USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 94-2005
UNITED STATES OF AMERICA,
Appellant,
v.
WALTER L. LACHMAN, MAURICE H. SUBILIA, JR.,
FIBER MATERIALS, INC., MATERIALS INTERNATIONAL,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
____________________
Before
Selya, Boudin and Stahl,
Circuit Judges.
______________
____________________

James D. Herbert, Assistant United States Attorney, with

_________________
whom Donald K. Stern, United States Attorney, and Despena Fillios
_______________
_______________

Billings, Assistant United States Attorney, were on brief for the

________
United States.
Nicholas C. Theodorou with whom Anthony Mirenda, Michael
_______________________
________________ _______
Boudett, Foley, Hoag & Eliot, Bruce A. Singal and Ferriter,
_______
_____________________ _________________
_________
Scobbo, Sikora, Singal, Caruso & Rodophele were on joint brief
_______________ ___________________________
for appellees.
____________________
February 23, 1995
____________________

BOUDIN, Circuit Judge.

_____________
by

the

government under

evidentiary ruling
In the
the

government
district

18

U.S.C.

made prior to

challenged ruling,

government's

This is an interlocutory appeal

3731 contesting

trial in a

criminal case.

the district court

case-in-chief

deems

of great

court did

not

13

importance.

abuse the

under Fed. R. Evid. 403, we affirm.

an

excluded from

exhibits

that

Finding that

discretion it

the
the

possesses

I.
On July 8,
charging that

1993, a

grand jury

returned an

four named defendants conspired

indictment

to (count I),

and did in fact (count II), violate the Export Administration

Act of 1979 ("the Export Act"), 50 U.S.C. App.
its

implementing

regulations.

The

Materials,

Inc.,

corporations--Fiber

Materials International--and the

of the companies: Walter L.
The

"facts"

that follow

2410(a), and

defendants
and

its

were

two

subsidiary

two top executive

officers

Lachman and Maurice H.

Subilia.

largely

reflect the

government's

allegations (as yet unproved).

Fiber Materials
production
aerospace
technology

of

composite

applications.

Over

engaged for 25

materials
Most

for the manufacture

of materials that can

pressure.

has been

for

of its

years in

the

industrial

and

business relates

of carbon/carbon, a category

be made to withstand intense

two-thirds of Fiber

-2-2-

to

heat and

Materials' work is

for

the

U.S.

parent

military.
company's

Materials International
materials,

markets

technologies

and

its

services

overseas.
One

of the

technologies

expert relates to
complex

piece

the hot

of

internal

cavity

subject

materials

produce extreme

in which

isostatic press; the

industrial
and uses
to

equipment

high

intense

heat.

that

pressure and

press is
contains

pressure gas

Carbon/carbon,

this process, becomes suitable

including

Fiber Materials

or
a

is
a
an

liquid to
furnace

to

when "densified"

by

for use in rocket components,

ballistic missiles with nuclear capability.

Fiber

Materials generally subcontracts the manufacture of equipment

such as the press to others but provides the expertise.
In 1984,
Development
issued

the Indian
Laboratory

a request

for

government's Defense
("the

Indian

proposals to

facility in India for use in rocket

Fiber Materials won
with

the

Defense

the bid

Defense
outfit a

Laboratory")
carbon/carbon

and missile development.

and in 1985

Laboratory.

Research and

Among

signed a
other

contract

things,

the

contract called for Fiber Materials to supply a hot isostatic

press

with a

cavity 26

inches in

diameter, and

a control

panel

for the press; such a panel contains controls to heat,

pressurize and otherwise operate the press.

Under the Export Act, various goods and technologies are
subject to different

levels of export control for reasons of

-3-3-

foreign policy, national security or scarcity.

of this regime,

the Commerce Department maintains a

commodities that
license.
in

cavity

may not

be exported without

Item ECCN 1312A on this

the late

1980s,

diameter of

covered hot
5

inches or

accessories and controls" that

such presses.
license;
"national

list of

an individual

list, as the list existed

isostatic
more and
___

presses with

any "components,

were "specially designed" for

Export to any country except Canada required a

and the

stated

security" and

C.F.R.

