February 12, 1993

                  UNITED STATES COURT OF APPEALS
                      For The First Circuit
                                           

No. 92-1858

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                    OLGIVIE O'BRIEN WILLIAMS,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. John J. McNaught, U.S. District Judge]
                                                      

                                           

                              Before

                     Torruella, Circuit Judge,
                                             
                  Coffin, Senior Circuit Judge,
                                              
                     and Cyr, Circuit Judge.
                                           

                                           

  James L. Sultan for appellant.
                 
  Robert L.  Ullmann, First  Assistant U.S. Attorney,  with whom  A.
                                                                    
John Pappalardo, United States Attorney, was on brief for appellee.
             

                                           

                        February 12, 1993
                                           

     COFFIN,  Senior Circuit  Judge.   Defendant Olgivie  O'Brien
                                   

Williams  appeals  his conviction  on  charges  of conspiracy  to

possess  cocaine  with intent  to distribute,  possessing cocaine

with intent to distribute,  and using or carrying a  firearm in a

drug trafficking crime.  We affirm.

                                I.

     We begin  with a brief synopsis  of the facts,  taken in the

light most supportive of the verdict, United States v. Karas, 950
                                                            

F.2d 31, 35 (1st Cir. 1991), and the prior proceedings.

     From December 1986  to April 1987,  Williams and eleven  co-

conspirators participated  in  a cocaine  distribution scheme  in

Boston.  They operated  a packaging center and retail  outlets in

three  apartments.   On  March 5,  1987,  at the  Westmore Street

outlet, the conspirators caught Herbert  Beeche, a tenant in  the

building,  spying  on  them as  they  were  weighing  cocaine and

tallying their profits.   That night, Beeche was summoned  to the

conspirators'  apartment.   Williams accused  Beeche of  being an

informer  and threatened  to  kill  him.    Williams  and  a  co-

conspirator  bound  and  gagged  Beeche  and  placed  him  in the

bathtub.  Williams then shot Beeche in the thigh.

     Later that month, the Boston police executed search warrants

at  two of the conspirators'  outlets.  The  searches uncovered a

small  quantity of  cocaine,  drug  paraphernalia, firearms,  and

ammunition.  Eight of the conspirators ultimately were arrested.

     Williams  and  six  co-conspirators were  tried  jointly  in

1988.1   At  trial,  the government  presented  the testimony  of

Beeche  and Lisa Gray, a  girlfriend of one  of the co-defendants

during part of  the conspiracy.   Both witnesses testified  about

the drug preparation and transactions  they had witnessed at  the

various  outlets  and  stated that  they  had  seen  many of  the

conspirators,   including   Williams,   routinely  carrying   and

displaying firearms during these transactions.  

     The  jury convicted  Williams  on all  three counts  against

him.2  Williams raises two claims  on appeal:  that testimony  at

trial was admitted  improperly against him and  that the district

court  improperly limited  his  cross examination  of  Gray.   We

discuss each issue in turn.

                               II.

     Williams contends that the district court permitted the jury

to hear evidence from Gray of  past conduct that should have been

                    

     1   One of the six co-defendants received a severance during
trial and later pleaded guilty to the one count against him.  All
five of the remaining co-defendants also were convicted, and four
of  them  appealed.   This  court affirmed  their  convictions in
United States v. Walters, 904 F.2d 765 (1st Cir. 1990).  Williams
                        
raises  issues  on appeal  that  were  not advanced  in  Walters.
                                                                
Another conspirator, who was tried separately, also was convicted
and had his  conviction affirmed.   United States  v. Green,  887
                                                           
F.2d 25 (1st Cir. 1989).  

     2  Williams's trial counsel  indicated at sentencing that he
would  file a notice  of appeal but  did not.   In 1991, Williams
filed  a habeas  corpus petition in  district court,  seeking, in
                       
effect, the right to  appeal his conviction.   On June 11,  1992,
Williams's prior  judgment was vacated and  his original sentence
re-imposed.  Williams's new counsel then filed a timely notice of
appeal.  

                               -3-

excluded  under Fed. R. Evid.  404(b).3  Gray  testified that, in

December 1986, Williams had told her that "he had killed a couple

of people."   Tr. Vol.  III at 66.   Following a  lengthy sidebar

conference, the  district  court admitted  the  evidence  without

explanation.   Williams argues  that the  sole purpose  of Gray's

testimony, especially in light of its repetition to the jury, id.
                                                                

at 107, was to demonstrate that he had a bad character which made

him  more likely to  commit the drug-related  offenses charged in

the indictment.  

