
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2052                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  DANIEL D. TAVARES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Jose Antonio Fuste,* U.S. District Judge]                                              ___________________                                 ____________________                                        Before           Breyer, Chief Judge, Coffin and Campbell, Senior Circuit Judges,                   ___________                       _____________________              Torruella, Selya, Cyr, Boudin and Stahl, Circuit Judges.                                                        ______________                                 ____________________            Owen  S.  Walker  with  whom  Peter  B.  Krupp  was  on  brief for            ________________              ________________        appellant.            Michael  J. Pelgro, Assistant  U.S. Attorney,  with whom Donald K.            __________________                                       _________        Stern, United States Attorney, was on brief for appellee.        _____                                 ____________________                                   OPINION EN BANC                                 ____________________                                 ____________________                                    April 12, 1994                                 ____________________                                    ____________________        *Of the District of Puerto Rico, sitting by designation.               COFFIN, Senior Circuit Judge.  A jury found defendant Daniel                       ____________________          Tavares guilty of  being a  felon in possession  of a firearm  in          violation of 18 U.S.C.   922(g)(1).  The statute makes it a crime          for any  person "who has been  convicted in any court  of a crime          punishable by imprisonment for a term exceeding one year . . . to          .   .  .  possess  in  or  affecting  commerce,  any  firearm  or          ammunition."1  At  trial, defendant offered  to stipulate to  the          fact that he had such a prior conviction.  The prosecutor refused          to  accept the  stipulation.  On  the basis  of our  decisions in          United  States v.  Collamore, 868  F.2d 24  (1st Cir.  1989), and          ______________     _________          United States v. Donlon, 909 F.2d 650  (1st Cir. 1990), the court          _____________    ______          allowed the prosecutor to  introduce, in addition to the  fact of          the  prior conviction,  evidence of  its nature  -- larceny  of a          firearm.                 A  panel of  this court,  two members concluding  that under          Collamore and Donlon the  district court did not err  in allowing          _________     ______          the  government   to  reject  the  stipulation   and  one  member          concluding the  contrary,  unanimously agreed  that "the  precise          issue in our case was not the subject of a  focused discussion in          the prior decisions, that the issue is an important and recurring          one, and that en banc consideration of the issue is appropriate."          The  full court  accordingly  granted  rehearing and  entertained          further briefing and argument.  We now conclude that the district                                        ____________________          1Although the predicate  crime may  not be a  felony, the  common          reference which we adopt is a "felon-in-possession" offense.                                         -2-          court  abused  its discretion  in  permitting  the government  to          reject the offered stipulation.               We set forth only the facts essential for  understanding the          basic issue that concerns us.  The government's evidence at trial          indicated  that the  defendant was  involved in  three escalating          confrontations,  culminating  with a  shooting  incident, on  the          night  of  August  28-29,   1991,  at  a  Mashpee,  Massachusetts          apartment  complex.    The   first  two  confrontations  involved          acrimonious discussions in which  Tavares was accused of stealing          a  car radio.    The government  also  alleged that  Tavares  was          involved in a  third incident, in  which he  accosted with a  gun          another acquaintance  who had engaged  in a  discussion with  him          about the  radio theft,  and then  fired at  the outside of  this          individual's  apartment  building.     Damage  was  done  to  two          automobiles.                 Tavares was shortly thereafter seen running in a wooded area          and  arrested.   An  officer assisted  by  a police  tracking dog          subsequently  located  a  shotgun  and  rifle  in  nearby  woods.          Forensic evidence showed that the shotgun had fired shells  found          near  the damaged cars.  Tavares was convicted following a three-          day  trial.   As  noted earlier,  the  prosecutor was  allowed to          introduce evidence  that Tavares  had been  convicted of a  prior          crime,  larceny  of  a  firearm,  and  had  received  a  two-year          sentence.                 Our  first task is  to reexamine our two  cases on which the          district court relied, Collamore and Donlon, to determine whether                                 _________     ______                                         -3-          they remain  compelling authority.    As we  have indicated,  the          district  court determined  that it  was constrained  under these          cases to accord the  government the absolute right to  reject the          defendant's proffered stipulation.2                 In  Donlon, our more recent opinion, we dealt at length with                   ______          the  defendant's  claim  that   grand  jury  testimony  had  been          unlawfully admitted  at trial.  