
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1099                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    DAVID CUDLITZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                           Selya and Boudin, Circuit Judges,                                             ______________                              and Lisi,* District Judge.                                         ______________                                 ____________________            Kimberly Homan  with  whom Sheketoff  &  Homan  was on  brief  for            ______________             ___________________        appellant.            Robert E. Richardson, Assistant United States Attorney, with  whom            ____________________        Donald K. Stern,  United States Attorney, was on brief  for the United        _______________        States.                                 ____________________                                   January 8, 1996                                 ____________________                                    ____________________        *Of the District of Rhode Island, sitting by designation.                 BOUDIN, Circuit  Judge.   David Cudlitz was  indicted in                         ______________            July  1993 and  charged  in four  counts, respectively,  with            conspiracy  to commit  arson, 18  U.S.C.    371, arson,  id              844(i),  mail fraud, id.   1341, and  use of fire to commit a                                 ___            felony, id.    844(h).  In substance,  the government alleged                    ___            that in  1992  Cudlitz,  in  order to  obtain  the  insurance            proceeds,  arranged  to  have  set on  fire  an  unprofitable            apartment building  he  owned at  7 Salisbury  Street in  New            Bedford, Massachusetts.  Cudlitz was tried by a jury in March            1994.                 At trial, the government  offered the testimony of three            individuals--Craig   Santos,   Harold  Burnham,   and  Daniel            Cornell--who in the summer and early fall of 1992 were living            as tenants at another apartment  building owned by Cudlitz in            New  Bedford located at 89  Austin Street.   These three, and            Cornell's brother  David Vieira, who also  testified, did odd            jobs  for Cudlitz  in the  various buildings  he owned.   All            except Burnham had criminal records, and Burnham drank a good            deal.                 Cornell testified that in late August or early September            1992, Cudlitz twice  asked Cornell to set  7 Salisbury Street            on  fire, but he (Cornell) refused.  Vieira testified that in            early  September Cudlitz  made similar  requests of  him and,            when he refused, asked whether Santos and Burnham would do it            and later  said he  was  going to  ask them  to  do the  job.                                         -2-                                         -2-            Vieira  also   testified  that  he  vandalized   one  of  the            apartments at Cudlitz' request prior to the fire.  Santos and            Burnham both testified that Cudlitz had requested them to set            the  fire  and that  they  had agreed  to  do  so for  $1,500            (according to Santos) or $1,000 (according to Burnham).                 Santos and Burnham testified that they did set  the fire            at 7 Salisbury Street  on the evening of September  18, 1992,            starting  it with gasoline spread  in the attic  and down the            back  stairs.  The  fire department put  out the  fire in the            attic, confining  the damage;  the fire captain  testified to            smelling  the odor  of a  flammable liquid.   There  was also            testimony  that  the  following  day  Cudlitz  complained  to            Burnham  and Santos  that they had  not done a  good job, and            that he then  set Vieira to vandalizing the third  floor of 7            Salisbury Street to increase the damage.                 Eventually,  Cudlitz collected  on insurance  claims for            both the  fire  and the  vandalism.   Thereafter, Santos  and            Burnham  moved into  7 Salisbury  Street but  were eventually            evicted by Cudlitz when  Santos stole some property  from the            basement.   Later Santos, interviewed in  connection with the            fire, admitted his role.   He and Burnham were  both indicted            with  Cudlitz,  although only  on  the  conspiracy and  arson            counts,  and  both  pled  guilty  in  exchange  for  possible            leniency for cooperating with the government.                                           -3-                                         -3-                 Cudlitz testified in his own defense.   He flatly denied            that  he had ever solicited either the arson or the vandalism            at 7  Salisbury Street;  he claimed  a net  worth of  over $1            million, although  he admitted  on  cross-examination that  7            Salisbury Street was not currently profitable because largely            vacant; and  he gave  testimony, described at  greater length            below, indicating that  he had not previously staged an arson            or  ever before filed an  insurance claim for  fire damage on            any property he owned.                 The  jury  convicted Cudlitz  on  all four  counts.   In            December 1994, Cudlitz  was sentenced to 36 months  in prison            on the first  three counts, and a  mandatory consecutive term            of 60 months on the  final count.  He now  appeals, conceding            the  sufficiency of  the evidence  but raising  several other            claims of error.   Three of them, all complicated,  relate to            questions allowed on cross-examination of Cudlitz; the others            concern the trial court's instructions.                                          I.                 Cudlitz asserts  first that the district  court erred by            allowing the prosecutor to cross-examine him about an alleged            prior  attempt  to  solicit  arson.    