1 RAISING AND RESOLVING OBJECTIONS TO EVIDENCE 1 RAISING AND RESOLVING OBJECTIONS TO EVIDENCE

1.1 Class 1 1.1 Class 1

Merritt & Simmons textbook assignment Merritt & Simmons textbook assignment

 

In the Merritt & Simmons textbook, please read the Study Guide, Chapter 1, Chapter 2, and section E in Chapter 3 about when the rules of Evidence apply (that is pages 25-29 in the third edition and pages 25-28 in the fourth edition). There are no substantive differences between the Third and Fourth editions for the assigned reading.

Description of Trial Proceeding in Criminal Trial Description of Trial Proceeding in Criminal Trial

This is a sample instruction a judge might read to the jury at the beginning of a criminal trial.

“Jury instructions” are instructions that the judge reads aloud to the jury before and during a trial. They are often a helpful tool for understanding Evidence rules because they are written for non-lawyers to understand. This instructions will help you understand the the stages  of a trial.

The trial will proceed in the following manner:

 

First: The lawyers will have an opportunity to make opening statements to you. The prosecutor may make an opening statement at the beginning of the case. The defendants (s) lawyer(s) may make (an) opening statement(s) after the prosecutors opening statement or the defendant(s) may postpone the making of an opening statement until after the government finishes presenting its evidence. The defendant(s) (is) (are) not required to make an opening statement.

 

The opening statements are simply an outline to help you understand what each party expects the evidence to show. What is said in the opening statements is not itself evidence.

 

Second: After opening statements, the government will introduce the evidence that it thinks proves the charge(s) stated in the indictment. The government will present witnesses and the defendants (s) lawyer(s) may cross-examine those witnesses. The government may also offer documents and other exhibits into evidence.

 

Third: After the government has presented its evidence, the defendant(s) may present evidence, but (he) (she) (they) (is) (are) not required to do so. As I will tell you many times during this trial, the government always has the burden/obligation to prove each and every element of the offense(s) charged beyond a reasonable doubt. The defendant(s) (is) (are) presumed to be innocent of the charge(s). The law never imposes on a defendant(s) in a criminal case the burden of proving (his) (her) (their) innocence by calling any witnesses, producing any exhibits, or introducing any evidence.

 

Fourth: After all of the evidence has been presented, the lawyers will have the opportunity to present closing arguments. Closing arguments are designed to present to you the parties theories about what the evidence has shown and what conclusions may be drawn from the evidence. What is said in closing arguments is not evidence, just as what is said in the opening statements is not evidence.

 

Fifth: After you have heard the closing arguments, I will give you orally [and in writing] the final instructions concerning the law that you must apply to the evidence presented during the trial. As I am doing now, I may also give you instructions on certain aspects of the law throughout the trial, as well as at the end of the trial.

 

Sixth: After my final instructions on the law, you will retire to consider your verdict. Your deliberations are secret. You will not be required to explain your verdict to anyone. Your verdict must be unanimous; all twelve of you must agree to it.

 

You must keep your minds open during this trial. Do not make up your mind about any of the questions in this case until you have heard each piece of evidence and all of the law which you must apply to that evidence in other words, until you begin your deliberations.

 

Description of Trial Proceedings in Civil Trial Description of Trial Proceedings in Civil Trial

This is a sample instruction a judge might read to the jury at the beginning of a civil trial.

The trial will proceed in the following manner:

 

First, attorney(s) for [plaintiff(s)] will make an opening statement to you. Next, attorney(s) for [defendant(s)] may make an opening statement. What is said in the opening statements is not evidence, but is simply an outline to help you understand what each party expects the evidence to show. [A party is not required to make an opening statement.]

 

After [Before] the attorneys have made their opening statements, [I will instruct you on the applicable law and] then each party is given an opportunity to present its evidence.

 

[Plaintiff] goes first because [plaintiff(s)] [has/have] the burden of proof. [Plaintiff(s)] will present witnesses whom counsel for [defendant(s)] may cross-examine, and [plaintiff(s)] may also present evidence.

 

Following [plaintiffs'] case, [defendant(s)] may present evidence. Counsel for [plaintiff(s)] may cross-examine witnesses for the defense. [After the parties ' main case is presented, they may be permitted to present what is called rebuttal evidence.]

 

After all the evidence has been presented, [I will instruct you on the law and then] the attorneys will present to you closing arguments to summarize and interpret the evidence in a way that is helpful to their clients' positions. As with opening statements, closing arguments are not evidence.

 

[Once the closing arguments are completed, I will then instruct you on the law.] After that you will retire to the jury room to deliberate on your verdict in this case.

Evidence (What is; is Not) Evidence (What is; is Not)

This a sample of an instruction a judge might read to the jury at the beginning of a criminal or civil trial. Are you surprised by any of the things that don't count as evidence? How well do you think jurors will be able to follow these instructions?

You must make your decision in this case based only on the evidence that you see and hear in the courtroom. Do not let rumors, suspicions, or anything else that you may see or hear outside of court influence your decision in any way.

 

The evidence from which you are to find the facts consists of the following:

1.     The testimony of the witnesses;

2.     Documents and other things received as exhibits; and

3.     Any fact or testimony that is stipulated; that is, formally agreed to by the parties.

 

The following are not evidence:

1.     Statements and arguments of the lawyers for the parties in this case;

2.     Questions by the lawyers and questions that I might ask. You must not assume that a fact is true just because one of the lawyers or I ask a question about it. It is the witness' answers that are evidence. Of course, you may need to consider the question to know what a witness means by his or her answer.  For example, if a witness answers yes to a question, you will have to consider the question to understand what the witness is saying.

3.     Objections by lawyers, including objections in which the lawyers state facts;

4.     Any testimony I strike or tell you to disregard; and

5.     Anything you may see or hear about this case outside the courtroom.

 

You should use your common sense in weighing the evidence. Consider it in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience and common sense tell you that certain evidence reasonably leads to a conclusion, you may reach that conclusion.

 

The rules of evidence control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence, and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. An objection simply means that the lawyer is asking me to decide whether the evidence should be allowed under the rules. Lawyers have a responsibility to their clients to make objections when they think evidence being offered is improper under the rules of evidence. You should not be influenced by the fact that an objection is made.

 

You should also not be influenced by my rulings on objections to evidence. If I overrule an objection, the question may be answered or the exhibit may be received as evidence, and you should treat the testimony or exhibit like any other. I may allow evidence (testimony or exhibits) only for a limited purpose. If I do that, I will instruct you to consider the evidence only for that limited purpose, and you must follow that instruction.

 

If I sustain an objection, the question will not be answered or the exhibit will not be received as evidence. Whenever I sustain an objection, you must disregard the question or the exhibit entirely. Do not think about or guess what the witness might have said in answer to the question; do not think about or guess what the exhibit might have shown. Sometimes a witness may have already answered before a lawyer objects or before I rule on the objection. If that happens and if I sustain the objection, you should disregard the answer that was given,

 

Also, I may order that some testimony or other evidence be stricken or removed from the record. If I do that, I will instruct you to disregard that evidence. That means, when you are deciding the case, you must not consider or be influenced in any way by the testimony or other evidence that I told you to disregard.

 

Although the lawyers may call your attention to certain facts or factual conclusions that they think are important, what the lawyers say is not evidence and is not binding on you. It is your own recollection and interpretation of the evidence that controls your decision. Also, do not assume from anything I do or say during the trial that I have any opinion about the evidence or about any of the issues in this case or about what your verdict should be.

 

 

Rule 102 Rule 102

These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

Excerpt from State's Motion in Limine in State of Minnesota v. Derek Michael Chauvin Excerpt from State's Motion in Limine in State of Minnesota v. Derek Michael Chauvin

In the trial of Derek Chauvin, the police officer who murdered George Floyd, the government filed a motion in limine to exclude evidence from the trial. In this excerpt from that motion, you will see the government’s argument that (1) evidence about the police department’s decision to fire Derek Chauvin the day after Mr. Floyd was killed should be excluded; and (2) evidence about the civil suit filed by Mr. Floyd’s family against Derek Chauvin and the City of Minneapolis should be excluded.

(A link to the full, unexcerpted motion is available here. Below I have pasted in pages 13-20 from the motion)

[Page 13]

IV.THE COURT SHOULD EXCLUDE OR LIMIT ANY ARGUMENT, EVIDENCE,OR TESTIMONY REGARDING MPD’S DECISION-MAKING PROCESS INTERMINATING CHAUVIN’S EMPLOYMENT AND MPD’S CIVIL LIABILITY.


The State moves the Court to exclude any argument, evidence, or testimony regarding theMinneapolis Police Department’s (MPD’s) decision-making process in terminating Chauvin’s employment as an MPD officer. The State also moves the Court to exclude any argument, evidence, or testimony suggesting that MPD may face civil liability stemming from George Floyd’s death. [omitted]

A.Factual Background

George Floyd died on May 25, 2020. The next day, Defendant Chauvin and his co-defendants—J. Alexander Kueng, Thomas Lane, and Tou Thao—were fired by MPD.


On July 15, 2020, Floyd’s family filed a civil action under 42 U.S.C. § 1983 against Chauvin and his co-defendants, as well as the City of Minneapolis. See Compl., Schaffer v. Chauvin, No. 20-cv-01577-SRN (D. Minn. July 15, 2020). MPD is not identified as a defendant in that action. Nor is any current MPD employee. Instead, the suit alleges that City officials failed

[page 14]

to properly train Chauvin, Kueng, Lane, and Thao, and promulgated policing policies “that failed to provide for the safety of arrestees, detainees, and the like during arrest.” Id. ¶¶ 221-261.


B.Chauvin Should Be Precluded From Eliciting Evidence Or TestimonyRegarding MPD’s Decision-Making Process When It Terminated Him.

1.This Court should preclude Chauvin from presenting argument, evidence, and testimonyrelated to MPD’s decision-making process in terminating his employment. In his motion to dismiss the complaint, Chauvin referenced his termination, and then suggested that the decision was based on community pressure and was rushed. See Memo. of Law in Support of Def.’s Mot. to Dismiss 6 (Aug. 28, 2020) (“Mot. to Dismiss”). He should not be permitted to make the same arguments at trial. Such evidence and testimony is not relevant to the charges and defenses in this case, and has the potential to unduly prejudice, confuse, or mislead the jury.

First, evidence and testimony regarding MPD’s internal decision-making process in terminating Chauvin’s employment is not relevant to the elements of the charged offenses and Chauvin’s defenses. “Evidence must be relevant to be admissible, and there is no constitutional right to present irrelevant evidence.” State v. Thiel, 846 N.W.2d 605, 615 (Minn. App. 2014); see also Minn. R. Evid. 402. To be relevant, evidence must have some “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401.

Here, Chauvin is charged with second-degree unintentional murder, Minn. Stat. § 609.19, subd. 2(1), and second-degree manslaughter, Minn. Stat. § 609.205(1). To prove that Chauvin is guilty of second-degree unintentional murder, the State must prove at trial: (i) Floyd’s death; (ii) that Chauvin’s conduct was a “substantial causal factor” in Floyd’s death; (iii) that Chauvin intentionally inflicted bodily harm upon the victim; and (iv) that Chauvin caused Floyd “substantial bodily harm.” Order and Mem. Op. on Def. Mots. to Dismiss for Lack of Probable 

[page 15]

Cause 37 (Oct. 21, 2020) (“Probable Cause Op.”). And to prove that Chauvin is guilty of second-degree manslaughter, the State must prove at trial: (i) Floyd’s death; and (ii) “that Chauvin caused Floyd’s death by culpable negligence, whereby Chauvin created an unreasonable risk and consciously took a chance of causing death or great bodily harm.” Id. at 68.

The decision-making process that culminated in Chauvin’s firing has no bearing on any of the elements of the charged offenses. Why and how MPD decided to terminate Chauvin and the other officers after the incident with Floyd does not affect, for example, whether Chauvin’s conduct was a “substantial casual factor” in Floyd’s death. Nor does MPD’s process for making personnel decisions have any bearing on whether Chauvin had the requisite mens rea to be convicted of these charges. MPD’s process for terminating Chauvin the day after Floyd’s death does not in any way illuminate his mental state during his encounter with Floyd.

For similar reasons, MPD’s decision-making process is also not relevant to any of Chauvin’s defenses. In his motion to dismiss for lack of probable cause, Chauvin argued that Floyd’s drug usage and preexisting conditions caused his death. See Mot. to Dismiss 22-23. MPD’s internal decision-making process in firing Chauvin, of course, has no bearing on what role, if any, these purported factors played in causing Floyd’s death. Chauvin also argued in his motion to dismiss that his use of force was reasonably justified. See Mot. to Dismiss 14. But whether Chauvin’s use of force was reasonable is an objective inquiry based on the circumstances that existed at the time of the incident. MPD’s internal personnel decisions, which occurred after

[page 16]

Chauvin’s actions and Floyd’s death, have little bearing on that inquiry. Rather, the jury must answer that question independently based on the extensive video evidence, eyewitness testimony, and testimony regarding MPD’s use-of-force policies at trial.

Second, even if evidence and testimony related to MPD’s decision-making process in firing Chauvin were relevant, that evidence is inadmissible because “its probative value is substantially outweighed by its potential to cause unfair prejudice, to confuse the issues, or to mislead the jury.” State v. Harris, 521 N.W.2d 348, 351-352 (Minn. 1994); see Minn. R. Evid. 403.

Here, evidence and testimony regarding MPD’s internal decision-making process in terminating Chauvin’s employment carries the “potential to cause unfair prejudice.” Harris, 521 N.W.2d at 352. “‘Unfair prejudice’ includes an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” State v. Bott, 246 N.W.2d 48, 53 n.3 (Minn. 1976). That risk is certainly present here. In his motion to dismiss for lack of probable cause, for instance, Chauvin alleged that Minneapolis Police Chief Medaria Arradondo decided to terminate Chauvin “after conferring” with “several local faith leaders . . . from the African American community,” and that Chauvin was fired “less than 24 hours after the incident.” Mot. to Dismiss 6 (internal quotation marks omitted). The implication is that Chauvin’s termination was not based on the evidence, and that it reflected a rush to judgment.4 On that basis, Chauvin may improperly seek to elicit the jury’s sympathy for Chauvin, or to suggest that he was unfairly

Fn 4: That, of course, is not true. Nonetheless, the risk of unfair prejudice to the jury is no less significant if the evidence regarding MPD’s decision-making process reflects that MPD’s decision to terminate Chauvin was carefully considered and based on the evidence. There is a risk that jurors may improperly use MPD’s decision to terminate Chauvin as a proxy for his guilt. After all, police departments are tasked with investigating crimes and occupy a position of public trust. That may cause jurors to conclude that MPD’s decision-making process, and Chauvin’s ultimate termination, is a reflection of Chauvin’s guilt. For that reason, as well, any evidence regarding MPD’s decision-making process in terminating Chauvin is likely to be unfairly prejudicial. 

[page 17]

fired. That line of argument, of course, has no bearing on whether Chauvin’s conduct satisfies the elements of the charged offenses.

Such arguments and evidence, in other words, have “an undue tendency to suggest decision on an improper basis.” Bott, 246 N.W.2d at 53 n.3. Such arguments and evidence also risk “confus[ing] the issues” and “misleading the jury.” Minn. R. Evid. 403. Evidence and testimony regarding MPD’s decision-making process may suggest to the jury that it should decide this case based on whether Chauvin’s firing was justified, or whether his firing was an adequate punishment for his offense. Again, those factors have nothing to do with whether Chauvin’s conduct satisfied the elements of the charged offenses. Admitting evidence and testimony regarding MPD’s decision-making process therefore risks muddying the waters for the jury and distracting it from its primary task: adjudicating Chauvin’s guilt based on the admissible direct and circumstantial evidence related to Floyd’s death.

[omitted]

[page 19]

C.Chauvin Should Be Precluded From Arguing or Introducing EvidenceSuggesting That MPD May Face Civil Liability Related To Floyd’s Death.

1.This Court should also preclude Chauvin from arguing, introducing evidence, or elicitingtestimony suggesting that MPD’s decision to terminate the officers and the State’s decision to prosecute this case arises from concerns about the City of Minneapolis’s civil liability.

First, the City’s potential exposure to civil liability is not relevant to this case because it does not have a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable.” Minn. R. Evid. 401. Whether the City is civilly liable has no bearing on Chauvin’s guilt or innocence. See State v. Yeazizw, No. CX-02-1486, 2003 WL 21789013, at *9 (Minn. App. Aug. 5, 2003) (holding that evidence of a parallel civil lawsuit “was not probative of any of the facts in the criminal case”); cf. State v.

[page 20]

Nelson, No. C8-98-1920, 1999 WL 993975, at *2 (Minn. App. Nov. 2, 1999) (finding evidence of separate civil suit relevant only because it could prove a charged element in the criminal proceeding). Civil liability must be evaluated under a different legal standard, in a different proceeding. Because this evidence is not relevant, it is not admissible. Thiel, 846 N.W.2d at 615.

Second, evidence regarding the City’s potential civil liability is unduly prejudicial. Prejudice refers to the “unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.” State v. Harris, 560 N.W.2d 672, 678 (Minn. 1997) (internal quotation marks omitted). As the Minnesota Court of Appeals has recognized, informing the jury in a criminal trial about “the existence of a civil lawsuit” predicated on the same underlying events is unduly prejudicial, as it “invit[es] a conclusion of wrongdoing based not on evidence, but on the mere commencement of a civil action.” Yeazizw, 2003 WL 21789013, at *9. Here, evidence or testimony about a separate civil lawsuit might lead the jury to assume that Chauvin is guilty. Alternatively, it might lead the jury to conclude that criminal liability is not appropriate because Chauvin might be subject to civil liability. Or the jury might believe that, because there is a pending civil lawsuit, the State has an untoward interest in seeing Chauvin convicted. All of this risks misleading the jury and distracting it from the critical inquiry in this case—namely, whether Chauvin’s conduct satisfies the elements of the charged offenses. The risk of undue prejudice thus substantially outweighs any alleged probative value this information might have.

[omitted]

 

Evidence in Context: Four-Part Video Evidence in Context: Four-Part Video

This four-part video provides important context for the rules of evidence, describes the critical questions I hope we will be asking throughout the semester, and identifies how we can change the rules. 

Part 1 (1.5 min) is here.

Part 2 (4 min) is here.

Part 3 (7 min) is here.

Part 4 (5 min) is here.

Comprehension Questions #1 Comprehension Questions #1

Please go to our course Moodle page to submit Comprehension Questions #1.

1.1.1 OPTIONAL for Class 1 1.1.1 OPTIONAL for Class 1

OPTIONAL: Excerpt from State v. Tierney OPTIONAL: Excerpt from State v. Tierney

2002 WL 1041727 (Ohio App, 8 Dist. 2002)

Read this short excerpt from State v. Tierney, 2002 WL 1041727 (Ohio App, 8 Dist. 2002) if you'd like to see an illustration of the point that the law makes no distinction between direct and circumstantial evidence.

On July 15, 2000, Erin Stary, the store manager for The Nature Company at Great Northern Mall, observed some movement in the store's back room. When Stary opened the door to the back room, she bumped into Tierney who was kneeling towards the store's safe. Tierney said that he was looking for the bathroom, adjusted his pants and walked past Stary back to the store.

Stary followed him out of the store and instructed her assistant Deborah Doering to call security. . . . Stary returned to the back room and discovered that the safe had been opened and the deposit bag taken. Stary testified that it is store policy and her habit to keep the safe locked unless someone is putting money in or taking money out.

Doering testified that it was she, following store procedures, who prepared the previous night's cash register log and who put the deposit bag in the safe. Further, Doering testified that she observed the deposit bag in the safe that morning but left it in the safe because she was the only one there (another employee had called in sick) and store policy requires two employees to take the money to the bank. Finally, Doering testified that she locked the safe that morning.

Security eventually found Tierney coming out of a service hallway, a loading dock area that is restricted from the public. Security called Stary, who then identified Tierney as the man she saw in the back room of The Nature Company. The deposit bag was never found.

Appellant argues that because no money was recovered from him that the state therefore failed to provide sufficient evidence. This lack of direct evidence, however, does not automatically require a finding of not guilty.

Evidence may be direct or circumstantial. Moreover, "[c]ircumstantial evidence and direct evidence inherently possess the same probative value." Jenks at 272, 574 N.E.2d 492. Further, "[s]ince circumstantial evidence and direct evidence are indistinguishable so far as the jury's fact finding function is concerned, all that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt." Id. Finally, the reasonable juror may draw inferences from that evidence.

Here, drawing the reasonable inferences from the facts that appellant was found in the private, back room of The Nature Company; that there were no signs indicating that a public bathroom could be found there; that the private bathroom door could not be seen from where Tierney was discovered; that Stary discovered him kneeling down in front of the safe; that money had been placed in the safe the night before; that the money had been checked and the safe had been locked that morning; that appellant quickly stood up upon being discovered, adjusted his pants, and hurried out of the store; and that upon immediate investigation, the money was found to be missing; this court holds that there was sufficient evidence to find appellant guilty of all three charges.

OPTIONAL: Excerpt from Building a More Inclusive Federal Judiciary OPTIONAL: Excerpt from Building a More Inclusive Federal Judiciary

This excerpt provides more detail about the lack of diversity on the federal bench.

Building a More Inclusive Federal Judiciary

Danielle RootGrace OyenubiOctober 3, 2019

Center for American Progress

 

Since the nation’s founding, the federal judiciary has been overwhelming white and male. From the 18th century until the 1960s, white male judges comprised at least 99 percent of the federal judiciary.12 A woman was not appointed to an Article III judgeship until 1934 under President Franklin D. Roosevelt, and it was not until 1949, under President Harry S. Truman, that an African American was appointed to a federal circuit court.13 On the Supreme Court, racial and gender diversity came even later: Justice Thurgood Marshall—the first African American justice—was appointed in 1967, while the first woman on the court, Justice Sandra Day O’Connor, was not appointed until 1981.14 Judge Deborah A. Batts—the first openly LGBTQ federal judge—was not appointed until 1994.15

. . .

Although judicial diversity has improved in recent years—thanks, in particular, to efforts by former Presidents Jimmy Carter, Bill Clinton, and Barack Obama—federal courts remain dominated by judges who are white and male. As of August 2019, 80 percent of all the sitting judges on the federal bench were white and 73 percent were male. Together, white males comprise nearly 60 percent of all judges currently sitting on the federal bench.17 Meanwhile, people of color—including those belonging to two or more races—and women make up only about 20 percent and 27 percent of sitting judges, respectively, while individuals self-identifying as LGBTQ comprise fewer than 1 percent of all sitting judges.18 To put this into perspective, people of color make up nearly 40 percent, women make up 51 percent, and people identifying as LGBTQ comprise approximately 4.5 percent of people living in the United States.

Of judges currently sitting on federal Article III courts, only about 10 percent are African American and 2.6 percent are Asian American. These numbers do not track with the U.S. population. For example, Blacks and African Americans comprise 12.5 percent of the U.S. population, while Asians make up 5.7 percent of the population. Hispanics are even more significantly underrepresented on the courts compared with their share of the population: Only 6.6 percent of sitting federal judges are Hispanic, despite the fact that this group comprises 18.3 percent of the U.S. population, according to the U.S. Census Bureau.19 And there are only two American Indian judges sitting on the federal bench, making up just 0.1 percent of the federal judiciary compared with 0.7 percent of the U.S. population.20

. . .

It can be difficult to acquire up-to-date information on the religious affiliations of federal judges, as they may not openly disclose which faith—if any—they adhere to. However, a 2017 study by scholars Sepehr Shahshahani and Lawrence J. Liu found that among federal appellate judges, 45.1 percent were Protestant, 28.2 percent were Catholic, 19 percent were Jewish, and 5.1 percent were Mormon.23 Strikingly, Hindu judges comprised just 0.5 percent of federal appellate judges, and the study’s authors were unable to identify any Buddhist, Muslim, or atheist federal appellate judges. In 2016, then-President Obama nominated Abid Riaz Qureshi to the U.S. District Court for the District of Columbia. Quareshi would have been the first Muslim American federal judge, but the Senate failed to confirm his appointment.24

 

Regrettably, the authors were unable to locate any publicly available data on the number of sitting federal judges with disabilities. The virtual absence of information on disabled federal judges is problematic and deserves more attention.

 

The federal judiciary also lacks diversity in terms of educational background. A 2016 study found that approximately 48 percent of all former and current federal judges graduated from one of 20 top law schools. Of those, nearly a quarter attended law school at Harvard University, Yale University, University of Michigan, University of Texas, or Columbia University.25 When factoring in judges who attended University of Virginia, Georgetown University, University of Pennsylvania, George Washington University, and Stanford University, this number jumps to 35 percent of all federal judges, past and present. Among Supreme Court justices, in particular, more than 30 percent of those who have served on the court graduated from just one law school: Harvard. In fact, as noted by the study’s authors, “Harvard has had more representation on the Supreme Court than the bottom ninety-five percent of law schools combined.” Just three elite law schools—Harvard, Yale, and Columbia—have been responsible for more than half of all Supreme Court justices who have served on the bench since the nation’s founding.26

 

Professional diversity is also lacking. A 2017 Congressional Research Service report found that more than 46 percent of active federal circuit court judges were either serving in private practice or as a state or local judge when they were appointed to the federal bench. In comparison, 7.5 percent were working as law professors, 3.7 percent were working for state and local government, and fewer than 1 percent were serving as a public defender.27 Among active district court judges, nearly 66 percent were either working in private practice or serving as a state or local judge. At the same time, only 3 percent were working for state or local government, 1.4 percent were serving as a public defender, and just 0.5 percent were working as a law professor when they were appointed. Having judges with different professional experiences overseeing cases is important because these experiences can shape how judges view the application of the law and individual parties.28 Moreover, a 2016 study by the Alliance for Justice found that roughly 86 percent of judicial nominees under the Obama administration had either worked as corporate attorneys, prosecutors, or both.29 At the same time, fewer than 4 percent had worked as lawyers at public interest organizations.30

. . .

President Trump is appointing federal judges at a rapid pace, yet his judicial picks are the least racially and ethnically diverse of any presidential administration over the past 30 years. 

. . .

The lack of diversity is particularly stark in specific jurisdictions. For example, there are no judges of color sitting on the 7th U.S. Circuit Court of Appeals—which includes Illinois, Indiana, and Wisconsin—even though people of color make up nearly a third of the jurisdiction’s population.57 Meanwhile, of the 18 sitting judges on the 8th U.S. Circuit Court of Appeals, only one is a woman, even though women comprise more than half of the jurisdiction’s general population. Furthermore, although people of color make up more than 50 percent of the population covered by the 5th U.S. Circuit Court of Appeals, white judges make up nearly 85 percent of its sitting judges.

. . .

[Regarding law clerks to federal judges], according to a comprehensive 2017 study compiled by researchers associated with Yale Law School and the National Asian Pacific ABA, as of 2015, 82.5 percent of federal law clerks were white.116

. . .

A recent report by the Brennan Center for Justice found that judges of color comprise just 15 percent of state supreme court seats nationwide. Nearly half of all states have supreme courts comprised entirely of white judges.136 Meanwhile, female judges comprise just 36 percent of state supreme court seats. The same diversity issues exist for attorneys general. In fact, there are only nine women and 12 people of color currently serving as state attorneys general, comprising only about 17.6 percent and 23.5 percent, respectively, of all state attorneys general nationwide, including Washington, D.C.137 Moreover, of assistant U.S. attorneys in 2013 and 2014, the vast majority, nearly 81 percent, were white; only 5.2 percent were Asian, 8 percent were Black, and 5.2 percent were Hispanic.138

 

 

OPTIONAL Direct and Circumstantial Evidence OPTIONAL Direct and Circumstantial Evidence

Read these jury instruction on "Direct and Circumstantial Evidence" for more information on the (unimportant) distinction between the two.

Two types of evidence may be used in this trial, "direct evidence" and circumstantial (or indirect) evidence." You may use both types of evidence in reaching your verdict.

 

"Direct evidence" is simply evidence which, if believed, directly proves a fact.  An example of "direct evidence" occurs when a witness testifies about something the witness knows from his or her own senses — something the witness has seen, touched, heard, or smelled.

 

"Circumstantial evidence" is evidence which, if believed, indirectly proves a fact. It is evidence that proves one or more facts from which you could find or infer the existence of some other fact or facts. An inference is simply a deduction or conclusion that reason, experience, and common sense lead you to make from the evidence. An inference is not a suspicion or a guess. It is a reasoned, logical decision to find that a disputed fact exists on the basis of another fact.

 

For example, if someone walked into the courtroom wearing a wet raincoat and carrying a wet umbrella, that would be circumstantial or indirect evidence from which you could find or conclude that it was raining. You would not have to find that it was raining, but you could,

 

Sometimes different inferences may be drawn from the same set of facts. The government may ask you to draw one inference, and the defense may ask you to draw another. You, and you alone, must decide what inferences you will draw based on all the evidence.

 

You should consider all the evidence that is presented in this trial, direct and circumstantial. The law makes no distinction between the weight that you should give to either direct or circumstantial evidence. It is for you are to decide how much weight to give any evidence.

OPTIONAL: Another set of jury instructions defining evidence OPTIONAL: Another set of jury instructions defining evidence

Tiersma, Peter M., Communicating with Juries: How to Draft More Understandable Jury Instructions (November 16, 2009). Loyola-LA Legal Studies Paper No. 2009-44

 

Questions:

  • Questions are not evidence. Only the answer is evidence. You should consider a question only if it helps you understand the witness’s answer. Do not assume that something is true just because a question suggests that it is.
  • The attorneys’ questions are not evidence. Only the witnesses’ answers are evidence. You should not think that something is true just because an attorney’s question suggests that it is true. However, the attorneys for both sides can agree that certain facts are true. This agreement is called a “stipulation.” No other proof is needed and you must accept those facts as true in this trial.

Objections:

  • Each side has the right to object to evidence offered by the other side. If I do not agree with the objection, I will say it is overruled. If I overrule an objection, the witness will answer and you may consider the evidence. If I agree with the objection, I will say it is sustained. If I sustain an objection, you must ignore the question. If the witness did not answer, you must not guess what he or she might have said or why I sustained the objection. If the witness has already answered, you must ignore the answer. 

Motion to strike:

  • An attorney may make a motion to strike testimony that you have heard. If I grant the motion, you must totally disregard that testimony. You must treat it as though it did not exist.

Direct and indirect evidence:

  • Evidence can come in many forms. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. It can be someone’s opinion. Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane flying across the sky. Some evidence proves a fact indirectly, such as testimony of a witness who saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as “circumstantial evidence.” In either instance, the witness’s testimony is evidence that a jet plane flew across the sky. As far as the law is concerned, it makes no difference whether evidence is direct or indirect. You may choose to believe or disbelieve either kind. Whether it is direct or indirect, you should give every piece of evidence whatever weight you think it deserves.

1.2 Class 2 1.2 Class 2

Merritt & Simmons textbook assignment Merritt & Simmons textbook assignment

In the textbook, please read Chapters 4 and 5. There are no substantive differences between the Third and Fouth editions for these chapters. 

Rule 103 Rule 103

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

104(a), (c), and (e) 104(a), (c), and (e)

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

. . . 

(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:

(1) the hearing involves the admissibility of a confession;

(2) a defendant in a criminal case is a witness and so requests; or

(3) justice so requires.

. . . 

(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

Rule 105 Rule 105

Rule 105 – Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes

If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

United States v. Gomez-Norena United States v. Gomez-Norena

The textbook uses United States v. Gomez-Norena to illustrate the importance of objecting with specificity.  Read this excerpt from the trial transcript to see how the objections actually unfolded at trial.

UNITED STATES of America, Plaintiff-Appellee, v. Jaime Leon GOMEZ-NORENA, Defendant-Appellant.

No. 89-50192.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 1990.

Decided July 12, 1990.

Elizabeth N. Brancart, Orange, Cal, for defendant-appellant.

Ellyn Marcus Lindsay, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before HUG, SCHROEDER and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Jaime Leon Gomez-Norena (“Gomez”) appeals his conviction, following a jury trial, for possession of cocaine with intent to *498distribute, in violation of 21 U.S.C. § 841(a)(1) (1988). We affirm.

I

Late in the afternoon of Friday, January 22, 1988, Avianca Airlines Flight Number 80 from Bogota, Colombia touched down at Los Angeles International Airport. Near the passenger arrival gate, and behind a screening podium, stood United States Customs Inspector Sergio Espinoza. As a “rover screener,” Espinoza had to evaluate each disembarking passenger according to an official “drug courier profile.” Espinoza’s scanning eyes fixed on Gomez, who walked aimlessly down the concourse with a carry-on bag in his hand and a “dumbfounded” look on his face. After failing to attract Gomez’s attention in English, Espinoza used Spanish to hail Gomez over to the podium.

A quick review of Gomez’s ticket, passport, and customs declaration enabled Espinoza to draw several inferences. First, Gomez had begun his trip from the reputed drug capital, Medellin, Colombia. Second, Gomez had paid for his ticket with cash. Third, Gomez had an Australian visa and would be in the United States only for the three hours before his flight to Sydney. Fourth, the 23-year-old Gomez was a newcomer to international travel. Fifth, Gomez had checked only one piece of baggage.

Consequently, Inspector Espinoza made a coded notation of his suspicions on Gomez’s customs declaration. He then told Gomez that he would have to visit the Immigration Office on the first level of the airport before he could go on to Sydney. As Gomez hurried away to make this stop, Espinoza called over Senior Customs Inspector, Sal Zito, Inspector Harold Little, and other members of the customs roving team. He told them to “watch out for Mr. Gomez” because he fit the drug courier profile.

Inspector Little met Gomez at the second customs inspection station. He searched both Gomez’s carry-on bag and suitcase. He found clothing and some papers, including a letter of acceptance from the Australian College of English. Little then asked Gomez if he owned and packed the suitcase. Gomez answered, “Yes.” Finding the small suitcase disproportionately heavy, Inspector Little began a “scratch test,” rubbing his hands on the inside and outside of the suitcase at the same time, in an effort to detect a hidden lining. The test confirmed Little’s suspicions. He immediately called Senior Inspector Zito over to his work station. After Little related his suspicions, Zito passed the suitcase under a nearby x-ray machine and discovered a double compartment.

At that point, Inspectors Little and Espinoza ushered Gomez to the Customs search room. Espinoza’s pat-down search revealed no weapons or contraband. Inspector Little drilled through the side of Gomez’s suitcase and discovered two plastic bags containing roughly two kilograms of cocaine.

Gomez was immediately arrested and strip searched. About one hour later, Special Agent Paul Pace of the Drug Enforcement Agency (“DEA”) arrived on the scene. Inspector Espinoza acted as an interpreter. Despite receiving a Miranda warning in Spanish, Gomez elected to speak. Contrary to his former statement to Inspector Little, Gomez told Pace that he did not know about the hidden compartment because the suitcase belonged to a stranger at the Bogota airport who had given him $1000 to carry it from Bogota to Sydney. He added that he had forgotten the stranger’s name.

A jury convicted Gomez for possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Gomez argues on appeal that the district court improperly admitted testimony regarding the drug courier profile, and expert testimony regarding his intent to distribute the cocaine.

