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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1351 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                     JOS
 LUIS LOZADA-RIVERA <br>                    a/k/a SEALED DEFENDANT 1, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Hctor M. Laffitte, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Lynch, Circuit Judge, <br>                 Bownes, Senior Circuit Judge, <br>                   and Lipez, Circuit Judge. <br>                                 <br>                                 <br>                                 <br>                                 <br>     Francisco Rebollo-Casalduc, with whom Nachman, Guillemard & <br>Rebollo, was on brief for appellant. <br> <br>     Louis M. Fischer, Attorney, United States Department of <br>Justice, with whom Guillermo Gil, United States Attorney, was on <br>brief for appellee. <br> <br> <br> <br> <br> <br>May 27, 1994 <br> <br> <br> <br>                                 <br>                                 <br>

  BOWNES, Senior Circuit Judge.  Defendant-appellant Jos <br>Luis Lozada-Rivera ("Lozada") challenges his criminal conviction <br>for conspiracy to distribute cocaine and possession of cocaine with <br>intent to distribute.  He raises several issues on appeal, <br>including asserted defects in the trial court's evidentiary rulings <br>and its instructions to the jury.  We address only two of his <br>weightiest claims:  that the trial judge erred in admitting into <br>evidence a federal agent's report containing his version of <br>apparently incriminating statements made by defendant during a <br>post-arrest interview; and that the court improperly permitted a <br>government witness to testify that Lozada had recently asked him to <br>alter his testimony.  We reverse and remand for a new trial on both <br>scores.   <br>  The court should not have allowed the jury to consider <br>the contents of the report, either for the truth of the matter <br>asserted therein or for a more limited rehabilitative purpose.  <br>And, as the government now concedes, the court should not have <br>permitted testimony about Lozada's jailhouse remarks elicited in <br>violation of his Sixth Amendment right to counsel.  We conclude <br>that neither of these errors was harmless. <br>                                I <br>  On February 19, 1997, a federal grand jury indicted <br>Lozada and three others on one count of conspiracy to traffic <br>cocaine, 21 U.S.C.  846, and four counts of possession with intent <br>to distribute,  21 U.S.C.  841(a)(1).  His fellow co-defendants <br>pled out before trial; Lozada opted to take his chances with a jury <br>of his peers. <br>  During the course of his nine-day trial in September <br>1997, the government introduced substantial evidence of a scheme to <br>transport several hundred kilograms of cocaine from Puerto Rico to <br>the New York metropolitan area.  The evidence established that the <br>drug trafficking operation, with a few minor variations, worked in <br>the following manner:  Members of a transportation group received <br>the cocaine from Colombian suppliers in Puerto Rico and delivered <br>it to a warehouse owned by Lozada.  Once at the warehouse, they <br>would elaborately repackage the cocaine by concealing it in cargo <br>containers containing corn oil, coconuts, syrup, and other food <br>stuff.  The narcotics were then smuggled to New York masked as <br>legitimate products.  <br>  Jairo Rodrguez-Zuluaga ("Rodrguez"), who served as the <br>liaison between the transportation group and the Colombian <br>suppliers, would usually assist in the repackaging process and then <br>travel to New York to receive the shipment.  The conspirators later <br>met in a hotel in New Jersey to be paid for their labor.  This <br>entire process was repeated several times between 1994 and 1996.  <br>The responsible parties transported some 100-800 kilograms of <br>cocaine from Puerto Rico to New York in this fashion. <br>  The government advanced a theory of the case according to <br>which Lozada and Carlos Rosario-Matos ("Rosario") jointly headed <br>the transportation group and, after Rosario's arrest in 1995, <br>Lozada assumed full control of the unit.  As the government's <br>witnesses told it, for each shipment Lozada secured the necessary <br>cargo containers, prepared the shipping paperwork (listing "Loza <br>Foods" as the putative shipping company), and purchased the <br>legitimate items ultimately used to fill the containers and conceal <br>the cocaine.  Lozada operated Las Vegas Brands, Inc., a food <br>products import-export company based in Puerto Rico, whose supplies <br>and property were used for the repackaging activities of the <br>transportation group.  