The  critical  set  of            questions, which the court permitted the prosecutor to ask in            three different  versions  and over  Cudlitz' objection,  was            whether  Cudlitz  had in  1991  solicited  one Ron  Wallace--            another tenant who  was then doing  odd jobs for  Cudlitz--to                                         -4-                                         -4-            burn down another one of Cudlitz'  buildings.  Cudlitz denied            doing so  and,  apart from  some follow-up  cross-examination            described below, the government made  no attempt to prove the            solicitation.                   The  rules  governing  this  subject--cross-examining  a            criminal  defendant about  prior wrongs--are  among the  most            complex and confusing  in the  entire law of  evidence.   The            main  reason is that they represent not a logical pattern but            a  series of ad hoc  accommodations arrived at  by the common            law  over the  course of  centuries in  dealing (differently)            with several  related problems.    Worse  still, the  Federal            Rules  of Evidence  have retained  the common  law structure,            with a few modifications, but expressed it in four  different            rules--Fed.   R.  Evid.   404,   405,   608  and   609--whose            relationship and content are not models of clarity.                 Cudlitz' main complaint is that there was no "basis" for            allowing the  questions in  dispute, but two  different bases            support the  questions.   Ordinarily,  the government  cannot            elicit  evidence of prior similar  bad acts to  show that the            defendant  has a propensity to  commit such acts  and is thus            more  likely to have committed  the crime now  charged.  Rule            404(a).  But this rule against so-called "character evidence"            by the  prosecutor is waived  where the defendant  chooses to            offer "good"  character evidence in  his own  defense.   Rule            404(a)(2).                                         -5-                                         -5-                 Cudlitz did  offer such  evidence here by  testifying on            direct  examination  that,  when  previously  faced  with  an            unprofitable  business venture,  he  had dutifully  paid  his            debts  and   had  not  had  any  fire   connected  with  that            enterprise, nor made a claim for insurance for fire damage on            any other of his properties.  In effect, Cudlitz was offering            evidence  of good  character by  showing, quite  pertinently,            that he lacked the propensity  to commit arson and  insurance            fraud in  inviting circumstances.  Under  Rule 404(a)(2), the            government  was therefore  entitled  "to rebut  the same"  by            seeking to elicit evidence of bad character.                 Cudlitz' good  character evidence  was improper in  form            since the rules limit the proponent to offering an opinion or            reputation   witness  rather  than   testifying  to  specific            instances  or events,  as  Cudlitz did  in  denying any  past            occurrence.    Rule 405(a).    But  the  detail  simply  made            Cudlitz' testimony more effective  for him.  The government's            attempt  to rebut  by asking  Cudlitz about a  specific prior            arson  attempt   was  within  the  rules;   for  "[o]n  cross            examination,  inquiry  is  allowable  into  relevant specific            instances of conduct."   Rule  405.  E.g.,  United States  v.                                                 ____   _____________            West, 58 F.3d 133, 141 (5th Cir. 1995).            ____                 Alternatively, the question as to the prior arson can be            justified  on  a  theory  of  impeachment  by  contradiction.            Before  asking  about the  specific  attempt  to solicit  Ron                                         -6-                                         -6-            Wallace to commit arson in 1991, the prosecutor asked without            objection whether Cudlitz had ever solicited anyone to commit            arson, and  Cudlitz said  that he  had not.   When  a witness            testifies to a fact, he may--subject to certain limitations--            be cross-examined to elicit testimony contradicting his prior            testimony  for the purpose of  showing that the  witness is a            liar  and should not be  believed.  United  States v. Havens,                                                ______________    ______            446 U.S. 620, 627 (1980);  United States v. Perez-Perez,  No.                                       _____________    ___________            94-1781, slip op. at 7 (1st Cir. Dec. 26, 1995).1                 The government and the  district court thought that this            theory  of  impeachment  is  reflected  in  Rule  608(b),  an            assumption that  is shared by  some courts.  But  Rule 608 is            centrally concerned  with character  for veracity, a  mode of            accrediting or discrediting the witness  that is based on the            same "propensity"  reasoning of Rule  404 but  is subject  to            quite  different  rules.   Rule  608  permits accrediting  or            discrediting  by   opinion  or  reputation   evidence  as  to            character   for  veracity,   Rule  608(a),  and,   on  cross-            examination  only, by  inquiry  into  specific  instances  of            conduct if  "probative  of truthfulness  or  untruthfulness."                    __            Rule 608(b).                                            ____________________                 1There   is   no  Federal   Rule  of   Evidence  labeled            "impeachment  by  contradiction"  but the  critical  point to            remember about those rules is that they treat selected topics                                                          ________            and even  then sometimes only  selectively.   Several of  the            most familiar  modes of impeachment  (e.g., bias,  prejudice,                                                  ____            interest, corruption) are never mentioned.                                         -7-                                         -7-                 At  common law,  the quoted  restriction was  not always            included, but Rule 608  deliberately narrowed type of conduct            allowed.  