Then, as to a number of secondary          issues, we briefly indicated their disposition and our reasoning.          On the issue of  the government's right to introduce  evidence of          the nature of the predicate crime, we merely cited Collamore.  In                                                             _________          Collamore, decided  a year  earlier, the  question before  us was          _________          whether the court could  bifurcate a felon-in-possession trial by          requiring  the government to prove  the possession element of the          charge  before presenting to  the jury  proof of  the defendant's          criminal  record.   We  held  that  a court  may  not  do so  and          reversed.     We  observed  that  barring   the  government  from          presenting  any  evidence  of  a  prior  felony  in  a  felon-in-          possession  case effectively "eliminated  an essential element of          the  government's  case," 868  F.2d  at 27,  and  thus improperly          deprived the government of a jury trial on the crime  as charged,          id.  at 28.   In support  of our conclusion,  we added by  way of          ___          dictum  that  "even in  the face  of an  offer to  stipulate, the                                        ____________________          2  We note that the  court endeavored to  minimize any prejudice.          It  received into  evidence  a certified  copy  of Tavares'  1988          conviction,  but  did  not  permit  the government  to  read  the          document to the jury.   The court also repeatedly  instructed the          jury  that the evidence was  relevant only as  proof of the prior          felony element of the charge.                                         -4-          government  may  choose to  present  evidence on  the  one felony          necessary to prove the crime charged," id. at 28.                                                   ___               Although we stand by and reaffirm the proposition central in          Collamore,  that a  defendant may  not use  a stipulation  or any          _________          other procedural  device, including bifurcation,  to remove  from          his   felon-in-possession  prosecution  the  fact  of  his  prior                                                       ____          conviction, we  now realize upon reconsideration  that our dictum          rested on a  shaky foundation.  In Collamore, we  relied on three                                             _________          cases, two  from the Sixth  Circuit, United States  v. Blackburn,                                               _____________     _________          592 F.2d 300, 301 (6th Cir. 1979); and United States v. Burkhart,                                                 _____________    ________          545 F.2d 14, 15 (6th Cir. 1976); and one from the Eighth Circuit,          United States v. Bruton, 647 F.2d 818, 825 (8th Cir. 1981), which          _____________    ______          in turn ultimately relied upon United States v. Brickey, 426 F.2d                                         _____________    _______          680,  685-86 (8th  Cir.  1970).3   The  question in  Brickey  was                                                               _______          whether,  in  proving  the  crime  giving  rise  to  the  instant          prosecution, the government may be forced to accept a stipulation          ("a naked admission") in lieu of presenting a full picture of the          events and mind sets in question.       The defendant  in Brickey                                                                    _______          had been indicted  for mail fraud and sought to  stipulate to the          fact that  he had diverted funds so  as to exclude evidence about          his personal use of the money.   The Brickey panel found no abuse                                               _______          of  discretion  in the  trial  court's  refusal  to  require  the          government to  accept the  stipulation, and quoted  the following                                        ____________________          3  Burkhart and Bruton actually cited United States v. Smith, 520             ________     ______                _____________    _____          F.2d 544 (8th Cir. 1975), which, in turn, relied upon Brickey.                                                                _______                                         -5-          passage  from Parr v.  United States, 255  F.2d 86, 88  (5th Cir.                        ____     _____________          1958):               "It is a general rule that `A party  is not required to               accept a  judicial admission of his  adversary, but may               insist on proving the fact.'  31 C.J.S. Evidence   299,               p. 1068.  The reason for  the rule is to permit a party               `to  present to the jury a picture of the events relied               upon.  To substitute for such picture a naked admission               might  have the effect to  rob the evidence  of much of               its fair and legitimate weight.'"          426 F.2d at 686.               Brickey,  the sole  underpinning of  the cases  on  which we               _______          relied in Collamore, is critically different from the case before                    _________          us.    While  the  stipulation  there  concerned  facts  directly          relevant  to the  instant crime,  the case  before us  involves a          stipulation to  facts establishing  only the  defendant's status.          