II

Gomez first challenges the admissibility of Inspector Espinoza’s testimony concerning his statements to the other Customs inspectors that Gomez fit the drug courier *499profile. Because the objections raised at trial are relevant to our standard of review, we reproduce the testimony in full:

Prosecutor: What did you tell Inspector Zito or Inspector Little or any of the others about—
Defense: Objection. Calling for hearsay.
Prosecutor: Your Honor.
The Court: Ladies and gentlemen. I permit this, which the law says I can, but only on the question of what was in the inspector’s — those ones he told whatever he told to — mind at the time they carried on their activities.
Now it is hearsay, the defendant wasn’t there, but we do permit hearsay to be passed from one law enforcement officer to another, and this is appropriate, so the objection is overruled.
With that instruction that you can consider only as to what the inspectors had in their mind when, and if, anything further happened in the presence of the defendant. With that instruction, objection overruled.
Prosecutor: Inspector] Espinoza, what did you say to the other inspectors about the defendant?
Espinoza: I instructed the inspectors to watch out for Mr. Gomez.
Prosecutor: Did you give them any particulars?
Espinoza: Yes, I did. I told them that in the past that we’ve intercepted cocaine couriers with the same—
Defense: Objection, your Honor. Move to strike. Rule 4[0]4(b) objection.
The Court: Same ruling. Overruled. Let’s have a continuing objection. Continue. Overruled.
Prosecutor: Thank you, your Honor. I would appreciate it.
The Court: My instruction to the Jury, which I gave you, is to only determine what the inspectors who may have had further contact with the defendant, and we’ll see about that. Otherwise, I’ll strike it. But only with respect to what they had in their mind when they had further contact with the defendant. I’m talking about the people [Espinoza] talked to. All right? Got it? With that instruction, objection overruled.
Prosecutor: What did you tell them, Inspector?
Espinoza: I told them to look out after Mr. Gomez, because in the past we’ve had the same type of narcotics couriers with the same MO that Mr. Gomez had: Cash ticket, in transit, in transit without a [United States] Visa, to Australia, with one or more pieces of checked luggage.
Prosecutor: You said ‘MO’; what did you mean by that?
Espinoza: The same — his profile, same cash ticket.
The Court: MO, Modus Operandi?
Espinoza: Yes.
The Court: That's what he asked you.
Prosecutor: What did you mean when you said with the same MO?”
Espinoza: Well, in the past we’ve had the same type of narcotics carriers coming from Colombia.
Prosecutor: Going in transit to Australia?
Espinoza: Yeah.

Reporter’s Transcript at 40-42.

A

Gomez’s central claim on appeal is that Espinoza’s testimony regarding the drug courier profile was unfairly prejudicial and thus inadmissible under Federal Rule of Evidence 403.1 However, he has not properly preserved that claim for review. As the transcript indicates, Gomez objected on two grounds: (1) inadmissible hearsay, see Fed.R.Evid. 802, and (2) improper character evidence, see Fed.R.Evid. 404(b).

*500A party challenging the admission of. evidence must timely object and state the specific grounds for his objection. Fed.R. Evid. 103(a)(1). This rule serves to ensure that “the nature of the error [is] called to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take corrective measures.” Advisory Committee’s Note to Rule 103(a), 56 F.R.D. 183, 195 (1972). See generally McCormick on Evidence, § 52, at 126 (E.W. Cleary ed. 1984) [hereinafter McCormick] (“If the administration of the exclusionary rulés of evidence is to be fair and workable the judge must be informed promptly of contentions that evidence should be rejected, and the reasons therefor.”) (emphasis added).

Thus, a party fails to preserve an eviden-tiary issue for appeal not only by failing to make a specific objection, see United States v. Holland, 880 F.2d 1091, 1094 (9th Cir.1989); United States v. McQuisten, 795 F.2d 858, 865 (9th Cir.1986); United States v. O’Brien, 601 F.2d 1067, 1071 (9th Cir.1979), but also by making the wrong specific objection, see, e.g., ESCO Corp. v. United States, 750 F.2d 1466, 1469-70 (9th Cir.1985) (objection to testimony on basis of Rule 802 precludes appellant from challenging it on basis of Rule 408); United States v. Arias, 575 F.2d 253, 254-55 & n. 2 (9th Cir.) (objection to testimony on basis of Rule 1002 precludes appellant from challenging it on grounds that it was not made under oath), cert. denied, 439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978); see generally 1 Wigmore Evidence § 18, at 828 (Tillers rev. 1983) (“A specific objection overruled will be effective to the extent of the grounds specified, and no further. An objection overruled, therefore, naming a ground which is untenable, cannot be availed of because there was another and tenable ground which might have been named but was not.”) (footnote omitted); 1 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 103[02], at 103-24-25 (1989) (“Rule 103 adopts Wigmore’s position that a specific objection made on the wrong grounds and overruled precludes a party from raising a specific objection on other, tenable grounds on appeal.”) (footnotes omitted).

Because Gomez failed to make a Rule 403 objection below,2 we review the admission of the drug courier profile testimony for plain error. See Fed.R.Evid. 103(d); United States v. Morris, 827 F.2d 1348, 1350 (9th Cir.1987), cert. denied, 484 U.S. 1017, 108 S.Ct. 726, 98 L.Ed.2d 675 (1988). *501“A plain error is a highly prejudicial error affecting substantial rights.” United States v. Yarbrough, 852 F.2d 1522, 1537 (9th Cir.) (citing United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986)), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988); United States v. Houser, 804 F.2d 565, 570 (9th Cir.1986).

B

Courts are keenly aware of the dangers of admitting testimony concerning the drug courier profile. For example, the Eighth Circuit has held that such testimony may never be introduced as substantive evidence of guilt. See United States v. Carter, 901 F.2d 683, 684-85 (8th Cir.1990) (“Drug courier profiles are investigative tools, not evidence of guilt.... [They] are not to be admitted as substantive evidence of guilt.”) (citing United States v. Quigley, 890 F.2d 1019, 1022-24 (8th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1163, 107 L.Ed.2d 1066 (1990)). The Eleventh and Ninth Circuits have stated in dictum that they also would condemn such use of the drug courier profile. See United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir.1983) (denouncing “the use of this type of evidence as substantive evidence of a defendant’s innocence or guilt,” but holding that admitting it as background information was not plain error); United States v. Beltran-Rios, 878 F.2d 1208, 1211 (9th Cir.1989) (stating “Appellant’s argument that such profiles generally have no place as substantive evidence of guilt at trial is still valid,” but holding that permitting their use for purposes of impeachment was not abuse of discretion).

However, this case does not implicate those concerns. Here the government introduced Inspector Espinoza’s testimony not to prove that Gomez was guilty, but to provide the jury with a full and accurate portrayal of the events as they unfolded on that Friday afternoon. Indeed, the district jv dge twice cautioned the jury that it could consider Espinoza’s testimony only as background material.3 We agree with the Eleventh Circuit that admitting drug courier profile testimony for this limited purpose greatly reduces the potential for unfair prejudice and thus cannot amount to plain error.4 See Hernandez-Cuartas, 717 F.2d at 555. Cf. United States v. White, 890 F.2d 1012, 1014 (8th Cir.1989) (no “clear abuse of discretion” to admit drug courier profile testimony for limited purpose of “explaining the modus operandi of the crimes defendants were charged with”).

Ill

Gomez next argues that the district court erred by allowing DEA Special Agent Pace, who was present shortly after Gomez’s arrest, to testify as an expert on Gomez’s intent to distribute the cocaine hidden in his suitcase.

The government introduced Special Agent Pace as an expert witness, based on his four years’ experience involving over 200 narcotics arrests. Gomez challenges the following exchange:

Prosecutor: Now, in your opinion, Special Agent Pace, would an individual in possession of approximately $200,000 worth of cocaine, would that be an amount consistent with personal use or use for possession for distribution?
Pace: Possession with intent to distribute.
Prosecutor: Now, taking into consideration, Special Agent Pace, the items that were seized from [Gomez’s suitcase] and the other factors that you’ve *502discussed, did you form an opinion as to whether the cocaine that was in [the suitcase] was cocaine that was possessed for personal use or possessed for distribution purposes?
Pace: Possession with intent to distribute.
Prosecutor: And what is the basis of that opinion?
Pace: The large amount [of cocaine], the way it was concealed, and where it was coming from.

Reporter’s Transcript at 226-27.

Gomez argues that Special Agent Pace testified to his mental state in violation of Federal Rule of Evidence 704(b).5 Generally speaking, we review the admission of expert testimony for manifest error. See United States v. Castro, 887 F.2d 988, 1000 (9th Cir.1989). However, because Gomez did not raise an objection before the district court, we review the admission of Pace’s expert testimony for plain error. See supra Part II.A.

Gomez’s argument lacks merit. We rejected a similar claim in United States v. Kinsey, 843 F.2d 383 (9th Cir.), cert. denied, 488 U.S. 836, 109 S.Ct. 99, 102 L.Ed.2d 75 (1988). There a detective, testifying as an expert, stated that Kinsey’s possession and access to a large amount of cocaine indicated to him that Kinsey was involved in the distribution of cocaine. Conducting our review under the slightly more rigorous “manifest error” standard, we upheld the admission of the detective’s testimony because it did not speak to Kinsey’s mental state and was not misleading. Id. at 388-89.

Like the expert witness in Kinsey, Special Agent Pace merely testified that possession of large amounts of cocaine is consistent with an intent to distribute it. At no time did he give his opinion of what Gomez actually thought. In this light, we do not find the admission of his testimony to be plain error.

IV

In sum, we hold that the district court did not commit plain error by admitting the drug courier profile testimony for the limited purpose of providing the jury with background information. We also hold that the district court did not commit plain error by admitting expert testimony indicating that the defendant’s actions and the amount of cocaine he was carrying were consistent with possession with an intent to distribute cocaine.

For these reasons, the judgment of the district court is AFFIRMED.

United States v. Gulley United States v. Gulley

This case also highlights the importance of specificity under Rule 103, but in the context of a written motion in limine.  It also illustrates the operation of the standard of review.

UNITED STATES of America, Plaintiff-Appellee, v. Parnell GULLEY, Defendant-Appellant.

No. 11-3411.

United States Court of Appeals, Seventh Circuit.

Argued April 8, 2013.

Decided June 17, 2013.

*902Ronda H. Coleman, Office of the United States Attorney, Urbana, IL, for PlaintiffAppellee.

Emily A. Reitmeier, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and BAUER and SYKES, Circuit Judges.

BAUER, Circuit Judge.

Government agents set up a crack cocaine deal between a confidential informant (Cl), Anthony Heard, and a known crack dealer, Pierre Blake. On October 21, 2008, Heard drove to the meeting place wired with a concealed video and audio recording device. The recorder, for all intents and purposes, captured Parnell Gulley — Blake’s faithful driver — getting into Heard’s car and exchanging a bag of crack cocaine for $200. Gulley was indicted on one count of knowingly and intentionally distributing 5 or more grams of a mixture and substance containing crack cocaine, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B). The case proceeded to trial, which ended in a hung jury. At the re-trial, Gulley’s counsel argued that Gulley did not “knowingly or intentionally” deliver a controlled substance in violation of the relevant statutes; the jury disagreed and found him guilty.

During the second trial, the government presented testimonial evidence that Gulley admitted to driving Blake to a drug deal with Heard that occurred two days after the charged offense. The government also presented Gulley’s admission that he knew Blake was a crack dealer, that he frequently drove Blake around, and that he had previously made a “delivery” for Blake. This was in addition to evidence that crack cocaine, ecstasy, and a firearm were found at Blake’s stash house on the day he and Blake were arrested. Gulley did not ob*903ject to this testimony at trial, but he now contends the evidence should have been excluded under Federal Rule of Evidence 404(b).

At Gulley’s sentencing hearing, the district judge sentenced Gulley to 327 months in prison, followed by an 8-year term of supervised release. In imposing his sentence, the district judge explained that our precedent prohibited retroactive application of the Fair Sentencing Act of 2010(FSA); that precedent has since been overturned. Gulley argues that he should be resentenced in accordance with the FSA while the government contends that any error regarding his prison term was harmless. The parties agree that we should vacate the supervised release term.

For the reasons that follow, we affirm Gulley’s conviction but vacate his sentence and remand for resentencing.

I. BACKGROUND

Heard began working as a Cl for the Champaign, Illinois Police Department in 2008. The department originally arrested Heard in connection with an investigation into the sale of crack cocaine in the area, and Heard agreed to cooperate as a Cl in exchange for leniency.

In October 2008, the Champaign Police Department began an investigation into the crack cocaine dealings of a man known to Heard as “K.D.” — he was also known as “Church” and was later identified as Blake. On the morning of October 21, Heard placed several recorded calls to Blake’s phone to arrange a controlled buy of crack cocaine. A time, place, and price were agreed upon. Two people were on the other end of the phone calls at various times: Blake and an unknown male voice, later identified as Gulley, Blake’s driver and associate. DEA Special Agent Pablo Ramos and Officer Matthew Henson were present when Heard made the calls.

Later that day, Heard was wired with a hidden video and audio recording device to document the planned transaction. After being equipped with the device, Heard drove to the Country Brook Apartments in Champaign, Illinois, where he parked his car, exited the vehicle, and casually waited in the parking lot. Special Agent Ramos and Officer Henson followed Heard’s car to the meeting place but, once they got close, kept at bay because other law enforcement personnel — DEA Task Force Agent Jack Turner, Officer Jaceson Yandell, and another officer — were already in the immediate area conducting surveillance.

Gulley, who at the time was still unknown to Heard and the officers involved, walked out of the complex and spoke to Heard shortly after Heard arrived. The two men got into Heard’s car and, according to Heard, Gulley placed a clear plastic baggy containing crack cocaine on the armrest. Heard then gave Gulley $200 in cash, the amount the parties had agreed on. The video recording does not show Gulley’s face inside the car, the bag of drugs, or the money changing hands, but the audio recorder captured Gulley’s voice as he counted the cash. The audio recorder also captured Heard asking Gulley about purchasing a “six-trey” — 63 grams of crack cocaine or one-sixteenth of a kilogram — and whether Blake could come outside to talk. At that time, Gulley got out of the car and went inside the apartment complex. Blake walked outside about a minute later with cocaine residue on his hands and clothing, and he and Heard spoke about future crack cocaine transactions. Blake said he would charge $1,500 to $1,600 for a 63-gram deal.

Heard then left the apartment complex and drove to his agreed-upon meeting location with law enforcement personnel. Once there, Heard gave Special Agent Ra*904mos and Officer Henson the bag he received from Gulley, which contained 6.8 grams of crack cocaine.

Two days later, on October 23, Heard arranged to purchase 63 grams of crack cocaine from Blake, a significantly larger amount than the first buy. Officers parked a video-surveillance van near the residence where Blake stayed with his girlfriend in Champaign, which was a short distance away from the Country Brook Apartments. The surveillance captured Gulley and Blake leaving the residence, getting into a car, and driving to the Country Brook Apartments at approximately 2:35 p.m. Gulley was the driver; Blake sat in the front passenger seat. This information was relayed to other agents and officers involved in the investigation. who were standing by at other posts. Heard, again equipped with a video-audio recording device, drove to the Country Brook Apartments at approximately the same time as Gulley and Blake.

At the apartment complex, Blake gave Heard a bag containing 60.7 grams of crack cocaine in exchange for $1,500. Heard then left the apartment complex and delivered the “goodies” to Special Agent Ramos and Officer Yandell. Surveillance captured Gulley and Blake returning to the residence Blake shared with his girlfriend at about that same time.

On October 31, officers secured and executed warrants to search, first, an apartment in the Country Brook Apartments complex — Blake’s stash house — and, second, the residence Blake shared with his girlfriend. Crack cocaine, ecstasy, and a firearm were found at the stash house; Gulley, Blake, Blake’s girlfriend, another man, and $2,467 in cash were found at the residence. Officers later determined that $1,700 of the cash was money provided for the controlled buys. Gulley was arrested and taken to the police station.

Gulley waived his Miranda rights at the station and told Officer Yandell and Officer Henson that he was unemployed and on parole. He initially told the officers that he had no knowledge of or involvement in Blake’s drug-dealing operation but admitted upon further questioning that Blake did not have a driver’s license; that he drove Blake around to deliver cocaine, including driving Blake to Chicago to pick up 9 ounces of cocaine a few days before his arrest; that Blake kept cocaine at an apartment in the Country Brook Apartments; and that Blake sold cocaine in quantities of more than 3.5 grams. The interview was not recorded.

On November 18, 2008, Gulley was indicted on one count of knowingly and intentionally distributing 5 or more grams of a mixture and - substance containing crack cocaine, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B), for his conduct on October 21, 2008. On January 6, 2009, Gulley agreed to cooperate with the government in exchange for a grant of direct use immunity. The agreement required him to provide “complete and truthful” information regarding his criminal conduct.

In accordance with the agreement, Gulley spoke, with his attorney present, to Task Force Agent Turner and Officer Yandell on February 2, 2009. Gulley admitted to driving Blake around and being aware of Blake’s drug-dealing venture: he explained that Blake received approximately 63 grams at a time,- two to three days a week, and that Blake described his apartment at the Country Brook Apartments as his “stash house.” More significantly, Gulley admitted that, on one occasion, Blake had given him a “bag” at the apartment complex and told him to deliver it to someone in the parking lot in exchange for $200. Gulley stated that he was drunk at the time and did not know what was in the bag. Additionally, Gulley admitted to sell*905ing cocaine for Blake “on one occasion,” though he did not articulate a specific date or time.

The government prosecutor contacted Gulley’s attorney on August 13, 2010, to discuss Gulley’s participation at Blake’s upcoming trial. Four days later, on August 17, the government was informed that Gulley would no longer cooperate — Gulley told his attorney that the government could dismiss the charge against him or proceed to trial. Gulley did not testify at Blake’s trial, and the government considered that a violation of their agreement. The district court took judicial notice of the government’s position on October 4, 2010.

Shortly before Gulley’s first trial, the government filed an exhibit list that included, among other things, a video recording from the October 21 controlled buy, surveillance video from October 23, photos taken during the execution of the October 31 search warrants, and the Miranda warning form from October 31. In response, Gulley’s counsel filed an “Objection to Exhibits and Instructions” that asked the court to exclude “items of evidence that pertain to dates other than October 21, 2008,” including “videos and tapes.” Also filed was a general, catch-all motion in limine — which we discuss in more detail below — asking the court to exclude evidence of “bad conduct” that occurred on “dates different than October 21, 2008.” The district court denied the motion without a hearing, concluding that the evidence referred to in the motion in limine was relevant under Federal Rule of Evidence 401 and not unduly prejudicial under Rule 403.

The case proceeded to trial on October 4, 2010. The government called five witnesses' — Officer Henson; Officer Yandell; Hope Erwin, a forensic drug chemist; Task Force Agent Turner; and Heard. Gulley called none. The district judge declared a mistrial after the jury said it was “hopelessly deadlocked.”

A second jury trial began on February 7, 2011. The government called the same five witnesses; Gulley again called none. The government witnesses testified regarding many of Gulley’s admissions about his relationship with Blake, statements discussing crack cocaine on the October 21 and 23 recordings, the purpose of conducting surveillance outside the residence Blake shared with his girlfriend, and drugs and a firearm being found at the Country Brook Apartments stash house on October 31. Gulley’s counsel did not object at trial to any of this information on Rule 403 or 404(b) grounds.

The jury found Gulley guilty on the single count charged.

A sentencing hearing was held in October 2011. The Presentence Investigation Report (PSR) stated that Gulley was a career offender, see U.S.S.G. § 4B1.1, and had an offense level of 37 and a criminal history category of VI. This resulted in a recommended U.S. Sentencing Guidelines range of 360 months to life imprisonment. Gulley objected to the PSR and asked the court to consider the FSA, which would have resulted in an offense level of 34— and a lower Guidelines range. The district judge rejected Gulley’s request and accepted the PSR because our then-precedent was that the FSA did not apply to criminal conduct occurring before the FSA came into effect. Ultimately, however, the judge varied from the Guidelines range and sentenced Gulley to 327 months’ imprisonment, followed by an 8-year term of supervised release.

II. DISCUSSION

On appeal, Gulley finds fault with the admission of certain evidence at trial, as well as the Guidelines calculation the dis*906trict judge relied on when sentencing Gulley. We address each issue in turn.

A. Evidence at Trial

Gulley contends that certain testimony was inadmissible under Federal Rule of Evidence 404(b) and that its admission denied him a fair trial. A district court’s decision as to the admissibility of evidence at trial is generally reviewed for an abuse of discretion. United States v. Collins, No. 11-3098, 2013 U.S.App. LEXIS 9721, at *6 (7th Cir. May 15, 2013). The parties here, however, disagree as to whether Gulley’s counsel made a proper objection to preserve the issue for appeal; if not, the plain error standard applies. See United States v. Wolfe, 701 F.3d 1206, 1211 (7th Cir.2012).

We have explained that, “[i]n order to preserve a ruling on the admission of evidence for appeal, a party must make ‘a timely objection or motion to strike [which] appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.’ ” United States v. Rollins, 544 F.3d 820, 834 (7th Cir.2008) (quoting Fed.R.Evid. 103(a)(1)). Gulley did not object to the testimony on Rule 404(b) grounds at trial, but before trial, Gulley’s counsel filed a terse motion in limine with the following language:

The Defendant asks that the Plaintiff be prohibited from introducing testimony, videos, tapes and exhibits which pertain to dates other than October 21, 2008. The Plaintiff has filed a single charge and it should not be allowed to attempt to show other bad conduct to prejudice the Defendant on the Indictment charge.

Gulley contends this was sufficient to preserve the issue, but the motion was devoid of the specifics necessary to satisfy the requirements of Rule 103. The district court had no way of identifying exactly what type of “bad conduct” Gulley was referring to, when and where it occurred, or on what grounds the motion relied. See Rollins, 544 F.3d at 834 (concluding that the admission of testimony would be reviewed for plain error because the grounds the defendant asserted on appeal “were neither stated specifically nor apparent from context”).

We will review the testimony at issue for plain error.

Now to the merits: Federal Rule of Evidence 404(b) prohibits “[e]vidence of a crime, wrong, or other act ... to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Nevertheless, such evidence may be admissible for another purpose, including to prove opportunity, knowledge, or identity. Fed. R.Evid. 404(b)(2). In determining whether evidence was admissible under Rule 404(b), we consider whether: (1) the evidence was directed towards establishing a matter at issue other than the defendant’s propensity to commit the crime charged; (2) the evidence showed that the other act was similar enough and close enough in time to be relevant to the matter at issue; (3) the evidence was sufficient to support a jury finding that the defendant committed the act; and (4) the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, as required by Rule 403. United States v. Hicks, 635 F.3d 1063, 1069 (7th Cir.2011).

The government called witnesses to testify that Gulley admitted to occasionally driving Blake around so that Blake could sell crack cocaine; Gulley was aware and had knowledge of Blake’s drug-dealing activities; and Gulley drove Blake to meet with Heard on October 23, 2008, to complete a crack cocaine deal for which Gulley was not charged. The witnesses also testified that crack cocaine, ecstasy, and a firearm were found during a search of Blake’s *907stash house on October 31, the day Gulley and Blake were arrested. Gulley contends this testimony was improper because it was not relevant, was only offered to show Gulley’s “pattern or propensity” to commit crimes, and was unduly prejudicial. The government argues that the information was admissible for reasons unrelated to Rule 404, as well as under the Rule 404(b) exceptions. We need not address the government’s other explanations because the evidence was admissible under the 404(b) exceptions.

As to the first prong: the crime charged (violating 21 U.S.C. §§ 841(a) and 841(b)(1)(B)) required the government to establish that Gulley “knowingly and intentionally” delivered a controlled substance on October 21, 2008. Gulley’s counsel highlighted this requirement during his opening statement and told the jury,

And that’s what we’re talking about here, is a person that was in the area at the time in question, [who] was not distributing cocaine as suggested by the government in this matter.... After you hear all of the evidence in this case in this matter, you will not be convinced beyond a reasonable doubt that there’s been any showing of a knowing and intelligent, voluntary distribution of cocaine by Mr. Gulley on the date in question.1

And in his closing argument when discussing the October 21 video, Gulley’s counsel stated, “If he just is handing something over without paying attention to it, that’s not a knowing violation of the law whatsoever.”

The defense did not call any witnesses at trial, nor did Gulley testify, but it is clear that Gulley’s “defense” went to his state of mind — i.e., even if Gulley delivered “something” on October 21, he did not know what it was; and if that “something” was a controlled substance, Gulley did not intentionally deliver it.2 The defense was more than a general denial and a plea of “not guilty.” Cf. United States v. Miller, 673 F.3d 688, 698 (7th Cir.2012).

The government was, therefore, entitled to put forth evidence to rebut the defense, see United States v. Conner, 583 F.3d 1011, 1023 (7th Cir.2009) (“The government is not relieved of its burden of proving an element simply because [the defendant] did not challenge it. To hold otherwise would be to tie the hands of the government in meeting its burden of proof where no defense was presented on an element, or indeed, an entire charge.”) (internal citation omitted); see also United States v. Villegas, 655 F.3d 662, 672 (7th Cir.2011) (explaining that the principle of door opening “depends on the specific situation in which it is used and thus calls for an exercise of judicial discretion”), and the testimony at issue went directly to Gulley’s knowledge on October 21: if Gulley drove around a known drug dealer, had access to illegal drugs and a firearm, and witnessed an illegal drug transaction two days after the charged offense under circumstances similar to the charged offense, it was more likely that Gulley knew the clear bag he gave Heard contained crack cocaine. See Conner, 583 F.3d at 1022 (stating that evidence of the *908defendant’s relationship with a known drug dealer and the defendant’s “extensive history of prior drug activities” was admissible under the 404(b) exceptions because it tended to show that the defendant “was not simply an innocent bystander” to the drug transaction).

With respect to the second prong, we think the testimony described conduct that was similar enough and close enough in time to be relevant to the charged offense. Initially, time proximity is not at issue; the testimony involved events occurring shortly before October 21, two days after on October 23, and ten days after on October 31. Gulley’s main argument is that the evidence was not “similar enough.” However, the fact Gulley knew that Blake dealt drugs, including crack cocaine — the drug he was charged with dealing — and drove Blake to meet with Heard, the person he was charged with dealing to, at the same place he was charged with dealing, is directly on point with the charged offense.

Gulley has a stronger argument regarding the ecstasy and firearm that were found on October 31: ecstasy is not crack cocaine, and the charged offense did not include the use of a firearm. Nevertheless, our analysis of the prong “need not be unduly rigid,” United States v. Wheeler, 540 F.3d 683, 692 (7th Cir.2008); our focus is on “establishing the relevancy of the 404(b) evidence.” United States v. Foster, 652 F.3d 776, 785-86 (7th Cir.2011). “Simple differences in the type of conduct or charge at issue cannot defeat the similarity requirement.” United States v. Long, 86 F.3d 81, 84 (7th Cir.1996).

Here, the evidence was offered to show Gulley’s knowledge of what was in the bag he gave Heard. It goes without saying that a person with access to ecstasy at a stash house, especially in the presence of a firearm, is more likely to know what crack cocaine is than someone lacking experience with (or access to) either. We do not think the simple differences between crack cocaine and ecstasy undermined the relevance of the information to the government’s argument; at the end of the day, both are illegal drugs. Similarly, it is widely known that guns and drugs go hand in hand. See United States v. Perez, 581 F.3d 539, 547 (7th Cir.2009) (explaining that “weapons are 'recognized tools of the drug trade’ and ... the possession of a gun can advance the possession and future distribution of narcotics by protecting the drugs or the drug dealer” (quoting United States v. Duran, 407 F.3d 828, 838 (7th Cir.2005))); United States v. Ramirez, 45 F.3d 1096, 1103 (7th Cir.1995) (“[WJeapons are tools of the narcotics trade such that this evidence is admissible.”). The inference between Gulley having access to guns and drugs and knowing what was in the bag does not require an inordinate stretch of the imagination. And under the facts of this case, we do not believe the offense charged needed to include “use of a firearm” to make the firearm evidence “similar enough” so as to be relevant.

We briefly note Gulley’s barebones assertion that the items cannot be “sufficiently similar” because he was not at the stash house when the items were recovered, but that is a non-starter. The argument is better aimed at the fourth prong. See United States v. Gomez, 712 F.3d 1146, 1154 (7th Cir.2013) (“Assessing the extent of [the evidence’s probative value] is a matter for the fourth prong of the analysis.”).

The third prong is easily satisfied. The government witnesses’ testimony was consistent: Gulley admitted that he knew Blake’s “business” and that he drove Blake around as Blake received, stored, and sold crack cocaine from a stash house. Surely an individual’s own statements are sufficient to support a jury finding that the individual participated in the acts at issue. Furthermore, eyewitness testimony can *909provide the foundation for a “reasonable finding by the jury.” United States v. Howard, 692 F.3d 697, 706 (7th Cir.2012). All but one of the witnesses observed the October 23 “deal,” and they testified to the same facts as those captured on the video and audio recordings. And finally, Gulley has not challenged the execution of the search warrants on October 31, or the collection of evidence at the stash house or the residence, which we assume were done properly. We think the evidence was sufficient to support a jury finding that the other acts at issue occurred.

Lastly, Gulley contends the evidence was unduly prejudicial under the fourth prong of the test, Rule 403. But we can hardly fault the district judge for not conducting a more thorough balancing test when the testimony was never properly objected to. See United States v. Baker, 655 F.3d 677, 682 (7th Cir.2011) (“[A] district court is not under an obligation to make every evidentiary ruling orally; had [the defendant] wanted an oral ruling, he should have objected on Rule 403 and Rule 404(b) grounds.”). The same goes for Gulley’s criticism of the judge for failing to give a limiting instruction. A limiting instruction might have been helpful, see United States v. Moore, 531 F.3d 496, 500 (7th Cir.2008), but Gulley concedes that he never requested one. See United States v. White, 698 F.3d 1005, 1018 (7th Cir.2012) (holding that evidence admitted under a Rule 404(b) exception was not unduly prejudicial even though the defendant never sought, and the district court never tendered, a specific limiting instruction).

Even so, the court will tolerate a greater risk of prejudice when the evidence is more probative. United States v. Miller, 688 F.3d 322, 329 (7th Cir.2012) (quoting United States v. Vargas, 552 F.3d 550, 557 (7th Cir.2008)). In this case, the evidence was extremely probative as it went to the core of the issue before the jury — did Gulley know what was in that clear plastic bag when he gave it to Heard for $200? It was not merely tangentially-related to the charge against Gulley or his defense. Although the ecstasy and firearm evidence is a closer call, we are not convinced the probative value was substantially outweighed by the danger of unfair prejudice. When viewed in light of the sliding scale, none of the testimony was so prejudicial that it induced the jury to decide the case on an improper basis. See United States v. Earls, 704 F.3d 466, 471 (7th Cir.2012); United States v. Albiola, 624 F.3d 431, 440 (7th Cir.2010).

Gulley has not demonstrated that the district court erred in the admission of the evidence discussed above, let alone satisfied the plain error standard. Accordingly, we conclude that the evidence was properly admitted.

As a final matter, the district court overruled an objection at trial to Officer Yandell’s testimony that Gulley admitted he was “on parole” at the time of his arrest. The government and Gully both agree that the district court abused its discretion by doing so. But we will only grant a new trial for a single evidentiary error if the “error likely had a substantial effect on the jury’s verdict and the result was inconsistent with substantial justice.” Jordan v. Binns, 712 F.3d 1123, 1137 (7th Cir.2013). Here, Gulley’s parole status was only mentioned by one witness, on one occasion, and neither party referred to it again throughout the rest of the trial. Moreover, the details Underlying the conviction and subsequent prison term were never discussed. We think the minor misstep was harmless beyond a reasonable doubt.

B. Sentencing Guidelines Calculation

Gulley contends the district court’s failure to apply the FSA was an *910error that requires us to remand for resentencing. We review the district court’s procedures in calculating a sentence de novo and its factual findings for clear error. United States v. Fluker, 698 F.3d 988, 1001 (7th Cir.2012).

Congress passed the FSA in 2010, which reduced the sentencing disparity between crack cocaine and powder cocaine offenders. See Fair Sentencing Act of 2010, Pub.L. No. 11-220, 124 Stat. 2372 (2010). Prior to the FSA, for a defendant in Gulley’s position — a person with a prior felony drug conviction who was convicted of distributing more than 5, but less than 28, grams of cocaine — the base offense level would have been 37, with the applicable Guidelines range including a maximum term of life imprisonment followed by a minimum of 8 years’ supervised release; as opposed to a base offense level of 34, with a maximum term of 360 months’ imprisonment, followed by a minimum of 6 years of supervised release. Compare 21 U.S.C. § 841(b)(1)(B) (2006), mth 21 U.S.C. § 841(b)(1)(C) (2012). When Gulley was sentenced, our precedent was that the FSA did not apply retroactively to criminal conduct that occurred prior to the FSA’s passing. See, e.g., United States v. Campbell, 659 F.3d 607, 609 (7th Cir.2011), vacated and remanded, - U.S. -, 133 S.Ct. 190, 184 L.Ed.2d 1 (2012). The district court followed that precedent when calculating Gulley’s Guidelines range. In Dorsey v. United States, - U.S. -, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), however, the Supreme Court held that the FSA’s statutory penalties apply to defendants sentenced after its effective date, August 3, 2010, even if the defendant’s underlying criminal conduct occurred pri- or.

Gulley’s sentencing hearing was held on October 24, 2011; both parties agree the FSA applied in light of Dorsey. The issue before us is whether the failure to apply the FSA was harmless, or in other words, whether we are convinced the judge would have imposed the same sentence but for the procedural error. See United States v. Tovar-Pina, 713 F.3d 1143, 1148 (7th Cir.2013).

Gulley was sentenced to 327 months in prison, followed by an 8-year term of supervised release. The government concedes that the failure to apply the FSA might have affected Gulley’s term of supervised release. We concur and, thus, turn our attention to whether the error also might have affected Gulley’s prison term.

In support of its position that the error did not affect Gulley’s prison term, the government argues that the district judge actually applied the FSA when it varied from the applicable Guidelines range at the time by lowering Gulley’s offense level from 37 to 34, the same number of levels it would be lowered by the FSA, and by recalculating the advisory Guidelines range as 262 to 327 months’ imprisonment, also the same as that applicable under the FSA. We are mindful of this variance, but it is the government’s burden to prove the sentencing error was harmless, e.g., United States v. Suggs, 624 F.3d 370, 376 (7th Cir.2010), and the sentencing transcript here is, at best, murky. The district judge practically invited an appeal of the sentence he was going to impose before describing the rationale behind Gulley’s sentence:

And the Seventh Circuit has said, as I made clear, that the Fair Sentencing Act in the case of United States v. Fisher, decided this year, and United States v. Campbell, did not apply to you. You may get relief from the Supreme Court of the United States, and so be it. They will make the final decision as to which circuit is correct. But you are being sentenced today in the State of Illinois, *911in the Seventh Circuit, and I must follow the law of this circuit. So Fair Sentencing doesn’t apply.

And after explaining his rationale, the judge further stated, “And, very frankly, I hope the Supreme Court rules in your way. That will be their choice, and we’ll see what happens.”

Again, we know the judge varied from the applicable Guidelines range; however, there are at least two reasons that could support the decision: the judge’s desire to comply with the spirit of the FSA or, alternatively, other facts unique to Gulley. The judge did not explicitly explain the departure, cf. United States v. Anderson, 517 F.3d 953, 965-66 (7th Cir.2008) (concluding that the sentencing error was harmless because the district judge “clearly stated” he would impose the same sentence even if his Guidelines calculation was incorrect), and we are not convinced the judge would have imposed the same sentence if the FSA had applied — he may have, but we cannot be “certain.” See United States v. Zahursky, 580 F.3d 515, 528 (7th Cir.2009). We, therefore, vacate Gulley’s prison and supervised release terms and remand for resentencing using the correct Guidelines range.

III. CONCLUSION

For the foregoing reasons, we Affirm Gulley’s conviction but Vacate his sentence and Remand for further proceedings consistent with this opinion.

Jones v. Lincoln Electric Co. Jones v. Lincoln Electric Co.

The textbook uses Jones to define a “timely” objection.  Read this excerpt to see what that that definition looks like when applied to a case.

Terry JONES, Plaintiff-Appellant, v. LINCOLN ELECTRIC CO., Hobart Brothers Inc., Westinghouse Electric Corp., Airco/The BOC Group, Inc., and Teledyne Industries, Inc., Defendants-Appellees, and Dr. Thomas W. Eager, Respondent-Appellee.

Nos. 96-1376, 97-1938, 98-1487.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 2, 1998.

Decided July 29, 1999.

Rehearing Denied Aug. 19, 1999.

*713Robert G. McCoy, Michael. P. Cascino (argued), Cascino Vaughan Law Offices, Chicago, IL, for Plaintiff-Appellant in No. 96-1376.

Frank E. Stachyra, Robert G. McCoy, Michael P. Cascino, Thomas A. Kelleher, Cascino Vaughan Law Offices, Chicago, IL, for Plaintiff-Appellant in No. 97-1938.