Thus, Cudlitz  might have been cross-examined under            Rule  608(b) as to prior instances of forgery or perjury; but            soliciting  arson, although showing  bad character generally,            is not "probative  of  . .  . untruthfulness."2  But  neither            does  Rule 608(b) prohibit the questions so long as they were            justified   on   another  basis.      Here,   impeachment  by                             _______            contradiction was such a legitimate basis.  Perez-Perez, slip                                                        ___________            op. at 6-7.                 Cudlitz objects  that  the  government  was  seeking  to            contradict  a denial  (of  prior solicitations)  that it  had            itself improperly elicited, a practice that we warned against            in  United States v. Ruiz-Batista, 956 F.2d 351, 352 n.1 (1st                _____________    ____________            Cir.), cert. denied, 113 S. Ct.  105 (1992).  It is true that                   _____ ______            the government's question on cross went marginally beyond the            scope of the direct.   But we think that the denial  of prior            solicitations  was very  strongly implied by  Cudlitz' direct            testimony,  denying  that  he  had  set fires  on  any  other            occasion.    The  government  may  have  sharpened  the  edge                                            ____________________                 2The government's response,  which is  not without  some            force,  is that arson may not impugn veracity; but that arson            in aid of insurance fraud would do so and that such fraud was            implicit  where  the  building  was owned  by  the  arsonist.            Compare  United States v.  Wilson, 985 F.2d  348, 351-52 (7th            _______  _____________     ______            Cir. 1993).  We need not resolve the issue here.                                         -8-                                         -8-            slightly but  Cudlitz himself  proffered the weapon.   United                                                                   ______            States v. Eaton, 808 F.2d 72, 75-76 (D.C. Cir. 1987).            ______    _____                 Cudlitz  asserts that  the  questions should  have  been            barred under Fed.  R. Evid.  403 because the  risk of  unfair            prejudice greatly  outweighed probative  value.  The  risk of            prejudice was certainly real  but, given Cudlitz' own attempt            to portray himself  as a businessman of upright character who            had never resorted to arson or insurance  fraud, allowing the            questions was not an abuse of the broad discretion enjoyed by            the  district judge.   United  States v.  Mateos-Sanchez, 864                                   ______________     ______________            F.2d  232, 235-36  (1st Cir.  1988).   Nor do  we agree  with            Cudlitz  that the evidence sought  to be elicited  was in any            way made superfluous by the direct testimony against him.                 Finally,   Cudlitz   appears   to   attack   the  prior-            solicitation question at its foundation.  As he suggests, the            government  surely knew  that  Cudlitz would  deny the  prior            arson solicitation; nor could  it offer extrinsic evidence to            prove the solicitation if  Cudlitz denied it.  United  States                                                           ______________            v.  Innamorati,  996 F.2d  456,  479 (1st  Cir.  1993), cert.                __________                                          _____            denied, 114 S. Ct. 1073 (1994).  An  observer might well join            ______            Cudlitz'  appeal brief  in asking  how it  could possibly  be            proper for the government to ask a prejudicial question  that            it knows will be answered  negatively, that cannot be pursued            with  extrinsic proof, and that serves only to suggest to the                                         -9-                                         -9-            jury (contrary to the  standard instruction) the fact implied            by the question.                 The only  answer is  that the cross-examination  of this            kind is part a system of checks and balances that the law has            developed  to  caution  a  credulous  jury  against  possible            perjury.    Thus,  while  the  question  may  be  asked,  the            government must on demand  supply a good faith basis  for the            question; the witness may  vigorously deny the suggestion and            explain the basis for  the denial; with rare exceptions,  the            government must accept the answer without offering  extrinsic            evidence;  and the  court  will normally  provide a  limiting            instruction.    With these  protections,  and  Rule 403,  the            defendant  must be  content.    As  Justice Jackson  said  in            Michelson v. United States, 335 U.S. 469, 486 (1948):            _________    _____________                 [M]uch of this law is archaic, paradoxical and full                 of  compromises  and  compensations  by   which  an                 irrational  advantage to  one side  is offset  by a                 poorly reasoned counterprivilege to the other.  But                 somehow  it has  proved a  workable even  if clumsy                 system  when moderated by discretionary controls in                 the hands of  a wise  and strong trial  court.   To                 pull  one  misshapen  stone  out of  the  grotesque                 structure  is  more  likely  simply  to  upset  its                 present balance  between adverse interests  than to                 establish a rational edifice.                                         II.                 The most troublesome issue  in the case arises out  of a            related but distinct series of  questions asked of Cudlitz on            cross-examination.   The  questions  began as  the prosecutor            laid the groundwork for asking Cudlitz whether he had earlier                                         -10-                                         -10-            solicited Wallace to set fire to 212 State Street.   