This  difference  is  so  significant  that  we  no  longer  deem          Collamore's dictum to be compelling in cases such as this.          _________               As  we now reconsider the issue fully, we begin our analysis          by  reiterating its  limited  scope.    A  decision  to  honor  a          stipulation  concerning   the  predicate  crime  in  a  felon-in-          possession  case in  no  way  trenches  upon  the  right  of  the          prosecution to  make a full  presentation of the  crime currently          charged.  We fully concede the government's "right to `present to          the jury a picture of the  events relied upon,'" United States v.                                                           _____________          Doherty, 675 F. Supp. 714, 717 (D. Mass. 1987), aff'd in part and          _______                                         _________________          rev'd in  part, 867 F.2d 47  (1st Cir. 1989),  including proof of          ______________          all  elements of  the  crime for  which  the defendant  has  been          brought to trial.   The prosecution ordinarily may not  be forced          to  eliminate  gruesome details  of  a killing,  the  quantity of                                         -6-          drugs, or the  degree of malevolence  exhibited by the  defendant          through a defense-proffered stipulation.               This well-established right of the government to present its          case  as it  sees fit is  in no  fashion weakened  by requiring a          stipulation  to establish the defendant's status as a felon.  The          status  element is  a discrete  and independent component  of the          crime,  a requirement  reflecting  a  Congressional  policy  that          possession  of a  firearm is  categorically prohibited  for those          individuals  who have  been  convicted of  a  wide assortment  of          crimes calling for a punishment of over a year's imprisonment.  A          defendant  falls within  the category  simply by  virtue of  past          conviction  for  any  crime  ranging  from  possession  of  short          lobsters,  see 16 U.S.C.    3372, to the  most aggravated murder.                     ___          The predicate  crime is  significant only to  demonstrate status,          and a full picture of that  offense is -- even if not prejudicial          -- beside the point.               This is  not a situation in  which there is only  one way to          prove this status, e.g., by  the full record conviction including          the nature of the offense.  Other ways include a redacted record,          testimony by  a clerk,  stipulation, a defendant's  affidavit, or          even, in the absence of controversy, judicial notice of the prior          conviction.    None of  these  alternatives  is  tainted  by  the          inclusion of the prejudicial information.               The  government suggests  that, beyond  establishing status,          the predicate crime serves to crystallize  the culpability of the          defendant  as a serious offender.   It asserts  that knowledge of                                         -7-          the nature of the predicate crime in this way bears on the jury's          ability  to  evaluate  the  defendant's guilt  on  the  felon-in-          possession charge, and thus is relevant to its deliberations.               We fail to see  this connection.  Relevant evidence,  we are          told  by Federal Rule of Evidence 401, "means evidence having any          tendency to make the existence of any fact that is of consequence          to the determination of the action more probable or less probable          than  it would  be without  the evidence."   The  fact concerning          defendant's  prior criminal  record that    922(g)(1)  explicitly          makes  "of consequence" is whether it includes a crime carrying a          penalty of more than a year's imprisonment.   It does not embrace          additional facts such as  a particular kind of felony.   Congress          required no  gradation for  seriousness,  numerosity or  recency,          although  such distinctions  have  in other  contexts been  given          significance.  See, e.g.,  18 U.S.C.   924(c) (penalizing  use of                         ___  ____          firearm in connection with crime of  violence or drug trafficking          crime);   924(e)(1)  (increasing firearms possession penalty  for          defendant convicted  of  multiple violent  felonies or  "serious"          drug offenses).               In effect,  we understand the government  to claim relevance          in revelation of a crime that is particularly egregious (murder),          socially   opprobrious   (pornography),  systemically   dangerous          (organized  crime),  or  similar  to the  crime  occasioning  the          present prosecution  (possession of firearms).  It is, of course,          highly  likely  that such  evidence  would  influence the  jury's          perception of the  defendant, suggesting that he is  a sufficient                                         -8-          threat  to society  to  warrant additional  incarceration.   Such          information,  however,  has no  tendency  to  make more  or  less          probable the existence of  the fact of a prior  conviction, which                                     ________          is  the only information that  Congress has deemed of consequence          concerning the defendant's criminal record.  And  it is precisely          the   tendency  of   such  evidence   to  prejudice   the  jury's          deliberations that makes it suspect.               