Thomas A. Kelliher, Cascino Vaughan Law Offices, Chicago, IL, for Plaintiff-Appellant in No. 98-1487.

Brad D. Roth, Anne R. Rempe, Jennifer A. Keller (argued), Cassiday, Schade & Gloor, Chicago, IL, for Defendants-Appel-lees in No. 96-1376.

D. Patterson Gloor, Peter G. Bell, Brad D. Roth, Anne R. Rempe, Sandra E. Kupe-lian, Cassiday, Schade & Gloor, Chicago, IL, for Defendants-Appellees in No. 97-1938.

Theodore T. Poulos, Matthew F. Rennelly (argued), Cotsirilos, Stephenson, Tighe & Streicker, Chicago, IL, for Respondent-Appellee in No. 97-1938.

David P. Gloor, Cassiday, Schade & Gloor, Chicago, IL, for Defendants-Appel-lees in No. 98-1487.

Before CUMMINGS,* BAUER, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

We have consolidated for decision three appeals arising from Terry Jones’s product liability suit against Hobart Brothers Company, Lincoln Electric Company, Air-co/The BOC Group, Westinghouse Electric Corporation, Inco Alloys International, Incorporated, and Teledyne, Incorporated, (collectively, “Defendants”), all of whom are various manufacturers and distributors of welding rods. Jones sought to hold Defendants liable for neurological injuries he allegedly sustained as a result of his *714exposure to manganese present in fumes emitted from Defendants’ welding rods that he used during the course of his employment as a welder. Jones claimed that Defendants were negligent in the manufacture and distribution of the welding rods because they either knew or should have known of the dangers and hazards associated with the breathing of manganese in welding fumes and that Defendants failed to take reasonable precautions against and failed to provide adequate warnings of the potential harm posed by these fumes. Jones also claimed that Defendants’ welding rods were unreasonably dangerous, and therefore Defendants were strictly liable for his injuries, because they failed to properly warn him of the risks associated with the use of their rods.

Defendants denied that Jones’s neurological condition was caused by his exposure to welding rod fumes, maintaining instead that Jones suffered from idiopathic Parkinson’s disease — a disease unrelated to manganese overexposure. Defendants also denied the remaining allegations made by Jones. The case was tried to a jury and the jury returned a verdict in favor of Defendants and against Jones on all counts.1

Jones filed a timely motion for a new trial under Federal Rule of Civil Procedure 59, which the district court denied. Jones then filed his first appeal from the final judgment entered in favor of Defendants. In this first appeal, Jones argues that the district court erred in admitting certain testimony from Dr. Thomas W. Eager, one of Defendants’ expert witnesses, and erred in overruling objections to allegedly improper statements made by defense counsel during his closing argument.

A little more than eleven months after the jury verdict, and while Jones’s first appeal was still pending, Jones filed two additional post-trial motions: a motion for relief from final judgment pursuant to Federal Rule of Civil Procedure 60(b)(2); and a motion for rule to show cause why Dr. Thomas W. Eager should not be held in contempt of court. Both motions were based on “newly discovered” evidence that allegedly showed that Dr. Eager provided false testimony at trial. The district court denied both of these motions. Jones’s second and third appeals are from those orders.

For the reasons set forth in the following opinion, we affirm the orders and decisions of the district court.

I. History

Terry Jones worked as a journeyman electrician and welder for approximately twenty-eight years, beginning in 1964 and ending in 1992, when his neurological disorder progressed to the point that he could no longer effectively weld. Over the course of his welding career, Jones worked for a number of companies at several different job sites, with most of his work taking place inside large steel mills. Jones estimated that, on average, he spent half of his work day performing electrical tasks and the other half welding.

Jones welded using a method commonly known as “arc welding.” This process of welding utilizes a consumable steel welding rod connected through a rod holder by a wire to one pole of an electric power supply. Another wire extends from the opposite pole of the power supply to the two pieces of the base metal to be welded together. When the welding rod is brought into contact with the intersection of the two pieces of metal to be joined, the electrical circuit is completed creating an electric “arc” between the tip of the welding rod and the pieces of metal. The electricity flows through the arc producing the very bright light commonly associated with welding and generating tremendous *715heat sufficient to melt the tip of the steel welding rod. The melting metal from the welding rod drips off the end of the rod and falls into or across the joint to be welded. At the same time, the heat generated by the arc melts some of the base metal of the area of joint as well, forming a pool of liquid steel. As the welder moves the welding rod along the joint, the earlier combination of weld metal and base metal cools and solidifies, leaving a weld.

Throughout his welding career, Jones used welding rods manufactured and or distributed by Defendants. The welding rods typically used by Jones were made of mild steel, which consists predominantly of iron, but also contains a small amount of manganese, among other elements and compounds. Manganese is a naturally occurring element and is an essential ingredient to the proper manufacture of steel because it prevents steel from cracking and falling apart when it is manufactured.

When the welding process melts both the welding rod and the base metal, the heat of the arc vaporizes a small percentage of the steel and emits “welding fumes.” A small amount of the fumes generated by the burning of a mild, steel welding rod consists of manganese. Although Jones worked primarily in large steel mills, he welded in a variety of different work environments and in a number of different welding positions that exposed him to varying amounts of welding fumes, with the end result being that he was frequently forced to breathe the fumes, which included manganese, produced by Defendants’ welding rods. Although Jones testified that during many of his welding projects a significant amount of welding fumes would tend to accumulate and hover about his head, he indicated that he ordinarily did not take any special precautions to ventilate his work area as he assumed that the ventilation was adequate.

Manganese is not only critical to the production of steel, but it is also essential for human life. The human body needs a certain amount of manganese in order to function properly especially in relation to carrying out its chemical functions. Too much manganese within the body, however, can be toxic, causing injury to the brain or the rest of the nervous system and can lead to the onset of a form of Parkinson-ism. Parkinsonism is a medical term used to describe a disease typified by a group of signs and symptoms similar to that seen in Parkinson’s disease, a neurological disorder that is characterized by the causing of abnormal or slow bodily movements. According to the medical testimony introduced at trial, a person suffering from a form of Parkinsonism will typically exhibit some or all of four general symptoms that are common to Parkinson’s disease. The first symptom is a resting tremor, meaning an abnormal shaking movement of a person’s body part while the person is at rest. The second symptom is rigidity, meaning a stiffness or resistance to movement in the limbs. When a physician tries to move the patient’s arms or legs, the physician can feel a resistance to the movement. The third symptom is called bradykinesia or slowness of movement. A patient will experience slowness or difficulty in carrying out and initiating all kinds of movements. The fourth symptom usually common to Parkinsonism is a difficulty in maintaining one’s balance or the loss of postural reflexes.

Although there are several different forms or types of Parkinsonism, the two types relevant to this case are idiopathic Parkinson’s disease and manganese-induced Parkinsonism or “manganism.” Although occasionally described at trial as a type of Parkinsonism, idiopathic Parkinson’s disease is basically Parkinson’s disease without a known cause. A person suffering from this disease will exhibit most, if not all, of the general Parkinsoni-an symptoms described above as the disease progresses. Manganism, by contrast, is a medical term used to describe a neurological disease similar to idiopathic Parkinson’s disease that is caused by overexposure to manganese. The two are distinct *716medical conditions with manganism usually-marked by the absence of some of the above-mentioned general symptoms and the presence of other “atypical” features normally not found in patients suffering from idiopathic Parkinson’s disease. Idiopathic Parkinson’s disease afflicts approximately one to two percent of the population over the age of fifty, although some patients begin to develop the disease under fifty years of age. Manganism, on the other hand, is quite rare with only a few documented cases in the United States. Jones believes that he suffers from man-ganism and that he developed this disease through his exposure to manganese contained in welding fumes given off by Defendants’ welding rods.

Jones first began to manifest symptoms of a neurological injury in 1987, when, at the age of forty-seven, he noticed that his left hand had begun to shake involuntarily. Soon thereafter, Jones went to see a neurologist, Dr. Young II Ro, who operated a private medical practice in Chicago Heights, Illinois. Jones specifically complained to Dr. Ro that he was experiencing a tremor and a loss of dexterity in his left hand and that he felt cracks in his left shoulder. Jones indicated that he had been experiencing these problems for about eight months and that they were causing him difficulty at work. During the course of his examination, Dr. Ro also noticed that Jones exhibited some muscle stiffness in his upper left arm and face. Although Dr. Ro found that Jones appeared to exhibit signs of a minor atypical tremor, he diagnosed Jones as suffering from idiopathic Parkinson’s disease. At that time, Dr. Ro prescribed sinemet, a medication commonly given to patients suffering from idiopathic Parkinson’s disease. Dr. Ro met with Jones two months later, and Jones indicated that the medication made him feel better.

In 1988, Jones was referred to Dr. Kathleen Shannon, another neurologist, by a colleague who believed that Jones might be a good candidate for a study being conducted that sought to determine whether a certain drug would be effective in slowing down the progression of idiopathic Parkinson’s disease. Dr. Shannon’s role in that study was to evaluate potential candidates to ensure that they had idiopathic Parkinson’s disease. In explaining how she evaluated whether a patient suffered from idiopathic Parkinson’s disease as opposed to some other form of Parkinsonism, Dr. Shannon testified that she would first determine whether the patient had at least two of the general Parkinsonian symptoms — that is, the typical features associated with idiopathic Parkinson’s disease. Then she would look to ensure that the patient did not suffer from an “atypical” Parkinsonism, a disorder, like manganism, by examining the patient for atypical symptoms commonly associated with those atypical disorders but not idiopathic Parkinson’s disease.

In the course of her neurological examination of Jones, Dr. Shannon observed that Jones exhibited a number of the general symptoms typical of idiopathic Parkinson’s disease. He had a mild resting tremor in his hand, some rigidity in his neck, arms, and left leg, and slowness of movement in his left side. Significantly, Dr. Shannon found no atypical features. Based on her examination of Jones and her evaluation of his medical history,2 Dr. Shannon diagnosed him with idiopathic Parkinson’s disease and enrolled him in the study. Dr. Shannon examined Jones on several subsequent occasions during the course of the study and her diagnosis remained unchanged.

In the Spring of 1989, Jones saw yet another neurologist, Dr. Leslie Galen, *717Jones’s treating physician in Las Vegas, Nevada.3 Dr. Galen examined Jones several times during a period of approximately four years. Dr. Galen also prescribed anti-Parkinson’s disease medications, including sinemet. In treating Jones, Dr. Galen noticed that these medications initially improved Jones’s overall condition, although he still had a resting tremor in his left hand, and that, during the course of Dr. Galen’s treatment of Jones, he noticed no significant negative change in Jones’s symptoms. Although unaware of Jones’s prior exposure to manganese, Dr. Galen also concluded that Jones suffered from idiopathic Parkinson’s disease based on his examination of Jones and Jones’s response to treatment.

In 1992, Jones filed the instant suit against Defendants, alleging that the manganese contained in the fumes generated by their welding rods caused his neurological injuries. Jones asserted claims of negligence and strict liability, alleging that Defendants knowingly manufactured and sold welding rods containing manganese even though they knew of the dangers and hazards associated with manganese in welding fumes. Despite this knowledge, Jones submitted that Defendants failed to take reasonable precautions against the readily foreseeable harm that would be caused by their products and failed to provide adequate warnings and instructions on how to safely use their allegedly toxic welding rods.

The central issue at trial, however, was whether Jones suffered from manganism or idiopathic Parkinson’s disease. Defendants vigorously contested Jones’s assertion that he suffered from manganism brought on by exposure to their welding rods. In support of their theory that Jones suffered from idiopathic Parkinson’s disease that was causally unrelated to any manganese exposure from their products, Defendants introduced testimony from Jones’s treating physicians, all of whom had diagnosed him with idiopathic Parkinson’s disease, and the testimony from a paid medical expert, Dr. Charles Olanow,4 who concurred with their assessment based upon his own examination of Jones and a review of Jones’s medical and work history.

According to Dr. Olanow, an experienced neurologist can distinguish whether a patient suffers from idiopathic Parkinson’s disease or manganism by conducting a clinical examination of the patient focusing on the symptoms exhibited and looking at the patient’s response to certain medications. Dr. Olanow explained that idiopathic Parkinson’s disease and man-ganism are generally thought to cause cell damage in distinct parts of the brain. Dr. Olanow noted that the part of the brain most commonly affected by idiopathic Parkinson’s disease is the substantia ni-gra; whereas manganism primarily affects two other parts of the brain known as the striatum and globus pallidus. Because the two diseases tend to affect different parts of the brain, a particular patient’s response to certain medications is a strong indicator as to the type of Parkin-sonism afflicting the patient. Dr. Olanow testified that the cells in the substantia nigra produce dopamine, a chemical through which messages are sent to certain other parts of the brain, including the striatum. Idiopathic Parkinson’s disease reduces the number of cells in the sub-stantia nigra which causes a corresponding reduction in the level of dopamine in the brain. This loss of dopamine brings about the symptoms commonly associated with idiopathic Parkinson’s disease. In treating a patient suspected of suffering *718from idiopathic Parkinson’s disease, a physician can replace the loss of dopamine with a dopamine substitute, such as si-nemet, and the patient usually will respond favorably. On the other hand, a patient with damage to the globus pallidus or striatum, as is generally the case with manganism, typically will not have a beneficial response to dopamine replacement therapy because dopamine does not have any significant impact on the ability of the striatum or globus pallidus to receive messages. As a result, increasing the dopamine level of a patient suffering from manganism tends not to alleviate any Par-kinsonian symptoms exhibited because that disorder does not affect the brain’s ability to produce dopamine. Jones’s favorable response to sinemet was one of the bases for Dr. Olanow’s opinion that Jones has idiopathic Parkinson’s disease.

In addition to a patient’s response to medication, the particular symptoms exhibited by the patient are often a strong indicator as to whether that patient has idiopathic Parkinson’s disease or manganism. Although idiopathic Parkinson’s disease and manganism often share some of the four general symptoms associated with Parkinsonism, Dr. Olanow testified that certain symptoms are more commonly attributed to one or the other disease. Dr. Olanow identified those symptoms strongly indicative of idiopathic Parkinson’s disease as including the presence of a resting tremor, rigidity, asymmetry (meaning that the tremors begin on one side of the body rather than both), and slowness. Patients suffering from manganism, on the other hand, are usually found not to have a resting tremor. Instead, manganism tends to manifest certain “atypical” features not normally found in idiopathic Parkinson’s' disease, such as speech and prominent early gait disturbances, and myoclonic syndrome, which is an involuntary muscle contraction that can lead to difficulty in walking and a facial grimace.

Dr. Olanow examined Jones in July 1993. Dr. Olanow indicated that during the course of the examination, Jones told him about the progression of his injuries, beginning with the resting tremor in his left hand and leading to impaired coordination and stiffness on his left side. Jones also informed Dr. Olanow that he had been taking sinemet and that he believed the medication had helped him substantially. When conducting the neurological part of the examination, Dr. Olanow observed that Jones’s speech was slightly reduced, his face had a staring quality to it with a decreased amount of blinking, he had a resting tremor in his left hand, and he exhibited signs of stiffness and reduced movements on the left side of his body. Dr. Olanow also observed that Jones walked quite well, although he had reduced arm swing on his left side, he had relatively normal postural stability, and that overall his movements were quite “slow” — all observations that were consistent with a finding of idiopathic Parkinson’s disease. Dr. Olanow also noticed that Jones’s Parkinsonian symptoms became more pronounced over the course of the examination, which indicated that the dopamine replacement medication had begun to lose its effectiveness, causing his Parkinsonian features to become more prominent. Dr. Olanow found no evidence of myoclonism or any noticeable presence of any other “atypical” feature that would suggest manganese intoxication. Based on these observations, Dr. Olanow concluded that Jones suffered from idiopathic Parkinson’s disease.

In support of his theory that he actually suffered from manganism, not idiopathic Parkinson’s disease, and that the manganese exposure from Defendant’s welding rods caused his neurological injuries, Jones relied on the testimony of his paid expert medical witness, Dr. Harold Kla-wans.5 Dr. Klawans testified that it is not possible to determine whether a patient *719suffers from idiopathic Parkinson’s disease or manganism by looking solely at the patient’s clinical symptoms. Instead, Dr. Klawans believed the foremost and determinative factor in assessing whether a patient suffers from idiopathic Parkinson disease or manganism is the patient’s history — whether the patient has a history of manganese exposure.

Dr. Klawans testified that a welder, like Jones, who is exposed to welding fumes containing manganese and breathes in those fumes, is at risk of developing man-ganism because the manganese from the welding fumes is absorbed by the lungs when the welder inhales the fumes. The manganese then crosses from the lung into the bloodstream with some of the manganese making its way up into the brain where it causes neurological damage. Once in the brain, Dr. Klawans testified that manganese can damage cells in a number of areas including not only those areas typically damaged by manganism, namely the striatum and the globus palli-dus, but also the substantia nigra, the area Defendants’ expert identified as usually being affected only by idiopathic Parkinson’s disease. Thus, Dr. Klawans suggested that both diseases could cause a loss of dopamine in the brain and, therefore, a patient with manganism could respond favorably to dopamine replacement therapy. For that reason, Dr. Klawans also testified that he would prescribe sinemet or a similar dopamine replacement medication to a patient suffering from manganism.

On cross examination, however, Dr. Kla-wans acknowledged that the two diseases tend to affect different parts of the brain, with idiopathic Parkinson’s disease typically damaging the substantia nigra thereby causing the general signs and symptoms common to that disease. Dr. Klawans also agreed that manganese more often damages the globus pallidus and striatum than it does the substantia nigra, with the result being that patients with manganism usually will respond less well to dopamine replacement therapy than patients suffering from idiopathic Parkinson’s disease. In addition, while Dr. Klawans testified that a patient afflicted with manganism could exhibit some or all of the symptoms commonly seen in a patient suffering from idiopathic Parkinson’s disease, he acknowledged that certain other symptoms, the “atypical” features described above, more often appear in patients suffering from manganism.

Dr. Klawans examined Jones once, in September 1992, at the behest of Jones’s counsel. The only “atypical” symptom Dr. Klawans found during his examination of Jones was myoclonic syndrome (the abnormal, involuntary jerking of muscles) — a feature that none of the other neurologists who examined Jones found to be present. Undercutting the significance of the presence of this symptom, Dr. Klawans indicated that long-term dopamine replacement therapy could cause myoclonus, although Dr. Klawans did not believe that to be true in Jones’s case because of the absence of other dopamine-induced symptoms one would normally expect to find if the myo-clonus was caused by dopamine replacement therapy. In any event, based on his neurological examination, the presence of myoclonus, and Jones’s history of manganese exposure from Defendants’ welding rods, Dr. Klawans concluded that Jones suffered from manganism.

Despite diagnosing Jones with manganism, Dr. Klawans observed that Jones exhibited all of the symptoms common to idiopathic Parkinson’s disease: the resting tremor; impaired postural balances; stiffness and rigidity; bradykinesia; an absence of any prominent gait-disturbance; a favorable response to dopamine replacement therapy; and normal progression of the disease. In fact, with the exception of myoclonus, every sign and symptom Dr. Klawans found was consistent with a finding that Jones suffered from idiopathic Parkinson’s disease and Dr. Klawans acknowledged that his diagnosis of manganism was premised entirely on the presence of myoclonus and Jones’s work history. *720With respect to Jones’s work history and prior exposure to manganese, Dr. Kla-wans’s testimony revealed that he knew little more than that Jones had been exposed to manganese during the course of his career as a welder — he indicated that he did not know the percent of manganese in the welding rods used by Jones, the permissible exposure limit for manganese, any details of the environments in which he welded, or the amount of manganese required in welding fumes to afflict a person with manganism.

Although the bulk of the trial focused on the issue of whether Jones actually suffered from manganism, the parties also contested whether manganese, in the form it takes in the mild steel welding fumes generated by Defendants’ welding rods, could cause the type of neurological injuries claimed by Jones. Jones asserted that the welding fumes emitted by the burning of Defendants’ welding rods caused him to develop manganism. In support of that theory, Jones offered the testimony Dr. Klawans who testified that medical research showed that manganese contained in welding fumes could lead to the onset of manganism in welders and that it was his opinion that Jones developed manganism as a result of his exposure to the manganese generated by Defendants’ welding rods.

Defendants offered contrary evidence suggesting Jones’s manganese exposure from their welding rods was too insignificant to actually cause manganism: Dr. Thomas Eager, a professor of materials engineering and the head of the Department of Material Science and Engineering at the Massachusetts Institute of Technology, testified for the Defendants as an expert witness in metallurgy. Dr. Eager provided testimony at trial on a number of subjects, including the history and uses of welding, a description of how the welding process works and how welding fumes are generated, the chemical composition of welding fumes, proper ventilation during welding, and an estimate of how long a person who is welding is actually exposed to welding fumes. Dr. Eager has an extensive background in welding and testified that it was his expert opinion that Jones’s manganese exposure from welding with Defendants’ welding rods would have been less than the industry recommended maximum manganese exposure levels (“threshold limit values”) given the work environments in which Jones worked, the type of welding he engaged in, the form of the manganese in the welding fumes, and the amount of time he actually spent welding.

On appeal, Jones argues that the district court improperly admitted portions of Dr. Eager’s testimony, and as a result, he is entitled to a new trial. Specifically, Jones challenges the admission of Dr. Eager’s testimony regarding (1) his role in research studying the effects of welding fumes on the lungs of animals and the results of that research (“Joint Research”) and (2) an epidemiological study of welders at Caterpillar (“Caterpillar Study”).

With respect to Dr. Eager’s testimony regarding the Joint Research, Dr. Eager testified that the form of the manganese in the welding fumes is different in chemical composition than naturally occurring manganese. The manganese takes on this different form by combining with other elements given off by the melting of the mild steel and, according to Dr. Eager, this causes the manganese contained in welding fumes to have a different reactivity with the lungs than pure manganese. Defense counsel then asked Dr. Eager whether he believed this would have an impact on the body’s ability to absorb the manganese. At this point, Jones objected on the basis that this line of questioning sought testimony from Dr. Eager that was outside his expertise as a metallurgist. The district court sustained the objection subject to defense counsel laying a proper foundation.

In an attempt to lay a foundation for this testimony, Dr. Eager testified, over several objections, that he conducted “joint *721research” studying the effect of welding fumes in the lungs of laboratory animals with Dr. Joseph Brain, a professor at the Harvard University School of Public Health, and Dr. Gael Ulrich, a professor of chemical engineering at the University of New Hampshire. Dr. Eager indicated that he worked with Dr. Brain for the last three to four years, that they had discussed their research activities with each other, and that they had published papers together and reached certain conclusions from their Joint Research. After this testimony was elicited, defense counsel asked Dr. Eager about the conclusions the Joint Research reached regarding the form of the manganese in the welding fumes and the ability of the body to absorb manganese in that form. Jones again objected, arguing that each of the professors brought their own expertise to the research and that Dr. Eager sought to testify about medical matters that were outside his expertise. Jones complained that the medical expert, Dr. Brain, was not present to discuss the conclusions reached regarding the body’s ability to absorb manganese and the basis for those conclusions. The district court overruled Jones’s objection, concluding that the professors discussed their joint research and, in essence, taught one another their particular areas of expertise. On that basis, the district court concluded that Dr. Eager was qualified to testify as to the conclusions reached by the Joint Research.

Dr. Eager then proceeded to testify that the Joint Research concluded that there was no difference between placing welding fumes or saline solution or non-toxic iron oxide into the animal’s lungs. Defense counsel then asked Dr. Eager whether their research led to any conclusions regarding the toxicity of manganese in welding fumes. Jones again objected on the ground that the question called for testimony beyond Dr. Eager’s expertise. After Dr. Eager explained that the conclusions were drawn by all three professors after discussing the various disciplines involved in reaching the conclusions, the district court allowed Dr. Eager to proceed and he testified that there was no measurable'effect of welding. fumes containing manganese on the lungs.

Jones also objected to testimony elicited from Dr. Eager regarding the Caterpillar Study. On cross-examination, Jones asked Dr. Eager whether he had ever encouraged the American Welding Society, an organization that seeks to promote the knowledge and science of welding, or any of the companies that are members of that society, to conduct an epidemiological study to determine the health effects of welding fumes on welders. Dr. Eager testified that he had not encouraged such a study. On redirect examination, Dr. Eager stated that he did not believe an epidemiological study was required because one had already been completed, namely, the Caterpillar Study, and that the Caterpillar Study had showed that welders did not experience any more diseases or health effects than non-welders working at Caterpillar. Jones did not immediately object to the admission of this testimony at the time it was offered.

At the close of Dr. Eager’s testimony, which concluded the testimony for the day, Jones made an oral motion to strike Dr. Eager’s testimony regarding the Joint Research on the ground it was outside his expertise and Dr. Eager’s testimony regarding the Caterpillar Study on the ground that it was not disclosed to Jones prior to trial in accordance with Federal Ride of Civil Procedure 26. With respect to the Joint Research, the district court declined to reconsider its prior rulings. Turning to Dr. Eager’s testimony regarding the Caterpillar Study, the district court determined that Jones had waived his Rule 26 objection because he failed to object to the testimony at the time it was offered or immediately thereafter. The following morning, Jones submitted a written motion to strike, renewing his objections to the admission of both portions of Dr. Eager’s testimony. He argued that the testimony *722went beyond Dr. Eager’s expertise and that Defendants had failed to disclose, in accordance with Rule 26, that Dr. Eager would be relying on the Joint Research and the Caterpillar Study at trial. The district court denied that motion on the same basis it had denied the prior oral objections.

The jury returned a verdict in favor of Defendants on all counts alleged in the complaint. Jones then filed his first appeal, arguing that the district court erred in overruling his objections to the admission of Dr. Eager’s testimony regarding both the Caterpillar Study and the Joint Research. In addition, Jones argues that the district court erred in overruling his objections to defense counsel’s improper closing argument. Jones alleges that defense counsel improperly argued during his closing statement that Jones and his attorneys were trying to “trick the jury” into finding in favor of Jones.

While that appeal was pending, Jones claimed that he uncovered “new” evidence which shows that Dr. Eager’s testimony with regard to the Joint Research and the Caterpillar Study was false. Specifically, Jones alleged that Dr. Eager testified falsely with respect to the facts that formed the basis for the district court’s ruling that he had the necessary qualifications to provide testimony on the toxicity of manganese in welding fumes and the ability of the body to absorb manganese in that form, the conclusions reached by the Joint Research, and the conclusions reached by the Caterpillar Study. Based on this allegedly false testimony, Jones moved for a new trial pursuant to Federal Rule of Civil Procedure 60(b)(2) and filed a motion for rule to show cause why Dr. Eager should not be held in contempt of court. The district court denied both motions.

The district court denied Jones’s motion to hold Dr. Eager in contempt because Jones failed to show that Dr. Eager’s allegedly false testimony obstructed the court’s authority to conduct orderly proceedings. Without reaching the issue of whether Dr. Eager’s testimony was false, the court concluded that the nature and purpose of civil contempt did not warrant applying the contempt power to a witness who merely provided false testimony absent some showing that the false testimony obstructed the court’s ability to conduct the trial. Jones’s second appeal is from that order.

The district court denied Jones’s Rule 60(b)(2) motion concluding that: (1) certain portions of the “newly discovered” evidence could have been discovered in time to move for a new trial under Rule 59(b) and therefore this evidence was not “new” within the meaning of Rule 60(b)(2) and (2) the remaining challenged testimony did not materially mischaracterize the purported truth of the underlying matters. Furthermore, the court concluded that Jones was not entitled to Rule 60(b)(2) relief in any event because Jones failed to establish that a new trial without Dr. Eager’s allegedly false testimony would probably produce a new result. Jones’s third and final appeal is from that order.

II. Analysis

A. Jones Is Not Entitled To A New Trial On The Ground That The District Court Erred In Overruling His Objections To Certain Portions of Dr. Eager’s Testimony

We first address Jones’s arguments that the district court erred in overruling his objections to the portions of Dr. Eager’s testimony regarding the Joint Research and the Caterpillar Study. In order to convince us that a new trial is warranted based on the admission of this testimony, Jones must satisfy three conditions. First, for those portions of the challenged testimony for which the district court ruled that Jones’s objection was untimely and, therefore, waived, Jones must show that he objected in a timely and proper manner before the district court. See United States v. Krankel, 164 F.3d 1046, 1052 (7th *723Cir.1998). Second, he must show that the district court abused its discretion in admitting the challenged testimony. See General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997). Third, he must show that any error made by the district court in admitting the evidence was more than harmless error by showing that the exclusion of this evidence probably would have produced a different outcome in the case. See Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

1. Dr. Eager’s Testimony Regarding the Joint Research

Jones argues that the district court erred in permitting Dr. Eager to testify regarding the ability of the body to absorb manganese from welding fumes generated by mild steel welding rods, the toxicity of manganese contained in welding fumes, and the results of the Joint Research concerning the effect of manganese from welding fumes on lungs of animals, because Dr. Eager was not qualified under Federal Rule of Evidence 702 to offer an opinion on these matters. Because there is no colorable issue as to whether Jones timely objected to Dr. Eager’s expertise and qualification to testify on these matters,6 we turn directly to the issue of whether the district court erred in overruling his objections and admitting this testimony into evidence.

We review a district court’s decision to admit expert testimony under an abuse of discretion standard. See General Elec. Co., 118 S.Ct. at 517; Krankel, 164 F.3d at 1052. “Trial judges have discretion in determining whether a proffered expert is qualified to testify,” see Raymond v. Raymond Corp., 938 F.2d 1518, 1526 (7th Cir.1991), and, therefore, our review of the district court’s determination of an expert’s qualifications to testify is necessarily deferential. However, in the present case, we are not wholly convinced that the district court exercised proper discretion in concluding that Dr. Eager was qualified to testify as to the challenged matters relating to the Joint Research.

Rule 702 of the Federal Rules of Evidence sets the standard governing the admissibility of expert testimony and that Rule provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Fed.R.Evid. 702. Pursuant to Rule 702, a witness may offer an expert opinion only if he or she draws on some special “knowledge, skill, experience, training, or education” to formulate that opinion. Id. However, “the opinion must be an expert opinion (that is, an opinion informed by the witness’ expertise) rather than simply an opinion broached by a purported expert.” United States v. Benson, 941 F.2d 598, 604 (7th Cir.1991) “Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness’s testimony.” Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir.1990).

The challenged testimony offered by Dr. Eager regarding the Joint Research concerns matters that are most aptly classified as medical or biological in nature given that Dr. Eager was asked to testify as to the toxicity of manganese in manganese fumes and the lung’s ability to absorb manganese from those fumes. However, Dr. Eager’s formal education and experience lie in the field of material *724science and metallurgy and he was offered as an expert in metallurgy at trial. He has a Bachelor of Science degree in Metallurgy and Material Science from MIT and a Doctorate in Metallurgy from the same institution. While Dr. Eager undoubtedly is a very intelligent individual, he is not a medical doctor nor is there any indication in the record that suggests that he has any experience in assessing the toxicology or other health effects of manganese on the body aside from his participation in the Joint Research with Dr. Brain. Indeed, Dr. Eager acknowledged on cross-examination that he was not a toxicologist and that toxicology and how certain substances are absorbed into the body were areas that were outside of his expertise. It stands to reason then that the underlying basis for the medical conclusions to which Dr. Eager testified was derived primarily, if not completely, from Dr. Brain’s expertise and that these conclusions were rooted in medical knowledge and training which Dr. Eager did not have. As such, we believe that Dr. Eager lacked sufficient expertise to testify about the conclusions reached by the Joint Research, and, therefore, the district court should have barred him from testifying on these matters. See, e.g., United States v. Hirschberg, 988 F.2d 1509, 1514 (7th Cir.1993) (“Expert opinion is gained from a ‘special skill, knowledge, or experience,’ and is a reasoned decision drawn from the witness’ expertise.” (quoting United States v. Benson, 941 F.2d 598, 604 (7th Cir.1991))); United States v. Kladouris, 964 F.2d 658, 670 (7th Cir.1992) (affirming district court’s ruling that a proffered witness’s lack of training in chemistry prevented him from testifying as an expert on the significance of the presence of chemicals at the scene of the fire). Furthermore, to the extent that Dr. Eager was merely conveying Dr. Brain’s conclusions with respect to the Joint Research, Dr. Brain, not Dr. Eager, would be the proper person to testify about those findings.7

Moreover, while it is true that Rule 702 provides that a witness can be qualified as an expert without formal training or education by virtue of his or her experience, we do not believe that Dr. Eager’s participation in the Joint Research is the kind of experience that Rule 702 contemplates as the basis for qualifying an expert to testify at trial — i.e., extensive hands-on experience over a meaningful period of time during which a person develops a working-expertise in a certain area. See, e.g., United States v. Tipton, 964 F.2d 650, 654 (7th Cir.1992). Dr. Eager testified that he was not involved in the day-to-day research of the Joint Research and it appears that his knowledge regarding the matters upon which he testified was derived mostly from periodic discussions with Dr. Brain and others involved in the research. We seriously doubt that the discussions that occurred between Drs. Eager, Brain, and Ulrich were comprehensive enough either in scope or detail to allow Dr. Eager to develop the expertise required by Rule 702 with respect to this testimony.

Nevertheless, even though the district court may have abused its discretion in admitting Dr. Eager’s testimony on *725these matters, reversal is required, and a new trial is warranted under Rule 103(a), only if the error has affected “a substantial right of the party.” See Fed.R.Evid. 103(a) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected .... ”); see also Fed.R.Civ.P. 61 (“No error in either the admission or the exclusion of evidence ... is ground for granting a new trial ... unless [the] refusal to take such action appears to the court inconsistent with substantial justice.”). Accordingly, we will not reverse a jury verdict if an erroneous admission of expert testimony is harmless. See DeBiasio v. Illinois Cent. R.R., 52 F.3d 678, 685 (7th Cir.1995); see also Cook v. Hoppin, 783 F.2d 684, 691 (7th Cir.1986) (“The improper admission of evidence provides a basis for granting a new trial only if the error is prejudicial.”). An error is considered to be harmless if it did not contribute to the verdict in a meaningful manner. See Chapman, 386 U.S. at 22-24, 87 S.Ct. 824; see also DeBiasio, 52 F.3d at 685 (“An erroneous evidentiary ruling is harmless and ‘does not affect substantial rights unless there is a significant chance that it has affected the result of the trial.’ ” (quoting Walton v. United Consumers Club, Inc., 786 F.2d 303, 313 (7th Cir.1986))). After careful review of the record, we conclude that the exclusion of Dr. Eager’s testimony relating to the Joint Research would most likely not have resulted in a jury verdict in Jones’s favor; thus, any error in admitting Dr. Eager’s testimony was harmless. We reach this conclusion for three reasons.

First, the dispositive issue at trial was whether Jones suffered from idiopathic Parkinson’s disease, which the medical evidence at trial showed to be causally unrelated to gross manganese exposure, or manganism. Jones’s theory of the case was that he suffered from manganism and that the manganese contained in welding fumes emitted from Defendants’ welding rods led to the onset of his manganism. The testimony with which Jones takes issue relates to whether the manganese content of welding fumes is sufficient to cause manganism. However, in order to prevail at trial, Jones had to prove, first and foremost, that he actually suffered from man-ganism. Evidence that clearly shows that Jones did not suffer from manganism in the first place substantially diminishes the relative importance of testimony regarding whether welding fumes emitted from Defendants’ products could have caused Jones to develop that disorder.