He first            asked Cudlitz  whether one Joe Camara  had introduced Wallace            to Cudlitz at 212  State Street and Cudlitz responded:   "Ron            Wallace lived in the house.  He lived in --  he lived -- yes,            he did."                   The  prosecutor then  asked, "So  you knew  Ron Wallace,            correct?"  and  Cudlitz  replied,  "No,  I  didn't  know  him            really."  There followed some  questions aiming to show  that            Wallace had  done work at  the building for  Cudlitz; Cudlitz            said that he thought Wallace was helping Joe Camara clean out            the yard  at 212 State Street,  a task for which  Cudlitz was            paying Camara.  The  prosecutor then asked--over  objection--            "Had you  ever heard as of  that time [summer  1991] that Mr.            Wallace had been arrested on charges of arson?"                 Cudlitz said "no" and  the prosecutor then followed with            three questions, earlier mentioned, which in  substance asked            Cudlitz whether he had twice solicited Wallace to set fire to            212 State Street, whether one of these requests had been made            in  Camara's  apartment,  and  whether  Cudlitz  had  offered            Wallace $2,500 to do the job.  When  Cudlitz answered "no" to            each accusation, the prosecutor proceeded as follows:                 Q    Do you know where Ron Wallace it [sic] today, sir?                      MR. LEE:  Objection, please, your Honor.                      THE COURT:  Overruled.                 A    No, I don't.                                         -11-                                         -11-                 Q    Have you ever  heard that Ron Wallace  is                      down in Plymouth County --                      MR. LEE:  Objection, your Honor.                      THE COURT:  Overruled.                 Q    In the Plymouth House of Corrections?                 A    No, I didn't know that.                 Q    Did you  ever hear  that Mr.  Wallace had                      pled  guilty  to a  charge  of  arson and                      conspiracy to commit arson?                      MR. LEE:  Objection, please, your Honor.                      THE COURT:  Overruled.                 A    No, I haven't.                 Q    At no time have you ever heard that?                 A    No.                 On this appeal, Cudlitz says  that the cross-examination            as to  Wallace's whereabouts  and prior arson  conviction was            error.  The  government says it was  not.  It argues  further            that  at trial  Cudlitz  made no  specific  objection to  the                                              ________            questions--that is,  that the objections did  not state their            precise legal basis--so that the highly forgiving standard of            plain error  governs.   Finally the  government says  that if            error occurred  it was harmless, given  the cumulative weight            of  the evidence  against Cudlitz.   We  address these  three            issues in the same order.                                         -12-                                         -12-                 Resolving the first issue,  we conclude that this branch            of the cross-examination  should not have been allowed.   The            questions  on  their face  suggested  that,  at the  time  of            Cudlitz'  trial  in 1994,  Wallace  was then  serving  a jail            sentence  for arson  and conspiracy  to commit  arson.   This            suggestion in  turn lent credence  to the  far more  damaging            suggestion that in 1991 Cudlitz had solicited Wallace to burn            down  212 State Street.  Some jurors could have believed that            Wallace's current jail sentence was for the 1991 arson effort            allegedly involving  Cudlitz; others, that  at least  Wallace            was  an  arsonist and  so more  likely  than otherwise  to be            plotting arsons with Cudlitz.                 None  of  this might  matter  if  the questioning  about            Wallace's whereabouts  and arson conviction had  been proper.            But even  with time to  reflect, the  government offers  very            little  basis for the questions.   Its main  argument is that            Cudlitz,  in  the  lead-up  to the  disputed  questions,  was            seeking "to distance himself  from Wallace."  Therefore, says            the government, "it was  appropriate to find out  whether the            defendant at  least  knew Wallace  well  enough to  know  his            background," i.e.,  that he was charged  and later imprisoned                         ____            for arson.                 In fact,  Cudlitz admitted  at the  outset that  he knew            Wallace, that Wallace lived in his building and  that Wallace            was helping Camara on  a task that Camara was  performing for                                         -13-                                         -13-            Cudlitz.   True, Cudlitz implied that he did not know Wallace            well; but  the questions  about knowledge of  Wallace's arson            and jailing  would not have proved  a close acquaintanceship.            Far more important, the arguable but very slight relevance of            the  questions  can hardly  be  compared  to the  substantial            prejudice they were capable  of inflicting, so they certainly            could not have passed the test of Rule 403 on this excuse.                  The  government  also  says  that   "had  the  defendant            admitted to knowing Wallace well enough to know that he ended            up in custody  after pleading guilty  to arson charges,  that            would  have helped  to explain  why  the defendant  turned to            people such as  Cornell, Vieira, Santos, and  Burnham when he            decided to have the Salisbury Street property burned."  There            are  various  problems  with  this  explanation  but  one  is            sufficient.  Cudlitz  was asked  whether he knew  in 1991  of            Wallace's arrest and  his incarceration as of 1994; but there            was  no indication whether Wallace  was in jail  in 1992 when            the fire at Salisbury  Street occurred, and that is  the only            date relevant to the choice of accomplices.                 