     This  court  has adopted  a  two-part test  to  analyze Rule

404(b)  evidence.  United States v. Nickens, 955 F.2d 112, 123-24
                                           

(1st Cir. 1992);  United States v. Oppon, 863  F.2d 141, 146 (1st
                                        

Cir. 1988).  First, the district court must determine whether the

evidence has any "special relevance" to a material issue, such as

motive,  intent, or plan.   Nickens, 955 F.2d at 123.   If so, it
                                   

must  determine,  pursuant to  Fed.  R. Evid.  403,4  whether the

                    

     3  Rule 404(b) provides:

     Evidence  of  other  crimes,  wrongs, or  acts  is  not
     admissible to  prove the character of a person in order
     to  show  action  in  conformity therewith.    It  may,
     however,  be  admissible for  other  purposes,  such as
     proof  of  motive,  opportunity,  intent,  preparation,
     plan, knowledge,  identity,  or absence  of mistake  or
     accident.

     4  Rule 403 provides:

     Although  relevant,  evidence may  be  excluded  if its
     probative  value  is  substantially  outweighed  by the
     danger of unfair prejudice, confusion of the issues, or
     misleading  the jury,  or  by  considerations of  undue
     delay,  waste  of  time,  or  needless  presentation of
     cumulative evidence.

                               -4-

probative value  of the  evidence  outweighs the  risk of  unfair

prejudice.  Id. at  124.  We review the district court's decision
              

to admit the evidence for  abuse of discretion.  Karas, 950  F.2d
                                                      

at 36; Walters, 904 F.2d  at 768.  Having done so,  we agree with
              

Williams that the evidence was admitted improperly.

     At trial, the government  virtually admitted that it offered

the statement for its  value as evidence of  criminal propensity.

During  the sidebar  conference, the  government argued  that the

statement  was relevant  because  Williams  and a  co-conspirator

"talk  about how bad they  are.  How  tough they are."   Tr. Vol.

III. at 70.   In essence, the government offered the  evidence so

that the jury would  infer that, because Williams was  or claimed

to  be a  murderer, he  was more  likely than  not also  to be  a

cocaine  trafficker who uses  guns in his  business.   The use of

"other  acts"  evidence  to demonstrate  criminal  propensity  is

specifically forbidden by Rule 404(b).  Accordingly, the district

court erred in admitting the statement.

     On appeal,  the  government characterizes  the  evidence  of

Williams's prior wrongdoing as evidence of his plan to  establish

and operate a cocaine distribution business by means of his modus
                                                                 

operandi  of  intimidation.    Gray earlier  had  testified  that
        

Williams unsuccessfully had offered her mother double rent for an

apartment  located   near  the  Westmore  Street   outlet.    The

government  claims  that  Williams's  revelation that  he  was  a

murderer is admissible under Rule 404(b) to illustrate his use of

                               -5-

both  "carrot" and "stick" to  locate an apartment  from which to

sell cocaine.  

     Neither  the law  nor the  record supports  the government's

argument.  Evidence  of modus operandi  is admissible under  Rule
                                      

404(b) to  prove  identity, see  generally 22  C.A. Wright,  A.R.
                                          

Miller, &amp;  E.H. Cooper, Federal Practice and Procedure ("Wright &amp;
                                                      

Miller")   5246, at  512-13 (1978), but identity is  not disputed

in  this case.5    Moreover, at  trial,  the government  made  no

effort to link the "carrot" and the alleged plan to the "stick."

     The manner  in which the government  conducted Gray's direct

examination manifests the disjunction between the attempt to rent

an apartment  from her mother  and Williams's statement  to Gray.

After eliciting  testimony  regarding  the  failed  attempt,  the

government switched to a line  of questions regarding the  Nelson

Street outlet.   It next solicited the in-court identification of

two co-conspirators.  Only  then did it begin the  exploration of

Williams's and some of the other conspirators' backgrounds, which

produced   the  other-acts  evidence.     Having  introduced  the

challenged statement, the  government did not  connect it to  the

attempt to  rent an apartment.  Nor  did it suggest that Williams

had made the statement to intimidate  Gray or her mother or  that

                    

     5  Even were identity disputed, the government's position is
untenable.   For conduct to be characterized as a modus operandi,
                                                                
it generally must be "`so unusual and distinctive as to be like a
signature.'"   22 Wright &amp; Miller at 513 (quoting C.T. McCormick,
Evidence    190,  at  449  (1972)).    On  this  record,  neither
        
Williams's boast of committing or actual commission of  murder is
so  distinctive a  device as  to prove his  identity as  the drug
trafficker in this case.  