The overwhelming medical evidence at trial indicated that Jones suffers from idiopathic Parkinson’s disease rather than manganism. Both Defendants’ medical expert, Dr. Olanow, and all of Jones’s oum treating physicians diagnosed Jones with idiopathic Parkinson’s disease. Although a diagnosis of idiopathic Parkinson’s disease, by definition, means Parkinson’s disease without a known cause, the testimony of Dr. Olanow and Jones’s treating physicians either expressly or implicitly ruled out manganese exposure as the originating cause of Jones’s neurological injury. Both Dr. Olanow and Dr. Shannon explained that manganism and idiopathic Parkinson’s disease are distinct medical conditions that generally affect different parts of the brain. While the two conditions may have similar symptoms, the medical testimony introduced by both Defendants and Jones clearly showed that each disorder also has unique symptoms. Dr. Ola-now and the treating physicians testified that Jones exhibited those symptoms consistent with idiopathic Parkinson’s disease and that there was a noticeable absence of “atypical” features suggesting that Jones suffered from manganism. They also testified that Jones responded favorably to dopamine replacement medication — another indicator that Jones was afflicted with idiopathic Parkinson’s disease rather than manganism. Only Jones’s paid medical expert, Dr. Klawans, reached the conclusion that Jones suffered from manganism and his testimony was substantially undermined during cross-examination when he acknowledged that manganism and idio*726pathic Parkinson’s disease are distinct medical conditions, that the two disorders usually tend to damage different parts of the brain, that most patients with idiopathic Parkinson’s disease respond favorably to dopamine replacement therapy while patients with manganism generally do not, and that patients suffering from manganism usually experience certain symptoms, such as myoclonus, that are not commonly seen in patients who suffer from idiopathic Parkinson’s disease. Although Dr. Klawans concluded that Jones suffered from manganism, he testified that Jones had responded favorably to dopamine replacement therapy, that Jones had resting tremors, and that Jones exhibited no signs of prominent, early gait disturbance — all factors that would indicate that Jones suffered from idiopathic Parkinson’s disease rather than manganism. Indeed, Dr. Klawans indicated that he based his diagnosis of manganism primarily on Jones’s work history and the presence of myoclonus. However, none of the other physicians who examined Jones testified that he had myoclonus and Dr. Klawans acknowledged that dopamine-replacement therapy, which Jones had been undergoing for four years by the time Dr. Klawans examined him, could account for the presence of myoclonus in Jones. When all of this medical evidence is taken into account and viewed in its proper light, we cannot accept Jones’s implicit contention that the jury resolved the issue of whether he suffered from manganism in his favor and returned a verdict for Defendants only because it believed Dr. Eager’s testimony that the manganese contained in welding fumes emitted from Defendants’ welding rods did not have an appreciably negative health effect on animal lungs.

Second, given the fact that Dr. Eager is not a medical doctor or toxicologist, and that Jones highlighted this fact during cross-examination, the jury is likely to have heavily discounted his testimony concerning the conclusions reached by the Joint Research, especially when Defendants did not enter into evidence any substantiating documents underlying the Joint Research. As such, Jones clearly conveyed Dr. Eager’s lack of qualification to testify on these matters to the jury. “[Gjenerally, the jury is intelligent enough, aided-by counsel, to ignore what is unhelpful in deliberations.” Benson, 941 F.2d at 605 (internal quotations and citation omitted).

Third, Jones introduced a number of studies and other documentary materials into evidence that suggested that manganese in welding fumes could lead to the onset of manganism and other health problems in welders. In addition, Jones’s medical expert testified that, in his opinion, welding fumes containing manganese could cause manganism in welders by allowing manganese to enter into the lungs when the welder breathes in these fumes. Manganese may then be absorbed into the bloodstream and make its way into the brain where it may cause neurological damage. Thus, even if the jury accepted Dr. Eager’s testimony as reliable, Jones introduced evidence to challenge those conclusions. In fact, we believe the jury likely placed little weight on Dr. Eager’s testimony given that Defendants placed warnings on their products that breathing welding fumes could be hazardous to the welder’s health.

For these reasons, we conclude that any error by the district court in allowing Dr. Eager to testify as to the conclusions reached by the Joint Research was harmless.

2. Dr. Eater’s Testimony Regarding the Caterpillar Study

Jones next argues that the district court erred in permitting Dr. Eager to testify about the conclusions reached by the Caterpillar Study with respect to the health effects of welding on welders because Defendants failed to disclose that Dr. Eager would be relying on that study at trial. Because Jones did not object to this testimony until the close of Dr. Ea*727ger’s testimony, the district court considered the objection waived, concluding that a Rule 26 objection must be lodged contemporaneously with or immediately after the testimony is offered into evidence. Defendants now argue that Jones is barred from challenging the admission of Dr. Eager’s testimony regarding the Caterpillar Study on appeal because he failed to object to this testimony in a timely manner before the district court.

To preserve an issue for appeal, Rule 103(a) of the Federal Rules of Evidence provides that a party objecting to the admission of evidence must make “a timely objection or motion to strike” before the district court. See Fed.R.Evid. 103(a). When a party fails to timely and properly object at trial to the admission of evidence, the party is deemed to have waived the issue on appeal. See Krankel, 164 F.3d at 1052; United States v. Wynn, 845 F.2d 1439, 1442 (7th Cir.1988).

We note at the outset of our analysis that this is not the usual situation in which there is a total absence of an objection below or in which the movant raises an objection on appeal on a ground different from that presented to the district court— both of which normally would constitute a waiver on appeal. See e.g., Williams v. Jader Fuel Co., 944 F.2d 1388, 1405 (7th Cir.1991); United States v. Field, 875 F.2d 130, 134 (7th Cir.1989). Jones objected to the admission of Dr. Eager’s testimony regarding the Caterpillar Study before the district court on the ground he now asserts on appeal. The difficulty lies, however, in the fact that Jones did not lodge this objection until the close of Dr. Eager’s testimony, which is when Jones professes he first became aware that Defendants had not disclosed that Dr. Eager would rely on this study at trial, rather than at the exact time that the testimony was introduced and admitted into evidence.

We are not entirely convinced that Jones should be deemed to have waived this issue on appeal. Contrary to Defendants’ assertion, we do not believe it to always be the case that an objection has to be perfectly contemporaneous with the challenged testimony in order to satisfy Rule 103(a) and be considered “timely.” Instead, an objection can still be deemed “timely” if it is raised within a sufficient time after the proffer of testimony so as to allow the district court an adequate opportunity to correct any error. How contemporaneous an objection must be to the challenged testimony in order to be considered “timely” under Rule 103(a) is a question of degree. Asking a court to strike testimony introduced at trial three weeks earlier would, by all accounts, be unreasonable — such an objection cannot be considered “timely” by any stretch of the imagination. On the other hand, petitioning the court to strike testimony offered by a witness at the close of that witness’s testimony or prior to the start of the proceedings on the very next day when the witness was the last to testify on the preceding day, is a much closer question. In such a situation, the district court can certainly correct any error by issuing a limiting or curative instruction while the testimony is still relatively fresh in the mind of the jurors.

In the instant case we believe Jones’s objection to Dr. Eager’s testimony was sufficiently contemporaneous to be considered “timely” under Rule 103(a). Cf. Deppe v. Tripp, 863 F.2d 1356, 1363 n. 10 (7th Cir.1988) (suggesting that a “nearly contemporaneous” objection made at the bench at the close of a party’s closing argument would preserve the matter for appellate review because it would afford the trial court an opportunity to cure the claimed error through the use of a curative instruction). Jones objected immediately after the close of Dr. Eager’s testimony and asked the Court to instruct the jury to disregard the challenged portions of Dr. Eager’s testimony. This objection was presented to the district court at a time when the court could still correct any error. Furthermore, this was a rather protracted litigation extending over a period of years and involving a number of expert *728witnesses. Rule 103 should not be construed in such a narrow manner that courts cannot, or should not, recognize the exigencies of attempting to recall on a moment’s notice whether a particular document or opinion has been disclosed in an expert’s Rule 26 disclosure, especially when such evidence does not concern the expert’s core testimony, as is the case here. In addition, we note that this is not a situation in which Jones sought to “sandbag” the district court by sitting on an alleged error for tactical reasons and raising the issue only when his case made a turn for the worse. The objection was sufficiently contemporaneous and, if anything, given the limited nature of Dr. Eager’s testimony regarding the Caterpillar Study, more attention, not less, would have been drawn to Dr. Eager’s testimony if the district court had ruled in favor of Jones and issued a limiting instruction — a consequence Jones was apparently willing to accept. For these reasons, we are inclined to find that Jones’s objection to this testimony on Rule 26 grounds is not waived on appeal.

Once it has been determined that a particular objection was timely, a litigant must then show that the district court abused its discretion in so ruling and that any error by the district court in admitting this evidence was more than harmless. We review a district court’s decision to admit or exclude evidence under Rule 26 for an abuse of discretion. See Cummins v. Lyle Indus., 93 F.3d 362, 371 (7th Cir.1996).

Rule 26(a)(2) requires a party to make certain pre-trial disclosures regarding expert testimony to opposing counsel including “a complete statement of all opinions to be expressed and the basis and reasons therefor ... [and] the data or other information considered by the witness in forming the opinions.” Fed.R.Civ.P. 26(a)(2)(B). Subsections (a)(2)(C) and (e)(1) of that rule require that the expert’s disclosure be supplemented if there are any additions or changes to the information previously disclosed.

Defendants failed to disclose to Jones that Dr. Eager would be relying on the Caterpillar Study at trial. As a general rule, if a party fails to disclose information in accordance with Rule 26(a), that party “shall not, unless such failure is harmless, be permitted to use as evidence at a trial any ... information not so disclosed.” Fed.R.Civ.P. 37(c)(1). This sanction is “automatic and mandatory” unless the party can show that the violation “was either justified or harmless.” Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir.1996).

Because its ruling to allow Dr. Eager to testify regarding the Caterpillar Study was premised upon its conclusion that Jones had waived his Rule 26 objection, the district court did not reach the issue of whether it was proper to admit this testimony in light of Jones’s Rule 26 objection. The fact that the district court did not reach this issue, however, does not affect our inquiry into whether the admission of Dr. Eager’s testimony regarding the Caterpillar Study into evidence justifies granting Jones a new trial. Even if we assume that Defendants’ non-disclosure was unjustified, we nevertheless conclude that it was harmless and any error by the district court in allowing Dr. Eager to testify about the Caterpillar Study at trial, if indeed there was any error, was harmless error that does not warrant a reversal.

Dr. Eager testified that the Caterpillar Study showed that welders did not experience any more diseases or health effects than non-welders working at Caterpillar. This testimony is more or less cumulative of his testimony regarding the Joint Research because both portions of his testimony conveyed the message to the jury that the manganese content in welding fumes generated by mild steel welding rods is too insignificant to cause manganism in welders. Accordingly, we conclude that the admission of Dr. Eager’s testimony concerning the Caterpillar Study is *729harmless error for essentially the same reasons we found that the court’s admission of Dr. Eager’s testimony regarding the Joint Research was harmless: (1) the overwhelming medical evidence at trial strongly supported a finding that Jones suffered from idiopathic Parkinson’s disease rather than manganism; (2) Dr. Eager was not qualified to testify as to the health effects of breathing welding fumes and the Plaintiff established this fact during cross-examination; and (3) Jones introduced a substantial amount of evidence to show that manganese in welding fumes could lead to the onset of manganism and other health problems in welders. Furthermore, we note that Dr. Eager’s testimony regarding the Caterpillar Study, which itself was never introduced into evidence, was of a very limited scope as it consisted of a single question and answer.

In sum, we conclude that any error by the district court in allowing Dr. Eager to testify both about the Joint Research and the Caterpillar Study was harmless error. Accordingly, Jones is not entitled to a new trial based on either of these grounds.

B. Remarks Made By Defense Counsel During Closing Argument Do Not Warrant A New Trial

Jones argues that he is entitled to a new trial because defense counsel’s closing argument went beyond the bounds of acceptable advocacy. During closing argument, defense counsel strenuously argued that the medical evidence introduced at trial showed that Jones suffered from idiopathic Parkinson’s disease rather than manganism. After summarizing the various medical opinions of the neurologists offered at trial, defense counsel pointed out that all of them, except for Jones’s paid medical expert, had diagnosed Jones with idiopathic Parkinson’s disease, and defense counsel urged the jury not to lose sight of this evidence when it determined the issue of causation. With respect to that issue, defense counsel argued that, in order to hold Defendants hable for Jones’s injuries, the jury must first determine whether Jones proved that he in fact suffers from manganism before it turns to the issue of whether his neurological condition could be caused by the manganese contained in Defendants’ welding rods.

In warning the jury that Jones’s strategy was to distract it from focusing on the overwhelming medical evidence that showed that Jones did not suffer from manganism, Jones contends that defense counsel engaged in improper closing argument. Specifically, Jones , objects to the following remarks by defense counsel:

Defense counsel: * * * They can talk about documents until the cows come home. That’s their strategy. See if they can distract you and me, somehow get someone upset or mad and then we’ll forget. We can’t get to first base. We can’t solve the fundamental medical issue, without which none of the rest matters. If you conclude that the condition of Terry Jones is idiopathic Parkinson’s disease, that’s it — that’s it. Why was the lawsuit even brought? Let’s go out and say it. I have to say what’s on my mind, and I hope I don’t offend anyone. That’s my style. Why was’ it brought? Before you bring in the Defendants to the court and incur this expense, and take up your time, don’t you talk to the doctors, and say, “What has Plaintiff got?” If they all tell you “idiopathic Parkinson’s disease”, do you file a lawsuit. Well, maybe you do. But let me tell you why you do. They say, “Look, they’re big companies”—
Jones’s Counsel: Objection, your Honor. It’s improper argument.
Defense Counsel: Hardly.
The Court: The objection is overruled.
Defense Counsel: “They’re big companies. We’ve got some good documents, back in ’49 and ’50, maybe we can trick the jury.”
Jones’s Counsel: Objection, your Honor.
Defense Counsel: For what?
The Court: Objection is overruled.
*730Defense Counsel: Maybe they can trick the jury. Maybe they can distract you, and maybe even me, to focus on that issue. Whereas the fundamental first issue to be resolved. We shouldn’t be here. But we are. But we shouldn’t be. At best, six to one, with a test, probably seven to nothing. Whatever it is, there is no medical condition, that Terry has— Mr. Jones has, that’s caused by anything we did.

Defense counsel then argued that the evidence introduced at trial failed to show that manganese exposure from the welding fumes generated by Defendants’ welding rods ever exceeded industry recommended maximum exposure levels. After discussing the testimony of Dr. Eager and Jones’s expert industrial hygienist regarding whether Jones was ever exposed to unsafe levels of manganese as a result of using Defendants’ welding rods, counsel argued that Jones had failed to establish that he had:

Defense counsel: So, what you have on the exposure — whether or not it’s over the [threshold limit value] — is clear, from the people who took the stand. [Jones’s expert] says — it was never asked, and whenever he tested, it was below. Eager says, “It’s below.”, and never challenged. So, where do you go, if you’re them, and you’ve got this serious, serious problem. Documents. “Maybe I can get the jury upset enough, from things in the past, that they won’t know what happened.” It’s the old trick-pack theory. Don’t go for the bait. Jones’s counsel: I’m going to object to that, again. It’s improper to suggest that we tried to trick the jury.
The Court: The objection is overruled.

On appeal, Jones argues that the district court erred in allowing defense counsel to “personally attack” Jones and his counsel during closing argument. Jones submits that defense counsel accused Jones and his counsel of filing an unmeritorious lawsuit against big companies with the hope of “tricking” the jury into awarding Jones an undeserved monetary recovery. Such improper remarks and argument, Jones contends, warrant a reversal and a new trial. We disagree.

We have repeatedly recognized that “improper comments during closing argument rarely rise to the level of reversible error.” Probus v. K-Mart, Inc., 794 F.2d 1207, 1210 (7th Cir.1986) (citation omitted). To warrant a new trial, “[statements made during closing argument must be plainly unwarranted and clearly injurious to constitute reversible error.” Gruca v. Alpha Therapeutic Corp., 51 F.3d 638, 644 (7th Cir.1995); see also Arcor, Inc. v. Textron, Inc., 960 F.2d 710, 713 (7th Cir.1992) (“Improper statements during closing arguments warrant reversal only if they ‘influenced the jury in such a way that substantial prejudice resulted to’ the opposing party.” (quoting Fenolio v. Smith, 802 F.2d 256, 258 (7th Cir.1986))). As such, the “district court has considerable discretion in supervising the arguments of counsel, and we will reverse a verdict only where the court has abused that discretion.” Trytko v. Hubbell, Inc., 28 F.3d 715, 727 (7th Cir.1994).

Contrary to Jones’s assertion, we do not construe defense counsel’s closing remarks as constituting an improper personal attack on either Jones or his counsel. In our view, these brief comments of which Jones complains were a reasonable response to Jones’s assertion that he suffers from manganism and his repeated attempts during trial and his own closing statement to trivialize the medical testimony of six neurologists who each diagnosed Jones as suffering from idiopathic Parkinson’s disease, unrelated to Jones’s exposure to manganese. When defense counsel’s closing statements are viewed in that context and in light of all the evidence presented at trial, it becomes clear that counsel was merely stressing to the jury that Defendants believed the medical evidence clearly showed that Jones suffers from idiopathic Parkinson’s disease, not *731manganism. In that vein, defense counsel urged the jury not to lose focus of this glaring weakness in Jones’s causation argument. Accordingly, defense counsel submitted that Jones’s contention that the manganese contained in Defendants’ products could lead to the onset of manganism could not ultimately be the dispositive factor in determining whether Defendants were liable for Jones’s neurological injuries.

We find nothing improper in this line of argument. Closing arguments are the time in the trial process when counsel is given the opportunity to discuss more freely the weaknesses in his opponent’s case and to highlight the strength of his own. Indeed, as the district court aptly noted, a significant part of the lawyer’s role during closing arguments is to bolster the strength of his case by calling the jury’s attention to certain facts or inferences that might otherwise escape the jury’s attention. It is perfectly reasonable for defense counsel to discuss the weaknesses of an opponent’s case during closing argument so long as counsel’s argument is based on evidence admitted at trial. See Marshall v. Porter County Plan Comm’n, 32 F.3d 1215, 1221-22 (7th Cir.1994); Trytko, 28 F.3d at 727. As we have already explained above, there is more than ample evidence in the record to support Defendants’ contention that Jones has idiopathic Parkinson’s disease and to belie Jones’s belief that he suffers from manganism. Given the paucity of evidence showing that Jones suffered from manganism and the fact that Jones bore the burden of proving that he suffered from that disorder, we believe it was permissible for defense counsel to inform the jury that Defendants believed that no other issues need be considered in determining whether to hold Defendants liable for Jones’s injuries. Consequently, we see no error in defense counsel arguing to the jury that it should resist any efforts by Jones to gloss over this gap in his causation evidence. While Jones may well be correct in his assertion that defense counsel’s use of the word “trick” and the term “trick-pack” could have had some negative or inflammatory effect on the jury’s perception of the strength of Jones’s case, we do not believe such remarks were so egregious as to constitute improper closing argument necessitating the grant of a new trial. Cf. Lindgren v. Lane, 925 F.2d 198, 204 (7th Cir.1991) (concluding that a prosecutor’s comment during closing argument that defense counsel is attempting to “trick” the jury by presenting “illusions” is a permissible means of arguing so long as the comments are not overly excessive); see also Moylan v. Meadow Club, Inc., 979 F.2d 1246, 1250-51 (7th Cir.1992) (concluding that defense counsel’s closing remarks that plaintiffs claim for overtime wages was a “hold up” were not so egregious as to compel a new trial).

In fact, even if we were to conclude that defense counsel’s argument was improper, we cannot say these statements resulted in “substantial prejudice” to Jones necessary to justify the granting of a new trial. A new trial is warranted only if allegedly improper closing remarks depart from the evidence presented at trial and result in substantial prejudice to the opposing party. See Marshall, 32 F.3d at 1221-22. .We have previously recognized that improper statements during closing argument cannot be deemed to result in substantial prejudice to the moving party warranting a new trial when the evidence offered at trial is overwhelmingly in favor of the non-moving party. See Mayall v. Peabody Coal Co., 7 F.3d 570, 573 (7th Cir.1993). The overwhelming medical evidence adduced at trial in the instant case showed that Jones suffers from idiopathic Parkinson’s disease rather than manganism. In addition to the testimony of Defendants’ medical expert, all five of the independent physicians who treated Jones prior to the filing of this lawsuit concluded that Jones suffered from idiopathic Parkinson’s disease. Only Jones’s medical expert concluded that Jones’s neurological inju-*732ríes were caused by exposure to manganese — but we have already explained that the weight of this testimony was significantly undermined by Defendants during cross-examination. In any event, Jones has not offered any convincing argument on appeal that defense counsel’s statements resulted in substantial prejudice to his case.

Moreover, any potential prejudice to Jones by defense counsel’s argument that Jones was attempting to “trick” the jury was lessened considerably by the fact that the district court instructed the jury that statements and arguments made by counsel were not to be considered evidence and that the jury should base its verdict solely on the evidence admitted in the case. We have repeatedly found that jury instructions of this sort mitigate any prejudicial effect of potentially improper remarks made by counsel during closing argument. See id.; see also Valbert v. Pass, 866 F.2d 237, 241 (7th Cir.1989) (“[A]n instruction to the jury stating that the arguments of counsel are not evidence can mitigate the harm potentially caused by improper statements made by counsel during closing argument.”). Since we “assume that the jury followed the court’s cautionary instructions,” see United States v. Mealy, 851 F.2d 890, 903 (7th Cir.1988), we have no reason to believe that the jury impermissibly relied on defense counsel’s argument, or any improper inference to be drawn therefrom, in reaching its verdict. See, e.g., United States v. Rose, 12 F.3d 1414, 1426-27 (7th Cir.1994) (reasoning that courts must presume that juries heed limiting instructions that closing arguments are not to be considered evidence).

For the foregoing reasons, we conclude that the district court did not abuse its discretion in overruling Jones’s objections to defense counsel’s closing argument and, therefore, we find that the court did not err in refusing to grant Jones a new trial on this ground.

C. Jones Is Not Entitled A New Trial Based On ‘Newly Discovered’ Evidence

We next turn to address Jones’s challenge that the district court erred in denying his Rule 60(b)(2) motion in which he claimed that “newly discovered” evidence showed that Dr. Eager testified falsely at trial and that evidence of this false testimony was sufficient to warrant granting him a new trial. Pursuant to Federal Rule of Civil Procedure 60(b)(2), a party may be entitled to relief from the entry of final judgment if that party presents “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).” Fed.R.Civ.P. 60(b)(2). Relief under Rule 60(b)(2) “is an extraordinary remedy that is to be granted' only in exceptional circumstances.” Provident Sav. Bank v. Popovich, 71 F.3d 696, 698 (7th Cir.1995). We have held that the grant of a new trial on the ground of newly discovered evidence requires proof of the following five prerequisites:

1. The evidence was discovered following trial;
2. Due diligence on the part of the movant to discover the new evidence is shown or may be inferred;
3. The evidence is not merely cumulative or impeaching;
4. The evidence is material; and
5. The evidence is such that a new trial would probably produce a new result.

In re Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 78 F.3d 285, 293-94 (7th Cir.1996). If any one of these prerequisites is not satisfied, the movant’s Rule 60(b)(2) motion for a new trial must fail. See In re Wildman, 859 F.2d 553, 558 (7th Cir.1988).

Jones’s “newly discovered” evidence consisted of allegations that Dr. Eager’s trial testimony concerning the Joint Research and the Caterpillar Study were false. Specifically, Jones pointed to three *733areas in which he submitted that Dr. Eager gave false testimony.

First, Jones alleged that Dr. Eager falsely testified to the “facts” that formed the basis for the district court’s ruling that he had the necessary qualifications to offer an opinion regarding the ability of the body to absorb manganese contained in welding fumes and the toxicity of manganese in mild steel welding fumes. Jones argued that in order to qualify himself to offer an opinion as to these matters, Dr. Eager testified that he had conducted “joint research” with Professors Brain and Ulrich on the effects of welding fumes on animal lungs (the Joint Research) and that he and Professor Brain “had published papers together.” Jones submits that the district court relied on that testimony as the basis for its ruling that Dr. Eager was qualified to testify as to the conclusions reached by the Joint Research regarding absorption and toxicity.

In his Rule 60(b) motion, Jones contended this testimony was false because Dr. Brain testified in a subsequent unrelated case that he had never conducted any “joint research” with Dr. Eager, nor had he published any papers with him. Moreover, Jones relied on Dr. Eager’s deposition testimony from that same litigation in which Dr. Eager testified that he was not an author of the article that eventually published the results of the Joint Research (“Welding Article”), that he specifically requested to have his name removed from an earlier draft of that article because he felt that he had not made a significant contribution to the underlying research, and that his role in the Joint Research had been limited to attending researcher’s meetings and providing advice on welding.

Second, having hoodwinked the court into allowing him to testify, Jones contends that Dr. Eager materially miseharaeter-ized the conclusions reached by the Joint Research. Jones submits that Dr. Eager falsely testified that their “joint research” reached conclusions regarding the ability of the body to absorb manganese contained in welding rod fumes and toxicity of the manganese in that form. As we previously indicated, Dr. Eager testified that the Joint Research concluded that there was no difference between placing welding fumes and saline solution or non-toxic iron oxide into the animal’s lungs and that there was no measurable toxic effect of the welding fume containing manganese on the lung.

Jones argued that his “newly discovered” evidence showed that the Joint Research, or more specifically, Dr. Brain, never studied or reached any conclusions with respect to these two issues. In support of his argument, Jones once again relied on Dr. Brain’s deposition testimony in the subsequent unrelated case. According to Jones, Dr. Brain’s testimony conflicted with Dr. Eager’s trial testimony in that Dr. Brain stated that he had not studied the form of manganese in welding fumes, that the Joint Research had reached no conclusions with regard to the ability of the lung to absorb manganese or any differences in absorption between welding fumes and saline solution or iron oxide, and that he had never studied the toxicity of manganese nor had the Joint Research concluded that welding fumes had no toxic effect on the lung.

Finally, Jones argued that Dr. Eager falsely testified that the epidemiological study of welders conducted at Caterpillar (the Caterpillar Study) found a lack of manganese toxicity in welding fumes when the Study did not even address the issue. At trial, Dr. Eager testified that the Caterpillar Study concluded that welders working at a Caterpillar steel plant in Illinois did not experience “any more diseases or health effects or leukemia or cancer or anything else than people who work at Caterpillar who didn’t weld.”

Jones contended that this testimony was also false because the Caterpillar Study did not address the potential neurological effects of manganese in welding fumes. Instead/ the Study compared causes of *734death among Caterpillar workers focusing primarily on lung cancer death rates. It did not, Jones submitted, address any nonfatal health effects from welding. Moreover, Jones alleged that Dr. Eager testified in subsequent unrelated proceedings that the Caterpillar Study did not examine the effects of manganese in mild steel welding fumes on welders.

After conducting two hearings and reviewing the substantial amount of evidence submitted by both parties on the veracity of Dr. Eager’s trial testimony, the district court issued an order denying Jones’s Rule 60(b)(2) motion. The court cited four grounds in support of its ruling. First, the district court concluded that Eager did not materially mischaracterize his participation in the Joint Research. The court found that Jones read too much into Dr. Brain’s deposition testimony that he never conducted “joint research” with Dr. Eager. Placing Dr. Brain’s testimony into context revealed that he has an extremely narrow personal view of what it means to conduct “joint research” with another person. According to Dr. Brain’s definition, performing “joint research” meant that the other participant is so intimately associated with the research as to deserve co-authorship on any paper or papers detailing the results. Under that definition, Dr. Brain testified that he and Dr. Eager had not conducted “joint research.” However, Dr. Brain did acknowledge that he had a working research relationship with Dr. Eager, that he consulted with Dr. Eager as a welding expert in connection with the Joint Research, and that Dr. Eager participated in meetings and provided advice on welding in connection with that research. Indeed, the Welding Article subsequently published by Dr. Brain and the other authors detailing the results of the Joint Research thanked Dr. Eager for his contribution. Moreover, the court found that the testimony of Dr. Ulrich and Dr. Anton-ini,8 both of whom testified in connection with Jones’s Rule 60(b)(2) motion, showed that Dr. Eager played a substantial, although not dominant, role in the Joint Research and was intricately involved in attempts to obtain funding for joint research proposals for welding fumes research that preceded the Joint Research. Based on this evidence, the district court found that Dr. Eager’s trial testimony was not materially false.

Second, the court determined that Dr. Eager did not testify falsely regarding the results of research underlying the Joint Research. The district court concluded that Jones, at best, showed that Dr. Eager and Dr. Brain had a difference of opinion as to the results generated by the research on exposing animal lungs to welding fumes and that such a scholarly and subjective disagreement was not a sound basis for finding that Dr. Eager lied on the witness stand. In essence, the district court found that the evidence adduced in the Rule 60(b)(2) proceedings could colorably be construed to support the conclusions Dr. Eager ascribed to the Joint Research, and, therefore, Dr. Eager’s testimony could not be said to be materially false.

Third, the court concluded that any Rule 60(b)(2) challenge concerning Dr. Eager’s testimony with regard to the Caterpillar Study failed because Jones did not exercise due diligence in discovering the alleged falsity of Dr. Eager’s trial testimony. See Fed.R.Civ.P. 60(b)(2) (providing that a movant’s motion must be based on newly discovered evidence that could not have been discovered in time to move for a new trial under Rule 59(b)). The court found that the “new” evidence raised by Jones in his Rule 60(b)(2) motion purporting to show that Dr. Eager testified falsely was the Caterpillar article summarizing the Caterpillar Study’s conclusions. However, the district court concluded that statements made by Jones during closing argu*735ment indicated that he was aware of the article and the conclusions reported therein. Specifically, during his closing, counsel stated that the Caterpillar Study was a cancer study involving welders and that it did not, as Dr. Eager testified, evaluate the effects of welding fumes on welders. Furthermore, the court reasoned that even if counsel did not know of the article when Dr. Eager testified at trial, counsel had every incentive to obtain and review the article as soon as possible to ensure that Dr. Eager had fairly conveyed its findings. Accordingly, the court concluded that the Caterpillar article was either known to Jones and his counsel at trial or could have been obtained, in the exercise of due diligence, in time to file a Rule 59 motion.

Finally, and most importantly, the district court concluded that a new trial without Dr. Eager’s allegedly “false testimony” testimony would probably not produce a new result. The court first noted that Jones took much of the force away from Dr. Eager’s testimony when he pointed out to the jury that Dr. Eager was neither a toxicologist nor an expert on matters of physiology. The court also found that Jones undermined Dr. Eager’s testimony by reminding the jury that whatever findings Dr. Eager testified to regarding the toxic effect of welding fumes on lungs, it bore little relevance to Jones’s claim of brain damage. Moreover, Jones’s medical expert, Dr. Klawans, undercut the weight of Dr. Eager’s testimony by testifying that medical research showed that manganese in welding fumes could lead to the onset of manganism by entering a welder’s respiratory tract, being absorbed into the bloodstream, and traveling to the brain where it causes neurological damage. But most fundamentally, the district court found that the weakness in Jones’s medical causation evidence was absolutely fatal to his claim against Defendants. The court noted that at least four physicians diagnosed Jones with idiopathic Parkinson’s disease; whereas only Jones’s expert determined that Jones suffered from manganism, and the court found that his testimony was “significantly undermined on cross-examination.” Accordingly, the court concluded that Jones failed to prove that subtracting Dr. Eager’s challenged testimony would probably change the outcome of the trial in light of what the physicians said at trial concerning the cause of Jones’s condition.

On appeal, Jones contends that the district court abused its discretion in reaching each of these conclusions and, as a result, abused its discretion in denying his motion for a new trial. We review a district court’s denial of a Rule 60(b)(2) motion for abuse of discretion. See Harris v. Owens-Corning Fiberglas Corp., 102 F.3d 1429, 1434 (7th Cir.1996); Mares v. Busby, 34 F.3d 533, 535 (7th Cir.1994). In the context of a motion for a new trial, we employ a highly deferential abuse of discretion standard under which we affirm the decision of the district court unless the movant can show that no reasonable person could agree with the court. See Harris, 102 F.3d at 1434; Mares, 34 F.3d at 535. “We especially are disinclined to substitute our judgment for that of the district court when the record affirmatively manifests that the matter received careful, thorough consideration by the district judge.” Gomez v. Chody, 867 F.2d 395, 405 (7th Cir.1989). After reviewing the district court’s denial of Jones’s Rule 60(b)(2) motion, we find no indication that the district court abused its discretion in denying Jones a new trial.

A detailed discussion of all of Jones’s challenges is not warranted in light of our resolution of his claims that Dr. Eager’s testimony on these matters was improperly admitted into evidence in the first place. That is, we need not address Jones’s challenges to the district court’s conclusions regarding his lack of diligence in discovering the alleged falsity of Dr. Eager’s testimony relating to the Caterpillar Study, the falsity of Dr. Eager’s testimony that he conducted “joint research” and published papers with Dr. Brain, and the falsity of Dr. Eager’s testimony regarding the re-*736suits reached by the Joint Research, because even if we assume that Jones acted with reasonable diligence and that Dr. Eager’s testimony was likely false, we ultimately agree with the final and dispositive ground the court articulated as a basis for denying relief — the newly discovered evidence was not significantly material to the ultimate outcome of this case and Jones failed to show that subtracting this testimony from the trial would have probably resulted in a verdict in his favor. As we set forth above, in order to have a successful Rule 60(b)(2) motion, Jones had to prove that the newly discovered evidence “is such that a new trial would probably produce a new result.” In re Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 78 F.3d at 294. The district court concluded that Jones failed to satisfy this requirement, and Jones offers no convincing argument on appeal that the district court abused its discretion in reaching this conclusion.

The testimony that Jones submits is materially false in his Rule 60(b)(2) motion is, for the most part, the same testimony that Jones objected to as being improperly admitted into evidence in the first place. In the context of ruling on his appeal of the district court’s evidentiary rulings, we fully examined Jones’s challenges to the admission of that testimony and concluded that any error by the court in admitting this evidence was harmless because the challenged testimony did not contribute to the verdict in a meaningful manner. Since our inquiry here into whether Jones’s newly discovered evidence “would probably produce a different result” in a retrial is essentially the same as our harmless error inquiry, Jones’s contention that subtracting Dr. Eager’s allegedly false testimony with respect to these matters from the trial would probably result in a different outcome ultimately fails for the same reasons that we held that the admission of this testimony into evidence was harmless error.

Simply put, the outcome of this case turned on the issue of whether Jones suffered from idiopathic Parkinson’s disease or manganism. The medical evidence introduced at trial showed that he suffered from idiopathic Parkinson’s disease, and, therefore, evidence suggesting that welding fumes either could or could not lead to the onset of manganism was not terribly material nor relevant to the ultimate determination of Defendants’ liability for Jones’s neurological disorder. And since we have already concluded that the admission into evidence of the testimony that Jones now challenges as being false was harmless error, it would make little sense for us now to conclude that subtracting this testimony from trial would probably result in a verdict in Jones’s favor in the context of Jones’s Rule 60(b)(2) motion for a new trial.

Thus, given the weakness of Jones’s case, we cannot say that the outcome of a retrial without Dr. Eager’s testimony would probably produce a different result. Therefore, Jones’s “newly discovered” evidence fails to satisfy all the necessary requirements under Rule 60(b)(2) to warrant the grant of a new trial. Accordingly, we conclude that the district court did not abuse its discretion in denying Jones’s Rule 60(b) motion.

D. The District Court Did Not Err In Denying Jones’s Motion To Hold Dr. Eager In Contempt

Jones’s final challenge is that the district court erred in denying his motion for a rule to show cause why Dr. Eager should not be held in contempt of court for providing false testimony at trial. Based on the same allegations spelled out above, Jones moved the court to hold Dr. Eager liable in civil contempt and to recover from Dr. Eager all of the costs incurred by Jones in connection with the prosecution of his case, the legal expenses of preparing for and conducting a second trial, and a civil fine. In addition, Jones sought disgorgement of the expert witness fees De*737fendants paid to Dr. Eager for his time spent in connection with this case. While Dr. Eager vigorously argued that he testified truthfully at trial and that Jones’s allegations were based upon selective and out-of context quotations from testimony elicited in a subsequent unrelated proceeding, the district court did not reach the truthfulness of Dr. Eager’s testimony in denying Jones’s contempt motion.9

Instead, the court denied Jones’s motion on the ground that the nature and purpose of civil contempt does not warrant applying it to a witness who testifies falsely at trial. The court ruled that even assuming Jones’s allegations were true, the mere provision of false or perjurious testimony does not constitute civil contempt without some added showing that the testimony obstructed the court’s authority to conduct orderly proceedings or perform its duties. The court reasoned that to be subject to civil contempt, Dr. Eager must have disobeyed an explicit court order or must have otherwise defied or obstructed the court’s authority to conduct orderly proceedings. The court found that Dr. Eager’s testimony, even if false, failed to satisfy this standard for three reasons. First, the court never ordered Dr. Eager to testify truthfully. Although witnesses swear an oath to testify truthfully at trial, this oath is not tantamount to a court order. Second, since the essential function of a trial is “truth-finding,” the provision of false testimony at trial could not be said to significantly impede that function. The court reasoned that by their very nature, trials contain conflicting and oftentimes diametrically opposed testimony; however, this does not ordinarily affect a court’s ability to conduct orderly trials. Third, the court reasoned that an essential justification for the measure of civil contempt is to give courts a tool for forcing obedience to their orders. The court could not order Dr. Eager to come back and testify “truthfully” thereby restoring “order” to a trial that was already concluded. Based on these grounds, the court denied Jones’s motion to hold Dr. Eager in contempt.