As one facet

399.1,

reasons for
"nuclear

Supp.

the restriction

were

non-proliferation."

15

(1988)

(later

revised

and

renumbered).
In January 1987, Fiber
Laboratory
isostatic

modified

their

Materials and the Indian Defense

contract

press with a cavity

control panel for

the press.

to

call

for

hot

diameter of 4.9

inches and a

According to the

government,

Subilia wrote to the Indian Defense Laboratory

to assure the

laboratory that

the control panel

new contract could in

isostatic

press.

to be supplied

the future be used

In

early

1987,

under the

with a larger

hot

defendants

were

the

allegedly told by the government

that certain other items in

their

individual

contract,

which required

licenses, would

probably not be licensed because of security concerns.

In March
contract with

1988, Materials International

the Indian

entered into

Defense Laboratory

to have a

a
hot

-4-4-

isostatic press with a cavity diameter of 26 inches made by a

third

party

exports)

in Switzerland

and shipped

defendants exported
its control
seeking

(which

directly

did

not prohibit

to India.

A month

the original 4.9 inch

panel, from the

such
later,

press, along with

United States to

or receiving a Commerce Department

India without

license.

A year

and a half later, the 26 inch press was sent from Switzerland
to India.
Fiber

In 1991

Materials

to

and 1992, defendants

India

to install

sent employees
the

equipment

of
and,

specifically, to

connect the U.S.-made control

panel to the

large Swiss-made hot isostatic press.

On July
two counts
violation
App.

8, 1993, the

four defendants were

for knowingly conspiring to

indicted in

violate, and knowing

of, the Export Act and its regulations.

2410(a).

15 U.S.C.

The commodity whose export was claimed to be

unlawful was not the 4.9 inch press but the control panel.
II.
Pretrial proceedings were extensive.
district court set trial
government

to

provide

defendants by July 1.

to begin on July 25 and ordered the

a

list

of

proposed

exhibits

to

On July 1, the government filed a very

lengthy list of exhibits.

On July 19, the defendants filed a

motion in limine aimed at

__________
relating to the alleged

In June 1994, the

excluding many of

these exhibits

"end use" of the exported

missiles and nuclear weapons.

items for

The government then discarded

-5-5-

many

of

its exhibits

objected to

by

but opposed

defendants.

In

the exclusion
the

meantime

of others
trial

was

deferred until August.

Perceiving

that

judgments

affected by the scienter

court

intent:

ultimately

the

court

requirement

of

might

be

With the government acquiescing,

adopted

held

50

relevance

instructions at trial, the district

court addressed that issue.

the

about

the

that the

U.S.C.

defendants'
"knowing[]

App.

2410(a)

theory

of

violat[ion]"
required

the

government to prove that the defendants knew that the control

panel required an individual
v.

license.

Compare United States

_______ _____________

Gregg, 829 F.2d 1430, 1437 (8th Cir. 1987) (imposing such
_____

a knowledge requirement) with United States v. Shetterly, 971

____ _____________
_________
F.2d 67,

73 (7th Cir. 1992)

(rejecting it).

This

issue is

not before us, and we express no view upon it.

The district court held a hearing on August 3 and, in an
oral ruling,
use in its

excluded 13

of the governments'

case-in-chief.

court declined to

rule before the

trial, but it expressed

some of them.

As to nine

other exhibits,

exhibits were offered

the
at

"intense skepticism" about admitting

The government voluntarily

challenged exhibits.

exhibits from

withdrew 21 other

Although the excluded exhibits

number

13, they actually comprise four different collections, one of

which accounts for 10 of the exhibits:

-6-6-

The

first (gov. ex. EK) is a 121-page file belonging to

the Institute
group

that

program

assists

and

its

and a

own
The

The 121-page

group meetings

at one meeting

discussed

The file

weapons,

of the group.

of working

indicate that

distributed.

with

militarily critical technologies.

contained records

carbon/carbon was

U.S. industry working

Defense Department

Subilia was a member

The records

and

the

to identify

defendant
file

for Defense Analysis, a

in 1985.