Defense  counsel  objected  to   virtually  all  of  the            questions at issue as to  Wallace's location and prior crimes            but gave no reason.  The government argues that the questions            are  therefore to  be  reviewed only  under  the plain  error            doctrine.   Fed.  R.  Evid. 103(a)(1)  does require  that the            specific ground be  stated, "if the  specific ground was  not                                         -14-                                         -14-            apparent  from the context."  Here, we think that the central            objections--arguable   irrelevance    and   certainly   undue            prejudice--were obvious.  Indeed, Cudlitz' counsel had  begun            the morning by making those objections to the more defensible            question about  Cudlitz' alleged  solicitation of Wallace  to            commit arson.                 Accordingly, we  think that  the questions at  issue are            fairly tested under the harmless  error doctrine, and not  by            the more  demanding requirements of  plain error.   Under the            harmless error doctrine, cf.  Kotteakos v. United States, 328                                     ___  _________    _____________            U.S. 750, 776 (1946), we are  instructed to ask whether it is            "highly probable" that  the error did not  "contribute to the            verdict."  E.g., United States v. Rullan-Rivera, 60 F.3d  16,                       ____  _____________    _____________            18-19 (1st Cir. 1995).  The  greater the likely impact of the            error,  the harder it is to  find harmless error; conversely,            the  greater the  weight of  the other  evidence  against the            defendant,  the less likely it  is that a  given error swayed            the jury.3                 Thus to frame the issue only compounds our dilemma.  The            evidence against Cudlitz was substantial: four witnesses said            that Cudlitz had solicited  them to set the fire;  and two of            them, Santos and  Burnham, said  they had done  so, and  been                                            ____________________                 3This gloss is hardly  a precise standard but Kotteakos,                                                               _________            while repeatedly  reaffirmed  as the  governing standard  for            claims for  non-constitutional error, e.g., United  States v.                                                  ____  ______________            Lane,  474 U.S. 438 (1986), has rarely been elucidated by the            ____            Supreme Court.                                         -15-                                         -15-            paid by Cudlitz.   The same witnesses, and the  girlfriend of            one of  them, testified  to incriminating statements  made by            Cudlitz after  the fire, and the  government offered evidence            of financial motive.   Further, at  the time they  admittedly            set  the fire,  Santos and  Burnham were  on good  terms with            Cudlitz; any hint of blackmail arose only later.                 But the  only four  real witnesses against  Cudlitz were            linked together;  each had a criminal  record except Burnham,            who  drank to excess;  and by  the time  of trial  Santos and            Burnham had multiple reasons for hostility.  Cudlitz took the            stand, flatly  denied the  allegations, and testified  to his            own  record  as  an  honest businessman  with  a  comfortable            financial  base.   There was no  hard evidence  that directly                                         __            inculpated Cudlitz.   The case  was in essence  a credibility            contest between Cudlitz and four quite dubious witnesses, who            told   generally   consistent    stories   but   with    some            discrepancies.                 Under these circumstances,  it would have  been easy--if            not strictly fair--for the jury to have given great weight to            the  suggestion that  Cudlitz had  previously sought  to have            Wallace burn down a different building he owned.  Of  course,            the  jury  was  told  that  the  lawyer's  questions  are not            evidence, although  not  contemporaneously.   But  the  sting            survives  such   instructions,  which  is   why  lawyers  ask            impeaching questions  that they  know  will produce  denials.                                         -16-                                         -16-            That  is just why the  government in this  case asked Cudlitz            whether in 1991 he had  asked Wallace to burn down  212 State            Street.                 If  that  line of  questions  had been  error,  we would                     ____            easily say  that it  was not harmless.   The jury  could well            have  had trouble deciding who to believe about the 1992 fire            for which  Cudlitz  was  on trial,  but  found  those  doubts            resolved  when it learned,  or thought  it had  learned, that            Cudlitz  had been  involved in  a 1991  attempt to  burn down            another  building by  employing  another tenant  as henchman.            Yet as the  questions that carried that implication  were not            error, we are left to ask what was added  to that implication                                               _____            by the related questions  at issue concerning Wallace's arson            conviction and jailing.       The  answer  is  impossible  to            quantify, but  we think that  the additional effect  may well            have  been more than trivial.   The case  being a credibility            contest, the  suggestion that Cudlitz  had previously engaged            in  the   same  conduct  was  quite   dangerous  to  Cudlitz,            especially  given his prior claim  to a blameless  past.  But            the  suggestion  was flatly  denied,  the  government had  to            accept the answer, and the jury  was to be told in due course            that the  statements of  lawyers  were not  evidence.   