On appeal, Jones contends that the court erred in requiring that Jones prove, in addition to showing that Dr. Eager testified falsely, the additional element that his testimony obstructed justice. Jones submits that the added “obstruction of justice” requirement is only applicable to criminal contempt proceedings and that federal courts have held that testifying falsely is, in and of itself, a sufficient basis for a finding of civil contempt. Jones also believes that the district court’s ruling essentially leaves him without any remedy for the harm caused by Dr. Eager’s false testimony. For these reasons, Jones argues that the district court’s order should be reversed.

We review the district court’s denial of Jones’s contempt motion under an abuse of discretion standard. Stotler and Co. v. Able, 870 F.2d 1158, 1163 (7th Cir.1989). “A district court’s decision on a contempt petition is discretionary in character and is not to be reversed except for abuse of such discretion or unless clearly erroneous.” Id. (internal quotation marks and citations omitted). Upon close review, we find Jones’s arguments to be without merit and affirm the decision of the district court.

A court’s civil contempt power rests in its inherent limited authority to enforce compliance with court orders and ensure judicial proceedings are conducted in an orderly manner. See e.g., D. Patrick, Inc. v. Ford Motor Co., 8 F.3d 455, *738459 (7th Cir.1993); Ferrell v. Pierce, 785 F.2d 1372, 1378 (7th Cir.1986). To hold a party or witness in civil contempt, “the district court must be able to point to a decree from the court which ‘set[s] forth in specific detail an unequivocal command’ which the party [or witness] in contempt violated.” Ferrell, 785 F.2d at 1378 (quoting H.K. Porter Co. v. National Friction Prods., 568 F.2d 24, 27 (7th Cir.1977)). Civil contempt proceedings are coercive and remedial, but not punitive, in nature and sanctions for civil contempt are designed to compel the contemnor into compliance with an existing court order or to compensate the complainant for losses sustained as a result of the contumacy. See International Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826-28, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994); Connolly v. J.T. Ventures, 851 F.2d 930, 932 (7th Cir.1988).

Thus, civil contempt proceedings may be classified into two categories. Coercive sanctions, which are really the essence of civil contempt, seek to induce future behavior by attempting to coerce a recalcitrant party or witness to comply with an express directive from the court. See Latrobe Steel Co. v. United Steelworkers of Am., AFL-CIO, 545 F.2d 1336, 1344 (3rd Cir.1976). Remedial sanctions, by contrast, are backward-looking and seek to compensate an aggrieved party for losses sustained as a result of the contemnor’s disobedience of a court’s order or decree made for the aggrieved party’s benefit. See id. However, irrespective of the nature of the civil contempt, whether it be coercive or remedial, any sanction imposed by the court must be predicated on a violation of an explicit court order. See Ferrell, 785 F.2d at 1378; see also Boylan v. Detrio, 187 F.2d 375, 378-79 (5th Cir.1951).

Jones’s contempt motion obviously cannot be characterized as “coercive” in nature because his trial is over, and, therefore, the court could not seek to cure the alleged violations by ordering Dr. Eager to return and testify “truthfully” under the threat of contempt sanctions. Therefore, if Jones’s allegations of false swearing are to constitute civil contempt, which they do not, the only relief that the court could grant is remedial to compensate Jones for any damage caused by Dr. Eager’s perceived disobedience. However, Jones’s claim for remedial relief necessarily fails because he cannot show that Dr. Eager disobeyed the court’s authority in any manner that justifies the imposition of civil contempt sanctions. As the district court stated in its decision, “this Court never ordered Dr. Eager to testify truthfully. Granted Dr. Eager swore to do so, but that oath does not amount to an order of the Court.” The remedial relief contemplated by civil contempt is to compensate the aggrieved party for losses sustained as a result of the contemnor’s non-compliance with an existing court order. Dr. Eager violated no court decree ordering him to take or not to take certain action. In the absence of such an order, and any conduct in violation thereof, we cannot say that the court erred in denying Jones’s contempt motion. *739tempt exists in every case where a court is of the opinion that a witness is committing perjury.” Id. at 382, 39 S.Ct. 337. The Court held that a witness could not be held in contempt for perjury unless it be shown that some further element of obstructing the court’s authority be proven. See id. at 383-84, 39 S.Ct. 337. The Court explained:

An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is ... the characteristic upon which the power to punish for contempt must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted — a principle which, applied to the subject in hand, exacts that in order to punish perjury in the presence of the court as a contempt there must be added to the essential elements of perjury under the general law the further element of obstruction to the court in the performance of its duty.

Id. at 383, 39 S.Ct. 337. In reaching this conclusion, the court rejected earlier decisions that treated perjury without any other element as adequate to sustain a contempt finding, reasoning that those cases either overlooked or misconceived the essential characteristic of the obstructive tendency underlying the court’s contempt power, or mistakenly attributed a necessarily obstructive effect to false swearing. See id. at 383-84, 39 S.Ct. 337. If either of those rationales were in fact true, the Court reasoned, then

it would follow that when a court entertained the opinion that a witness was testifying untruthfully the power would result to impose a punishment for contempt with the object or purpose of exacting from the witness a character of testimony which the court would deem to be truthful; and thus it would come to pass that a potentiality of oppression and wrong would result and the freedom of the citizen when called as a witness in court would be gravely imperiled.

Id. at 384, 39 S.Ct. 337.

In In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30 (1945), the Supreme Court reaffirmed this principle that false testimony alone does not produce the obstruction of the court’s authority necessary to satisfy holding a party or witness in contempt:

All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore it cannot be denied that it tends to defeat the sole ultimate objective of a trial. It need not necessarily, however, obstruct or halt the judicial process. For the function of trial is to sift the truth from a mass of contradictory evidence, and to do so the fact finding tribunal must hear both truthful and false witnesses. It is in this sense, doubtless, that this Court spoke when it decided that perjury alone does not constitute an “obstruction” which justifies exertion of the contempt power and that there “must be added to the essential elements of perjury under the general law the further element of obstruction to the Court in the performance of its duty.”

Id. at 227-28, 66 S.Ct. 78 (quoting Ex parte Hudgings, 249 U.S. at 383-84, 39 S.Ct. 337).

In the instant case, Jones’s contempt motion made no allegation of any obstructive element other than Dr. Eager’s false testimony. Without the presence of some obstructive action on the part of Dr. Eager, the authorities cited above clearly indicate that the district court lacked the authority to hold him in civil contempt and Jones cites no persuasive authority to the contrary. See also Boylan, 187 F.2d at 378 (reasoning that acts of false swearing or perjury, standing alone, are insufficient to constitute civil contempt); United States v. Goldstein, 158 F.2d 916, 920 (7th Cir.1947) (“Perjury by a witness has been thought to be not enough where the obstruction to judicial power is only that

*738Moreover, contrary to Jones’s position on appeal, our review of relevant authority makes clear, in a manner consistent with the district court’s holding, that civil contempt is an improper method by which to punish perjurious or false testimony absent some element of obstruction of justice. See Ex parte Hudgings, 249 U.S. 378, 383-84, 39 S.Ct. 337, 63 L.Ed. 656 (1919); see also Sigety v. Abrams, 632 F.2d 969, 976 (2d Cir.1980) (“As broad as the power of civil contempt may be, it does not include the power to punish for the crime of perjury .... ”). In Ex parte Hudgings, the trial court held a witness in contempt for refusing to testify truthfully at trial and ordered the witness committed into custody until he purged himself of the contempt for which he was being punished. See 249 U.S. at 381-82, 39 S.Ct. 337. The issue placed before the Supreme Court was whether the “power to punish for con-*740inherent in the wrong of testifying falsely.... For offenses of that order the remedy by indictment is appropriate and adequate.” (quoting Clark v. United States, 289 U.S. 1, 11, 53 S.Ct. 465, 77 L.Ed. 993 (1933))).

Indeed, to hold a witness liable in money damages merely because he or she testified falsely at trial would violate the long-standing common law rule that parties and witnesses are immune from subsequent damages liability for their testimony in judicial proceedings. See Briscoe v. LaHue, 460 U.S. 325, 332-36, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Instead, the proper recourse against a witness who testifies falsely at trial is a subsequent prosecution for perjury. See, e.g., In re Kitchen, 706 F.2d 1266, 1274-75 (2d Cir.1983) (“[A] witness who testifies falsely is ordinarily subject to prosecution for a criminal offense, e.g., perjury, but not to sanctions for civil contempt.”).

Finally, it cannot be said that Jones lacked an adequate remedy to redress his claim that Dr. Eager testified falsely at trial. Jones filed a Rule 60(b)(2) motion for a new trial based on Dr. Eager’s allegedly false trial testimony. The possibility that Jones could have received a new trial on the basis of these allegations of perjury, if proven, is a sufficient and adequate remedy for any harm that might have been caused by Dr. Eager’s trial testimony.

III. ConClusion

For the foregoing reasons, the jury verdict and the orders of the district court are Affirmed.

Central Telecommunications, Inc. v. TCI Cablevision, Inc. Central Telecommunications, Inc. v. TCI Cablevision, Inc.

This case provides an interesting comparison with Jones (the case above) because it also addresses an objection made at the close of a witness’ testimony, but reaches a different conclusion.

CENTRAL TELECOMMUNICATIONS, INC., Plaintiff, v. TCI CABLEVISION, INC., Community Telecommunications, Telecommunications, Inc., Defendants.

No. 83-4068-CV-C-5.

United States District Court, W.D. Missouri, C.D.

June 5, 1985.

*892See also 589 F.Supp. 85.

*894R. Lawrence Ward, G. Stephen Long, Thomas J. Whittaker, Shughart, Thomson & Kilroy, Kansas City, Mo., for plaintiff.

Harold R. Farrow, Richard Moore, Omer Rains, Farrow, Schildhause, Wilson & Rains, Oakland, Cal., for defendants.

ORDER

SCOTT 0. WRIGHT, Chief Judge.

Pending before the Court are the following post-trial motions: (1) defendants’ motion for judgment non obstante veredicto; (2) defendants’ alternative motion for a new trial; (3) defendants’ motion for clarification of the judgment; (4) plaintiff’s motion for enhancement of its attorney’s fees; and (5) defendants’ motion for a stay of execution pending appeal. For the reasons set forth below, the Court will make the following rulings: (1) defendants’ motion for j.n.o.v., alternative motion for a new trial, and motion for a stay of execution will be overruled; (2) defendants’ motion for clarification will be sustained and the judgment in this case will be amended to preclude the possibility of double recovery by plaintiff; and (3) plaintiff’s motion for enhancement of its attorney’s fees will be overruled.

I. Background

On January 22, 1985, the jury returned verdicts against defendants of $10,-800,000.00 on each of plaintiff’s antitrust claims,1 and $10,800,000.00 for actual damages and $25,000,000.00 for punitive damages on plaintiff’s state law claim for tortious interference with a business expectancy.2 These verdicts were rendered by an extremely attentive jury at the conclusion of a thirty-one day trial.

Plaintiff’s claims arose out of a dispute over cable television franchise rights in Jefferson City, Missouri.3 In 1978, defendants4 (hereinafter collectively referred to as “TCI”) bought the only existing cable *895television franchise5 in Jefferson City. By its terms, the franchise which TCI purchased was scheduled to expire in April, 1981.

As is customarily done in cities across the country, Jefferson City initiated an RFP6 process to solicit bids to determine the recipient of the next cable television franchise. Being the incumbent operator, defendants naturally enjoyed the inside track in the competition for the next franchise. Nevertheless, city officials remained open to the option of refusing to renew TCI’s franchise, particularly in view of mounting consumer dissatisfaction with existing service.

In 1980, a group of local investors formed the plaintiff company (hereinafter referred to as “Central”) for the express purpose of competing for a cable television franchise in Jefferson City. Aware of the public’s dissatisfaction with the incumbent operator, Central began arranging financing and responded to the city’s RFP by offering expanded services for less money. In contrast, defendants refused to participate directly in the RFP process. Instead, TCI undertook various tactics designed to ensure that it could not be displaced as the sole cable television franchisee in Jefferson City. Many of these activities were performed by Paul Alden, a “troubleshooter” in defendants’ franchise renewal department. For example, Mr. Alden threatened to destroy the career of Elmer Smalling, a consultant who was evaluating the RFP responses for the city. Mr. Alden also attempted to intimidate city officials by threatening to flood the Jefferson City market with satellite dishes if defendants’ franchise was not renewed. This threat, as it turned out, was a complete fraud: Mr. Alden represented that his company had exclusive control over the distribution of satellite dishes in the Jefferson City area when, in fact, his company had never participated in the satellite dish business. In addition, TCI sent shock waves through the Jefferson City community by announcing to the public that all cable television services would be terminated unless its franchise was renewed. Defendants applied additional pressure on city officials by refusing to pay the city approximately $60,000.00 in past-due franchise fees unless and until their franchise was renewed. Finally, on March 16, 1981, defendants filed a multicount lawsuit against the city and began to engage the city in protracted litigation. The gravamen of this lawsuit was the claim that the First Amendment prohibited the city from terminating an entrenched cable television operator’s right to provide cable services in the community.

Notwithstanding TCI’s efforts to subvert the RFP process and retain its entrenched position, city officials continued to review the bids submitted by plaintiff and other applicants. The chief competitors in the RFP process were Central and Teltran, a cable television operator based in Columbia, Missouri. The city’s consultant, Elmer Smalling, rated Central and Teltran equally. In November, 1981, however, Teltran withdrew its application, thus leaving plaintiff as the best candidate for a new franchise. On January 25, 1982, the city council of Jefferson City passed an ordinance authorizing the city attorney to begin negotiating franchise documents with plaintiff. While these negotiations were being conducted, defendants continued pressuring the city to renew its franchise.

*896On April 16, 1982, after a series of secret meetings between TCI and various city officials, Mayor Hartsfield announced that an agreement had been reached whereby the city would renew defendants’ franchise and defendants would dismiss their lawsuit against the city. Nevertheless, on April 20, 1982, the city council voted by a 7-3 majority to award a non-exclusive franchise to plaintiff. Mayor Hartsfield promptly vetoed the ordinance granting a franchise to plaintiff. The next item on the council’s agenda was a proposed ordinance which would renew defendants’ franchise. The council was deadlocked at a 5-5 vote. The mayor cast the tie-breaking vote and, as a result, TCI retained its position as the only cable television operator in Jefferson City.

Contending that it had been wrongfully deprived of a franchise, Central brought the instant lawsuit. TCI counterclaimed. After thirty-one days of trial, the Court granted plaintiff’s motion for a directed verdict on defendants’ counterclaims. Central submitted its case to the jury on three theories: (1) conspiracy to unreasonably restrain trade; (2) actual monopolization; and (3) tortious interference with a business expectancy. The jury found for plaintiff under each theory. The post-trial motions presently before the Court ensued.

II. Motion for J.N.Q.V.

TCI’s motion for j.n.o.v. advances two primary arguments for overturning the jury’s verdicts. Only these two arguments will be addressed herein; the other grounds raised by defendants are rejected as being without merit.

A. Noerr-Pennington Defense

The first substantial argument raised by defendants is that all of their allegedly wrongful conduct was protected activity within the purview of the Noerr-Pennington doctrine. There are two distinct components of the Noerr-Pennington doctrine, both of which are based on the notion that civil liability should not be imposed on persons for exercising their First Amendment right to petition the government.7 The first prong of the Noerr-Pennington defense is the protection of legitimate efforts to lobby or influence public officials with respect to political action, even if those efforts are designed to eliminate competition.8 The second strand of the Noerr-Pennington defense is the protection of genuine efforts to seek redress through the judicial process, even if the outcome of such litigation is certain to affect or eliminate competition.9 Both the lobbying and litigation aspects of the Noerr-Pennington doctrine are implicated in the instant case.

1. Litigation

Under the Noerr-Pennington doctrine, participation in the judicial process cannot be asserted as a basis for civil antitrust liability “unless it may be characterized as a sham cover for what is really just an attempt to directly interfere with *897the business relations of a competitor.” 10 The fundamental question underlying the issue of whether a lawsuit was a mere sham and thus unprotected conduct is one of intent.11 In the instant case, plaintiff introduced evidence concerning defendants’ 1981 lawsuit against Jefferson City wherein defendant had sought to enjoin the city from displacing it as a cable television operator. At first, plaintiff attempted to show that this lawsuit fell within the sham exception to the Noerr-Pennington doctrine.12 As the trial progressed, however, plaintiff apparently had doubts about the sufficiency of the evidence to support a finding that the 1981 lawsuit was a sham and, consequently, withdrew the issue from the jury’s consideration. The withdrawal instruction expressly directed the jury that it could not consider defendants’ 1981 lawsuit against Jefferson City to have been Unlawful conduct. This withdrawal instruction adequately informed the jury that defendants’ 1981 lawsuit was protected litigation under the Noerr-Pennington doctrine.13 It must be assumed that the jury followed the Court’s instructions and did not rely on the 1981 lawsuit in arriving at its verdicts. Defendants’ arguments to the contrary14 are contradicted by the plain language of the jury instructions.

2. Lobbying

As noted above, the lobbying prong of the Noerr-Pennington doctrine extends a cloak of immunity from civil liability to legitimate efforts to influence public officials with respect to political action.15 It bears emphasis, however, that only legitimate lobbying efforts are protected; conduct that extends beyond “traditional political activity” may not be protected.16 Thus, when accompanied by illegal or fraudulent actions, efforts to influence public officials are not exempt under the Noerr-Pennington doctrine.17

In the instant case, defendants contend that the jury’s verdicts should be overturned because all of their allegedly anti-competitive conduct was protected activity within the Noerr-Pennington doctrine. The Court must disagree. The record clearly contained sufficient evidence to support the jury’s finding that the wrongful conduct of defendants was either “sham lobbying” or not lobbying at all. For example, Paul Alden’s threat to ruin the career of Elmer Smalling simply cannot be characterized as “lobbying” in the first instance. Smalling was not an elected public official, nor did his role in the city’s RFP process involve political action; instead, he was merely a consultant to the city whose’ job was to evaluate a mass of technical information. In addition, the jury clearly was justified in believing that Paul Alden’s threat to flood the Jefferson City market with satellite dishes was not legitimate lobbying activity; instead, it was pure fraud. As Alden admitted during his deposition, he knew that neither he nor his former employer had ever been in the satellite dish *898business. Finally, TCI’s refusal to pay past-due franchise fees to the city unless the city renewed its franchise had nothing to do with “genuine” political activity; instead, it was nothing short of commercial blackmail. Although there was conflicting evidence on the issue, the jury’s determination that TCI had strayed beyond the bounds of legitimate lobbying activity is well-supported by the record. Accordingly, defendants’ contention that all of its conduct was protected by the Noerr-Pennington doctrine must be rejected.

B. First Amendment Defense

The second frontal assault on the verdict is thé argument that defendants cannot be held liable for retaining their position in the Jefferson City cable television market because the First Amendment afforded them an absolute right to continue their cable television operation free from government interference. Defendants claim that they are entitled to First Amendment protection because their sole function is to transmit information to the public. While defendants admit that they do not produce original programming, they contend that their role as a conduit for news, entertainment, and advertising is analogous to that of Reader’s Digest.

Although it doubts that TCI’s First Amendment rights are coextensive with those of the print media,18 this Court acknowledges that cable television operators are entitled to some measure of First Amendment protection. For example, governmental entities may not discriminate against a cable television operator .on the basis of programming content.19 Nor may. a local governmental body artificially limit the number of cable television operator's in a given market.20 Nevertheless, it has long been the law that the First Amendment does not afford absolute immunity from antitrust liability to members of the communications industry.21 Thus, if one cable television operator conspires or engages in predatory conduct for the purpose of eliminating its competitors, it will be liable in an antitrust lawsuit to the same extent as any other competitor in any other industry.

In essence, defendants’ First Amendment argument is that they were justified, as a matter of law, in resisting Jefferson City’s RFP process because the city could not constitutionally force an established cable television franchisee to cease operation at the conclusion of the franchise term.22 Defendants further contend that, even if the Jefferson City market could support only one cable system, the city could not constitutionally displace the incumbent franchisee with a new franchisee; instead, defendants argue, they had an absolute First Amendment right to continue their operation either with or without a franchise from the city.23 Thus, defendants’ position is that Jefferson City’s RFP process was *899illegal as a matter of federal constitutional law and that, consequently, all of TCI’s efforts to retain its place in the Jefferson City cable television market were lawful.24

If the Court agreed with defendants’ argument in its entirety, plaintiff’s complaint would have been dismissed a long time ago. However, defendants’ argument misstates the applicable law and misperceives the theory of the case that was submitted to the jury.

1. The First Amendment and Cable Television

There are two primary areas of interface between cable television and the First Amendment. First, there is the matter of governmental regulation of programming content. It is well-settled that, absent some compelling governmental inter-e'st, such content regulation is impermissible.25 This aspect of the First Amendment was not implicated in the instant case; there was simply no evidence that Jefferson City engaged in content-based regulation.

The second area of interface between cable television and the First Amendment surrounds the franchising process whereby local governmental entities regulate access to cable television markets. This area has provided fertile ground for litigation in recent years.26 The only legal principle on which virtually all courts have agreed is that local governmental entities have some authority to regulate cable television operators in the interest of minimizing the inevitable disruption of the public domain occasioned by the installation of cable television systems.27- In addition, it is noteworthy that federal law has acknowledged the authority of a local governing body to “award one or more franchises within its jurisidiction.”28 Thus, it appears safe to say that cities, such as Jefferson City, enjoy the power to license cable television operators within their geographic spheres of influence.

A more difficult problem arises, however, when a local governmental entity seeks to place a limit of the number of franchisees in its jurisdiction. Although the law in this area is far from settled, the emerging answer appears to be that the *900grant of a single cable franchise is permissible only if the physical and economic conditions of the relevant market give rise to a “natural monopoly” situation.29 The theory is that, where physical and economic factors render a market incapable of accommodating more than one cable television system, the local governing body is in the best position to determine which proposed system offers the best service to the public for the lowest cost. Since only one operator can survive in the market, it makes sense to allow the local government to choose the best applicant.30 Otherwise, as a result of the enormous start-up costs of constructing a cable television system,31 no one would dare compete in a natural monopoly-type market with an incumbent operator even if the incumbent was providing poor service to the consuming public. The initial investment would be too great to risk on the hope of wresting the entire market away from the incumbent. Thus, the incumbent operator would remain in a firmly entrenched position regardless of the quality of its system. Consequently, in a natural monopoly situation, the First Amendment should tolerate a franchising process whereby a city may periodically award an exclusive franchise to the applicant which offers the best package to the public.32

On the other hand, if a given cable television market does not have natural monopoly characteristics, the justification for limiting the number of franchisees disappears. If the market can support more than one cable system, it no longer makes sense to force prospective operators to compete for a single franchise. Nor does it make sense to allow the local governmental body to act as the guardian of the public’s interest. Instead, the surest method of determining which operator best fulfills the needs of each consumer is to grant licenses to all qualified applicants and to let them compete in the marketplace.

In a nutshell, then, the determinative factor with respect to a city’s power to restrict the number of cable television franchisees is whether economic and physical *901conditions in the relevant market give rise to a “natural monopoly” situation. If the market has room for only one firm, it makes sense to require all prospective franchisees to compete “for” the market and to allow the local governing body to make the decision as to which cable system will best serve its constituents. But, if a market has room for more than one cable system, a city’s efforts to articifically limit the number of operators would constitute a prior restraint in violation of the First Amendment.

2. The Theories of the Case

In order to obviate TCI’s First Amendment concerns, the jury instructions in this case were carefully tailored to ensure that the jury could not return a verdict for plaintiff under circumstances where defendants had a valid First Amendment defense to plaintiff’s claims. As stated in Instruction No. 20, plaintiff submitted its case under two divergent theories. First, the jurors were instructed that if they found that physical and economic conditions in the Jefferson City cable television market gave rise to a natural monopoly, they must focus on whether defendants engaged in anti-competitive or predatory conduct with respect to competition for the market. Second, the jurors were instructed that if they found that a natural monopoly situation did not exist as of April, 1982, they must focus on whether defendant engaged in anti-competitive or predatory conduct with respect to competition in the market. Assuming that the jury heeded this “fork-in-the-road” instruction as well as all other instructions, it is apparent that all questions of fact underlying defendants’ First Amendment argument were considered and resolved by the jury.33

(a) Natural Monopoly Theory

Under the “fork-in-the-road” jury instruction described above, the jury was permitted to consider whether market conditions gave rise to a natural monopoly situation. If it found that a natural monopoly situation existed, the jury was further instructed to determine whether defendants committed the offense of actual monopolization with respect to competition for the market. In other words, under this submission the jury was told to consider whether defendants violated the antitrust laws with respect to competition for the exclusive right to serve the Jefferson City market.34

This submission is not objectionable on First Amendment grounds. As noted above, a local governmental entity has the authority to select an exclusive franchisee when: (1) the local market has room for only one cable television system; and (2) the governing body makes its selection in the public interest.35 If it proceeded under this branch of the “fork-in-the-road” instruction, the jury necessarily would have found that the Jefferson City market had room for only one cable system. Moreover, to ensure that the jury focused on “the public interest” as the standard by which the city awarded the franchise, the Court specifically instructed the jury that anti-competitive or predatory activity is conduct which operates to the detriment of purchasers or consumers. Thus, in order to return a plaintiff’s verdict under this theory, the jury necessarily would have made two factual findings: (1) that the Jefferson City cable television market could only support one franchisee; and (2) that, in retaining their position as the sole franchisee in the Jefferson City market, *902defendants acted to the detriment of the interests of the consuming public. Given these two factual determinations, plaintiff’s “natural monopoly” theory of the case easily withstands defendants’ First Amendment attack.

(b) Open Market Theory

TCI’s First Amendment assault on plaintiff’s “open market” theory of the case is more difficult to analyze. Under the second branch of the “fork-in-the-road” instruction described above, the jury was permitted to find that the Jefferson City market had room for more than one cable television franchise. If it found that the market had room for more than one franchise, the jury was further instructed to determine whether defendants committed the offense of actual monopolization with respect to competition in the market. In other words,-under this submission the jury was told to focus not on competition between rival cable television operators for a single franchise, but on head-to-head competition in the marketplace. This instruction effectively warned the jury that, notwithstanding the city’s intention to award only one franchise, it could not assume that only one franchise should have been awarded. At all times, it was within the province of the jury to determine whether the physical and economic characteristics of the Jefferson City market permitted head-to-head competition.

Defendants insist that plaintiff should not be allowed to recover under its “open market” theory for two reasons. First, defendants argue that, once the jury determined that Jefferson City had room for more than one cable system, the city’s RFP process was illegal as a matter of law. Second, defendants contend that the evidence of plaintiff’s unwillingness to compete head-to-head in the marketplace was so overwhelming as to preclude recovery under an “open market” theory.

Despite the superficial appeal of these two arguments, neither can withstand close scrutiny. It is true that TCI’s publicly stated position in Jefferson City and at trial was that they were willing to compete head-to-head with any competitor. In accordance with this public posture, defendants characterized the city’s RFP process as an illegal auction for an exclusive franchise and refused to participate in the RFP. In addition, defendants filed suit against the city in 1981, claiming that any attempt to revoke or terminate its right to provide cable television programming would be violative of the First Amendment. Thus, on the surface, defendants’ contention that it was at all relevant times a scrupulous proponent, not an opponent, of open market competition appears to be true.

On closer inspection, however, it becomes apparent that the sincerity of TCI’s publicly announced position was subject to legitimate dispute. At trial, there was evidence that defendants had taken a contrary position by defending a city’s right to grant an exclusive franchise in other communities. In addition, notwithstanding defendants’ criticism of plaintiff’s efforts to obtain a de facto exclusive franchise from the city, there was substantial evidence that defendants were engaged in a calculated scheme to prevent plaintiff from entering the Jefferson City market and to maintain a de facto exclusive franchise for themselves.

Two factual findings implicit in the jury’s verdicts confirm that TCI’s endorsement of head-to-head competition lacked sincerity. First, the jury’s finding that defendants possessed monopoly power — that is, the power to exclude competition in the Jefferson City market — contradicts TCI’s argument that the city was solely responsible for deciding who could operate a cable system within that jurisdiction.36 Second, the jury’s finding that “defendants caused Jefferson City to terminate the business ex*903pectancy of plaintiff”37 directly contradicts defendants’ argument that they were not responsible for keeping plaintiff out of the Jefferson City cable television market. Undisputed evidence showed that, on April 20, 1982, the city council voted to grant an ostensibly nonexclusive franchise to plaintiff. If defendants were truly sincere about competing head-to-head with plaintiff in market, there was no need for them to cause the Mayor of Jefferson City to veto plaintiff’s franchise. All that defendants needed to do was to press for a nonexclusive franchise of their own. Yet, the jury specifically found that TCI caused the city to withhold a franchise from plaintiff. Thus, even under an “open market” theory, there clearly was sufficient evidence to support the conclusion that defendants violated the antitrust laws by effectively barring plaintiff from the Jefferson City cable television market.

In sum, it was never necessary for the jury to frontally consider defendants’ “First Amendment defense.” If the jury had found that the city was solely responsible for artificially limiting the number of franchisees in the Jefferson City market, then a fortiori it would have found neither that defendants possessed monopoly power nor that defendants caused the city to veto plaintiff’s franchise. Conversely, since the jury found that defendants possessed monopoly power and that defendants caused the city to veto plaintiff’s franchise, the Court is compelled to conclude that defendants’ “First Amendment defense” is nothing more than a red herring. Simply stated, the jury could not have returned its verdict for plaintiff under an “open market” theory unless it specifically found that defendants engaged in anti-competitive and predatory conduct with respect to competition in the market. Defendants had every opportunity to produce evidence and make arguments to convince the jury that plaintiff’s exclusion from the Jefferson City market was the result of either the city’s efforts to artificially limit the number of franchisees or the plaintiff’s unwillingness to compete head-to-head with defendants in the market. Defendants also enjoyed every opportunity to produce evidence and make arguments to persuade the jury that they were at all times in favor of head-to-head competition in the marketplace. If the jury had been swayed by any of these arguments, it would not have found against defendants. In short, the true issue in this case was whether defendants were responsible for plaintiff’s exclusion from the Jefferson City market. The jury’s conclusion that defendants were the responsible parties completely undermines any attempt to pass the blame on to the city by way of an amorphous “First Amendment defense” in this case.

III. Motion for a New Trial

In support of its motion for a new trial, TCI asserts myriad grounds for setting aside the jury’s verdict. Only seven of the cited grounds will be addressed herein. The balance of the points raised by TCI must be rejected as being without merit.

A. Opening Statement

First, defendants attack the Court’s refusal to allow them to make legal arguments concerning the scope of a cable television operator’s First Amendment rights during opening statement. On more than one occasion, TCI’s attorney attempted to interject gratuitous and inaccurate legal arguments concerning the First Amendment in his opening remarks. Prompt objections by plaintiff’s counsel were sustained.38 *904The Court’s rulings are not subject to serious dispute. Opening statements afford the parties an opportunity to outline what their evidence will be. Legal arguments offered during the course of an opening statement are improper. Accordingly, the Court had no choice but to direct defendants’ attorney to refrain from making references to principles of constitutional jurisprudence during his opening statement, particularly where, as here, his characterization of the law was either erroneous or misleading.

B. Evidentiary Rulings

TCI’s second argument in support of its prayer for a new trial consists of a challenge to various evidentiary rulings by the Court. First, defendants contend that the Court erred in excluding evidence concerning the “Boulder case.” The Court stands by this ruling. During his examination of a number of witnesses, TCFs attorney attempted to elicit testimony concerning the effect on the instant case of various rulings by the federal district court, the court of appeals, and the United States Supreme Court in the course of litigation between a subsidiary of TCI and the City of Boulder, Colorado.39 In each instance, defendants’ attorney attempted to characterize the Boulder case as a landmark establishing an absolute First Amendment right for cable television systems to operate free from local governmental regulation. Upon timely objections by plaintiff's counsel, this evidence was excluded for two basic reasons. First, TCFs characterization of the Boulder case was deliberately misleading. Of the three appellate decisions in the Boulder litigation, only one40 contained any substantive discussion of the First Amendment implications of local governmental cable regulation, and that opinion does not merit characterization as a landmark decision establishing an absolute First Amendment right to operate a cable television system.41 Second, the Court was concerned that any probative value to be derived from evidence concerning the Boulder case was easily outweighed by the potential risk of misdirection and confusion such an inquiry would entail. For example, when defendants offered to introduce a certified copy of a consent decree entered into by the city and the cable operator in the Boulder case, this offer was rejected on the ground that the jury might well misperceive the importance of such a document and give it undue weight.

Another evidentiary ruling challenged by TCI is the Court’s exclusion of the expert testimony of Arthur Lee. Mr. Lee is a Vice President of Operations for TCI. Because Mr. Lee was never designated as an expert in response to plaintiff’s interrogatory under Fed.R.Civ.P. 26(b)(4)(A)(i), plaintiff assumed that he would be used by defendants as a lay witness only. In the course of examining Mr. Lee at trial, defendant’s counsel began asking the witness about the pole attachment and pole replacement costs that would be involved in building a brand new cable television system in Jefferson City. Plaintiff’s objection to this testimony was sustained on the ground that this was a subject for expert testimony and that Mr. Lee had not been designated as an expert. TCI seeks to overturn this ruling by characterizing *905Mr. Lee as an occurrence witness who merely would have testified “as to his personal knowledge as a veteran in the cable field.”42 Defendants’ argument misses the point. Under Fed.R.Evid. 702, a witness may qualify as an expert by virtue of his knowledge, experience, or training. The crucial distinction between lay testimony and expert testimony is that the subject of expert testimony “must be so distinctively related to some science, profession, business, or occupation as to be beyond the ken of the average layman.”43 Viewed in this context, it is readily apparent that Mr. Lee’s proffered testimony was expert testimony. According to defendants, the proffered testimony would have dealt with “make-ready costs, pole brackets and utility pole spacing.”44 These topics clearly are beyond the understanding of an ordinary layman. Indeed, defendants contend that Mr. Lee was qualified to give his opinion “based on his extensive experience in the industry and on his knowledge acquired as an executive officer of TCI Cablevision.”45 This statement is, in effect, an admission by TCI that Mr. Lee’s testimony concerned a technical subject which only an expert, and not a layman, would not be qualified to address. Therefore, it was proper to exclude Mr. Lee’s testimony by reason of defendants’ failure to designate him as an expert witness in response to plaintiff’s interrogatory under Fed.R.Civ.P. 26(b)(4)(A)(i).

A third evidentiary ruling challenged by TCI which merits discussion relates to the testimony of TCI’s expert economist, Mr. Roy Weinstein. Before Mr. Weinstein began testifying, plaintiff’s counsel moved to exclude his testimony in its entirety on the ground that he had been reading “daily copy” of the trial transcript in violation of Fed.R.Evid. 615. Mr. Weinstein acknowledged that he had been reading “daily copy.” Although it would have been justified in excluding all of Mr. Weinstein’s testimony under these circumstances,46 the Court took a middle position and ruled that Mr. Weinstein could testify concerning any information he had obtained and opinions he had formed before, but not after, he had been deposed by plaintiff in September, 1984. Defendants insist that this ruling was an abuse of discretion. The Court disagrees. Mr. Weinstein’s review of daily copy was a clear violation of Fed. R.Evid. 615. If TCI had wanted to qualify Mr. Weinstein as a person whose presence was essential to the presentation of its case within the meaning of the rule, it should have so moved when the rule was invoked at the start of trial. Moreover, the Court believes that its ruling was correct under Fed.R.Civ.P. 26(e)(1)(B), which imposes an affirmative duty on parties to supplement their interrogatory answers concerning the substance of anticipated expert witness testimony; it bears emphasis that Mr. Weinstein was precluded only from testifying with respect to matters of substance which had arisen subsequent to his deposition in September, 1984. Accordingly, the Court stands by this ruling.