The prosecutor tendered other circumstantial <br>evidence of Lozada's guilt:  he made certain suspiciously large <br>cash deposits into his business account, kept sizeable sums of cash <br>nearby, and made seemingly extravagant expenditures for a person of <br>relatively modest means. <br>  Three cooperating witnesses tied Lozada to the conspiracy <br>(a fourth stated that he saw Lozada at a meeting where the elements <br>of the scheme were discussed).  Rosario, who originally established <br>contact with the Colombian suppliers on his own, testified that <br>Lozada got involved after the first shipment, and that he <br>thereafter shared half his profits from future shipments with <br>Lozada.  <br>  Rodrguez, the go-between, stated that he saw Lozada, who <br>he knew as "Don Millin," present at repackaging sessions and that <br>Lozada showed up to get paid on at least one occasion.  Abelardo <br>Torres-Padilla ("Torres"), too, placed Lozada in the general <br>vicinity of the warehouse when the cocaine was being placed in the <br>containers, and claimed that he informed Lozada by telephone that <br>a July 1995 shipment had been seized by Customs agents.  Over <br>strong objections by the defense, Torres also testified that the <br>night before he was to take the stand, Lozada offered him money if <br>he would change his testimony (the two were housed in the same <br>detention facility).   <br>  The centerpiece evidence of Lozada's involvement in the <br>conspiracy, however, were certain incriminating statements <br>allegedly uttered by Lozada on the day of his arrest when he <br>initially opted to cooperate with the authorities.  The government <br>urged the jury to view these comments purportedly made in the <br>presence of federal law enforcement officers, including Drug <br>Enforcement Agency ("DEA") Agent Rafael E. Rodrguez ("Agent <br>Rodrguez"), as a "confession."  Agent Rodrguez was the only <br>witness to testify at trial that Lozada incriminated himself.  He <br>was cross-examined by the defense.  Then, at a critical juncture in <br>the proceedings and on redirect, the prosecution offered a detailed <br>typewritten report ostensibly to repair Agent Rodrguez's <br>credibility.  This report paraphrased a series of damaging <br>statements allegedly made by Lozada, thereby buttressing the <br>agent's oral testimony.  Again over defendant's objections, the <br>court accepted this evidence.   <br>  Taking the stand in his own defense, Lozada testified <br>that he had met some of the principals in the alleged conspiracy <br>under completely innocent circumstances.  He also acknowledged that <br>he sometimes allowed Rosario, his long-time friend, to use his <br>warehouse for storage space, but denied actively participating in <br>a drug trafficking conspiracy.  He vehemently denied making any <br>incriminating statements to government agents after his arrest.  <br>His nephew took the stand and said that he had, on occasion, <br>prepared paperwork on Rosario's behalf using the shipping name <br>"Loza Foods."  Other witnesses attested to Lozada's reputation for <br>truth-telling. <br>  On September 22, 1997, after a few hours of deliberation, <br>the jury convicted Lozada on all counts.  The court subsequently <br>sentenced him to 210 months of imprisonment followed by five years <br>of supervised release, after departing downward from the applicable <br>sentencing guideline range based on his advanced age and <br>significant physical ailments.  Lozada filed a timely appeal. <br>                                II <br>  We lead off with the issue of whether the trial court <br>erred by accepting the DEA report into evidence.  During the <br>government's case-in-chief, Agent Rodrguez testified that Lozada <br>made certain incriminating comments during a post-arrest interview <br>on May 4, 1997.  According to Agent Rodrguez, Lozada admitted his <br>role in the conspiracy and explained his actions in furtherance of <br>its objectives. <br>  During cross-examination, defense counsel established <br>that the interview had not been tape-recorded or videotaped.  He <br>then asked Agent Rodrguez to confirm that he had once lived in <br>Lozada's neighborhood and attended school with his children, and <br>inquired whether he had anything against Lozada or his family.  <br>Agent Rodrguez answered in the negative, and counsel pressed no <br>further. <br>  On redirect, the government sought to introduce a formal <br>report prepared by Agent Rodrguez in which he recounted his <br>version of Lozada's alleged comments during the March 4, 1997 <br>interview, to rebut what it believed to be a charge of improper <br>motive made during defense counsel's examination.  