Subilia attended,

copy of

ECCN 1312A

was

contains many references to munitions

considerable

material

relating

to

(gov. exs.

DW

commodities not at issue in this case.

The

second file

through EF)

of

excluded documents

consists of 10 newspaper clippings

files of Materials International.

Indian government's

"AGNI" missile

hot isostatic presses or

found in the

These articles discuss the

program.

their control panels.

None
All

refer to
but one

of the articles are dated in 1989, more than a year after the

export of

the control panel

in this case.

Each of

the 10

newspaper articles was designated as a separate exhibit.

The

third (gov.

documents

comprising

applications
department
exports,

filed

ex.

AA1 through

list

Department.

is a

defendants' registrations
with

the

maintains its own

a

5)

of

and renewal

Department.

That

"munitions" list of controlled

distinct

The State

State

group

from

that

Department list

of

the

Commerce

does not cover

hot

-7-7-

isostatic presses
filings

with

or their control panels.

the

State

Department

The defendants'

pertained

activities as exporters of carbon/carbon.

The

to

their

documents do

identify the U.S. military as customers of Fiber Materials.

The

fourth

(gov.

ex.

AE)

is

the

Indian

Defense

Laboratory's 1984 request for proposals for the carbon/carbon

processing

facility.

Materials submitted

This was
the winning

the proposal for which Fiber

bid; as earlier

noted, the

original

arrangement for

a larger

hot isostatic

modified in 1987 to call for one of 4.9 inches.

indicates that

the Indian

carbon/carbon

press was
The exhibit

facility would

be

used in connection with rocket and missile development.

The

district

exhibits

have to

hearing

on August

court's

reasons

be discerned
3,

documents in addition

from the

a hearing

called

potentially

the

materials

misleading.

papers were described

that

excluding

these

transcript of

the

embraced issues

and

to the 13 exhibits now in dispute.

excluding the 121-page file, the

and

for

court referred to Rule

duplicative,

The State

more briefly

excluding the 1984 request

redundant

In
403
and

Department registration
in the same

terms.

In

for proposals, the district court

called it "preliminary."
We

think that

a fair

reading of

the transcript

as a

whole indicates that the trial court thought that some of the
material in

the

13

exhibits was

-8-8-

irrelevant

and

some

of

marginal relevance; that it saw in the references to missiles

and

nuclear weapons a potential for jury prejudice; and that

it was concerned also,

and the State

121-page document

Department materials, with

confusion because
the press

in the case of the

of the references to

and controls at

issue and

a problem of

jury

materials other than

references to

regimes

other than the Commerce Department licensing controls.

At

the same

district court

time, in

of the

hearing, the

told the defense that the government would be

given some latitude

"familiarity

the course

with

to present to
the

regime

the jury the

of

defendants'

regulation"

and

"the

resistance that the Government may have to allowing awards of

licenses in an

area of

court, followed
knowledge

of

from the
the

legal

government's case.

some sensitivity."

This, said

defendants' own success

restrictions

The court concluded

an

the

in making

element

of

the

by warning that

"I

haven't finally ruled on this issue."

On August

5, the government asked the district court to

reconsider its exclusion

denied the

motion.

would appeal the

of the

13 exhibits

The government then

court's ruling, and the

and the

court

announced that

it

trial scheduled to

begin three days later was continued indefinitely.

A further

request by the government to the district court to reconsider

its ruling also failed.

This appeal ensued.

III.

-9-

-9-

Certain types of exclusionary rulings

are

commonly

validity

of a search and

confession.
finally on
role and
other

made before

trial,

such

in criminal cases
as

seizure or the

rulings on

the

voluntariness of a

In most other cases, judges are hesitant to rule

evidentiary questions in

importance of the

advance of trial.

disputed evidence, its

evidence in the case,

and even the

The

fit with

precise nature of

the evidence may all be affected by, or at least more clearly

understood within, the context of the trial itself.
At

the same

time, determining

the admissibility

of a

piece of evidence may sometimes require a potentially lengthy

factual

inquiry (e.g.,
____

evidence is
case, and

admissible).

whether

a new

Or

the entire

the parties' preparations,

central piece of
caution needs

evidence is

class of

structure of

may turn on

to be admitted.

to be exercised, trial

scientific
the

whether a

Thus,

while

judges have discretion

to make purportedly final advance rulings to admit or exclude

evidence.