The final evidentiary point to be addressed herein concerns the testimony of Clarence Blume. Mr. Blume, a member of the Jefferson City, City Council in the crucial period of 1981-82, was called to testify by plaintiff. As a result of his testimony, the Court for the first time became aware of how deeply involved TCI’s lead attorney, Mr. Harold Farrow, had been in TCI’s efforts to retain its franchise in Jefferson *906City. During Mr. Farrow’s cross-examination of Mr. Blume, the attorney and the witness began debating over exactly what had transpired in Jefferson City. When Mr. Blume directed questions at Mr. Farrow, the attorney did not offer any objection or motion to strike the witness’ “testimony” as being non-responsive. Instead, much to the Court’s astonishment, Mr. Farrow appeared content to answer Mr. Blume’s questions. At times, the witness and the attorney began arguing back and forth. On one occasion, the situation had deteriorated to the point where the Court intervened sua sponte and directed Mr. Blume to just answer the questions asked. All the while, Mr. Farrow did not object to nor move to strike Mr. Blume’s testimony; it was obvious that Mr. Farrow believed he was “scoring points” with the jury. The following day — after having had an opportunity to confer with his associates and read the “daily copy” of the trial transcript —Mr. Farrow finally offered a motion to strike Mr. Blume’s testimony in its entirety. This motion was denied as being untimely. Under Fed.R.Evid. 103(a)(1), a party ordinarily may not challenge a ruling admitting evidence unless he has made a timely motion to strike on the record. It bears emphasis that Mr. Farrow is not a novice attorney who was simply overwhelmed by a hostile witness; instead, it was quite evident that Mr. Farrow refrained from objecting to Mr. Blume’s testimony because he perceived that he was creating a favorable impression in the minds of the jurors. In addition, the Court notes that the vast majority of Mr. Blume’s testimony was not inadmissible in the first instance; thus, TCI’s motion to strike all of the witness’ testimony was overbroad. Under these circumstances, the Court is unwilling to set aside the contemporaneous objection rule. Accordingly, the Court stands by its decision to overrule defendants’ motion to strike Mr. Blume’s testimony.

C. Directed Verdict on Defendants’ Counterclaim

Defendants’ next argument in support of their request for a new trial is that the Court erred in granting plaintiff’s motion for a directed verdict on defendants’ counterclaims. TCI’s position on this issue clearly lacks merit. At trial, defendants attempted to make a submissible case against plaintiff on the following theories: (1) conspiracy to unreasonably restrain trade; (2) attempt to monopolize; (3) conspiracy to violate TCI’s constitutional rights; and (4) tortious interference with TCI’s business relations. In attempting to prove their allegation of a secret conspiracy between plaintiff and a host of state and local politicians, TCI repeatedly posed questions to the politician-witnesses to the effect of: “Isn’t it true that you had a secret arrangement with plaintiff to drive TCI out of Jefferson City?” Without exception, TCI’s pointed accusations were calmly denied. In short, there was absolutely no evidence of any kind of unholy arrangement between plaintiff and governmental officials. To the contrary, the evidence consistently showed that plaintiff at all times remained within legitimate lobbying channels in seeking a cable television franchise. After all of the evidence was in, it became apparent that the gravamen of TCI’s counterclaims was that the RFP process initiated by the city was illegal and that plaintiff had somehow violated TCI’s rights by participating in the RFP process. Assuming arguendo47 that the RFP process was in fact illegal and that plaintiff did in fact violate defendants’ rights by participating in the RFP process, plaintiff still could not be held liable for its conduct because of the Noerr-Pennington defense. As noted above,48 the Noerr-Pennington doctrine affords a cloak of immunity from civil damages liability to legitimate efforts to lobby or influence public officials with respect to political action, even if those efforts are designed to eliminate competition. Here, all of plaintiff’s allegedly wrongful conduct clearly falls within the purview of the Noerr-Pennington de*907fense;49 accordingly, it was proper to grant plaintiffs motion for a directed verdict on all of TCI’s counterclaims.50

D. Closing Argument

Defendants’ fourth assignment of error in their motion for a new trial is that the Court did not allow their attorneys sufficient time to make a proper closing argument. At the close of all the evidence the Court conferred with the attorneys concerning the amount of time they desired to make their final appeal to the jury. Although the Court was inclined to allow only an hour per side, it acceded to plaintiff’s request for ninety minutes per side. Counsel for TCI objected that this amount of time was grossly inadequate in view of the length and complexity of the trial. TCI’s request for additional time was overruled. The Court stands by this ruling. There is no doubt but that ninety minutes was adequate time for each side to present its case to the jury. Although this trial was lengthy, it was not particularly complex. The fundamental issues for the jury were whether TCI kept plaintiff out of the Jefferson City cable television market and, if so, whether TCI accomplished that result by using illegitimate means. Unlike many antitrust cases, the instant lawsuit did not turn on technical documentary evidence and expert evidence; instead, the crucial evidence concerned overt conduct. Thus, it was not necessary to allow counsel a great amount of time to make the case understandable for the jury.

Moreover, the Court notes that counsel for TCI was not particularly pressed for time during closing argument. Indeed, there was sufficient time for TCI’s attorneys to tell the jury on numerous occasions how little time had been allowed for closing arguments and to extol the virtues of the Sixth [sic] Amendment right to a jury trial in civil cases. There also was sufficient time for TCI’s attorneys to describe at great length how their client had been “hometowned” by plaintiff notwithstanding the fact that there was virtually no evidence to support this contention.51 Under these circumstances, the Court concludes that the amount of time allocated for closing arguments was more than adequate.

E. Jury Instructions

Defendants’ fifth argument in favor of a new trial is that several of the jury instructions submitted by the Court were in error. Only four of TCI’s challenges to the jury instructions will be addressed herein; the remainder must be rejected as lacking merit.

First, TCI insists that the Court’s Noerr-Pennington instruction52 failed to set out the precise scope of that defense. The Court disagrees. The instruction was based directly on Westborough Mall v. City of Cape Girardeau, where the Eighth Circuit explained that “actions beyond ‘traditional political activity’ may not be protected by the Noerr exemption,” particularly if the defendants’ lobbying efforts were “accompanied by illegal or fraudulent actions.” 53

TCI next challenges the verdict director for plaintiff’s state law tortious in-*908terference claim,54 asserting that the Court’s instruction did not adequately define the elements of the tort. This argument is wholly without merit. The instruction given by the Court was based directly on a pattern instruction55 which has been approved by the Missouri Supreme Court Committee on Jury Instructions. The use of this instruction has been mandatory in the state court system for years. It is beyond the Court’s comprehension how the use of a pattern jury instruction, which must be used in state court, can constitute reversible error with respect to plaintiff’s state law claim.

Similarly, defendants’ challenge to the Court’s burden of proof instruction56 must be rejected. Here again, the Court used the pattern burden of proof instruction which has been approved for use in the state court system.57 This burden of proof instruction is clear and concise. Its use did not constitute error.

Finally, defendants contend that the Court’s instruction on natural monopoly theory58 was erroneous as a matter of law. Specifically, defendants insist that “[t]he concept that the Sherman Act protects competition for the right to enjoy a natural monopoly is wholly without support in the law.”59 The Court must disagree. Contrary to TCI’s characterization, the notion that the antitrust laws protect competition “for” the market in a natural monopoly situation enjoys ample support in the law.60 Moreover, the Court’s instruction correctly stated the law in this area. Accordingly, defendants’ objections to the Court’s jury instructions will be overruled.

F. Judicial Bias

Defendants’ sixth ground for a new trial is an allegation that they “were denied a fair trial in this case due to the partiality and bias of the Court in favor of plaintiff and against defendants.”61 TCI specifically contends that the Court’s “consistently pro-plaintiff rulings” conveyed the Court’s bias to the jury and thus tainted the jury’s verdict.62 The short answer to defendants’ accusations is that the Court simply was not biased in favor of plaintiff and against defendants. Instead, the Court made every effort to give this cause a fair and impartial hearing and to manifest its sense of impartiality from the bench. Moreover, to the extent that any *909comments made by the Court suggested its view of the evidence, the jurors were expressly instructed to “disregard all comments of the Court in arriving at [their] own findings as to the facts.” 63

The longer answer to defendants’ charge of bias is this: the rulings which were allegedly the result of the Court’s partiality were in fact the result of the incompetence of defendants’ trial attorneys. For example, TCI claims that the following rulings were motivated by judicial bias: (1) the exclusion of Mr. Lee’s expert testimony; (2) the limitation on Mr. Weinstein’s expert testimony; and (3) the refusal to strike the testimony of Clarence Blume. As explained above,64 however, each of these rulings was in fact necessitated by defense counsel’s insistence on ignoring simple rules of evidence and procedure. In the case of Mr. Lee, the exclusion of his testimony was required because of counsel’s failure to designate him as an expert witness in response to plaintiff’s interrogatories. With respect to Mr. Weinstein’s testimony, the Court’s ruling was based on counsel’s failure to supplement interrogatory answers and failure to abide by Fed. R.Evid. 615. Finally, concerning Clarence Blume, the Court’s denial of defendants’ motion to strike was based on counsel's failure to heed the contemporaneous objection rule. In sum, the Court simply was not biased in ruling on any of the issues in this case; TCI’s assertion to the contrary is unfounded.

Similarly, the Court’s comments during trial, which were allegedly motivated by bias, were in fact attributable to the discourteous and belligerent manner in which defendants' trial attorneys conducted themselves. On numerous occasions, defense counsel responded to unfavorable evidentiary rulings by muttering to themselves, rolling their eyes, and hurling pens and legal pads at the counsel table with great force. All of these childish antics were performed openly in the presence of the jury, as if defense counsel was attempting to communicate to the jury that their client was being “railroaded” by virtue of the Court’s adverse evidentiary rulings. In order to maintain control over the conduct of this trial, the Court admittedly was required to reprimand defense counsel from time to time. Nevertheless, the Court is certain that none of its comments, whether or not made in the presence of the jury, was unwarranted.65 Consequently, the Court is compelled to hold that defendants’ allegations of judicial bias are without basis in fact.

G. Juror Misconduct

The seventh and final point in defendants’ motion for a new trial which will be addressed herein is an allegation that there was improper contact between one of plaintiff’s attorneys, Mr. Long, and a member of the jury, Ms. Shern, and that this contact may have tainted the jury’s verdict. There are two short answers to TCI’s argument. First, there is no indication that the alleged contact between attorney Long and juror Shern related to the merits of this case. Thus, in sharp contrast to the case upon which TCI relies,66 there is no basis *910for concluding that any improper communications related to merits of the case.67 Second, the Court notes that Ms. Shern was an alternate juror who did not participate in the jury’s deliberations. On each day of the trial, the jurors were instructed not to discuss the case with each other. Thus, even assuming that juror Shern was tainted by virtue of her alleged contact with attorney Long, there is nothing which suggests that this taint spread to the other jurors who actually deliberated over this case. In conclusion, TCI’s bare allegation of prejudicial juror misconduct has no support in the record. Accordingly, defendants’ motion for a new trial must be overruled.

IV. Motion for Clarification of the Judgment

The next item on the Court’s post-trial agenda is modification of the judgment in this case to reflect the fact that the damage awards under each of plaintiff’s claims are alternative, not cumulative. Both plaintiff and defendants are in agreement that plaintiff may recover either treble damages of $32.4 million plus a reasonable attorney’s fee under plaintiff’s antitrust conspiracy claim or treble damages of $32.4 million plus a reasonable attorney’s fee under plaintiff’s actual monopolization claim or actual and punitive damages total-ling $35.8 million under plaintiff’s tortious interference claim. The parties further agree that plaintiff may not recover punitive damages under the state law claim in addition to treble damages under the antitrust laws. The Court concurs. Treble damages are designed “to punish past violations of the antitrust laws ... [and] to deter future antitrust violations.”68 Punitive damages have a similar purpose.69 Accordingly, it would be inappropriate to allow plaintiff to recover both treble damages and punitive damages.70 The judgment in this case will be modified to account for this fact.

V. Motion for Enhancement of Plaintiff’s Attorney’s Fees

The penultimate question before the Court concerns plaintiff’s motion for enhancement of its attorney’s fees. As noted above, plaintiff is entitled to an award of a reasonable attorney’s fee by virtue of its success on its antitrust claims.71 As a result of negotiation, plaintiff and defendants have entered into a stipulation as to the amount of attorney’s fees and expenses incurred herein. The only issue remaining for the Court is whether plaintiff is entitled to any enhancement of the attorney’s fee award. Plaintiff seeks a three-fold increase in the amount of its attorney’s fees.

In support of enhancement, plaintiff offers a three-part argument. First, plaintiff contends that enhancement is appropriate because of the risk involved in pursuing this ease. Second, plaintiff maintains that enhancement is warranted in view of the uniformly favorable results obtained. Third, plaintiff asserts that enhancement is justified because of the high quality of representation rendered by plaintiff’s attorneys.

The Court is inclined to agree that the risks involved in initiating this litigation were substantial and that the professional services rendered by plaintiff’s *911attorneys were, for the most part, of a high quality. Nevertheless, the Court will decline to enhance plaintiff’s attorney’s fees. It bears emphasis that the moving party must meet a “heavy burden” to establish its entitlement to fee enhancement.72 It also should be noted that fee enhancement is warranted only in an exceptional case.73

Turning to the instant case, the Court notes that plaintiff and its attorneys have already been rewarded handsomely for undertaking this litigation. Although plaintiff and its attorneys admittedly undertook a substantial risk by bringing this lawsuit, they knew that a favorable verdict almost certainly would be accompanied by a damage award of approximately $10 million. Thus, whoever took the risk of financing this lawsuit apparently had calculated that the potential payoff justified the initial investment.74

Finally, the Court notes that the quality of representation factor has already been accounted for in. calculating the base attorney’s fee. The keystone of good lawyering is preparation. Here, the generally high quality of representation afforded by plaintiff’s counsel is directly attributable to thorough preparation which, in turn, is directly reflected in the number of hours that went into the calculation of the base fee. Consequently, in the absence of any truly exceptional circumstances, the Court will overrule plaintiff’s motion for enhancement of its attorney’s fees.

VI. Motion for a Stay of Execution

The final matter before the Court is defendants’ motion to stay execution on the judgment herein pending appeal. In support of its motion, defendants contend that their fiscal integrity75 is sufficient assurance that plaintiff can eventually collect on the judgment. Defendants further submit that it would be a tremendous hardship if they were forced to post a supersedeas bond to cover the amount of the judgment in this case.76 Be that as it may, the Court does not agree that the sheer size of defendants is sufficient security for the judgment herein. Under ordinary circumstances, a supersedeas bond is required to protect a prevailing plaintiff.77 Indeed, the purpose of a supersedeas bond is to preserve the status quo while protecting the prevailing plaintiff. In the instant case, however, defendants seek to preserve the status quo without providing any security to plaintiff other than TCI’s word. Although the Court does not doubt TCI’s integrity, it does not believe that plaintiff should be required to bear any risk pending appeal. The jury heard the evidence in this case and rendered large, though not excessive, damage awards. If one party should endure any inconvenience in order to maintain the status quo, it should be TCI. Consequently, defendants’ motion for a stay of execution pending appeal will be overruled.

VII. Conclusion

In accordance with the foregoing, it is hereby

*912ORDERED that defendants’ motion for judgment notwithstanding the verdict and alternative motion for a new trial are overruled. It is further

ORDERED that defendants’ motion for clarification of the judgment is sustained and the judgment herein is modified to provide that plaintiff may recover treble damages under either of its antitrust claims or actual and punitive damages under its tortious interference claim, but may not recover damages under more than one claim. It is further

ORDERED that, pursuant to the stipulation entered into by the parties, plaintiff’s motion for attorney’s fees and expenses on plaintiff’s antitrust claims, in the amount of $1,311,104.00, is sustained. It is further

ORDERED that plaintiff’s motion for enhancement of its attorney’s fees is overruled. It is further

ORDERED that defendants’ motion for a stay of execution is overruled.

Rojas v. Richardson Rojas v. Richardson

This case provides a (rare) example of a finding of plain error. The excerpt also includes a reference to some of the limits of limiting instructions (specifically, “if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.”).  

Paulino Izaguirre ROJAS, Plaintiff-Appellant, v. Robert RICHARDSON, Kenneth McGee and M and R Cattle Company, a partnership, Defendants-Appellees.

No. 82-2149

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

April 21, 1983.

Rehearing Granted Aug. 29,1983.

*187Gregory L. Ceshker, Julianne May Young, Dallas, Tex., for plaintiff-appellant.

Richard Grainger, Tyler, Tex., for defendants-appellees.

Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

Paulino Izaguirre Rojas worked as a ranch hand for Robert Richardson, a partner in the M and R Cattle Company along with Kenneth McGee. On December 4, 1980, Rojas met with Richardson and another employee for the day’s work. Richardson furnished Rojas with a horse named Jet. Rojas had ridden this horse a few times before. When ■ Rojas mounted Jet, the horse began bucking and running. Rojas finally was thrown from the horse and severely injured. Rojas later filed this suit in federal district court against Richardson, McGee, and the partnership, invoking diversity jurisdiction, 28 U.S.C. § 1332(a)(2). Rojas claimed negligence in furnishing an inadequately broken horse with a dangerous bridle. In addition, he claimed a failure to give reasonable warnings regarding the dangers of the horse or its bridle. In the alternative, he sought payment of his medical expenses under the terms of his oral employment contract. The defendants denied these claims and countered with a defense of contributory negligence. After a full trial, the jury returned a verdict for the defendants.

*188Rojas brings a timely appeal, primarily seeking a new trial based on irreparable jury prejudice from the defense counsel’s reference during closing argument to Rojas as an illegal alien. He also claims as error certain evidentiary rulings and limits on cross-examination. We reverse and remand on the basis of defense counsel’s incendiary remarks to the jury during closing argument.

I. Objections to Closing Argument

Rojas’ major argument is that defense counsel tainted the propriety of the trial by reference to Rojas as an illegal alien. Rojas claims that identification as an illegal alien was unsupported in the evidence, completely irrelevant to the issues before the court, and inherently prejudicial to a full and fair hearing on the merits. Rojas asserts the emotional weight of the remark by pointing out that the public education for undocumented aliens case, Doe v. Plyler, 628 F.2d 448 (5th Cir.1980), aff’d, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), dealt with the school district for Tyler, Texas, where the trial in this case was held. Doe v. Plyler was pending in the United States Supreme Court when the trial was held. Rojas urges that the improper argument was directed especially toward the jury foreman, an employee of the Tyler Independent School District. He urges that any general prejudice of the jurors toward undocumented workers likely would have operated against him in this civil trial.

The employers have no serious counter to the substance of these charges. Rather, they claim that this issue was not preserved for appeal because no objection was made in the district court to use of the term “illegal alien.”

We have checked the trial record carefully, and indeed find no objection during trial to use of the term “illegal alien.” Rojas directs our attention to his request for a motion in limine made before trial. Paragraphs 2 and 3 of this motion in limine would have barred the use of testimony concerning the status of Rojas as a “wetback” or illegal alien, and the presentation of any evidence that the witnesses in the case ever employed undocumented workers.1 These two paragraphs of the motion in limine were denied.2 Rojas claims, first, that the denial of the motion in limine is an appealable error in its own right, and, second, that the request for the motion in limine should be sufficient to preserve the error regarding defense counsel’s use of the term illegal alien.

First, we conclude that the denial of the motion in limine is not a sufficient ground for reversal in this case. Denial of a motion in limine rarely imposes a serious hardship on the requesting party, since the affected party can make a subsequent objection if the evidence is ever offered at trial. That later objection is the better time to evaluate the possible exclusion of testimony because it is at that time that the claims of prejudice and irrelevance move out of the abstract context of a motion in limine into the real world of an actual speaker and a specific statement. In the case before us, there is no particular injury claimed from the denial of the motion in limine other than that connected with the admission of later statements referring to Rojas as an illegal alien. We find the issue better framed by the “actual — instead of hypothetical — circumstances at trial.” Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir.1980). Consequently, we look to the *189error, if any, committed when the actual statements regarding alienage were admitted, rather than when the blanket hypothetical requests to limit such statements were denied during pretrial motions.

Rojas urges that the motion in limine itself was a sufficient presentation of his concerns to the district court to preserve the assignment of error on appeal. This Circuit, however, has held otherwise. In Collins v. Wayne Corp., supra, the defendant corporation in a products liability action had cross-examined the plaintiffs’ expert witness regarding his fees in prior cases! No objection was made at trial, although the plaintiffs had tried to suppress such testimony through a pretrial motion in limine. Judge Johnson stated the general rule that an overruled motion in limine does not preserve error on appeal.

Plaintiffs’ counsel never objected to cross-examination of Severy about fees he had earned in prior cases. Plaintiffs therefore cannot predicate error on this cross-examination. Fed.R.Evid. 103(a)(1). The overruling of a motion in limine is not reversible error; only a proper objection at trial can preserve error for appellate review. See Annot., 63 A.L.R.3d 311, 333 (1975) and cases cited therein. Motions in limine are frequently made in the abstract and in anticipation of some hypothetical circumstance that may not develop at trial. When a party files numerous motions in limine, the trial court may not pay close attention to each one, believing that many of them are purely hypothetical. Thus, a party whose motion in limine has been overruled must object when the error he sought to prevent with his motion is about to occur at trial. This will give the trial court an opportunity to reconsider the grounds of the motion in light of the actual — instead of hypothetical — circumstances at trial.

Id. at 784.

The general rule is that where “no good reason is shown for the failure of appellant’s trial counsel to object to the admission of evidence, the objection is deemed to have been waived.” Puryear v. United States, 378 F.2d 29, 30 (5th Cir. 1967). See also Jenkins v. General Motors Corp., 446 F.2d 377 (5th Cir.1971), cert. denied, 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793 (1972) (a timely objection generally is required to preserve appealability); United States v. Rayborn, 310 F.2d 339 (6th Cir. 1962), cert. denied, 373 U.S. 952, 83 S.Ct. 1683, 10 L.Ed.2d 707 (1963) (accord) (prosecutor’s statements at trial).

Rojas relies upon the ease of Reyes v. Missouri Pac. R.R. Co., 589 F.2d 791 (5th Cir.1979) in an attempt to carve a broad exception out of Collins. In Reyes, the plaintiff brought negligence claims against a railroad after he was run over by a train. The railroad claimed that Reyes was drunk on the night in question and had fallen asleep on the tracks. During pretrial proceedings, Reyes made a motion in limine to exclude evidence relating to four prior convictions for public intoxication. The motion was denied. Reyes then presented that evidence himself to the jury and later appealed the use of that evidence at trial.

This Circuit allowed such an appeal, rejecting the railroad’s suggestion that Reyes had waived error by volunteering the information rather than objecting at trial. “After the trial court refused to grant Reyes’ motion in limine to exclude the evidence, he had no choice but to elicit this information on direct examination in an effort to ameliorate its prejudicial effect. Error was sufficiently preserved by making the motion in limine. See Fed.R.Evid. 103, 28 U.S.C.A.” Id. at 793 n. 2.

Reyes, however, stands only as an example of the general rule, not as a departure. Objection must be made in the trial court unless a good reason exists not to do so. In Reyes, the good reason was a valid trial strategy to attempt to soften the blow of damaging information by delivering the impendent punch to the jury. An objection to one’s own testimony is an absurdity. It is impossible. This Circuit consequently found the offensive use of damaging information to fall outside the general rule requiring a timely objection.

*190Rojas, however, offers no justification for his failure to object. He made no offensive use of his status within this country, whatever that status may be. He makes no other claim of good cause for not raising the objection at trial. In the absence of such a showing, we have no choice but to find that he cannot claim an objection was lodged to the use of the phrase “illegal alien.” Fed.R.Evid. 103(a)(1). See Brown & Root, Inc. v. Big Rock Corp., 383 F.2d 662 (5th Cir.1967) (“improper” and “inexcusable” appeals to sympathy and sectional prejudices of the jury are not appealable absent a timely objection at trial). Rojas’ only possible recourse is establishing “plain error”.3

II. Closing Argument as Plain Error

Even if Rojas has waived his right to appeal the use of the phrase “illegal alien,” however, this Court is not precluded from reviewing the use of the phrase at ■trial. Fed.R.Evid. 103(d) provides: “Nothing in this rule [requiring objection to preserve appealability] precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.”4 Our authority to review, we note, is limited to “plain errors,” and the errors must affect “substantial rights,” We find that allegations unsupported by the record that Rojas was an illegal alien might well have a serious and negative effect on his substantial right to an impartial jury. The only serious issue is whether the allegations rise to the level of “plain error.”

The plain error rule is “not a run-of-the-mill remedy.” United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981). It is invoked “only in exceptional circumstances to avoid a miscarriage of justice.” Eaton v. United States, 398 F.2d 485, 486 (5th Cir.), cert. denied, 393 U.S. 937, 89 S.Ct. 299, 21 L.Ed.2d 273 (1968). The exact delineation of plain error is difficult to articulate. We have defined plain error as error which is “both obvious and substantial.” United States v. Gerald, 624 F.2d at 1299; Sykes v. United States, 373 F.2d 607, 612 (5th Cir. 1966), cert. denied, 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138 (1967). But such elegant phraseology yields little guidance. The determination still rests ultimately on the facts of each case.

Perhaps the most telling guidelines were laid down by Justice Stone in 1936, when he wrote:

In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.

United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936) (emphasis added). Following the clarion call of Justice Stone’s words, we must hold that the “fairness, integrity, or public reputation” of the proceedings in this case were adversely affected by the closing jury argument of defense counsel. The closing remarks included this paragraph:

I hope — I hope — that you don’t, because Mr. Rojas is an alien, give him any more benefit than you would any United States citizen who comes in this Court. If the situation were reversed and you or I were in Mexico — were illegal aliens in Mexico — I would hope Mexico would open up their Courts, would open up their job market, would open up their public schools, would open up their State hospi*191tais, as we have in this country for Mr. Rojas. Certainly he is — I’m not saying we shouldn’t do those things, but he shouldn’t be entitled to any extra benefits because he is an illegal alien in this country than would any other citizen of the United States be entitled.

These remarks prejudiced the jury on two counts. First, by introducing irrelevant and unproven allegations that Rojas was an illegal alien, the defense clearly was appealing to the prejudice and bias of members of the jury on the basis of national origin. Although there was justification for presenting Rojas’ Mexican citizenship to the jury to establish diversity jurisdiction, 28 U.S.C. § 1382(a)(2), his status as an “illegal” alien was completely irrelevant to the negligence claims the jury was to evaluate. Furthermore, the closing reference to “illegal alien” could have placed a prejudicial gloss on the many references throughout trial to Rojas as an “alien.” Having laid a strong foundation through use of the term “alien” throughout trial, even counsel’s single reference to the incendiary, derogatory expression “illegal alien” is prejudicial. Finally, the allegation that Rojas was in the country illegally is unsupported in the record.

Texas courts have found plain error in jury remarks that appeal to racial or ethnic bias. Penate v. Berry, 348 S.W.2d 167 (Tex. Civ.App. — El Paso 1961, writ ref’d n.r.e.), involved remarks to the jury that an alien has no right to “come into court and reach your hands into the pockets of an American citizen.... ” The court reversed and remanded for new trial, despite absence of a timely objection at trial. See also Texas Employers’ Insurance Ass’n v. Jones, 361 S.W.2d 725 (Tex.Civ.App. — Waco 1962, writ ref’d n.r.e.) (claims to racial or religious prejudice justify new trial).

Second, these remarks were an impermissible invocation of the “golden rule” argument. As we recently explained,

What every lawyer should know is that a plea to the jury that they “should put themselves in the shoes of the plaintiff and do unto him as they would have done unto them under similar circumstances.... [is] improper because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.

Loose v. Offshore Navigation, Inc., 670 F.2d 493, 496 (5th Cir.1982), quoting Ivy v. Security Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir.1978), rev’d on other grounds, 606 F.2d 524 (5th Cir.1979) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 815 (1980). Accord, Burrage v. Harrell, 537 F.2d 837 (5th Cir.1976); Har-Pen Truck Lines, Inc. v. Mills, 378 F.2d 705 (5th Cir.1967). The fact that the statement in this case was an inverse incantation of this golden rule is insufficient to validate the partiality inherent in the argument. Loose, supra. The “golden rule” argument, while not plain error, is normally ground for new trial. Id.

The closing remarks of defense counsel were highly prejudicial and a blatant appeal to jury bias. Although the district court gave a jury instruction emphasizing equal access to justice, even this instruction was ambiguous. The jury was instructed:

You are instructed that all persons are equal before the law, and this case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. The law is no respector of persons. All persons, including partnerships, and other lawful organizations, stand equal before the law, and are to be dealt with as equals in a Court of Justice.

While its wording might'have been adequate to indicate that aliens must be treated equally, it was not adequate to tell the jury that “illegal aliens” are “equal before the law.” A jury could readily conclude that someone who is “illegal” is not “equal before the law” to law abiding citizens and jurors. We are not convinced that the jury instruction could rebuild the “fairness, integrity, or public reputation of jury proceedings” that Justice Stone admonished us to protect, see Atkinson, 297 U.S. at 160, 56 *192S.Ct. at 392. As we first noted in Dunn v. United States, 307 F.2d 883, 887 (5th Cir. 1962), “if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.” Some references are so prejudicial that it is difficult for curative instructions to resuscitate fairness. See, e.g., Pride Transport Co. v. Hughes, 591 S.W.2d 631 (Tex. Civ.App. — Eastland 1979, writ ref’d n.r.e.) (disclosure of defendant’s insurance coverage can be grounds for mistrial in Texas). Even assuming that a proper jury instruction could have cured prejudice, this instruction did not do so.

We hold that the obvious and blatant appeal in this case to racial and ethnic prejudice is plain error. In consideration of this impropriety, combined with an additional “golden rule” appeal to the jury’s partiality, we must reverse the judgment of the district court and order a new trial.

III. Proffered Testimony and Cross-Examination

Rojas also complains of several adverse rulings on the scope of permissible testimony and proper cross-examination. We find no abuse of discretion in limiting Rojas’ cross-examination of the employers’ expert witness, according to the guidelines of Fed.R.Evid. 403. He also complains that the court excluded relevant testimony regarding conversations that took place during his hospital stay. It is difficult to see what the probative value of the proffered testimony would have been, or how the testimony would have survived the scrutiny of the hearsay rules. Furthermore, it is not apparent that the exclusion of this testimony affected a “substantial right” of Rojas. In sum, we are unable to interfere with the trial court’s discretion under Rule 403 regarding these evidentiary rulings.

IV. Trial Court Remarks and Jury Instructions

Finally, Rojas complains of statements from the bench during presentation of his case and in the jury instructions that he believes prejudiced his case. The statements made while witnesses were on the stand consist of “disparaging” remarks on the quality of the case. The district judge interrupted questioning a few times with remarks such as “I don’t see any reason for pursuing that,” and “You are flat losing me. I don’t know what in the world this has to do with this fellow falling off that horse. I can’t see any materiality of that.” Although such statements may not be the most totally neutral way to express concern over irrelevance or delay as defined in Article IV of the Federal Rules of Evidence, the court obviously was trying to expedite the efficient presentation of issues at trial rather than to obliterate the plaintiff’s credibility-

Neither were the jury instructions otherwise inherently prejudicial. Rojas objects, first, to an instruction on contributory negligence since he claims the defense presented no evidence whatsoever on contributory negligence. However, we find an adequate claim of contributory negligence in the trial record, and the district court properly instructed the jury to consider that barrier to recovery.

Second, Rojas claims substantial error in the jury instruction on payment of medical expenses. The court instructed:

The fact that the defendants have paid medical expenses for employees in the past and may have paid a portion of the Plaintiff’s medical expenses is no evidence that the Defendants were negligent or liable to the Plaintiff for such expenses, and you are instructed not to regard it as such.

(Emphasis added.)

Rojas admits this to be an adequate instruction regarding the tort claims, but claims that use of the term “liable” eradicates any possibility of liability on the employment contract claims he also made against the employers. He claims the evidence that his employers paid his medical bills should prove contractual obligations stemming from the employment relationship. However, we do not find that the jury instructions prejudiced Rojas’ contract claims, and we will not reverse for jury instructions that might have been marginally preferable *193toward one of the parties, especially where no timely objection to the instruction was made in the court below. Fed.RUiv.P. 51.

V. Conclusion

We have examined other exceptions to the manner in which the trial was conducted and find no further grounds for reversal. There is substantial evidence to support the jury verdict in this case. However, on the basis of the defendants’ closing references to Rojas as an “illegal alien” and their appeal to jury prejudice, we must reverse the judgment of the district court and remand for new trial.

REVERSED AND REMANDED.

United States v. Frost United States v. Frost

This case fleshes out the meaning of the words “plain error” in Rule 103.

UNITED STATES of America, Plaintiff-Appellee, v. Adam FROST, Defendant-Appellant.

No. 11-1122.

United States Court of Appeals, Tenth Circuit.

July 10, 2012.

*965O. Dean Sanderford, Research and Writing Specialist (Raymond P. Moore, Federal Public Defender, and Jill M. Wichlens, Assistant Federal Public Defender and Chief, Appellate Division, with him on the briefs) Office of the Federal Public Defender, Denver, CO, for Appellant.

Joshua S. Johnson, Office of the United States Attorney General, United States Department of Justice, Washington, District of Columbia (John F. Walsh, United States Attorney, District of Colorado, and Todd Parker Norvell, Assistant United States Attorney, District of Colorado, Denver, CO, and Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant Attorney General, and Daniel S. Goodman, Criminal Division, Appellate Section, United States Department of Justice, Washington, District of Columbia, with him on the brief) for Appellee.

Before MURPHY, HARTZ, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Adam Frost was tried and convicted for the rape of a 17-year-old girl, and was sentenced to 200 months’ imprisonment. In this appeal, Frost challenges his conviction on the grounds that the trial court plainly erred in admitting the hearsay testimony of several witnesses, including the victim’s sister, a nurse, and law enforcement officers. Frost also challenges his sentence, arguing that the district court violated his due process rights by not allowing him to make a statement at sentencing until after the court had already decided his sentence.

We find the district court did not plainly err in admitting the challenged testimony. Although some of the challenged testimony was admitted in error, none was so obvious or prejudicial as to warrant reversal under the plain-error standard. We also find the district court’s alleged error at sentencing did not seriously impair the fairness of the proceedings.

Accordingly, we AFFIRM the judgment of the district court.

I. Evidentiary Challenges

A. Background

1. Undisputed Facts

In November 2009, defendant Adam Frost, a 28-year-old, and the 17-year old victim, A.W., both lived near Ignacio, Colorado. A.W. lived with her mother and stepfather. Frost lived with his mother, Bernice Harris. A.W. was friends with 12-year-old K.A., a girl related to Frost.

On the evening of November 27, 2009, A.W. and K.A. met at a casino on the Southern Ute Indian Reservation. Their plan was to meet up with Frost so that he could purchase alcohol for them. They met up with Frost at his residence, walked to the Thriftway, a nearby convenience store, to buy alcohol, and returned to Frost’s room, where they drank and watched television. At some point, K.A. left the room and Frost had sex with A.W. Soon thereafter, A.W. left the house, used her cellphone to call her sister, and told her she had been raped. Her sister met her back at the Thriftway and took her home.

When A.W. got home, she repeated her account of the rape to her parents, who called the police. When the police arrived, she again repeated her story. Then she went to the hospital, received a rape-kit *966examination, and repeated her story a fourth time to the examining nurse. Finally, she was interviewed by an FBI agent.