The DEA report <br>characterized the discussion as marked by defendant's willingness <br>to "talk about the events that led to his involvement in drug <br>trafficking activities," and ascribed to Lozada certain admissions <br>revealing his awareness of crucial details of the drug trafficking <br>ring, including the method of smuggling the cocaine and his <br>familiarity with key players in the scheme.  Agent Rodrguez <br>apparently completed the report a day or two after the actual <br>interview based on contemporaneous notes he had taken during the <br>conversation, which have since been destroyed.  The government <br>explicitly "offered [the report] under Fed. R. Evid. 801(d)" to <br>"rebut the attack on his credibility." <br>  Defense counsel objected, saying that the contents of the <br>report were overly prejudicial and constituted inadmissible <br>hearsay.  The district court overruled defendant's objections and <br>allowed the report into evidence, ruling that it was admissible to <br>rebut Lozada's implied charge of improper motivation because <br>counsel "went into the motive by saying he [the agent] was in the <br>same school, that he knew the family."  The court instructed the <br>jury that the report had been received solely for the purpose of <br>"weighing the credibility of [Agent Rodrguez]." <br>  At a subsequent point in the trial, after Lozada himself <br>took the stand and denied making incriminating remarks to Agent <br>Rodrguez, the government moved the court to accept another copy of <br>the report into evidence (the previous one apparently had a few <br>parts excised).  The trial court did so, calling the jury's <br>attention to the DEA report anew.  This time, the judge instructed <br>the jury that the report could be used to assess "the credibility <br>of this witness [Lozada]" in addition to "the credibility of the <br>agent testifying on that matter," and "to give the weight that [the <br>jurors] think it deserves, if any, to the testimonies."  (Emphasis <br>added).  Lozada renewed his previous objections, to no avail. <br>  On appeal, Lozada contends that the trial judge <br>misapplied Rule 801(d)(1)(B).  He argues that his cross-examination <br>did not open the door to introduction of the report.  Citing Tome <br>v. United States, 513 U.S. 150 (1995) (prior consistent statement <br>may not be admitted under Rule 801(d)(1)(B) unless it antedates <br>alleged motive), he further argues that even if his questioning <br>opened the door, the report could not be used to refute an implied <br>charge that Agent Rodrguez may have disliked Lozada or his family <br>because it was prepared well after the purported bias arose.  In <br>response, the government maintains that the court properly received <br>the report for credibility purposes, not for the truth of its <br>contents.  Citing a long line of cases spanning several circuits, <br>it says that the court's evidentiary ruling had firm support in the <br>doctrine of rehabilitation.  <br>  We scrutinize the trial court's evidentiary ruling for an <br>abuse of discretion.  See United States v. Reeder, 170 F.3d 93, 107 <br>(1st Cir. 1999).  Our analysis is initially complicated by a <br>certain degree of ambiguity as to how the report was actually used <br>at trial.  Lozada directs our attention to certain points in the <br>record suggesting that the report, in fact, was considered for the <br>truth of the matter asserted.  Specifically, he insists that <br>counsel for the government improperly argued the contents of the <br>report to the jury in his rebuttal argument at the close of trial.  <br>We observe, in addition, that the trial judge seemed to tell the <br>jurors on at least one occasion that they could use the substance <br>of the report to evaluate defendant's credibility.   <br>  For its part, the government points out that, <br>notwithstanding its reference to Rule 801(d)(1)(B), the trial court <br>characterized its ruling as accepting the report only for <br>credibility; accordingly, it specifically instructed the jury <br>repeatedly not to consider the report for the truth of the matter.  <br>The government leans heavily on the doctrine of rehabilitation and <br>ignores Rule 801(d)(1)(B) almost entirely. <br>  This confusion is somewhat understandable due to the as <br>yet unresolved legal dilemma concerning the extent to which the <br>Rule altered preexisting common law standards governing <br>rehabilitative use of prior statements.  It is a matter of some <br>debate whether Rule 801(d)(1)(B) controls prior consistent <br>statements of all stripes or whether a more relaxed test applies <br>when a prior statement is offered for a rehabilitative purpose.  <br>Compare United States v. Miller, 874 F.2d 1255, 1273 n.12 (9th Cir. <br>1989) ("There is . . . no class of prior consistent statements, <br>offered for purposes of rehabilitation, that does not fall within <br>the literal scope of Rule 801(d)(1)(B).") with United States v. <br>Pierre, 781 F.2d 329, 333 (2d Cir. 1986) (irrespective of Rule <br>801(d)(1)(B), prior consistent statement offered to rehabilitate a <br>witness is subject only to condition that it "has a probative force <br>bearing on credibility beyond merely showing repetition.").  <br>  We need not settle on precisely how these elements (i.e., <br>Rule 801(d)(1)(B), Tome, and the common law notion of <br>rehabilitation) fit together.  The uncertainty does not materially <br>alter the calculus in the case at bar because the trial judge erred <br>in his threshold determination that defense counsel's examination <br>of Agent Rodrguez opened the door to the report.  This <br>determination is a necessary precondition for admission of a prior <br>statement under the Rule or based on any other rehabilitative <br>ground, and the government failed to satisfy it. <br>  For the most part, defense counsel's cross-examination of <br>Agent Rodrguez was a routine affair, remarkable only for its <br>brevity and relative restraint.  The only arguable suggestion of <br>improper motive on the part of Agent Rodrguez came near the end of <br>a meandering line of questioning that ultimately bore no fruit: <br>counsel asked a series of questions probing whether Agent Rodrguez <br>might bear some ill will toward Lozada's family because he had once <br>lived in Lozada's neighborhood and attended school with his <br>children.  This was a weak innuendo at best, as any interaction <br>between Agent Rodrguez and Lozada's family occurred in the distant <br>past; he knew Lozada's children in the ninth grade, and he was 37 <br>years old when he testified.  More important, Agent Rodrguez <br>denied ever having a problem with Lozada or any member of his <br>family, and Lozada did not test this denial with even a single <br>concrete example tending to show actual bias.  Discovering nothing, <br>he simply moved on.   <br>  We do not see how this attenuated suggestion of improper <br>motive paved the way to rebuttal by way of the official report.  <br>While we accord deference to a trial court's finding as to whether <br>counsel has implied during his questioning that a witness has a <br>motive to fabricate, see United States v. Piva, 870 F.2d 753, 758 <br>(1st Cir. 1989), that deference is not absolute   there must be <br>record support for such a finding.  Generally speaking, a charge of <br>improper motive or recent fabrication need not be expressly made or <br>buttressed by concrete evidence.  But the proponent of evidence <br>must point to specific questions during his adversary's examination <br>that suggest recent fabrication or bias.  Merely appealing to <br>credibility as a live issue will not do the trick.  See Thomas v. <br>United States, 41 F.3d 1109, 1119 (7th Cir. 1994) ("One may impeach <br>for lack of credibility without going so far as to charge recent <br>fabrication.").   <br>  There are occasions when a theory of bias is so <br>implausible and the corresponding suggestion of contrivance so weak <br>that the line of questioning would not even qualify as an implicit <br>charge of improper motivation.  See Christmas v. Sanders, 759 F.2d <br>1284, 1288 (7th Cir. 1985) (theory was "too attenuated to support <br>any inference of an implied charge of recent fabrication"); see <br>also Casoni, 950 F.2d at 904 (while the bar is not high, the clear <br>implication must be that the witness "consciously altered his <br>testimony"); Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th <br>Cir. 1986) ("Mere contradictory testimony cannot give rise to an <br>implied charge of fabrication.").  So it is here.  Any suggestion <br>that prior contact with defendant's family rendered Agent Rodrguez <br>biased was strained at best, and certainly should not have been <br>dispelled by admitting an official document containing highly <br>prejudicial information.  <br>  From our review of the record, it is also apparent that <br>the trial court deemed the report relevant to aid the jury's <br>assessment of Agent Rodrguez's credibility and later broadened its <br>use to include evaluation of Lozada's credibility as well.  It is <br>difficult to escape the conclusion that the DEA report was thrown <br>into the mix to assess the crucial witnesses's credibility <br>generally, without either explicit or meaningful limitation.  This <br>was improper. <br>  We wish to stress that the report should not have been <br>used to assess the credibility of Lozada, which the judge <br>encouraged the jury to do upon the conclusion of the government's <br>examination.  We see absolutely no reason for such a use of the <br>report   indeed, it may have been tantamount to an invitation to <br>use the report as substantive evidence.  