Quite            possibly, despite the detail in the questions about the prior            solicitation, the jury would in doubt have put the suggestion            aside.                                         -17-                                         -17-                 The doubt could  well have been  removed by the  further            suggestion  that  Wallace  had  actually  been convicted  for            conspiracy  and arson and was  now in jail  for those crimes.            Cudlitz  did not  deny  these  further  facts, but  only  his            knowledge of them; and the jury could fairly suppose that the            prosecutor  would   not  make  statements  as   to  Wallace's            conviction  and jailing without actual  knowledge.  By any of            several  inferences--we have already  given two examples--the            jury  could  have  thought  that  these  new  facts  made  it            substantially more likely that Cudlitz had solicited  Wallace            to commit an earlier arson.                 No one  knows what reasoning  the jury actually  used in            convicting Cudlitz,  nor have we any doubt  that a reasonable            jury  could have  convicted Cudlitz  on this  record even  if            Wallace's name had never been mentioned.  But the jury, which            deliberated for two  days, apparently did not view the matter            as open and shut.  And under  the harmless error doctrine, we            can uphold the conviction, in the teeth of an error preserved            by  a  timely  objection,  only  where we  think  it  "highly            probable"  that the  error played no role in  the conviction,            that is to  say, that  the result would  have been  identical            regardless of  the error.  Roullan-Rivera, 60  F.3d at 18-19.                                       ______________            Given the  potential impact of  the error, and  the questions            that the jury could  legitimately have about the government's            proof, we cannot with confidence so conclude in this case.                                         -18-                                         -18-                 It is a shame that a lengthy trial should now have to be            repeated  because of questions  totaling less than  a page of            transcript,  all of  which  resulted in  exculpatory denials.            But  impeachment  by  questions  about prior  crimes  can  be            devastating, and when the prosecutor embarks on their use, he            or she has  to take special  care to  keep the questions  and            devastation within bounds.  Doubtless the temptation to press            an advantage is harder to resist where,  as here, credibility            is the  key  to the  case  and "hard"  evidence of  guilt  is            absent.  But that is just why the harmless error argument has            failed in this instance.                                          III.                 We  address here,  and  in part  IV, several  additional            claims that--although not determinative of this appeal--could            affect the retrial.  Cudlitz next complains about  the cross-            examination of defense witness Albert Raposo,  a construction            contractor,  who testified  on  direct that  he had  provided            Cudlitz  with an estimate of the fire and vandalism damage at            the  Salisbury Street  building.   On  cross-examination, the            prosecutor  began to  question  Raposo about  whether he  had            offered Cudlitz advice  on how best to  create the appearance            of vandalism in order to collect insurance proceeds.  Defense            counsel objected  that no good  faith basis existed  for this            inquiry, but  after a bench  conference and proffer  from the                                         -19-                                         -19-            prosecutor the judge  allowed the  questions without  further            defense objection.                 The  relevant portion  of  the cross-examination  was as            follows:                 Q:   Did you ever give  Mr. Cudlitz advice  on                      how   to  cause  damage  to  7  Salisbury                      Street?                 A:   No, sir.                 Q:   Did you ever  give Mr. Cudlitz advice  on                      how  to  best  try  to  make--create  the                      appearance that vandalism had been done?                      MR. LEE:   Objection your honor.   May we                      approach the bench?                      THE COURT:  Yes.                      [BENCH CONFERENCE OMITTED]                 Q:   Mr.  Raposo,   did  you  ever   give  the                      defendant  advice on how  to cause damage                      in 7 Salisbury  Street to make  it appear                      that vandalism had been done there?                 A:   No, sir.                 Q:   Did you ever tell the defendant in  words                      or substance that  it wasn't enough  just                      to rip up  rugs, because that  might just                      look like something a tenant  had done in                      leaving the building?                 A:   No, sir.                 Q:   Did you ever tell  the defendant in words                      or  substance that to  collect money from                      the  insurance  company  you  had  to  do                      things like break plumbing fixtures?                 A:   No, sir.                 On appeal,  Cudlitz again  asserts lack of  a good-faith            basis  and,  in addition,  contends  that  no proper  purpose                                         -20-                                         -20-            existed for allowing  this line  of questions.   Because  the            defense  did not  renew  its good-faith  objection after  the            prosecutor's  proffer  and  the  trial  court's  ruling,  and            because  no  other  objections  were  raised  at  trial,  the            government  urges that we limit review to plain error.  Since            the lack of a good faith basis was the only ground offered by            Cudlitz for excluding  the questions, we  agree that this  is            the  standard   for  judging  any  other   objection  to  the            testimony.                 Here, the  government offers two  different grounds  for            permitting the questions,  assuming a good faith basis.   