2. Frost’s Theory of the Case

Frost did not. testify at trial. But Frost’s counsel admitted in her opening statement that Frost had a sexual encounter with A.W., and claimed it was consensual. Counsel stated that soon after the sexual encounter, Harris discovered A.W. in Frost’s room, became angry, and kicked her out. Counsel intimated that A.W. fabricated the rape allegation as a way to explain to her parents why she was out on the street at 3:00 AM near Frost’s house.

3. Aff.’s Testimony

a. Direct Examination

On direct examination, A.W. testified she had known K.A. “[a]bout a couple of days” prior to her encounter with Frost. R., Vol. 3, at 120. A.W. met K.A. on the evening of November 27 with the intention of drinking alcohol. The two girls met Frost at his residence and went to the Thriftway, where Frost purchased alcohol. They returned to Frost’s residence; Frost entered through the front door and, because Harris was home, he let A.W. and K.A. in through his bedroom window. A.W. and K.A. sat on Frost’s bed and drank while Frost played video games. Later, Frost put on a pornographic DVD at K.A.’s request.

At some point, K.A. left the room to go to the bathroom. While she was gone, Frost placed his hand in A.W.’s hand. When K.A. returned, A.W. told her she needed to use the bathroom herself. K.A. had to help her to the bathroom because she was too drunk to get up by herself. In the bathroom, A.W. told K.A. she should not have left her alone with Frost and that she wanted to leave. The two returned to Frost’s room. K.A. and Frost whispered to each other, sometimes looking at A.W.

Later, Harris, Frost’s mother, entered the room. She saw K.A. and ordered her to leave the room. Frost and K.A. had hidden A.W. under a blanket on Frost’s bed and told her to be quiet; apparently Harris did not see her.

After Harris left, Frost climbed into the bed with A.W. He touched her breasts under her shirt, removed her pants and underwear, and touched her vagina. A.W. told him to stop and unsuccessfully tried to push him away. Frost removed his shorts and penetrated A.W.’s vagina with his penis for two or three minutes. Frost then penetrated A.W.’s anus for about four minutes, which caused A.W. to cry out.

At that point, Frost stopped, A.W. put her pants back on, and Harris reentered Frost’s room and told A.W. to get out of the house. A.W. put on her shoes and jacket, and Harris showed her out the front door.

As soon as she left the house, at approximately 3:00 AM, A.W. used her cellphone to call her sister, Bridget W., and told her Frost had raped her. Bridget then met A.W. back at the Thriftway. Bridget brought A.W. home, where she told her mother and stepfather she had been raped. Her parents called the police.

Officers Monica Medina and Jacob Steinhage arrived and questioned A.W. about the incident. A.W. was then driven to a nearby hospital, where she was interviewed and examined by Lynne Murison, a nurse practitioner and certified rape examiner. Finally, A.W. was interviewed at the hospital by John Wallace, an FBI agent.

b. Cross Examination

Defense counsel’s cross examination of A.W. covered much of the same ground as *967the government’s direct examination. Three portions of the cross examination are particularly relevant here. First, counsel questioned A.W. regarding how long she had known K.A. On direct, A.W. had said she had only known K.A. for a couple of days; on cross, however, she changed her answer to “[a]bout a couple of weeks.” R., Vol. 3, at 159.

Second, counsel questioned A.W. about her statements to Agent Wallace regarding how she and K.A. had entered Frost’s residence:

Q. Did you tell Agent Wallace that after the three of you left Thriftway and went back to Adam’s house that all three of you snuck through the bedroom window?
A. No.
Q. And if he said that, that would be incorrect?
A. Yes.

Id. at 212.

Third, counsel pressed A.W. for more details regarding the point in her story when Harris entered Frost’s room and ordered K.A. to leave. A.W. reiterated that she had laid down on the bed and that Frost and K.A. covered her with a blanket and told her to be quiet. A.W. explained that although she was uncomfortable, she did not make any noise to notify Harris of her presence. Counsel again asked A.W. about her statements to Wallace:

Q. Did you also say to Agent Wallace that Ms. Harris looked at you and told you you would be okay in the bedroom? A. No.
Q. And if he says that you said that, that would be incorrect?
A. Yes.

Id.

k. Alleged Hearsay Testimony

After A.W. testified, the government put on several witnesses with whom A.W. had spoken in the hours following her encounter with Frost: Bridget W., Medina, Steinhage, Murison, and Wallace. These witnesses repeated what A.W. told them about the rape.

Frost did not object to these statements as hearsay.

a. Bridget W.’s Testimony

A.W.’s older sister Bridget W. testified about the phone call she received from A.W. at approximately 3:00 AM on November 28, shortly after A.W. left Frost’s residence. According to Bridget, A.W. “was crying, and she sounded really scared.” R., Vol. 3, at 233. A.W. told Bridget she had been raped by K.A.’s relative. Id. at 234. Bridget asked her if she was referring to “Eli,” a different relative of K.A.’s, and A.W. corrected her: “No, it was Adam.” Id. at 244. Bridget told A.W. to meet her at the Thriftway, down the hill from Frost’s residence. Id. at 234.

Bridget got a friend to drive her to the Thriftway, where she met A.W. Id. at 235. A.W. had “[tjears coming down her face,” and was “shaking.” Id. From there, Bridget and A.W. traveled to A.W.’s home, where she lived with their mother and stepfather. Id. at 236. Bridget woke her mother and stepfather and told them A.W. had been raped. Id. Their mother called the police, and two police officers soon arrived. Id. at 237. A.W.’s father also arrived. Id. at 238. Bridget sat on a reclinen in the living room, holding A.W. and “just crying together.” Id.

The police officers “start[ed] asking [A.W.] what happened.” Id. A.W. identified Adam Frost as her assailant. Id. at 239. A.W. “tells them a little bit, but she doesn’t really tell everything until we get to the hospital.” Id.

*968Bridget traveled with A.W. to the hospital. Id. A.W. did not seem fearful or apprehensive during the ride over. Id. at 240. At the hospital, A.W. asked Bridget to accompany her during her medical examination; “she seemed really scared and nervous.” Id. at 241. During the exam, “she was shaking” and looked uncomfortable. Id.

b. Officer Medina’s and Officer Steinhage’s Testimony

Monica Medina and Jacob Steinhage were the Southern Ute Police Department officers who responded to the call made by A.W.’s mother, “a little after 3:00 AM on November 28th.” Id. at 255-56. When they arrived at A.W.’s home, Officer Steinhage introduced himself to A.W. and started asking questions. Id. According to Medina, A.W. “was very emotional, had a hard time talking,” id., and was “distraught” and “crying,” id. at 257.

Medina testified that A.W. described some of what had happened to her. A.W. explained that she was friends with K.A. and had been planning to sleep over at Harris’s home that night. Id. She said Adam Frost, “a cousin or uncle” of K.A., was there; that he had provided A.W. and K.A. with alcohol; and that she had consumed some alcohol. Id. at 257-58. A.W. told Medina that at some point K.A. left the room, after which

Adam had taken off his shorts, had pushed her down on the bed and pulled her pants off, and she attempted to kick or push him away but was unable to. She further stated that he had forced himself on her, and that he had penetrated her vagina with his penis.

Id. at 258. As she described these events, A.W. “became very, very emotional and cried even more.” Id. at 258-59. A.W. also told Medina that she told Frost to stop, but “he was not listening.” Id. at 259. Medina asked A.W. whether Frost had ejaculated, and A.W. said she did not think he had. Id.

Medina then asked A.W. how she left Frost’s residence. A.W. responded “that [K.A.’s] grandma had came in and kicked her out, had told her to leave, which she was fine with leaving.” Id. at 260. A.W. said she walked down to the Thriftway and called her sister on her cellphone. Id.

After A.W. described what had happened, Medina “asked her if she would be willing to get an examination done at the hospital ... and she said she was willing to do that.” Id. at 261. A.W. elected to go to the hospital with her family, where she arrived at about 4:30 AM. Id. at 263.

Officer Jacob Steinhage, also testified. He recounted what A.W. told him about her encounter with Frost:

She spoke to us and said that she had gone up to a residence on Sunset Circle of another location within the exterior boundary of the reservation with a friend of hers named [K.A.], They had gone up to spend the night at [K.A.’s] grandmother’s house, at that residence, and they had been there along with [K.A.’s] uncle, Adam Frost. She basically said that — and throughout her questioning, determined that she had been up there, and at one point or another, she had been left alone with Adam, and he had sexually assaulted her.
She indicated that she told him to stop and tried to push him away, as well as tried to close her legs, essentially, and she was trying to kick him off but was unable to get her legs in a position to be able to do so.

Id. at 358-59.

c. Lynne Murison’s Testimony

Lynne Murison is the nurse practitioner who conducted A.W.’s examination at the *969hospital. Murison testified that she began A.W.’s exam around 4:00 AM and ended it at 9:20 AM. As was her typical practice, Murison first conducted a patient history about the incident and then conducted a physical examination. One of the purposes of a patient history is to determine the appropriate course of treatment. See id. at 281 (“[Djepending on the history, I will give medications.”); id. at 306 (“There are some medications we don’t give if alcohol is on board.”).

Murison testified that A.W. told her, as part of the history,

[T]hat she and a friend had gone over to the casino. They wanted to drink, so they found someone to buy drinks for them. That they walked back to her friend’s house, got some scratches along the way, and then they were in Adam’s room. And apparently, this young woman’s grandmother came in and saw the friend, told her to leave. The friend left, but in the process, they were hiding [A.W.], and she was sort of hidden on the bed.
She said she was very drunk. And this man that she called Adam began to approach her and asked her questions like whether she had ever had sex before. She told him no. Began to touch her breasts, as I recall, and she told him to stop and tried to push him away.

Id. at 283. After refreshing her recollection, Murison continued:

[A.W. said] “he was taking my pants off, and I tried to stop him, but I couldn’t.”
“Then he said, T want to taste you down there.’ She said, T was making loud noises.’ ”
Then he entered her, which I often will ask, did he put his penis inside your vagina. She clarified that as yes. She said, “That really hurt and I got louder.”
Then he withdrew the penis from the vagina, put his fingers inside. When he finished that, he retried, reentered the vagina. She said, “I got really loud.”
He entered her rectum, went past the anus, which inside is called the rectum, and she said, “That really hurt and I got even louder.” And then he passed out.

Id. at 284. When the government asked her to clarify the extent to which A.W. resisted Frost, Murison said that “she was trying to push him away as well as telling him no, and when he was inside her or trying to get inside the rectum, that she also was trying to push him off and was unable to.” Id. at 284-85.

As Murison began the physical exam, “[A.W.] just broke down in tears and said, T can’t do this by myself. I need my sister.’ ” Id. at 292. At that point Murison brought Bridget into the examination room. Murison testified that A.W. was “very tearful” during the exam, and that they took two or three breaks to allow A.W. to regain her composure. Id. Murison then described the results of the physical examination, which revealed several small injuries to AW.’s vaginal and anal area.

On redirect examination, the government asked Murison, “When you’re taking the patient’s history, is it fair to say that you’re doing that primarily for the purposes of medical diagnosis and treatment?” Id. at 305. Murison answered, “Yes.” Id. at 306. When asked whether any law enforcement purpose of the exam was secondary, Murison responded, “Our role at that time is not as law enforcement. We’re there to get a history, gather evidence, come to' a conclusion.” Id. She testified that knowing the patient’s history helps her to decide what medications to prescribe.

*970 d. Agent Wallace’s Testimony

At about 6:00 AM, while still in the hospital, A.W. was interviewed by FBI Agent John Wallace. Most of Wallace’s questions covered the same ground previously covered by Medina, Steinhage, and Murison. Wallace’s questioning was detailed and specific, not open-ended; A.W. was “pretty literal” and Wallace “had to ask each question.” R., Vol. 3, at 432. Most of the account A.W. gave Wallace matched very closely with the accounts she gave Medina, Steinhage, and Murison.

One question Wallace asked was how long A.W. had known K.A. A.W. told him she had known K.A. “for about a year.” Id. at 425. This statement contradicted A.W.’s testimony on direct examination that she had known K.A. only for a few days, and on cross that she had known her for a few weeks.

Another question was, “How did you get back in the house?” Id. at 430. A.W. “Basically said, We snuek in through the window.’ ” Id. Wallace “assumed” this meant A.W., K.A., and Frost all entered through the window, contrary to A.W.’s testimony that Frost had entered through the front door and opened the window for A.W. and K.A.

On cross-examination, Frost’s counsel questioned Wallace about portions of his testimony that supposedly differed from his official report. In particular, she identified a discrepancy regarding the moment when Harris removed K.A. from Frost’s room. Wallace had testified that Frost and K.A. had covered A.W. with a blanket when Harris came in, and that K.A. told A.W. she would be “alright.” Id. at 435. Wallace’s report, however, made it seem as if it was Harris, not K.A. that told A.W. she would be alright; the report stated, “Ms. Harris came into the room, took [K.A.] out, and told [A.W. she] would be okay.” Id. at 473. Wallace stood by his testimony and explained the discrepancy as inartful note-taking.

5. Defense Counsel’s Closing Argument

In her closing argument, defense counsel highlighted several inconsistencies between AW.’s testimony and other witnesses’ testimony. Counsel pointed out that A.W. had given conflicting accounts regarding how long she had known K.A.: “there is a big difference between knowing somebody for a couple of days, which ... is what she first said on direct, to knowing somebody a couple of weeks, which is what she said on cross, and knowing somebody for a year, which is what she said to Agent Wallace.” Id. at 563. Counsel argued this discrepancy “goes to her credibility. Nobody confuses that amount of time if you know somebody for a year versus a few weeks versus a few days.” Id.

Similarly, counsel identified inconsistencies regarding precisely what happened when Harris removed K.A. from Frost’s room:

[A.W.] testified that Ms. Harris came into the room, took [K.A.] out, and they covered her up with blankets, and she stayed there. In another scenario, she told Agent Wallace Ms. Harris came into the room, took [K.A.] out, looked at her, and said, “You’ll be all right in here.” In some statements, she said, “I was intoxicated, I was drunk, I had to lay on the bed. When I had to go to the bathroom, [K.A.] had to help me.” When I asked her what she meant by help, did she have to hold you up, “No, I was able to walk on my own.” She told Ms. Murison ... that they hid her under a blanket because she was too drunk to get up. When I asked [A.W.] from the stand did she say that to Ms. Murison, she said no, and if Ms. Murison said that, it would be incorrect.
*971These inconsistencies have a bearing on, then, your evaluation of did she say no to Adam Frost, did she say don’t, did she say stop, did she try to push him away.

Id. at 564. Based on these and other alleged inconsistencies, counsel urged: “[A.W.] gave her testimony, gave several different statements at different times, and some of those statements just fly in the face of common sense and reason.” Id. at 566.

Ultimately, the defense arguments were unsuccessful, and the jury convicted Frost.

B. Discussion

Frost claims the district court plainly erred in allowing five witnesses to testify about what they were told by A.W. despite defense counsel’s failure to object to the testimony. Frost contends the testimony of Bridget W., Medina, Murison, Steinhage, and Wallace regarding what A.W. told them in the hours following the alleged rape was hearsay, and therefore inadmissible under Federal Rule of Evidence 802.

We conclude the district court did not plainly err in admitting any of this testimony. First, the admission of Bridget W.’s testimony was not error because of the excited utterance exception to the hearsay rule. See Fed.R.Evid. 803(2). Second, even if in error, the admission of the testimony of Officers Medina and Steinhage under the excited utterance exception was not plain error. Third, the admission of most of Murison’s testimony was not error due to the medical history exception to the hearsay rule, and her remaining testimony, though arguably inadmissable, did not affect Frost’s substantial rights. Fourth, even if the admission of Agent Wallace’s testimony was error, the error did not affect the fairness of the proceedings because Frost invited the testimony and based his defense strategy around inconsistencies between Wallace’s testimony and A.W.’s testimony.

1. Standard of Review: Plain Error

Because Frost did not object to the admission of the challenged testimony at trial, we review the district court’s decision only for plain error. United States v. Hinson, 585 F.3d 1328, 1333 (10th Cir.2009) (citing United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Schene, 543 F.3d 627, 640 (10th Cir.2008)). “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1222 (10th Cir.2008)). An error is “plain” if it is “clear or obvious at the time of the appeal.” United States v. Cordery, 656 F.3d 1103, 1106 (10th Cir.2011) (quoting United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.2005)). “To satisfy the third prong of the plain error test, however, [Defendant] must demonstrate that the error affected his substantial rights, i.e., that the error disturbed ‘the outcome of the district court proceedings.’ ” United States v. Taylor, 413 F.3d 1146, 1154 (10th Cir.2005) (quoting United States v. Cotton 535 U.S. 625, 632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). And to satisfy the fourth prong, the error must “implicate core notions of justice,” or “fundamental fairness issues.” United States v. Sierra-Castillo, 405 F.3d 932, 941-42 (10th Cir.2005).

We note that the plain-error standard, while difficult to overcome, serves an important goal: to balance “our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious *972injustice be promptly redressed.” United, States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). As one of our circuits recently observed:

The purpose of plain error review is to instill in litigators the importance of preparing adequately before appearing in the trial court and, as necessary, clarifying issues to that court. Timely, adequate objections allow the trial court to rule in the first instance and, if necessary, correct itself without spawning an appeal. This standard usually shields the district court from reversal because of error that was unwittingly committed, because not brought to its attention. The standard also shields this court from ruling on issues that have been insufficiently vetted below. Plain error review implicitly acknowledges that, in many cases, an appeal represents the triumph of hindsight, as a party attempts to shore up objections ineffectively lodged in the trial court, or not lodged at all, by adducing after-the-fact support for its position.

United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir.2012). If not for the plain-error standard, parties might be tempted to deliberately avoid a timely objection in order to challenge an unnoticed error on appeal. Accordingly, we will find plain error only when “an error is ‘particularly egregious’ and the failure to remand for correction would produce a ‘miscarriage of justice.’ ” United States v. Trujillo-Terrazas, 405 F.3d 814, 820 (10th Cir.2005).

We should also note that the failure to lodge routine evidentiary objections at trial presents particular challenges for appellate review. A timely objection permits the parties to bolster a necessary foundation or explain why none is necessary. And as most trial lawyers know, not every objectionable question is objected to. Trial strategy, witness sympathy, and other factors play into the decision to challenge particular lines of questioning. Parties may deliberately invite otherwise objectionable testimony to gain some advantage at trial; “[f|or example, a defendant may seek to present to the jury a confession by an alleged fellow culprit. There may be components of the confession that could be damaging to the defendant, but the defendant believes that the overall impact would be quite favorable.” Id. Thus, to some extent the failure to object can be a strategic choice, and not fodder for reversal on plain error review. See, e.g., United States v. Chavez, 229 F.3d 946, 952 (10th Cir.2000); United States v. Baker, 432 F.3d 1189, 1215 (11th Cir.2005); United States v. Davis, 443 F.2d 560, 564-65 (5th Cir.1971) (“In the case before us there was no objection to the testimony of the witness [ ] on direct examination. On cross-examination counsel for the appellant elicited further information and stressed that which the Government had introduced. By so doing we are precluded from invoking the plain error rule and reversing because of the production of this evidence.”).

With this background, we examine the testimony of each of the challenged witnesses.

2. Bridget W.’s Testimony

A.W. made a number of statements to her sister, Bridget W., after the incident, hearsay statements that Bridget W. recounted at trial. The Federal Rules of Evidence allow the admission of hearsay testimony if the declarant’s statement is the result of a startling or stressful event:

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
*973(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Fed.R.Evid. 803(2).

Rule 803’s advisory notes explain the rationale for this exception and offer some guidance regarding how we should apply it:

The theory of Exception [paragraph] (2) is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. Spontaneity is the key factor
With respect to the time element ... the standard of measurement is the duration of the state of excitement. How long can excitement prevail? Obviously there are no pat answers and the character of the transaction or event will largely determine the significance of the time factor.
Permissible subject matter of the statement is [not] limited ... to description or explanation of the event or condition ... the statement need only relate to the startling event or condition, thus affording a broader scope of subject matter coverage.

Fed.R.Evid. 803 Advisory Comm. Notes (citations and quotation marks excluded).

Recently, in United States v. Smith, 606 F.3d 1270 (10th Cir.2010), we summarized our approach to Rule 803(2):

The so-called excited-utterance exception has three requirements: (1) a startling event; (2) the statement was made while the declarant was under the stress of the event’s excitement; and (3) a nexus between the content of the statement and the event. [T]here is no precise amount of time between the event and the statement beyond which the statement cannot qualify as an excited utterance. Admissibility hinges on a statement’s contemporaneousness with the excitement a startling event causes, not the event itself. There is no hard time limit that must be met under Rule 803; what is relevant is whether the declarant is still under the excitement of the startling event.

Id. at 1279 (citations and quotation marks omitted).

A.W.’s statements to Bridget W. satisfy all three requirements of the excited utterance exception. First, A.W. called Bridget W. directly after experiencing two startling events: being raped, and being kicked out by Harris in the middle of the night. Second, the facts indicate A.W. was under the stress of the events when she called Bridget; she was crying, and was still crying and visibly upset when Bridget arrived to pick her up several minutes later. Third, the statement related directly to the startling event: A.W. told Bridget she had been raped by Frost.1

Thus, Bridget W.’s hearsay testimony was covered by the excited utterance exception and therefore was admissible.

3. Officer Medina’s and Officer Steinhage’s Testimony

The government argues the testimony of Officers Medina and Steinhage was also admissible under the excited utterance exception. A.W.’s hearsay statements to the officers clearly satisfy the *974first and third requirements of the exception: the statements were made after startling events and related to those events. It is less than clear, however, whether these statements satisfy the requirement that “the statements] w[ere] made while the declarant was under the stress of the event’s excitement.” Sviith, 606 F.3d at 1279. A.W.’s statements were a product of police questioning approximately an hour after the encounter, and the exception does not encompass every statement made in response to police interrogation while the declarant is upset. At the same time, there is no categorical rule that statements made to police are per se inadmissible under the excited utterance exception.

In determining whether statements to police are admissible as excited utterances, courts have looked to two primary factors. First, they have looked to the spontaneity of the statement. A spontaneous statement volunteered by the declarant is more likely to come within the exception than a statement that is elicited by detailed police questioning. Compare, e.g., United, States v. Arnold, 486 F.3d 177, 186 (6th Cir.2007) (admitting victim’s exclamation to police that the defendant had threatened her with a gun), with Paxton v. Ward 199 F.3d 1197, 1211 (10th Cir.1999) (finding statement inadmissible because, among other reasons, it “was not spontaneously volunteered, but rather was offered in response to questioning”).

But even if prompted by questioning, a statement may be admissible if the questions are somewhat open-ended. See, e.g., United States v. Phelps, 168 F.3d 1048, 1055 (8th Cir.1999) (district court did not abuse its discretion by admitting statements to officer where “[e]ach time [victim] began to talk to [officer] about the shooting, she began to cry, despite [officer’s] attempts to calm her down,” and victim’s “statements to [officer] were not made in response to suggestive questioning”); United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir.1980) (no abuse of discretion where officer “did not ask [victim] suggestive questions but ... only asked [victim], ‘what happened?’ ” and victim “did not give a detailed narrative but spoke in short bursts about the incident”).

Second, courts have looked to the level of excitement experienced by the declarant. If the declarant’s excitement level is severe, then even statements made in response to questioning may be admitted. See, e.g., United States v. Belfast, 611 F.3d 783, 817-18 (11th Cir.2010) (statement made four to five hours after victim tortured and threatened with death admissible); United States v. Clemmons, 461 F.3d 1057, 1061 (8th Cir.2006) (“Although Officer ... testified that [declarant] was talking ... in a calm manner, [declarant] had suffered five gunshot wounds and lay bleeding on the ground.... [I]t would be unreasonable to conclude that someone recently suffering multiple gun-shot wounds ... is likely to calculate who he might unfairly blame for his injuries.”) (quotation marks omitted); Webb v. Lane, 922 F.2d 390, 394 (7th Cir.1991) (“[T]he fact that the statements were made in response to ... questions, although relevant, did not destroy their ... spontaneity. The tremendous shock and stress caused by the shooting and [the declarant’s] subsequent pain may well have postponed his opportunity to reflect.”). Not only life-threatening violence, but also sexual assault, are encounters that may produce the requisite level of emotional excitement in some victims. See, e.g., Iron Shell, 633 F.2d at 86 (applying exception where evidence “suggested ... that [nine-year-old declarant] had struggled with the defendant, that he had threatened her with serious harm and that he had unsnapped and pulled down her jeans. The stress and fear that such an occurrence would impose upon a young *975girl cannot be discounted.”); see also United States v. Bercier, 506 F.3d 625, 630 (8th Cir.2007) (applying exception where eighteen-year-old declarant was “shaking and crying uncontrollably [and] had trouble breathing” about “fifteen to twenty minutes” after sexual assault).

Conversely, statements made after a clear opportunity for reflection, even if entirely voluntary, may be inadmissible. See, e.g., Winzer v. Hall, 494 F.3d 1192, 1200 (9th Cir.2007) (“If [declarant] was able to calmly and coolly call 911 several hours after the threat and discuss both the threat and other circumstances, she must have weighed the costs of intrusion against the benefit of obtaining help from the police.”).

Reviewing the facts here places this case somewhere in the middle. Although A.W. was no longer in danger, she had just been through an ordeal that anyone would find traumatic — let alone a seventeen-year-old girl with no prior sexual experience. The officers questioned A.W. within a short time after the alleged rape, and the evidence suggested A.W. had been in a heightened emotional state since she left Frost’s residence. Like the declarant in Phelps, A.W. had difficulty communicating her account of the events due to her agitation. See R., Vol. 3, at 258 (“She was very upset. I allowed her to regain her composure, and it did take a while to finally get it out of her. She was crying. She was very emotional.”).

There are other facts, however, that cut against finding A.W.’s statements were spontaneous. Most significantly, the officers’ testimony shows that they questioned A.W. in a detailed fashion. Officer Medina methodically had A.W. walk through each step of the night’s events, and asked specific clarifying questions when A.W. was unclear. See, e.g., id. (“I asked her if she knew what that meant, to be penetrated, and she shook her head yes. And I asked if [Frost] penetrated her vagina, ... and she said yes____”). This type of questioning differs from the open-ended questioning found in the cases described above. A general question like “what happened?” may serve as a nudge that elicits an excited utterance, whereas responses to detailed questioning lack the characteristic spontaneity of an excited utterance.

Had Frost objected to the officers’ testimony at trial, a strong case against admissibility could have been made. But Frost must show the error was plain — that it was “clear or obvious at the time of the appeal.” Cordery, 656 F.3d at 1106. This he cannot do. A.W.’s statements to the officers came when she was still visibly upset. Under only slightly different facts, the court’s admission of the officers’ testimony may have been entirely unproblematic. Thus, we cannot say that the officers’ testimony was obviously inadmissible, such that the district court should have excluded the testimony even without an objection from Frost.

Therefore, we find the court did not commit plain error in admitting the testimony of Officers Medina and Steinhage.

A Nurse Murison’s Testimony

Frost next contends it was plain error to admit Nurse Murison’s hearsay statements regarding what A.W. told her about the incident. But some hearsay statements are admissible under the federal rules if they are related to the declarant seeking medical treatment:

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
*976(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Fed.R.Evid. 803. This exception “is founded on a theory of reliability that emanates from the patient’s own selfish motive — her understanding ‘that the effectiveness of the treatment received will depend upon the accuracy of the information provided to the physician.’ ” United States v. Joe, 8 F.3d 1488, 1493-94 (10th Cir.1993) (quoting 2 McCormick on Evidence § 277, at 246-47 (John W. Strong ed., 4th ed. 1992)).

Most of A.W.’s statements to Murison fall within this exception. A.W. needed to describe what had happened so that Murison could make an informed judgment about how best to proceed with the examination and whether to prescribe medications. Details regarding whether, where, and how A.W. was touched are pertinent to medical diagnosis in a sexual assault case. United States v. Tome, 61 F.3d 1446 (10th Cir.1995); see also United States v. Nathan /., 127 F.3d 1110, 1997 WL 659420, at *1 (10th Cir.1997) (unpublished) (allowing, under plain-error standard, medical examiner’s hearsay testimony about the details of the victim’s assault).

Certain aspects of Murison’s testimony may have been inadmissible, including A.W.’s identification of Frost and her claims of loud resistance. Ordinarily, a hearsay statement identifying an accused rapist is not covered by the medical diagnosis or treatment exception. Tome, 61 F.3d at 1450.2 Here, however, Frost admitted he had sex with A.W. but argued she consented. Thus, hearsay statements identifying Frost, even if admitted in error, were harmless.

A.W.’s claims of loud resistance are potentially more problematic, but our review is hampered by the incompleteness of the factual record. Hearsay determinations are particularly fact- and case-specific. See United States v. Pursley, 577 F.3d 1204, 1220 (10th Cir.2009). Had Frost timely objected to Murison’s testimony, we would have a record to determine whether those statements were made for the purpose of diagnosis or treatment and were relevant to that endeavor. Since no objection was made, these issues were not explored in detail below; all we have is Murison’s general affirmation that the patient history was “primarily for the purposes of medical diagnosis and treatment,” and not law enforcement. R., Vol. 3, at 305-06. We are thus left to speculate regarding the pertinence of A.W.’s claims of resistance.

We suspect that a victim’s description of how loud she resisted often will not be pertinent to medical diagnosis or treatment. But such a description sometimes may be pertinent — for example, when used to describe the level of pain experienced by the victim. Questions about a patient’s pain level are legitimate medical inquiries, and the patient’s responses to such questions might be admissible under the medical exception. See United States v. Santos, 589 F.3d 759, 763 (5th Cir.2009). And, of course, a patient’s description of the location of pain may guide an examiner in looking for injuries.

Here, while A.W.’s descriptions of loud resistance may have been pertinent to the location and intensity of her pain, they *977could also emphasize her lack of consent. Without more factual development, it is impossible to know whether the medical hearsay exception should apply.

Given these circumstances, and mindful that Frost bears the burden of showing plain error, we decline to reverse based on Murison’s hearsay testimony. The medical pertinence of hearsay statements is a heavily fact-dependent matter. See, e.g., United States v. Pacheco, 154 F.3d 1236, 1242 (10th Cir.1998). Where the determinative facts are missing from the record due to the defendant’s failure to make a timely objection, we will not find plain error based on the possibility that better factual development would have made the error clear. See United States v. Easter, 981 F.2d 1549, 1556 (10th Cir.1992) (“Plain error review is not appropriate when the alleged error involves the resolution of factual disputes.”). Otherwise, “we could reverse and remand because of ‘plain error’ even though it may ultimately be resolved that there was no error at all.” United States v. Lewis, 594 F.3d 1270, 1288 (10th Cir.2010). Some hearsay errors are blatant enough to warrant plain-error reversal even without much factual development, but such is not the case here.

5. Agent Wallace’s Testimony

Finally, Frost argues the admission of Agent Wallace’s testimony was plain error. We find, however, that the admission of Agent Wallace’s testimony neither prejudiced Frost, nor seriously affected the fairness, integrity, or public reputation of the proceedings. Thus, Frost cannot overcome the third and fourth prongs of plain-error review.

To satisfy the prejudice prong of plain error, “a defendant ‘must demonstrate a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.’ ” United States v. Caraway, 534 F.3d 1290, 1299 (10th Cir.2008) (quoting United States v. Fields, 516 F.3d 923, 944 (10th Cir.2008) (internal quotation marks omitted)). Here, there is no such probability. Wallace’s testimony “was hardly central to the trial.” Id. at 1300. Before Wallace testified, A.W.’s account had already been corroborated by four other witnesses, including two other law enforcement officers. It is unlikely that Wallace’s cumulative testimony would have changed the jury’s evaluation of AW.’s credibility.

Insofar as Wallace’s testimony might have had some impact, it likely would have benefitted Frost rather than the government. There were several inconsistencies between A.W.’s testimony and the account she gave to Wallace. Frost’s counsel confronted A.W. with these inconsistencies on cross-examination, and then returned to highlight them during her cross-examination of Wallace. Indeed, Wallace appears to be the only hearsay witness whose account included significant discrepancies from AW.’s testimony.

In light of the cumulative nature of Wallace’s testimony and its dubious value to the government’s case, we find there is not a reasonable probability that, but for Wallace’s testimony, the jury would not have convicted Frost. Thus, Frost fails to establish the prejudice prong of plain error.

With regard to the fourth prong, we also find that Wallace’s hearsay testimony did not “seriously affect the fairness, integrity, or public reputation of the proceedings.” Hinson, 585 F.3d at 1333 (10th Cir.2009). It was Frost’s counsel, not the government, who first made Wallace known to the jury, on her cross-examination of A.W.:

Q. And while you were there [at Mercy Hospital], did you. give. a statement to another ... agent named John Wallace?
*978A. Yes
Q. ... When you talked with Agent Wallace, you told him that you and [K.A.] had been friends for about a year, didn’t you?
A. Yes.
Q. And yesterday, you testified you all had been friends, first you said a few days, and then you said a few weeks. Is that correct?
A. Yes. But I couldn’t remember how long I’ve known her.
Q. So had you known her for a year or had you known her for a few weeks? A. About a year.
Q. Did you tell Agent Wallace that after the three of you left Thriftway and went back to Adam’s house that all three of you snuck through the bedroom window?
A. No.
Q. And if he said that, that would be incorrect?
A. Yes.
Q. Did you tell Agent Wallace that when Ms. Harris came into the room and saw [K.A.], that she removed [K.A.] from the room by her hand, took her by the hand and took her out of the room? A. Yes.
Q. Did you also say to Agent Wallace that Ms. Harris looked at you and told you you would be okay in the bedroom? A. No.
Q. And if he says that you said that, that would be incorrect?
A. Yes.

R., Vol. 3, at 212.

The clear intent of this exchange was to point out the inconsistencies between A.W.’s testimony and the account she gave to Wallace. Frost’s counsel later highlighted these inconsistencies in her cross-examination of Wallace. Finally, counsel made A.W.’s credibility the centerpiece of her closing argument, and again highlighted the inconsistencies between her testimony and Wallace’s account. Given the importance of these inconsistencies to the defense counsel’s argument, her failure to object to Wallace’s testimony reflects more a deliberate strategic choice rather than an oversight. Frost received the benefit of these highlighted inconsistencies, even though his strategy was ultimately unsuccessful.

Under these circumstances, we do not believe that Wallace’s testimony seriously undermined the fairness, integrity, or public reputation of Frost’s trial.

II. Allocution Challenge

Frost also claims that the district court violated his allocution rights by sentencing him before he had a chance to address the court.

A. Background

After conviction and before sentencing, probation services prepared a presentenee report and recommended sentence. According to the presentence report, although Frost fell within the most lenient criminal history category under the Sentencing Guidelines, that category significantly under-represented his criminal history because it failed to account for his past convictions in tribal court. The presentence report therefore recommended the court apply a higher criminal history category, yielding a guidelines range of 188 to 235 months’ imprisonment, and further recommended the court impose a mid-range sentence of 200 months.

Frost objected in writing to the recommendation prior to sentencing. Nonetheless, at the beginning of the sentencing *979proceedings, the court told Frost and his counsel: “I think there is justification for a much higher sentence, but I will abide by the recommendation of Probation and impose a sentence of 200 months.” R., Vol. 3, at 603.

The court then asked Frost, “[A]t this time is there anything you’d like to say before I state a sentence?” Id. at 604. Frost answered yes, and read a prepared statement to the court, which covers about three pages of the transcript. His counsel then spoke again, asking the court for a sentence of 188 months. The government responded, asking the court to adopt the presentence report’s recommendation.

The district court concluded this segment of the proceeding with an offer to the parties: “This is a proposed sentence, and you may comment on it.” Id. at 612. The court then explained in detail that it had considered the appropriate factors and concluded that 200 months was an appropriate sentence. The court engaged in a formal pronouncement of the sentence, including all the sentencing conditions, and then again asked the parties for comment. Defense counsel’s only request was that a condition on Frost’s computer and internet usage be lifted, to which the court agreed. Finally, the court “ordered that the sentence as I stated it will be the sentence imposed.” Id. at 620.