Moreover, the government's right  to introduce the nature of          a particularly prejudicial prior felony  would have to be matched          by  the defendant's  right to introduce  evidence that  his prior          conviction was for a technical, nonviolent or white collar crime.          In such a  case, the jury might tend  to minimize the defendant's          culpability and  be less  inclined to  impose the severe  penalty          associated with a felon-in-possession  conviction.  This would be          no  more appropriate  than  the reverse  tendency.   Either  way,          Congressional  policy  would  be  subverted.   The  neutral  role          intended to be played by the prior felony element  of   922(g)(1)          would be replaced by a two-tier system of guilt determination.               Additionally, because the nature  of the predicate felony is          wholly  unrelated  to the  crime for  which  the defendant  is on          trial, excluding the extraneous information concerning its nature          should create no burden  for either the court or  the government.          The defendant's unadorned stipulation could  be read to the  jury          or,  if   the  government  preferred,  a   redacted  judgment  of          conviction  could  be introduced  into  evidence.   Severing  the                                         -9-          admissible  evidence from  the  inadmissible  thus would  require          neither sensitive nor difficult judgments.               We have focused here only on the kind of case represented at          bar, where there  exists no reason,  other than the  government's          desire  to  color  the   jury's  perception  of  the  defendant's          character,  for revealing  the  nature of  the defendant's  prior          felony.    Although we  cannot now  conceive of  circumstances in          which  the  probativeness  of  the facts  surrounding  the  prior          conviction  would outweigh  the prejudice  to the  defendant from          admission  of  those  details,  there may  be  permutations  that          presently escape our vision.  We therefore  do not announce a per          se rule  of  exclusion.    Even in  such  unusual  circumstances,          however,  evidence beyond  the fact  of the  prior  conviction is          inadmissible  absent  adequate  trial  court  findings  that  its          noncumulative relevance is sufficiently compelling to survive the          balancing test of Fed. R. Evid. 403. ("[E]vidence may be excluded          if  its probative value is substantially outweighed by the danger          of unfair prejudice . . . .").                 Our conclusion on this issue is supported by a  considerable          number,  though not  all, of  the other  circuits.   The Eleventh          Circuit applies  the same abuse  of discretion  standard that  we          adopt today.  See United States v. O'Shea, 724 F.2d 1514, 1516-17                        ___ _____________    ______          (11th Cir.  1984).  The D.C. Circuit also has held in a felon-in-          possession  case that  "the Government's  right to  introduce its          proof is always subject to the trial court's responsibility under          Fed. R.  Evid.  403 to  limit  unduly prejudicial  or  cumulative                                         -10-          evidence."  See  United States v. Dockery, 955  F.2d 50, 54 (D.C.                      ___  _____________    _______          Cir.  1992).   And the  Fifth and  Tenth Circuits  similarly have          recognized  the  district  court's  authority to  decide  on  the          admissibility of  prior crimes  evidence.   See United States  v.                                                      ___ _____________          Brinklow,  560 F.2d 1003,  1006 (10th Cir.  1977) (case involving          ________          interstate  transportation of  explosives by a  convicted felon);          United States v. Spletzer,  535 F.2d 950, 955-56 (5th  Cir. 1976)          _____________    ________          (case involving escape).               The   Second  and   Fourth  Circuits   affirmatively  reject          admission of  evidence concerning the nature of  the prior crime,          see United States  v. Gilliam, 994 F.2d  97, 103 (2d Cir.  1993);          ___ _____________     _______          United States v. Poore, 594 F.2d 39, 41-43 (4th Cir. 1979), while          _____________    _____          panels in both the Ninth and Seventh Circuits have signalled that          it is within a court's discretion to accept a defense stipulation          to  the fact of a  prior felony conviction,  see United States v.                                                       ___ _____________          Barker, 1 F.3d 957, 959 n.3  (9th Cir. 1993) (underlying facts of          ______          prior  conviction  irrelevant); United  States v.  Pirovolos, 844                                          ______________     _________          F.2d 415, 420 (7th Cir. 1988) (defense's proffered stipulation to          prior felony sufficient).  But see United States v.  Breitkreutz,                                     ___ ___ _____________     ___________          8  F.3d 688,  692 (9th  Cir. 1993)  (rejecting stipulation  as an          alternative  form  of  proof  and  noting  "the  rule   that  the          prosecution  has  a right  to refuse  a  stipulation").4   On the                                        ____________________          4  In  concurring in  Breitkreutz,  Judge Norris  noted  that the                                ___________          majority's  assumption that the nature of  the past conviction is          relevant in a    922(g)  prosecution conflicted with  Barker.   8                                                                ______          F.3d at 693.                                         -11-          other  side,   as  noted  earlier,  are  the   Sixth  and  Eighth          Circuits.5                 We  want to be  crystal clear about what  we are not saying.          First, we  are not saying  that the fact  of the prior  predicate                                              ____          felony  can be  kept  from the  jury.   Second,  the  prosecution          ordinarily cannot be forced to accept a stipulation if it prefers          to introduce a  judgment of  conviction properly  redacted.   The          trial court would retain the discretion, however, to exclude this          document  if the nature or  number of redactions  would invest it          with  prejudicial  overtones.    In   some  circumstances,  where          documentary evidence is unavailable, properly  circumscribed oral          testimony would be permissible.                 Third, in  response to the government's  apprehension that a          defendant might, in closing argument or otherwise, insinuate that          the   prior   felony  conviction   was   benign,   we  note   the          inappropriateness of  limiting our  options based upon  a concern          that  counsel irresponsibly  would contrive  to abuse  our chosen          procedure.  We add that any  such conduct would be subject to the          trial court's sanctioning power.  We have every confidence in the          court's  ability to  convey  in neutral  fashion both  Congress's          determination that  any prior felony provides  a sufficient basis          for  subsequent punishment  for possession  of firearms,  and the                                        ____________________          5 The decision of the Third Circuit in United States v. Williams,                                                 _____________    ________          612  F.2d 735,  740 (3d  Cir. 1979),  also facially  supports the          government's position.  The  stipulation at issue there, however,          concerned  the  fact of  the prior  conviction, and  the decision                          ____          therefore  simply may  reflect agreement  with our  conclusion in          Collamore  that  a   defendant  may  not  modify  a   statute  by          _________          eliminating one of its elements from the jury's consideration.                                         -12-          jury's obligation to  accept that judgment  and not speculate  on          the nature of the earlier crime.               Fourth,  we  acknowledge   that  in   some  cases   evidence          concerning the nature  of the prior conviction will be admissible          for impeachment or other reasons,  despite its lack of  probative          value on the prior conviction element of the crime.   See O'Shea,                                                                ___ ______          724 F.2d at 1516-17.               Finally, we reject the notion that the course we set here is          a  risky one,  setting  the stage  for  similar reasoning  to  be          applied  in contexts  where greater  hazards might  lie.   In the          first place, a stipulation to a defendant's  status as a felon is          easily and  obviously distinguishable from those  relating to his          actions or state of mind in committing the crime.   In the second          place,  the  evidence  we  exclude  has  no legitimate  claim  to          relevance.   In the third  place, the unnecessary  risk of unfair          prejudice  looms as clear and  likely in this  context.  Finally,          our  holding allows the  trial court to  recognize and articulate          any special circumstances justifying admission of evidence of the          nature of the predicate offense.               In  this  case, the  government  has  added the  claim  that          admitting  evidence of  the  nature of  the  predicate crime,  if          error, was harmless.   We  cannot agree.   The government's  case          rested heavily on the testimony of two witnesses, Blake and Hunt,          who identified Tavares as  the gun-wielding assailant.  Tavares's          defense strategy  relied on challenging the  credibility of these          witnesses  and  suggesting  that  the  actual  perpetrators  were                                         -13-          connected  to Blake's  drug dealing.   The fact  that defendant's          prior conviction  involved the unlawful acquisition  of a firearm          could  not help  but  influence the  jurors' attitude  toward his          claim  that, this  time, someone  else had the  gun.   See United                                                                 ___ ______          States v. Torres,  610 F.  Supp. 1089, 1093  (E.D.N.Y. 1985)  (in          ______    ______          felon-in-possession  case,  evidence  of  prior  convictions  for          manslaughter  with a gun and  illegal possession of  a gun "would          surely prejudice almost any jury, no matter how conscientious").               Adding to our conviction  that the error was harmful  is the          fact that two close evidentiary points were resolved against  the          defendant, resulting  in  admission of  other  prejudicial  facts          about his criminal disposition.   Over defendant's objection, the          court allowed testimony from  a witness who claimed to  have seen          defendant  steal the  car radio  and testimony  about defendant's          destructive behavior at the police station after his arrest.               Whether or  not this  evidence was properly  allowed,6 there          is  little  doubt  that  the  inadmissible  testimony  concerning          Tavares's  prior felony added fuel to an already brewing fire and          increased  the   risk  that   the  jury  drew   upon  defendant's          disposition in reaching its verdict.   