One            is  that  Cudlitz'  alleged  procurement of  vandalism  at  7            Salisbury Street was an issue in this case.  Vieira testified            that he was solicited to vandalize one apartment prior to the            fire  and another one afterwards when  the fire damage proved            inadequate, and  the government's case treated  the arson and            vandalism as part of the same effort to defraud the insurance            company.   The questions  to Raposo  were  pertinent to  this            showing, although  arguably they were well  outside the scope            of the direct (an objection not made by Cudlitz).                 Additionally, the government argues that these questions            were permissible under Rule  608(b) to impeach Raposo himself            by  showing  that he  had  participated  in insurance  fraud.            Here, the alleged  advice was  given by Raposo  for the  very            purpose of perpetuating such fraud, and thus was allowable in                                         -21-                                         -21-            the trial judge's discretion.   See Wilson, 985 F.2d  at 351-                                            ___ ______            52.   It  is not  clear to  us that  Raposo had  given direct            evidence that  the government needed to  impeach, but Cudlitz            did  not offer  such  an  objection,  which would  have  been            pertinent to  the trial court's exercise  of discretion under            both Rule 403 and Rule 608(b).                 In sum, reserving the question of a good faith basis, we            think that the district  court did not commit plain  error by            allowing the cross-examination.  Here, Cudlitz did not make a            general objection but a specific one--lack of good faith--and            the district court had no reason to think that other possible            lines of  objection were  being urged  by Cudlitz  as obvious            from  context.    Given  that  none  of  the  other  possible            objections is  clearly meritorious but only  arguable, we see            no  basis for  thinking  that any  plain  error, or  manifest            injustice,  occurred.   United States  v. Olano,  113  S. Ct.                                    _____________     _____            1770, 1777-779 (1993).                 Turning to the question  of good faith basis, the  issue            is  somewhat closer both as  to the standard  and the result.            Cudlitz'  counsel clearly  objected that  there was  no "good            faith basis for these questions," adding that counsel was not            aware  of   an  connection  between  Raposo   and  any  prior            government witness.  The government then explained its basis-            -that Vieira  had told the  government that  an associate  of            Cudlitz  named "Al" had been present with Vieira and had been                                         -22-                                         -22-            giving advice  on how to vandalize--Cudlitz'  counsel did not            argue further  the lack of a good faith basis but switched to            complaining  that no  such statement  had been  given to  the            defense.                 Both the  "merits" and  the standard  to apply  are thus            open  to dispute.    There is  a  pretty good  argument  that            something more than  a reference to "Al" was warranted before            allowing the government to ask a highly damaging question; it            would have been easy enough to have Vieira called to identify            Raposo  as "Al" outside the presence of the jury.  After all,            a  good faith basis is  a very important  safeguard to assure            that such  highly prejudicial questions,  if asked at  all in            the teeth of a likely denial, are not unfairly prejudicial.                                                  ________                 On  the  other hand,  the  district  judge enjoys  great            latitude  in  deciding whether  a  good  faith basis  exists.            United  States v. Ovalle-Marquez, 36  F.3d 212, 219 (1st Cir.            ______________    ______________            1994), cert. denied,  115 S.  Ct. 1322 (1995).   Perhaps  the                   ____________            result might  be different if Cudlitz'  counsel had protested            that the proffer was inadequate, explaining the basis for his            doubt  and urging  that at  the very  least Vieira  should be            summoned.   Here, however, the  trial judge got  no such help            and might  easily have thought that Cudlitz'  own counsel had            been satisfied by the proffer and was no longer disputing the            presence of a good faith basis.                                         -23-                                         -23-                 In all events, our  reversal of the convictions  in this            case on  other grounds  makes it unnecessary  to decide  this            "what  if" point definitively.  On any retrial, we think that            the government ought to make a somewhat stronger showing that            it has reason  to believe that "Al"  and Raposo are  the same            person.  We  do not say that we would  reverse on this ground            on   the  present  record.    But  the  issue  has  now  been            highlighted  clearly and if  Raposo is "Al,"  then a stronger            proffer  should be available,  a consideration  that deserves            some weight in determining how much of a proffer is enough.                                         IV.                 Cudlitz' remaining claims all  relate to the absence, or            alleged  inadequacy, of  cautionary instructions  relating to            the cross-examination of Cudlitz  and Raposo described in the            prior sections of this decision.  Cudlitz claims first that a            sua sponte  cautionary instruction should have  been given as            __________            to the  cross-examination of Cudlitz  regarding Ron  Wallace;            second, that  the final  instructions should have  included a            requested instruction that the "questions" of counsel are not            evidence; and finally that such a specific instruction should            have been given during the cross-examination of Raposo.                 