How else could the report <br>bear on Lozada's credibility (he did not author the report) unless <br>a factfinder compared the details of the report with Lozada's in- <br>court testimony in a way that accepted both for the truth?  <br>  Having concluded that the report was erroneously admitted <br>into evidence, we must next decide whether the mistake requires <br>reversal of defendant's conviction.  In order to deem the defect <br>non-reversible, we would have to say "with fair assurance . . . <br>that the judgment was not substantially swayed by the error."  <br>United States v. Gaines, 170 F.3d 72, 82 (1st Cir. 1999) (quoting <br>Vincent v. Louis Marx & Co., 874 F.2d 36, 41 (1st Cir. 1989)); see <br>also Fed. R. Crim. P. 52(a).   <br>  The government bears the burden of demonstrating that the <br>outcome would likely have been the same but for the miscue.  Here, <br>it has expressly conceded that if the district court erred by <br>receiving the report, the mistake was sufficiently prejudicial as <br>to warrant a new trial.  The government did not argue in its brief <br>that this kind of error could have been harmless under the present <br>fact-scenario.  When queried at oral argument, it acknowledged that <br>defendant would be entitled to a new trial if we concluded that the <br>report was erroneously received into the record.  We wholeheartedly <br>concur, and commend the government for its forthrightness. <br>   We add only this thought:  Although the DEA report <br>largely tracked Agent Rodrguez's own in-court testimony, it <br>essentially provided the jury with an authoritative "condensation <br>of the government's whole case against the defendant."  Quinto, 582 <br>F.2d at 236.  That this official report contained damning <br>admissions attributed to Lozada and that it followed the jurors <br>into the jury room are enough to establish that defendant was <br>adversely affected.  See, e.g., United States v. Pendas-Martnez, <br>845 F.2d 938, 941 (11th Cir. 1988) (erroneously admitted Coast <br>Guard report summarized essential facts of government's case); <br>United States v. Brown, 451 F.2d 1231, 1234 (5th Cir. 1971) <br>(prejudice entailed where detailed report and handwritten notes <br>constituted brief recap of crucial aspects of government's case and <br>"accompanied the jury into the jury room").  <br>  Because the trial court erroneously permitted the <br>government to use the DEA report in its redirect inquiry and <br>admitted that report into evidence, thereby allowing the jurors to <br>evaluate the substance of the report and give it effect in <br>determining the defendant's credibility, we cannot fairly <br>characterize the mistake as a harmless one.  Lozada is entitled to <br>a new trial. <br>                               III <br>  We also hold that the district court committed reversible <br>error which deprived Lozada of his Sixth Amendment right to <br>counsel.  Over defense counsel's objections, the trial judge <br>allowed Torres, a cooperating witness, to testify as to a jailhouse <br>conversation he had with Lozada the night before he was scheduled <br>to take the stand.  Among other things, Torres claimed that Lozada <br>offered him a financial inducement to alter his testimony at <br>trial.   <br>  During a heated exchange at sidebar, defense counsel <br>pointed out that Lozada was represented by counsel at the time of <br>the conversation, contended that admission of his alleged jailhouse <br>comments would be extremely prejudicial, and claimed that he had <br>been sandbagged by this new evidence.  He later renewed his <br>objection and asked that Torres's testimony be stricken from the <br>record, arguing in greater detail that these statements had been <br>extracted contrary to Lozada's Sixth Amendment right to counsel.  <br>After asking the government a single question   whether counsel was <br>aware of any "contacts [its agents] were trying to make between <br>defendant and any other witness in this case" and receiving an <br>answer in the negative   the court denied the motion. <br>  Under the rule of Massiah v. United States, 377 U.S. 201 <br>(1964), the government may not use a defendant's words against him <br>at trial if those words "were deliberately elicited from him after <br>he had been indicted and in the absence of his counsel."  Id. at <br>206.  From that critical moment onward, the Sixth Amendment imposes <br>on government agents "an affirmative obligation to respect and <br>preserve the accused's choice to seek th[e] assistance" of counsel.  <br>United States v. Moulton, 474 U.S. 159, 171 (1985).  The <br>controlling test is whether the government agent "intentionally <br>creat[ed] a situation likely to induce [a defendant] to make <br>incriminating statements without the assistance of counsel."  <br>United States v. Henry, 447 U.S. 264, 274 (1980).  That the <br>government does not explicitly instruct a cooperating witness to <br>procure incriminating statements does not always defeat a Massiah <br>claim, for conduct by an individual may in certain circumstances be <br>imputed to the government even where it has not affirmatively <br>directed the person to interrogate the defendant.  See id. <br>(defendant's alleged statements wrongly admitted even though <br>informant was specifically instructed not to initiate conversation <br>but was simply told to "be alert to any statements" made by <br>defendant); Hancock v. White, 378 F.2d 479 (1st Cir. 1967) (holding <br>that Massiah can be violated even though statements were procured <br>without any trickery or subterfuge). <br>  There is no question that Lozada's right to counsel had <br>attached by the time of his jailhouse conversation with Torres.  In <br>the typical case, the central controversy is over whether certain <br>statements were deliberately elicited or whether they were <br>spontaneously volunteered, always a fact-intensive inquiry.  Where <br>the witness acts only as a "passive listening post," permitting a <br>jury to consider the overheard statements might not trample a <br>defendant's right to counsel.  See Kuhlmann v. Wilson, 477 U.S. <br>436, 459 (1986) ("[T]he Sixth Amendment is not violated whenever   <br>by luck or happenstance   the State obtains incriminating <br>statements from the accused after the right to counsel has <br>attached") (quoting Moulton, 474 U.S. at 176); Henry, 447 U.S. at <br>276 ("Massiah does not prohibit the introduction of spontaneous <br>statements that are not elicited by governmental action") (Powell, <br>J., concurring).  The underlying rationale is that in such a <br>scenario a defendant should not be rewarded   and the government <br>penalized   for spilling the beans.  We bypass this usual analysis <br>here.  <br>  In this instance, the government has expressly conceded <br>on appeal that Torres "deliberately elicited" the incriminating <br>jailhouse statements from Lozada and that Torres was a government <br>agent for purposes of our Massiah analysis.  It argues only that <br>the error was harmless given the weight of the evidence against <br>him. <br>  We strongly disagree that admission of these statements <br>was harmless.  Constitutional error of this nature is harmless only <br>if it can be said "beyond a reasonable doubt that the error <br>complained of did not contribute to the verdict obtained."  Chapman <br>v. California, 386 U.S. 18, 24 (1967); see Milton v. Wainwright, <br>407 U.S. 371, 377-78 (1972) (applying reasonable doubt standard to <br>assess effect of Massiah violation).  This attempt to ascertain the <br>probable impact of the error requires us to weigh the quantum of <br>the government's evidence of guilt against the inherent gravity of <br>the miscue. <br>  The government tendered substantial evidence pointing <br>toward Lozada's guilt.  Several witnesses testified that he played <br>a prominent role in the transportation unit, and this testimony and <br>documentary evidence also revealed seemingly suspicious <br>circumstances casting a pall on his protestations of innocence.  <br>The prosecution's case was not, however, so one-sided that we can <br>fairly say that the damaging testimony provided by had little or no <br>effect on the jury's decision.  In addition, the harmless error <br>test is more stringent where an error of constitutional dimension <br>has infected the trial.  The government cannot surmount this <br>obstacle.  <br>  The government urges us to conclude that the <br>constitutional error likely had a de minimis effect because Lozada <br>supposedly asked Torres to shade his testimony only as to one <br>particular transaction, the implication being that evidence that <br>defendant selectively tampered with a witness did not necessarily <br>taint the entire proceedings.   <br>  This argument grossly underestimates the impact of the <br>jailhouse statements attributed to Lozada.  In all likelihood, the <br>mere suggestion that Lozada asked   or even worse, that he tried <br>to bribe   a material witness (and alleged co-conspirator) to alter <br>his testimony the night before he was to testify destroyed Lozada's <br>credibility, for a jury would reasonably presume that an innocent <br>man would have no reason to ask a witness to shade his testimony.  <br>Put another way, this bit of evidence strongly tended to show that <br>a guilty mind was at work.  Once heard, it could well have become <br>the colored lens through which the jury viewed all of the other <br>evidence.  <br>  Reversed and remanded for a new trial.  So ordered.</pre>

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