We

say "purportedly"

because judges

in ongoing

proceedings normally have some

latitude to revisit their own

earlier rulings.
In this
court was

case, neither

side disputes that

the district

entitled to rule in limine on the 13

__________

question.

exhibits in

The only question is whether the court abused its

discretion under Rule 403

should be excluded.

in determining that these exhibits

The government admits that the standard

-10-10-

of

appellate review as to such rulings is deferential to the

district court,
It is

but says

certainly true

that essentially

embedded

in

such a

exercise

of

discretionary

limits.

that discretion is

decision; and
judgment

not unlimited.

legal issues

we

agree that
is

subject

See United States v. Roberts, 978 F.2d 17,

___ ______________
_______

may be
even the

to

outer
21 (1st

Cir. 1992).
Rule 403

calls

upon the

district court

to weigh

the

probative

value of

cause--unfair
delay

or

evidence against

prejudice,

the harms that

confusion,

repetition--and to

misleading

exclude

probative value is "substantially

the

the

that the

outweighed" by the

misunderstood the factors; rather,

court struck the wrong balance.

analysis at either end of the

it is convenient to begin

jury,

evidence if

The government does not argue that the trial judge

Rule 403 or

it may

the

harms.

misstated

the claim is

One can start the

balance scale.

In this

our discussion with the

case,

probative

value of the evidence in question.

Normally,

in order

must

be "relevant" under

must

tend

to

make

consequence") more or
the evidence.
Cir.

1994)

an

to have

Fed. R. Evid. P.
issue

in

the

less likely than

United States
_____________
(en

probative

banc).

value, evidence
401, that is, it

case

("a

would be so

v. Tavares, 21 F.3d
_______

Other

factors

that

fact

of

without
1, 5 (1st

may bear

on

probative value are the importance of the issue and the force

-11-11-

of the evidence.
and Procedure
______________

22 C. Wright & K.
5214 (1978).

Graham, Federal Practice

________________

In this case, the government's

most difficult problem throughout has been explaining why and

how the exhibits in question are relevant to an issue

in the

case.
The core of the

charges in the indictment are

defendants knowingly
commodity
obtaining

that
such

agreed to,

requires
a

and did

an

license.

that the

in fact, export

individual

license

without

commodity

requires

such a

license if it appears on the Commerce Department list of such

commodities.
C.F.R.

See 50
___

U.S.C. App.

372.2(b)(1) (1988).

specially designed control

terms of
item

15

The listed item in question--a

panel--is described primarily

its relationship to another,

(a hot

more).

2403(b), 24049(a);

isostatic press with

in

technically described

a cavity

of 5

inches or

The end use of the products to be made by the control

panel and press is not an explicit element in the definition.

By contrast, the most

prominent feature of the exhibits

in question--and the aspect

is their tendency to
be

used

nuclear

to foster
missiles.

show that the control panel

the
This

clippings concerning

the

program.

uses

produced

Military

most objected to by defendants--

development
is the

of weaponry

gist

of the

Indian government's
of

by the hot isostatic

the

might well

10 newspaper
AGNI

carbon/carbon

press are one

including

missile
materials

subject of the

-12-12-

121-page

file.

serve to

associate Fiber Materials with

The

The

1984 request

for

State

Department

registration papers
military projects.

proposals suggest

that the

original

larger press was sought for missile development.

The

government seeks

to connect

the offense

with the

exhibits primarily by arguing that the evidence helps to show

scienter.
and

The government here has acquiesced in a stringent,

relatively

rare,

instruction

violation--the defendants must not

did,

but also have known

offense

is one

conduct not

grounded

make

out

only have known what they

that it was

forbidden.

in technical

inherently likely to be

is malum prohibitum--this
________________

that--to

Where the

regulations and

the

unlawful--the legal tag

burden will often

be a heavy

one

for the government.