As Cudlitz himself concedes, the general rule is that  a            trial judge need not give a cautionary instruction sua sponte                                                               __________            at  the  time  that  evidence  of  limited  admissibility  is            offered.  Fed. R. Evid. 105; United States v. De La Cruz, 902                                         _____________    __________                                         -24-                                         -24-            F.2d 121, 124 (1st Cir. 1990).  Here, the issue is not one of            evidence admitted  for a limited purpose; it is a matter of a            question not being evidence  at all.  But the  situations are            parallel, and  we think  that while a  cautionary instruction            would  plainly be  proper at  the time  that the  question is            asked and denied, its omission is not normally error where no            such contemporaneous instruction was requested.                 Cudlitz' argues  with some force that  a standard reason            why appeals courts do  not insist on such an  instruction sua                                                                      ___            sponte  is  the defense  counsel  may have  made  a strategic            ______            judgment not to  have the matter highlighted.   Here, Cudlitz            says,  this reason  has  no application  because his  defense            counsel  had objected  sharply  to  the cross-examination  as            highly prejudicial and the government had already highlighted            the cross-examination by  asking three  times over  questions            about Wallace's alleged solicitation by Cudlitz.                 We  nevertheless  reject  Cudlitz' broad-scale  position            because of the extraordinary importance we attach to the need            for  a  timely request.   No  one  who lacks  experience with            litigation can know  how many  things occupy a  judge who  is            superintending a fast-paced  criminal trial.  Nor  is it easy            to know without direct experience how sua sponte interference                                                  __________            from the trial judge can disrupt counsel's own strategy, even            when  the purpose  of the  judge is  to  help rather  than to            hinder.   It is for  these reasons  that we place  such great                                         -25-                                         -25-            stress  on the  presence  or absence  of  the request  for  a            contemporaneous instruction.                 It might  well be error in  some cases for the  judge to            fail to give a cautionary instruction at some point, but that                                                     __________            is  hardly the situation here.   The district  court told the            jury  at the  start that  the questions  of counsel  were not            evidence; and in his  final charge, the trial judge  told the            jury  that the statements  and arguments of  counsel were not            evidence.   United States v. Copelin, 996 F.2d 379, 384 (D.C.                        _____________    _______            Cir. 1993), relied upon by Cudlitz as authority for requiring            a  sua sponte  contemporaneous instruction, was  overruled by               __________            United States v. Rhodes, 62 F.3d 1449, 1454 (D.C. Cir. 1995).            _____________    ______                 In  the  case  of  Raposo's  cross-examination,  defense            counsel did ask for a contemporaneous instruction to the jury            that "the questions of counsel are not evidence."  This court            has said that the  "better practice" is to give  a cautionary            instruction  at the time.  United States v. Currier, 821 F.2d                                       _____________    _______            52, 56  n. 5 (1st  Cir. 1987).   Whatever one's faith  in the            capacity of  general instructions to offset harmful evidence,            the  chance that the instruction will do any good is enhanced            by offering the caution while the jury has immediately before            it the question or evidence it  is being told to disregard or            limit.                 Although on retrial the  district court should give such            a  contemporaneous instruction where requested, this omission                                         -26-                                         -26-            would  not standing alone cause  us to reverse  in this case.            The  district judge did  give the general  instruction at the            outset  and gave  a  somewhat similar,  although  incomplete,            instruction at the close; and any damage done by the  lack of            such an instruction  as to Raposo was dwarfed by the far more            damaging questions  as to  the Wallace solicitation  where no            such contemporaneous instruction was requested or given.                 Finally, on  retrial we encourage the  district court to            tell the jury, in  closing, that the "questions" of  counsel,            as well as their statements and  arguments, are not evidence.            Although an  objection was  properly lodged, we  are doubtful            that this  omission standing alone would comprise prejudicial            error, especially  in light  of the district  court's opening            instruction that questions of counsel  are not evidence.  But            given the importance of the government's cross-examination in            this case, we think that the district judge should on retrial            make  the  closing instruction  as  complete  as possible  by            including  a  specific  statement  that  the  "questions"  of            counsel are not evidence.                                         -27-                                         -27-                                      CONCLUSION                 The  judgment of  conviction is  vacated and  the matter                                                  _______            remanded for new trial.            ________                                         -28-                                         -28-