In these circumstances, we          cannot say that "it is `"highly probable"' that the error did not                                        ____________________          6 Both the eyewitness testimony explicitly identifying Tavares as          the  radio  thief  and  the testimony  about  defendant's  police          station behavior  create some risk of  injecting unfair prejudice          for  the  defendant  without  adding significant  weight  to  the          prosecution's case.  If the government seeks to re-introduce this          evidence in a  new trial, we  urge the district court  to "remain          vigilant" as to whether  it survives the Rule 403  balancing, see                                                                        ___          United States v. Williams, 985 F.2d 634, 638 (1st Cir. 1993).          _____________    ________                                         -14-          contribute to  the verdict," United States v.  Figueroa, 976 F.2d                                       _____________     ________          1446, 1455 (1st Cir. 1992) (citations omitted).               The  judgment of  conviction is  therefore VACATED,  and the               ____________________________________________________________          case remanded to the district court for a new trial.          ____________________________________________________                                             Concurrence follows.                                         -15-               SELYA,  Circuit Judge,  with whom  Campbell, Senior  Circuit                       _____________                        _______________          Judge, joins  (concurring).   I write  separately, not  because I          _____          harbor reservations  about the result  reached in this  case, but          because I  fear that the court's  opinion may be read  by some to          recalibrate the balance  that Fed. R. Evid. 403 demands.   I have          three qualms.               First:    I  think   that  the  court,  in   endeavoring  to               First:               _____          distinguish  between the fact of a prior conviction and the basic          facts  necessary to  give  that conviction  content, suggests  an          uncomfortably cramped    and somewhat artificial    definition of          relevance.    In my  view, the  disputed  evidence is  relevant            albeit perhaps marginally so   but nonetheless inadmissible under          a proper application of Rule 403.               Second:  I question the court's approach to Rule 403 in this               Second:               ______          situation.  The rule  does not state, nor should  it be construed          to  mean, that prejudicial evidence may be admitted at trial only          if  its  harmful  effect   is  substantially  outweighed  by  its          relevance.    Rather,  the   presumption  works  the  other  way,          mandating  the admissibility  of  relevant evidence  unless  good          reason  appears for its exclusion.   See United  States v. Foley,                                               ___ ______________    _____          871  F.2d 235,  238 (1st  Cir. 1989).   The  court here  seems to          reverse  this  presumption, see,  e.g.,  ante at  8,  10, thereby                                      ___   ____   ____          putting the shoe on the wrong foot.               Third:  I  fervently believe  that the Rule  403 balance  is               Third:               _____          best  struck on  a case by  case basis,  and that,  in almost all          instances, the  strikers of  the balance should  be the  district                                         -16-          courts as opposed to the court of appeals.  See, e.g., Freeman v.                                                      ___  ____  _______          Package Mach. Co.,  865 F.2d  1331, 1340 (1st  Cir. 1988)  ("Only          _________________          rarely    and in extraordinarily compelling  circumstances   will          we, from the vista of a cold appellate record, reverse a district          court's on-the-spot judgment concerning the relative weighing  of          probative  value and  unfair  effect.").   I  worry that  today's          opinion undervalues  this discretion and that  the court's words,          though correct in the context of the case before us, may be taken          by  some as  a command that  will prompt  the district  courts to          micro-manage trials and thereby dispense justice of a superficial          variety  (which  is to  say, dispense  injustice).   In  the last          analysis,  a trial is not  an exercise in  computer science, but,          rather,  a   recreation  of   flesh-and-blood   events  for   the          edification of the factfinder.   The law is not so fastidious  as          to demand  that all taste  be squeezed from  a piece of  evidence          before a jury  can chew on  it.  To  the contrary, although  "[a]          controlled environment for the reception of proof is essential, .          . . an artificially sterile  environment is neither necessary nor          desirable."   Wagenmann  v. Adams,  829 F.2d  196, 217  (1st Cir.                        _________     _____          1987).               In sum,  while I  agree that this  is the rare  situation in          which evidence, though relevant, is unfairly prejudicial and must          be excluded, and while I share many of Judge Coffin's sentiments,          I think the district  courts would be well  advised to avoid  any          attempt  to  extrapolate a  general rule  from the  court's case-          specific holding.                                         -17-