Although the

government's brief does not

connections systematically,

we

think that

spell out the

such a

scienter

requirement might

arguably make portions of

question relevant

in several

utility would be
military

use

interest in such
prudence,
reviewed

different ways.

to suggest that,

of

the

press

a use,

and were

the exhibits in

and

The broadest

knowing of the
the

Indian

the defendants had

therefore more likely

potential

government's

more reason
in fact,

in

to have

and considered the general state of the law and the

specific regulations governing the export of the commodity.

-13-13-

Of course, a
business of

jury might

high-tech

make itself aware

assume that a

developments and

company in

their export

of the pertinent export

the
would

regulations.

the government is expected to prove each separate element

the offense
must be
not to

beyond a

reasonable doubt; and

proved by inference,
take a

casual view of

of

where knowledge

the government is
its burden.

But

The

quite right
skull-and-

crossbones
that the

insignia on

the medicine

bottle does

not prove

defendant read the small print instructions; but it

does tend to increase the likelihood.

Two other, more specific uses have been suggested by the
government for certain materials in the exhibits: to show, in
the

case of

one

page

in

the 121-page

compilation,

that

Subilia was given a copy of item ECCN 1312A; and to indicate,

by

showing

papers,

who

which

signed
persons

the State
in

the

responsibility for compliance.

satisfied

by

far

government--the
signature

page

less

item
in

the

page
the

Department

corporate

registration

defendants

took

These uses, however, could be

full

in

the

latter,

offerings
former
together

made
case
with

by

the

and

the

context

testimony.
Lastly, the government's brief suggests
the

exhibits (especially

request
end uses

for proposals)--by
of the

the

news clippings

implicating the

larger press

or implies that
and the

1984

likely military

and control panel--support

-14-14-

double proposition:
have granted
a license

that the Commerce

a license for the control panel in this case if

had been

aware of

Department would not

sought, and

that the

the exhibits) knew this to

defendants (being

be true.

This argument

raises the subtlest problem in the case.

The defendants say indignantly

(and correctly) that the

crime charged relates to exporting listed commodities without

a license,

not to exporting commodities

would decline to license.

not

listed,

that the government

Put differently, if a commodity is

its export

does

not violate

this

statute no

matter how vehemently the government objects to its export or

how

swiftly

government's
response

it

would

deny

opening brief

and to make it

license

is so framed

if

asked.

as to

difficult to tell

The

invite this

what other, more

defensible use of the double inference might be available.

The government's
lengthy

footnote)

two

reply

rebuttal

defendants' knowledge that a

helps,

brief, however,

end use has some

the control panel

"specially

is

that

other evidence, to show that

apply for the license was

design and not a mistake of law.

intended

One

(in

license would likely be refused

as part of a pattern of

the defendants' failure to

arguments.

offers

The other is that the known

bearing on the

was designed

out of

and thus on

designed" for use with a

purpose for which

whether it

was

larger press; this last

-15-15-

argument, needless to

say, turns

partly on

how the

phrase

"specially designed" is to be read.

Against these
major

concerns

arguments for

voiced by

the

likelihood

of

involves

the

district

judge summed up by

this

to become

relevance must be
district court.

undue

missile case.

prejudicial merely because

which

not

unduly

it tends toward conviction;

tendency of evidence

the

would not allow

Evidence is

useful evidence for the government does that.

with any pronounced

The first

prejudice,

saying that he

set two

most

The concern is

to lead the

jury,

often for emotional reasons, to desire to convict a defendant

for reasons other than the

defendant's guilt.

United States
_____________

v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982).

______
In this case the
alert

to

exhibits

this

district court had every reason

possibility.

(apart from

the State

The

government's

Department papers)

to be

disputed
tend to

suggest that
project

to

the

defendants knew

develop

government.

