the  lawyer would be inviting the judge's wrath, and  possibly even courting sanctions for contempt of  court, in disobeying the judge's instruction. The  judge put him in an impossible position.


30
Violations of the rule against flatly  prohibiting consultation between a criminal  defendant and his lawyer during a substantial  recess are treated as complete denials of counsel  (even though they are of limited duration), and  so require reversal even if no prejudice is  shown. E.g., Perry v. Leeke, supra, 488 U.S. at  280; United States v. McLaughlin, 164 F.3d 1, 4  (D.C. Cir. 1998); Jones v. Vacco, 126 F.3d 408,  416 (2d Cir. 1997). We need not decide whether  this approach, which is in some tension with the  narrowing of the scope of automatic reversal in  recent decisions by the Supreme Court, is  applicable to the rather muddier violation that  occurred here. The lawyer was not flatly  prohibited from conferring with his client or  even (because of the judge's incorporation by  reference, as it were, of Perry v. Leeke) from  discussing her testimony, but was given confusing  marching orders that may well have inhibited the  exercise of Sixth Amendment rights. The result  may have been to hurt Santos in a critical phase  of the case, namely her cross-examination, though  no effort to prove this has been, or in the  nature of things could readily be, made. But the  prejudicial weight of this error is unimportant,  for there is enough other prejudice to require us  to reverse the judgment and order a retrial. We  trust that the prosecutor's improper reference in  his closing argument to an alleged fact that was  not in evidence (that Santos must have known  about John Henry's receipt of campaign  contributions for her attorney to have known to  ask him about them) will not be repeated at the  retrial. Finally, Circuit Rule 36 shall apply on  remand.


31
Reversed and Remanded.