                               -6-

Gray's mother even knew of the statement.  Indeed, the government

did not place the evidence into any context, other than temporal,

related to the development or operation of the drug conspiracy.

     The  finding  of  error  does  not,  however,  conclude  our

inquiry.  We still must determine whether the error was harmless.

Karas, 950  F.2d at 37-38.  We hold that it was.  Having reviewed
     

the entire record and considered the probable impact of the error

on  the minds of the  jurors, we conclude  "`with fair assurance,

after pondering all that happened without stripping the erroneous

action  from the  whole,  that  the  [jurors'] judgment  was  not

substantially swayed by the error.'"  United States v. Burke, 948
                                                            

F.2d 23, 27 (1st Cir. 1991) (quoting United States v. Mazza,  792
                                                           

F.2d  1210, 1216-17 (1st Cir.  1986) (quoting Kotteakos v. United
                                                                 

States, 328 U.S. 750, 765 (1946))).  
      

     Williams's possible  status as a murderer was offered to the

jury through other properly  admitted evidence.  Beeche testified

without  objection that he, too, knew that Williams claimed to be

a  murderer.   Gray  testified that  she  had overheard  Williams

threatening  to kill  a  co-conspirator when  money from  cocaine

sales  began to  come  up short.    Under the  circumstances,  we

conclude  that the admission of Williams's  statement to Gray had

little prejudicial impact on the jury's judgment.

     Furthermore,  the record  contains ample  evidence to  prove

Williams's  involvement in a drug conspiracy and use of a firearm

in connection with it.   Beeche testified that Williams  shot him

in the thigh for being an informer.  Gray testified that Williams

                               -7-

was responsible for delivering cocaine to the retail outlets  and

collecting the  proceeds.   Both Gray  and Beeche  testified that

Williams routinely was armed while cocaine was being packaged and

sold.  A videotape  portrayed Williams brandishing a gun  while a

co-conspirator  counted  money  on  a  kitchen  counter   bearing

cocaine.   In  light  of this  evidence,  we think  it  extremely

unlikely that  the improperly admitted evidence  swayed the jury.

See Mazza, 792 F.2d at 1221 (fair assurance standard satisfied if
         

it is highly probable  that the challenged action did  not affect

the judgment).

     Because  we  find  the  admission of  this  evidence  to  be

harmless,  we  do not  reach the  question  of whether  the court

committed an abuse  of discretion in admitting the evidence under

Rule  403.  Karas,  950 F.2d at  38; United  States v. Hernandez-
                                                                 

Bermudez, 857 F.2d  50, 54 (1st Cir. 1988).   Nor is it necessary
        

to review the  court's failure to  issue a limiting  instruction,

especially where trial counsel  did not request one.   See United
                                                                 

States v. De La Cruz, 902  F.2d 121, 124 (1st Cir. 1990) (stating
                    

general  rule that  failure of  trial court  sua sponte  to issue
                                                       

limiting instruction is not reversible error).  

     Our finding of harmless error does not lessen our continuing

conviction that the government and the courts must exercise great

caution in  handling  evidence of  other  bad acts.    Williams's

statement was  unrelated to the  offenses charged and  was highly

inflammatory.  To infect  and jeopardize a prosecution  with such

evidence is unwise and unjustifiable.  It comes with ill grace to

                               -8-

introduce marginally justifiable evidence  and then to defend its

use by  arguing that there was so much evidence of guilt that any

error would be harmless.  Courts, in turn, should remain vigilant

to  whether  other-acts  evidence  serves  a genuinely  probative

purpose  that   substantially  outweighs  the   risk  of   unfair

prejudice.6  Hernandez-Bermudez, 857  F.2d at 54.  At  a minimum,
                               

courts routinely may  wish to issue  an instruction limiting  the

use  of Rule  404(b)  evidence, Oppon,  863 F.2d  at  147, or  to
                                     

ascertain whether defense counsel desires one.

                               III.

     Defendant  also contends  that the  district court  erred in

limiting  his cross  examination  of Gray.   Defendant  sought to

inquire into  Gray's knowledge regarding the  preparation and use

of  cocaine   and  her  brother's  alleged   cocaine  dealing  to

demonstrate that she was induced to cooperate with the government

to protect herself or her brother.