We

missile

can

technology

ignore,

arguable chronological flaw in

that post-date the exports
interesting
proposals,

that they

for

were aiding

for

present

the

Indian

purposes,

the

relying on the nine clippings

in question (and the government's

counter-argument).

The

the 121-page compilation

1984

and the

request

for

earliest press

clipping are potent enough.

-16-16-

A jury, conscious of
and of

U.S.

the risks of nuclear proliferation

government efforts

to

halt it,

could

easily

regard the defendants' alleged conduct as highly unattractive

even if it turned out to be technically legal.
of the defendants'
from
Any

conduct (the 4.9 inch

Switzerland) could
effort to

nuclear

dwell at

figure, the export

reinforce

the adverse

length on

the

missile program and

Other aspects

impression.

Indian government's

potential use of

the press and

control

panel in

flickering flame.

this

case risks

A judge

throwing

gasoline on

would be blind

not to see

only threat.

There is

this

danger and to fear it.

Prejudice

is

not the

potential for confusing and misleading the jury.

also a

Quite apart

from prejudice, there is a risk that an undue emphasis on the

end

use of the exported commodities

could divert the jury's

attention

from whether the commodity

be so, to

whether the commodity is

purposes.
fairly

This

deflection might

easy to guard against

is listed and known to

to be used for

seem like a

military

gross error,

in the instructions

so far as

confusion is concerned (prejudice is a different matter); but

it is not the only problem.
As our

discussion has already shown,

interested in

proving the

not

support

only

heightened

to

its

awareness but

the government is

known and intended

military uses

skull-and-crossbones
also to

-17-17-

show that

theory

of

the government

would

have

denied

license.

arguments

as to

how this

irrelevant

to

the offense

This,

in

alleged fact--at
of

not

turn,

invokes

first seemingly

asking for

required

license--may help the government

show scienter and even help

it

should

show

why the

commodity.

control panel

be deemed

a listed

These arguments, raised tersely in the government

reply brief, may or may not have some basis in law and logic.
What is clear is that ample opportunity

exists for jury

confusion if exhibits are justified and used in order to show

that

the government

would not

would be quite a task

is

not an

element

have issued

a license.

to explain to a jury that

in the

violation but

It

this "fact"

merely part

of a

subtle and debatable chain of inferences designed to use this

license

denial to

show scienter

character of the control

difficulty

disentangling

panel.
the

and, more

doubtfully, the

We ourselves have
government's

had some

theory

of

the

What we have said so far is that the district court

was

offense from these more recherche relevance arguments.

balancing claims in which

the scale.
clearly

on

there was weight on both

sides of

The evidence in question has some relevance--most

the

skull-and-crossbones theory;

but

(putting

aside the single document page quoting item ECCN 1312A) it is

not direct
time, the

evidence of knowledge
risks of undue

of the law.

prejudice are

At

the same

quite evident;

and

risks of confusion are real too, especially if the government

-18-18-

is

allowed to develop and argue

questionable inferences.
confusion is

some of its more subtle and

This dual threat

alone enough

to lend

of prejudice and

support to

the district

court's decision.
Our

discussion

government's need
____
question
403, it

thus

has

not

for this evidence and

of alternatives available to
is

plainly pertinent

alternative way to establish

least

far

touched

supra,
_____

5214

the

the closely related

it.

whether a

In applying Rule
litigant has

a fact that involves no

a lesser) risk of prejudice or confusion.

Graham,

upon

(citing cases).

some
(or at

22 Wright &

But here,

in

an

interlocutory appeal, we do not know very much about how else

the

government

might

at

defendants' knowledge of the

trial

seek

to

establish

the

regulatory regime and the finer

shades of its likely interpretation.

What

we do know is that the district court thought that

the government did have some less dangerous,

if perhaps less

potent,

means of

establishing

the defendants'

familiarity

with the regulations and with the delicacy of their position.

As already noted, the court said that it was prepared to give
the

government some

leeway in

this area.

doubt that some evidence is available:

that someone in the organization

can hardly

merely as an example,

the selection of a 4.9 inch figure for the

shows

One

press pretty much

knew about item ECCN

1312A.

-19-19-

We think that the

flexibility
of the 13

district court further showed

in two other respects.

exhibits in question to

chief, knowing

It limited its exclusion

the government's case-in-

that positions taken or

the defense might warrant

testimony offered by

the court in relaxing the

purposes of cross-examination or

a wise

rebuttal.

ban for

On a substantial

number of other exhibits objected to by defendants, the court

reserved

its

ruling,

most

likely until

the

evidence

is

actually

offered at

exhibits

certainly

trial.
did

The

not

court's

reflect

exclusion of
heavy-handed

13
and

inflexible constraint.
We turn

finally to a

district court's decision

the 121-page file a
Unlike

to

the

defendant as to

knowledge

that this part

to

at

The

deny

least

that

1312A itself.

one

individual

and one

ought to have

government mentions
it.

were

might
made it

the page

Perhaps it does not

they

In

this page is directly

of this item,

of the exhibit

lays no special stress upon

defendants

of

bolsters the

open point.

copy appears of item ECCN

the existence

through the filter.

the

on one remaining

much of the excluded material,

pertinent

think

narrow concern that

aware

but

expect
of

the

regulations.
The
as a whole
unrelated

district court expressed

was a

concern that this exhibit

jumble of material,

to anything in this case.

-20-20-

some rather

patently

The government had, and

presumably
pieces

still

has, the

of

identifying specific

of information in the exhibit and urging that they be

considered separately
too

option

broadly, it

is

from the rest.

normally the

Without

case

generalizing

that this

kind

of

segregation is the job of counsel and not an already burdened

district judge.

See Brooks v. Chrysler Corp., 786 F.2d 1191,

___ ______
______________

1199 (D.C. Cir.), cert. denied, 479 U.S. 853 (1986).

____________
We conclude that the district

court had an ample

basis

under Rule 403 for excluding the 13 exhibits in question.

We

commend the trial judge's thoughtful approach to the problems

presented and his efforts to balance the legitimate interests
on both side.
has cause

The government may on reflection think that it

to be

grateful

eliminating possible
hopefully,
theories

for
of

errors that

forcing

the

to the

the

offense

district court--both
could infect a

government

and of

to

relevance

for

trial and,

consider
with

its

somewhat

greater precision before they are exposed to a jury.

IV.
Problems

that can

be treated

with some

confidence in

context are often very difficult to solve before other pieces

of the puzzle have been assembled.
why district courts are
questions

before trial.

appellate

court

brings to the

where,

This, as we have said, is

often hesitant to decide evidentiary

A
as

like difficulty
here,

an

arises for

an

interlocutory appeal

court only a part of the case.

Thus, our task

-21-21-

might be simplified
the

if we could

speak with assurance

about

standard of scienter or, for that matter, the definition

of "specially designed."
But

these are not issues that have been briefed in this

court, we have
this

not sought

to address them,

in

opinion should be taken to suggest any view whatever as

to how those issues should be resolved.

again

and nothing

that what

we have

taken to

Similarly, we stress

be facts

depends almost

entirely on the indictment and other descriptions of what the

government
this

thinks it can prove.

opinion,

inferences to

Any assertions of "fact" in

including descriptions
be drawn from

of

documents or

them, are without

the

prejudice to

what the trial may show or what may emerge after more context
has been supplied.
All
abuse

that we

its

government's

hold is
____

discretion in
case in

that the
excluding

chief the

district court
at this

13 disputed

time

did not
from the

exhibits, each

taken as a
court

whole.

Within very broad

is free to reexamine its position

case develops.

limits, the

on any issue as the

See generally United States

______________ _____________

F.2d 753, 758 (2d Cir. 1991).

district

v. Uccio,
_____

940

We say this not to suggest any

disagreement whatever with

the district court's rulings

but

simply

limits

has

to

underscore the

on

what this
____

court

decided.

-22-22-

With

these

stipulations,

the

excluding the 13 exhibits is affirmed.

________

order

under

review

-23-23-