     The  Sixth  Amendment  to  the   Constitution  guarantees  a

criminal defendant  the right  to confront the  witnesses against

him.  An  essential component  of this right  is the  defendant's

prerogative  to  establish the  biases,  prejudices, or  ulterior

motives  of these witnesses through cross  examination.  Davis v.
                                                              

Alaska, 415 U.S.  308, 315-17 (1974);  United States v.  Kepreos,
                                                                

                    

     6   We recognize,  however, that express  findings regarding
the challenged evidence are  not necessary so long as  the record
indicates that the district  court did weigh the  balance between
the  probative value  and  the prejudicial  effect.   See  United
                                                                 
States v. Santagata, 924 F.2d 391, 394 (1st Cir. 1991) (citing De
                                                                 
La Cruz, 902 F.2d at 123 n.1).
       

                               -9-

759 F.2d 961,  965 (1st Cir. 1985).   The trial court, therefore,

must permit sufficient cross examination  to enable the jury "`to

make  a  discriminating  appraisal  of the  possible  biases  and

motivations  of the witness.'"   Niziolek v. Ashe,  694 F.2d 282,
                                                 

289  (1st Cir. 1982) (quoting  United States v.  Tracey, 675 F.2d
                                                       

433, 437 (1st Cir. 1982)).  

     So long as  it satisfies this  standard, the district  court

retains  wide discretion  to  impose reasonable  limits to  avoid

prejudice, confusion  of the issues, harassment,  repetition, and

inquiry  into  marginally  relevant  issues.    Delaware  v.  Van
                                                                 

Arsdall, 475 U.S. 673,  679 (1986); United States v.  Twomey, 806
                                                            

F.2d  1136, 1139 (1st  Cir. 1986).   "If the jury  has sufficient

evidence before  it bearing  on the  witness'[s] bias, the  court

need  not permit unending  excursions into each  and every matter

touching upon  veracity."   Kepreos, 759  F.2d  at 965  (citation
                                   

omitted).  

     To  establish  that  the   district  court  has  abused  its

discretion, the defendant must  show that the limitations imposed

were  clearly prejudicial.  Twomey,  806 F.2d at  1140.  Williams
                                  

has  not carried  this  burden.   We,  therefore, find  that  the

decision  to exclude  certain testimony  fell within  the court's

discretion.

     The district  court allowed  all defense  counsel, including

Williams's, ample opportunity to undermine  Gray's credibility by

probing  her bias and motive  for testifying.   See generally Tr.
                                                             

Vol IV  at 30-158.  The court did not preclude any defendant from

                               -10-

exploring Gray's  involvement with  the cocaine trade  but barred

only  a few questions of  marginal relevance.   Its decisions did

not harm  defendant because the relevant  information reached the

jury  through  the interrogation  by  his and  the  other defense

counsel.  

     The  intensive  cross  examination  thoroughly  delved  into

Gray's  unsavory  connection  with  narcotics.   It  exposed  her

cocaine  use, her  sale of  marijuana,  her knowledge  of cocaine

trafficking,  and  her  involvement  with and  knowledge  of  her

brother's drug  trafficking.   Gray  admitted that  she had  been

arrested in December 1987 at her mother's house for possession of

cocaine, that a search of the house uncovered cocaine, marijuana,

drug paraphernalia,  and a  gun, and  that the charges  resulting

from this arrest subsequently were dismissed.   She also admitted

that she was testifying under immunity from the government.  

     Gray's cross examination thus  provided an extensive "record

from which to argue why [she] might have been biased or otherwise
                       

lacked  that degree  of  impartiality expected  of  a witness  at

trial."   Davis, 415 U.S.  at 318  (emphasis in original).   From
               

this  record,  various  defense  counsel,  including  Williams's,

argued  plausibly   that  Gray   was  implicated  in   a  cocaine

trafficking  ring and  that her  cooperation with  the government

stemmed from her desire to  protect herself from prosecution  and

to divert police attention from that drug ring.  

     The jury had more than enough information to appraise Gray's

credibility.   Accordingly, we find that the exclusion of certain

                               -11-

questions  about Gray's  familiarity  with cocaine  and with  her

brother's drug trade was not an abuse of the court's discretion.

     Affirmed.
             

                                   Concurrence follows.

                               -12-

     TORRUELLA,  Circuit Judge  (Concurring).   I agree  with the
                              

analysis  and result of this case.   I write separately simply to

express my exasperation at  the repeated abuse of Rule  404(b) by

government prosecutors.  

                               -13-