B. Discussion

Because Frost did “not object to the purported violation of his allocution rights at the ... hearing,” we “review for plain error.” United States v. Rausch, 638 F.3d 1296, 1299 (10th Cir.2011). As a general matter, allocution errors are not subject to harmless-error analysis, because it is difficult for defendants to establish that proper allocution would have resulted in a lower sentence. Rausch, 638 F.3d at 1300-01. But even so, allocution errors are not automatically subject to reversal.1 They still must meet the fourth requirement of plain error — that they “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Id. at 1301. Like many trial errors, “denial of the right of allocution is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure.” United States v. Mendoza-Lopez, 669 F.3d 1148, 1153 (10th Cir.2012) (internal quotation marks omitted).

Rule 32 requires that “before imposing [a] sentence, the court must ... address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Fed.R.Crim.P. 32(i)(4)(A)(ii). This rule codifies the common law right of allocution at sentencing. Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961).

If a court “definitively” announces a defendant’s sentence before giving him a chance to speak, the court commits reversible error because it “effectively communicate[s] to [the defendant] that his sentence ha[s] already been determined, and that he would not have a meaningful opportunity to influence that sentence through his statements to the court.” United States v. Landeros-Lopez, 615 F.3d 1260, 1268 (10th Cir.2010). Such error is generally not cured by “the court’s later remark that it merely ‘intended’ to impose” the sentence it announced. Id.; but see Mendoza-Lopez, 669 F.3d at 1152 (finding no plain error where court announced its intention to sentence defendant within the guidelines range prior to allocution).

We find the court below did not commit plain error at sentencing. While the court’s preliminary statement obvious*980ly disclosed its favorable view of the recommendations contained in the presentence report, the totality of the hearing shows any error by the court did not “seriously affectf] the fairness, integrity, or public reputation of judicial proceedings,” Rausch, 638 F.3d at 1301.

First of all, the sentencing transcript shows that the court’s statements did not, in fact, inhibit Frost from making a meaningful statement in an attempt to influence his sentence. To the contrary, Frost spoke at length about his upbringing and family circumstances, as well as his perception of unfair treatment at trial and in his past proceedings relating to his prior rape conviction. Frost also proposed “a lesser sentence with the option of probation and early release. And ... I will succeed in counseling of the probation requirements if I’m allowed to be put on probation as soon and as early as possible.” R., Vol. 3, at 606.

Based on these statements and the court’s requests for additional comments, we are satisfied Frost had an opportunity to influence the sentence imposed. Indeed, Frost was undeterred by the court’s preliminary statement and he and his counsel took full advantage of the opportunity to attempt to influence the court’s decision. Where the court personally invites the defendant to present information to mitigate his sentence, and the defendant in fact does so, fairness is not seriously affected, notwithstanding the presumption of prejudice. See Mendozar-Lopez, 669 F.3d at 1153. In addition, Frost “fail[s] to set forth what [else] he would have said to the district court” but for the alleged error. Rausch, 638 F.3d at 1302.

These facts differ significantly from the facts in United States v. Landeros-Lopez, 615 F.3d 1260 (10th Cir.2010), in which we remanded for resentencing based on the district court’s allocution error. There, after the court announced the intended sentence, the defendant addressed the court “briefly” and apologized for his actions, but did not make an extended argument for leniency. Id. at 1265. Here, in contrast, despite the court’s alleged error, Frost made an extended statement that included an explicit request for a lower sentence. Put differently, even if the court’s statements in theory could have “effectively communicated ... that his sentence had already been determined,” id. at 1268, Frost’s conduct shows that the court’s statements did not in fact communicate that to him. See Mendozar-Lopez, 669 F.3d at 1153 (finding no serious unfairness where the court did not “conclusively adjudge” the defendant’s sentence before allocution).

The present case also differs from Landeros-Lopez in another significant way. In Landeros-Lopez, the defendant was invited to speak only after the court pronounced the sentence in a lengthy and detailed fashion, with all the trappings of a formal sentence, including the defendant’s conditions of confinement and supervised release. See 615 F.3d at 1266; see also United States v. Luepke, 495 F.3d 443, 445 (7th Cir.2007). We found that allowing the defendant to speak only after this formal pronouncement would create the impression that the sentence was a “foregone conclusion,” thereby undermining the court’s legitimacy and damaging “the public perception of fairness.” Landeros-Lopez, 615 F.3d at 1267.

Here, in contrast, the court did not engage in a lengthy, formal recitation of the defendant’s sentence until after the defendant had made an extended plea for leniency. See Mendozar-Lopez, 669 F.3d at 1152 (distinguishing Landeros-Lopez based on the formality of the court’s pronouncement). In addition, both defense counsel and government counsel spoke af*981ter Frost, before the court formally announced a sentence, and offered substantive argument regarding the appropriate sentence. Thus, in light of the proceedings as a whole, a public observer would not be left with the impression that Frost did not have a meaningful opportunity to address the court before it finalized his sentence. Cf. United States v. Griffin, 530 F.3d 433, 438 (6th Cir.2008) (no denial of allocution rights where record reflected that court gave defendant’s statements “genuine[ ]” consideration). And, as noted previously, Frost gives no indication of what else he would say if given another chance to speak. See Rausch, 638 F.3d at 1302.

Therefore, even if the court’s preliminary adoption of the presentence report’s recommendation might have been in error, that error did not seriously impair the fairness, integrity, or public reputation of the proceeding.

III. Conclusion

For the reasons stated above, we AFFIRM the judgment of the district court.

Understanding the Limits of Limiting Instructions, 6 Psychol. Pub. Pol'y & L. 677 (2000) Understanding the Limits of Limiting Instructions, 6 Psychol. Pub. Pol'y & L. 677 (2000)

This article was cited in M&S; read this excerpt to learn what empirical research says about the effectiveness of limiting instructions under Rule 105.  

Excerpt from Understanding the Limits of Limiting Instructions, 6 Psychol. Pub. Pol'y & L. 677, 685-701 (2000) by Joel Lieberman and Jamie Arndt

. . .

When inadmissible evidence is presented in court, the typical judicial response is to attempt to remove the prejudicial influence of the evidence by issuing a limiting instruction to disregard it. Limiting instructions can be used for a number of purposes. First, a judge may instruct jurors that certain evidence is completely inadmissible, such as illegally obtained evidence that is incriminating to the defendant. This type of evidence is not allowed for any purpose. If it is somehow introduced during a trial, the judge instructs jurors to disregard it.

Second, a judge may instruct jurors that they may use evidence for certain purposes but not for others. For example, if a defendant testifies during a trial, the judge may allow evidence to be admitted that the defendant has a prior record of convictions. Jurors are instructed to limit their use of this evidence to determine the credibility of the defendant's testimony and not to use that information to infer that the defendant has committed an act, has negative traits, or has a criminal disposition. Similarly, a judge may allow prior conviction information to show that a defendant had a motive, an opportunity, specific knowledge, or has used a common pattern, but again jurors are instructed not to infer negative traits about the defendant (Cox & Tanford, 1989). When limited-use evidence is used for  *686 unintended purposes, it is considered prejudicial to the defendant. With few exceptions, empirical research has repeatedly demonstrated that both types of limiting instructions are unsuccessful at controlling jurors' cognitive processes.

Many of the limiting instruction studies have focused on prior conviction information. For the most part, these studies have indicated that jurors are influenced by such information. For example, Doob and Kirshenbaum (1973) presented participants with a hypothetical burglary case and informed half the participants that the defendant had a prior record. Participants were more likely to rate the defendant as guilty when they were exposed to prior criminal record information than when no record information was given. Although participants were also presented with judicial instructions informing them that prior record information should be used to determine credibility, rather than as an indicator of guilt, the instructions did not serve to significantly reduce average ratings of guilt.

In a follow-up study,  . . .  Consistent with Doob and Kiershenbaum's (1973) findings, groups that received prior conviction evidence accompanied by limiting instructions were more likely to convict (40%) than groups who did not receive prior conviction evidence (0%).

Wissler and Saks (1985) obtained similar results in a study where participants were told that the defendant had previously been convicted of either a similar crime, a dissimilar crime of perjury, or were given no information about a prior record. Participants presented with prior record information were instructed to use it only as a determinant of the credibility of the statements made by the defendant and not as an indication that the defendant had a criminal disposition. Interestingly, the defendant's credibility ratings were not affected by prior conviction information. Jurors who read about a defendant previously convicted of perjury did not view the defendant as less credible than jurors who read about the other defendants, including a defendant with no prior convictions. However, verdicts were affected by type of prior offense. Participants returned significantly more guilty verdicts for defendants with similar convictions (75%) than defendants with dissimilar convictions (52.5%), perjury convictions (60%), or no convictions (42.5%).

A variety of factors appear to affect the success of limiting instructions. . . . 

Extra-legal biases may also determine whether inadmissible evidence is considered. In a laboratory experiment, Johnson, Whitestone, Jackson, and Gatto (1995) found the effects of inadmissible evidence appear to be moderated by the race of the defendant. Caucasian participants were more likely to consider incriminating inadmissible evidence when the defendant was Black than when the defendant was White.

. . . 

Kassin and Sommers (1997) provided further evidence that jurors selectively use inadmissible evidence. They presented mock jurors with a murder trial and manipulated the presentation of a key piece of incriminating evidence. In a control condition, only circumstantial and ambiguous evidence was presented. In experimental conditions, an additional piece of evidence was presented. The evidence was an audiotaped telephone conversation between the defendant and a friend in which the defendant confessed to the killings. After the presentation of the tape, a defense attorney objected. In an admissible-evidence condition, the judge overruled the objection and allowed it as a proper form of evidence. In other conditions, the judge sustained the objection and ruled the evidence inadmissible because it was either illegally obtained or barely audible, making it difficult to determine what was said. Kassin and Sommers found that the admissible confession produced a significant increase in guilty verdicts compared with the control condition. However, participants in the two inadmissible conditions behaved very differently. When participants were instructed to ignore the evidence because it had been illegally obtained, they tended to disregard the admonition and rendered verdicts similar to those of participants in the admissible-evidence condition. But, when participants were instructed to disregard the evidence because of the poor quality of the tape, they did so, behaving like control participants who were not exposed to the incriminating evidence. Kassin and Sommers interpreted this as jurors being influenced by the causal basis of the judge's ruling rather than the ruling itself. If mock jurors are given a logical reason for the judge's decisions that they believe is legitimate, then there is evidence that they are able to obey the admonitions.

. . . 

Backfire Effect

Perhaps the most interesting aspect of the research on admonitions to disregard evidence has been the demonstration of a backfire effect (Cox & Tanford, 1989). The backfire effect occurs when jurors pay greater attention to information after it has been ruled inadmissible than if the judge had said nothing at all about the evidence and allowed jurors to consider it.

 

 

Comprehension Questions Set 2 Comprehension Questions Set 2

Please go to our Moodle course page, where you can answer Comprehension Questions #2

1.2.1 OPTIONAL for Class 2 1.2.1 OPTIONAL for Class 2

1.2.1.2 OPTIONAL: Evidentiary Instructions and the Jury as Other, 65 STAN. L. REV. 407 (2013) 1.2.1.2 OPTIONAL: Evidentiary Instructions and the Jury as Other, 65 STAN. L. REV. 407 (2013)

David Alan Sklansky

This excerpt provides a more recent update on the research regarding limiting instructions. It concludes that limiting instructions "work better when the judge gives the jury a reason to follow them, when they are given at the end of the trial, and when jurors are asked to deliberate before returning a verdict"

Excerpt from

David Alan Sklansky, Evidentiary Instructions and the Jury as Other, 65 STAN. L. REV. 407 (2013)

 

. . . 

Over the past few decades, various experiments have been carried out in which mock jurors receive instructions to disregard or to limit their use of particular pieces of evidence. It is widely believed--and repeatedly reported--that these experiments show conclusively, or at least very persuasively, that evidentiary instructions do not and cannot work.56

 

The results of the studies are actually far less clear. If anything, they suggest that evidentiary instructions do work, at least in many circumstances, and at least if they are given in a sensible manner.

. . .

 

[A] broad meta-analysis of mock jury experiments on evidentiary instructions was published half a decade ago . . . .132 The researchers expected to find that evidentiary instructions were ineffective and counterproductive, but their conclusions were more nuanced:

 

[W]hen inadmissible evidence does make a significant impression on jurors, a corrective judicial admonition does not fully eliminate the impact.

 

Both defense-slanted and prosecution-slanted [evidence] retained a significant impact on verdicts even after judicial admonition. This effect, although small, was quite robust.

 

For pro-prosecution [evidence], a stronger effect (i.e., less success of the instruction) was associated with judicial instructions that failed to provide a reason for inadmissibility or justified the admonition with a statement that indicated that the evidence was illegally obtained.

 

Conversely, a smaller effect size was apparent when judicial instruction provided a reason for inadmissibility, for example when the judge explained that the evidence was not reliable, was hearsay, or had “no bearing” on the case. Clearly, jurors respond to specific information they can understand and appreciate.

 

Smaller effect sizes were also associated with the addition of a general charge at the end of the trial that required jurors to disregard any evidence ruled inadmissible. The four tests in which dependent measures were taken after jury deliberation suggest that deliberations may likewise diminish the influence of otherwise damaging inadmissible information.133

 

In other words, evidentiary instructions work, albeit imperfectly, and they work better when the judge gives the jury a reason to follow them, when they are given at the end of the trial, and when jurors are asked to deliberate before returning a verdict. Averaging across all studies--including the studies where the jurors were not given a reason to follow the instruction, where they received the instruction after hearing the evidence but not at the end of the trial, and where they did not deliberate--evidentiary instructions reduced but did not wholly eliminate the impact of inadmissible and partially admissible evidence.

 

1.2.1.3 OPTIONAL: Appellate Brief on behalf of defendant charged with high-speed flight from an immigration checkpoint 1.2.1.3 OPTIONAL: Appellate Brief on behalf of defendant charged with high-speed flight from an immigration checkpoint

Read this if you want to see a lawyer's argument about why evidence should have been excluded under Rule 105 - one that includes an argument that the limiting instruction given by the judge was ineffective and cites the article you read about the limitations of limiting instructions). Scroll down to the highlighted text to see that argument.

2019 WL 1981504 (C.A.9) (Appellate Brief)

United States Court of Appeals, Ninth Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

Jaime MONZON-SILVA, Defendant-Appellant.

No. 18-50382.

April 25, 2019.

Appeal from the United States District Court for the Southern District of California

Honorable Larry A. Burns, Presiding

Appellant’s Opening Brief

Amrutha N. Jindal, Federal Defenders of San Diego, Inc., 225 Broadway, Suite 900, San Diego, California 92101-5008, Telephone: (619) 234-8467, for defendant-appellant.

*i TABLE OF CONTENTS

 

TABLE OF AUTHORITIES..................................................................................................................................

 

iii

 

INTRODUCTION............................................................................................................................................................

 

1

 

STATEMENT OF JURISDICTION...............................................................................................................

 

3

 

QUESTIONS PRESENTED...................................................................................................................................

 

3

 

BAIL STATUS....................................................................................................................................................................

 

3

 

STATEMENT OF THE CASE............................................................................................................................

 

4

 

I. The present offense.....................................................................................................................................................

 

4

 

II. Pre-trial proceedings...............................................................................................................................................

 

6

 

III. Trial.......................................................................................................................................................................................

 

7

 

ARGUMENT........................................................................................................................................................................

 

11

 

I. The conviction must be reversed because the district court failed to exclude the false radio transmission that Mr. Monzon was a “wanted fugitive” and its flawed jury instruction was inadequate to cure any resulting prejudice........................

 

11

 

A. Standard of review....................................................................................................................................................

 

12

 

B. The false “wanted fugitive” radio transmission was of marginal probative value and carried at least a modest likelihood of unfair prejudice......................................

 

12

 

1. The radio transmission was only minimally probative............................................................

 

12

 

2. The false radio transmission carried a more than modest likelihood of unfair prejudice.....................................................................................................................................................................................

 

13

 

i. The court’s limiting instruction did not remedy the prejudice...........................................

 

17

 

C. The error was not harmless...............................................................................................................................

 

19

 

*ii II. The conviction should be reversed because the district court erroneously denied Mr. Monzon’s motion for a mistrial after a government witness’s inflammatory statement that he had “some criminal history.”................................................

 

22

 

A. Standard of review....................................................................................................................................................

 

23

 

B. The court erred in denying the defense’s motion for mistrial and its curative instruction was insufficient given the highly prejudicial reference to “some criminal history.”...............................................................................................................................................................

 

23

 

III. The cumulative effect of the district court’s trial errors deprived Mr. Monzon of a fair trial.....................................................................................................................................................

 

27

 

CONCLUSION...................................................................................................................................................................

 

29

 

CERTIFICATE OF RELATED CASES

 

CERTIFICATE OF COMPLIANCE

 

ADDENDUM

 

 

*iii TABLE OF AUTHORITIES

 

Federal Cases

 

Chambers v. Mississippi, 410 U.S. 284, 294, 302-303 (1973) ..............................................................................................................................................................

 

27

 

Old Chief v. United States, 519 U.S. 172 (1997) ................................

 

13

 

Richardson v. Marsh, 481 U.S. 200 (1987) .............................................

 

18

 

United States v. Alvarez, 358 F.3d 1194 (9th Cir. 2004) ............

 

12

 

United States v. Bland, 908 F.2d 471 (9th Cir. 1990) ....................

 

23, 24

 

United States v. Bradley, 5 F.3d 1317 (9th Cir. 1993) ..................

 

27

 

United States v. Brown, 880 F.2d 1012 (9th Cir. 1989) ...............

 

26

 

United States v. Bush, 58 F.3d 482 (9th Cir. 1995) ..........................

 

15, 16

 

United States v. Escalante, 637 F.2d 1197 (9th Cir. 1980) .......

 

23

 

United States v. Frederick, 78 F.3d 1370 (9th Cir. 1996) ..........

 

27

 

United States v. Gillespie, 852 F.2d 475 (9th Cir. 1988) ............

 

23

 

United States v. Gonzalez-Flores, 418 F.3d 1093 (9th Cir. 2005) .............................................................................................................................................

 

12, 16

 

United States v. Hernandez, 109 F.3d 1450 (9th Cir. 1997) ....

 

12

 

United States v. Hitt, 981 F.2d 422 (9th Cir. 1992) .........................

 

11, 15, 16

 

*iv United States v. Merino-Balderrama, 146 F.3d 758 (9th Cir. 1998) .................................................................................................................................

 

17, 19

 

United States v. Mills, 280 F.3d 915 (9th Cir. 2002) ......................

 

23

 

United States v. Pavon, 561 F.2d 799 (9th Cir. 1977) ...................

 

23, 27

 

United States v. Sarkisian, 197 F.3d 966 (9th Cir. 1999) ...........

 

23

 

United States v. Yazzie, 59 F.3d 807 (9th Cir. 1995) ......................

 

13

 

Federal Statutes

 

18 U.S.C. § 758 ..................................................................................................................

 

3, 5

 

18 U.S.C. § 3231 ...............................................................................................................

 

3

 

28 U.S.C. § 1291 ...............................................................................................................

 

3, 4

 

Federal Rules

 

Fed. R. App. P. 4(b)(1)(A)(i) .................................................................................

 

3

 

Fed. R. Evid. 403 ..............................................................................................................

 

passim

 

Fed. R. Evid. 404 ..............................................................................................................

 

10, 22, 26

 

Other

 

Black’s Law Dictionary (10th ed. 2013)......................................................

 

14

 

Joel Lieberman and Jamie Arndt, Understanding the Limits of Limiting Instructions, 6 Psychol. Pub. Pol’y & L. 677, 685-701 (2000) ...................................................................................................................

 

21

 

 

INTRODUCTION

 

The Federal Rules of Evidence allow district courts to exclude relevant evidence if its probative value is outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403. A district court’s erroneous admission of such evidence, particularly if it’s an inflammatory reference related to the defendant’s criminal nature, may cause the jury to reach a guilty verdict based on emotions rather than on the evidence. This is especially true in a case that is close, where the government’s evidence of guilt is minimal and uncorroborated. In a close case, even the slightest prejudicial piece of evidence can tip the scale to a guilty verdict. This is such a case.

 

Mr. Monzon was charged with high-speed flight from an immigration checkpoint. At trial, Mr. Monzon’s defense was simple: while he admitted that he fled the checkpoint, there was not proof beyond a reasonable doubt that he fled at a speed *2 in excess of the 65 miles per hour speed limit, an element of the offense. The only evidence the government presented regarding Mr. Monzon’s speed was the uncorroborated testimony of one Border Patrol agent who testified that he estimated Mr. Monzon’s speed to be about 70 or 75 miles per hour. Casting doubt on the reliability of these speed estimates were the agent’s admissions that he had not received training on how to measure speed and that he was performing a variety of tasks like checking road conditions and speaking to radio dispatch while measuring Mr. Monzon’s speed.

 

That evidence alone is underwhelming. What likely tipped the scale to a guilty verdict were government witnesses’ repeated inflammatory and unfairly prejudicial references about Mr. Monzon’s criminal nature. Specifically, the district court allowed evidence that an inaccurate radio transmission by Border Patrol identified Mr. Monzon as a “wanted fugitive.” An inflammatory phrase like that could make a juror think that Mr. Monzon was a suspect for a serious crime like murder or rape. Making matters worse, a government witness improperly testified that he heard that Mr. Monzon had a criminal history.

 

The district court attempted to limit the prejudice caused by these inflammatory references through its instructions to the jury. But these instructions were inadequate and unlikely to be followed. In the end, the government left the jury with the distinct impression that Mr. Monzon was a man who had committed crimes in his past. That’s not the type of evidence that the jury could intentionally put aside or forget. The jury would assume that Mr. Monzon, consistent with his history, committed the crime he *3 was charged with here or that he was so dangerous that he should be incarcerated regardless of his guilt. And in a close case, it is precisely the type of evidence that would tip the scales towards guilt. In light of these errors, Mr. Monzon’s conviction cannot stand.

 

STATEMENT OF JURISDICTION

 

Mr. Monzon appeals his conviction for violating 18 U.S.C. § 758, High Speed Flight from Immigration Checkpoint. The district court had subject-matter jurisdiction under 18 U.S.C. § 3231. The court entered final judgment on October 25, 2018. ER3. Mr. Monzon filed his notice of appeal one day later, ER1, rendering the notice timely, see Fed. R. App. P. 4(b)(1)(A)(i). This Court has jurisdiction under 28 U.S.C. § 1291.

 

QUESTIONS PRESENTED

 

Question presented one. Whether the district court erred in admitting evidence of a false radio transmission stating that Mr. Monzon was a “wanted fugitive” because the transmission’s minimal probative value was substantially outweighed by the danger of unfair prejudice.

 

Question presented two. Whether the district court erred in denying Mr. Monzon’s motion for a mistrial after a government witness improperly referenced Mr. Monzon’s criminal history.

 

Question presented three. Whether the cumulative effect of the jury hearing that Mr. Monzon was a wanted fugitive and had criminal history deprived him of a fair trial.

 

BAIL STATUS

 

Mr. Monzon is not in custody. He is serving a 5-year probationary sentence set to expire on or about October 25, 2023. ER4.

 

*4 STATEMENT OF THE CASE

 

1. The present offense

 

On January 6, 2018, around 11:00 a.m., Mr. Monzon was driving northbound on the Interstate 5 when he arrived at the San Clemente checkpoint. ER90. In the primary inspection area, Mr. Monzon presented his California identification card to Border Patrol Agent Pedro Olvera. ER91. Agent Olvera observed that Mr. Monzon had a birth certificate on the passenger seat. Id. Finding this unusual, Agent Olvera referred Mr. Monzon to secondary inspection. ER92, 117.

 

In secondary, Mr. Monzon provided his California identification card and birth certificate to Border Patrol Agent Andrew Dion. ER140. Mr. Monzon consented to a search of his trunk. ER141. During the search, Border Patrol Agent Ala Abdelmuti approached the passenger side of Mr. Monzon’s car and asked him to turn off his ignition. ER264. As Agent Abdelumuti was saying this to Mr. Monzon, a radio transmission came through stating that Mr. Monzon “also has an alert for being a wanted fugitive from 2010.” Id.

 

Immediately after the “wanted fugitive” statement was made, Mr. Monzon fled the secondary area and began driving north. ER264, 145-46.

 

Border Patrol agents, including Agent Jose Raya, pursued Mr. Monzon northbound on the Interstate 5. ER223. Agent Raya caught up to Mr. Monzon about two miles north of the checkpoint. ER223. Once he caught up to Mr. Monzon, Agent Raya maintained a four to five car length’s distance from Mr. Monzon and looked at *5 his own speedometer to gauge Mr. Monzon’s speed. ER226. Agent Raya reported to dispatch that Mr. Monzon was traveling “about 70” and “still about 75.” ER226, 230. Less than a minute later, Agent Raya stated Mr. Monzon was going 55 miles per hour. ER233. Agent Raya testified that while he was following Mr. Monzon and trying to gauge his speed, he was also talking to dispatch, watching Mr. Monzon’s car, watching the road, paying attention to road conditions, and looking in his rearview mirror. ER242. A radar gun was not used to calculate the speeds. ER244. Agent Raya testified that he had not been trained on how to calculate speed without a radar gun, “not aside from just looking down at my speedometer.” ER227. The posted speed limit on that stretch of the Interstate 5 is 65 miles per hour. ER131.

 

Agents performed a “boxing in” maneuver where three Border Patrol cars surrounded Mr. Monzon’s car so that it came to a stop. ER154. Mr. Monzon was arrested and taken back to the border patrol station, where agents learned that the radio transmission about Mr. Monzon being a “wanted fugitive” was incorrect. ER147.

 

Mr. Monzon was subsequently indicted for high-speed flight from an immigration checkpoint in violation of 18 U.S.C. § 758. ER574. An individual violates that statute if he or she “flees or evades a checkpoint operated by the Immigration and Naturalization Service, or any other Federal law enforcement agency, in a motor vehicle and flees Federal, State, or local law enforcement agents in excess of the legal speed limit[.]” 18 U.S.C. § 758.

 

*6 2. Pre-trial proceedings

 

Prior to trial, Mr. Monzon moved to exclude the radio transmission that he was a “wanted fugitive from 2010.” ER549-51. Mr. Monzon argued that the radio transmission’s probative value was substantially outweighed by the danger of undue prejudice and should be excluded pursuant to Federal Rule of Evidence 403. Id. He argued that the statement was highly inflammatory because jurors could speculate that he was wanted for serious crimes like murder or rape. ER489. Its probative value was minimal as it did not relate to any element of the offense and both parties agreed that Mr. Monzon was not in fact a wanted fugitive. ER550. While Mr. Monzon did have a warrant back in 2010, that warrant was not active on the date of arrest. ER156.

 

At the motions in limine hearing, which occurred the day before trial, the district court found that the radio transmission was relevant because “motive evidence is always relevant” and that Mr. Monzon’s motive to flee the checkpoint may have been because he overheard the transmission. ER484. The court then stated that the “only question is whether there’s a 403 danger that can’t be mitigated by instructions or otherwise.” ER484-85.

 

Defense counsel expressed concern that any explanation of why the misinformation was broadcast over the radio, or any confirmation that Mr. Monzon did in fact have a warrant in 2010, would be extremely prejudicial. ER489-491. The district court recognized these concerns and made clear that the transmission would only be *7 admissible to show motive and that no further explanation about the transmission would be permitted:

 

We’re not going to go any deeper into it [ ], than to say this is what was broadcast. We concede that this was incorrect at the time. It was a good faith mistake, but it was a mistake.

 

ER489.

 

Recognizing the court’s ruling that the only relevance of the transmission was that it may have supplied a motive for commission of the offense, defense counsel stated: “And if that’s all the court thinks is the hook for relevance, then the fact that [Mr. Monzon] may have actually had a warrant [in the past] or why he had that warrant is not necessary.” ER491. The court responded, “Okay. I even agree with that.” Id.

 

3. Trial

 

At trial, Mr. Monzon contested only one element of the offense - whether he fled in excess of the 65 miles per hour speed limit. ER79. The government’s case consisted of the testimony of four Border Patrol agents and a California Highway Patrol officer. Three out of the four agents testified about the “wanted fugitive” radio transmission.

 

Agent Olvera, the primary officer, testified that after he sent Mr. Monzon to secondary, he heard “something on the radio about a - a wanted fugitive” and that soon after, he heard tires peeling out and saw Mr. Monzon fleeing from the checkpoint. ER94.

 

*8 The government’s next witness, Agent Dion, testified about his interactions with Mr. Monzon in secondary. During the government’s direct examination of Agent Dion, the following exchange took place:

 

Prosecutor: And did you learn about the identity of the defendant at some point?

 

Witness: Yes.

 

Prosecutor: Okay. Did you hear anything over the radio about him at some point?

 

Witness: Yes.

 

Prosecutor: Okay. What did you hear over the radio?

 

Defense counsel: Objection, your honor, hearsay.

 

Court: Overruled.

 

Witness: I heard that he had some criminal history and also that he was a wanted fugitive in 20021. It was a while ago.

 

1

 

It appears the witness misspoke. The statement made on the radio transmission, as reflected in the parties’ stipulation, was that he was a “wanted fugitive in 2010.” ER156.

 

 

Defense counsel: Your Honor, I would object. Could we have a brief sidebar?

 

ER143-44.

 

At sidebar, before defense counsel could explain her objection, the court immediately acknowledged the witness’s problematic reference to criminal history. Id. Defense counsel moved for a mistrial, noting that the comment was “extremely *9 prejudicial.” ER145. The court responded that it would instruct the jury to disregard “that part” and provided the following instruction to the jury:

 

Court: Ladies and gentlemen, the witness mentioned “criminal history.” You should disregard that. That - that should not enter into your deliberations at all. He - he said what he heard was something about a wanted fugitive and criminal history. Disregard the comment about criminal history.

 

Can all of you do that? Can all of you assure me that that will not enter into your thinking whatsoever in deciding this case?

 

Id. The jurors nodded their heads in response, and the court denied the mistrial motion. Id.

 

After the government’s direct examination of Agent Dion, the parties entered a stipulation into the record regarding the “wanted fugitive” radio transmission. ER156. That stipulation stated that the parties “agree that the statement is not factually accurate. On January 16th, 2018, Mr. Monzon was not a wanted fugitive and did not have any active warrants.” Id.

 

During a subsequent break, defense counsel elaborated on her motion for a mistrial due to Agent Dion’s reference to “criminal history:”

 

Defense counsel: And the concern I have, your Honor, is that this compounds the 403 issue with respect to the wanted fugitive statement being made. Because although the Court is telling the jurors not to consider the criminal history statement, we have allowed into evidence, based on the Court’s rulings and the motions in limine, the Government to introduce testimony that the statement was made on the radio. And, in fact, Agent Abdelmuti is going to take the stand this afternoon and again repeat that statement that Mr. Monzon was a wanted fugitive.

 

*10 Court: Right.

 

Defense counsel: And so -

 

ER207-08. Before defense counsel could complete the basis for her motion for a mistrial, the court interjected and said that the “prejudice has been taken out of it” due to the stipulation recognizing that the transmission was incorrect. ER208. The court again repeated that the “purpose of the admission was to show that the defendant had a motive to flee”2 and that it can trust the jury’s assurance that they would disregard the reference to criminal history. ER208-09.

 

2

 

During a break in trial, the court, referencing Rule 404(b), indicated that the radio transmission was also relevant to show absence of mistake or accident. ER82. The court’s reference to Rule 404(b) is puzzling because the erroneous radio transmission is not “evidence of a crime, wrong or other act” as contemplated by the rule, see Fed. R. Evid. 404(b), nor had the government proposed that the transmission was admissible under this rule of evidence. Regardless, when the court later instructed the jury, it said that “motive” was the only permissible purpose of this evidence. ER265.

 

 

The government’s final witness, Agent Abdelmuti, testified that he heard the “wanted fugitive” radio transmission as he was telling Mr. Monzon to turn off his ignition in the secondary inspection area. ER264. The agent testified, “as soon as [Mr. Monzon] heard that transmission, he put the vehicle in drive and took off.” Id. After the government’s direct examination was complete, the court provided the following limiting instruction about Agent Abdelmuti’s testimony regarding the radio transmission:

 

*11 You should consider this testimony about the radio transmission that was just testified to only in this regard: Whether it was heard by the defendant and whether that supplied him a motive for him to leave the checkpoint. It’s only relevant for that purpose, no other purpose. You’ve heard a stipulation between the parties that it turned out the information was erroneous. So you consider it only for that purpose.

 

ER264-65. This was the only time the court provided a limiting instruction on how the jury can consider the radio transmission testimony. The jury ultimately returned a verdict of guilty. ER26.

 

ARGUMENT

I. The conviction must be reversed because the district court failed to exclude the false radio transmission that Mr. Monzon was a “wanted fugitive” and its flawed jury instruction was inadequate to cure any resulting prejudice.

Federal Rule of Evidence 403 provides that otherwise relevant evidence is excludable when 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.”

 

Although trial courts have “wide latitude in making Rule 403 decisions,” it is “not unlimited.” United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992). Where the evidence is of marginal probative value, it is an abuse of discretion to admit it “if there’s even a modest likelihood of unfair prejudice or a small risk of misleading the jury.” Id. Here, as explained below, the false radio transmission was of marginal probative value. And because there was at least a modest likelihood of unfair prejudice, the court should have excluded the evidence under 403.

 

*12 A. Standard of review.

A district court’s evidentiary rulings are generally reviewed for an abuse of discretion. See United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004). If the district court erroneously admitted unfairly prejudicial evidence, the government has the burden of establishing that the error was harmless for the conviction to be upheld. See United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997).

 

B. The false “wanted fugitive” radio transmission was of marginal probative value and carried at least a modest likelihood of unfair prejudice.

1. The radio transmission was only minimally probative.

The radio transmission was of minimal probative value. When evidence does not go to an element of the charged offense, the probative value of the evidence is low. See United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir. 2005) (finding that a “mere detail in the story of the offense” that does not go to any of the elements carries low probative value). The district court found that the only reason the transmission was relevant was to show motive. Motive is not an element of the offense. At best, motive only tangentially relates to two of the five elements - it potentially explains why Mr. Monzon fled the checkpoint and why he fled from law enforcement officers. See ER17 (elements one and four).

 

Further minimizing the probative value is the fact that the defense did not contest the two elements related to fleeing. ER79. Indeed, it was uncontestable that Mr. Monzon fled. Video recordings of the secondary inspection area and the pursuit *13 northbound on the freeway established beyond dispute that Mr. Monzon fled the checkpoint and law enforcement agents. That’s why the defense theory was that the government could not prove beyond a reasonable doubt that Mr. Monzon fled in excess of the speed limit. Because the defense was not contesting the fact that Mr. Monzon fled, the radio transmission explaining why he fled is only minimally probative.

 

2. The false radio transmission carried a more than modest likelihood of unfair prejudice.

On the other side of the Rule 403 balancing test, the false “wanted fugitive” radio transmission presented a serious danger of unfair prejudice. “Unfair prejudice” refers to “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Fed. R. Evid. 403 advisory committee’s notes. The Supreme Court has described unfair prejudice as evidence that “lure[s] the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180 (1997). “Evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.United States v. Yazzie, 59 F.3d 807, 811 (9th Cir. 1995) (emphasis removed) (internal quotation marks omitted).

 

The fact that the radio transmission used the term “wanted fugitive” automatically resulted in unfair prejudice given the close association of “fugitive” with *14 terms used in the charge, including “flight” and “fled.” The first definition of “fugitive” in Black’s Law Dictionary is “someone who flees or escapes.” Fugitive, Black’s Law Dictionary (10th ed. 2013). Not only does the term “wanted fugitive” evoke the image of a person fleeing, it evokes the image of a dangerous person fleeing at any cost to avoid detection by law enforcement. A Google search of “wanted fugitive” produces numerous links to the FBI’s Ten Most Wanted bulletins, where nearly all fugitives are suspected of murder. Calling a person a “wanted fugitive” is a loaded descriptor and causes a visceral reaction that the person is dangerous, violent, and a sophisticated criminal.

 

When the jury heard that Mr. Monzon was a “wanted fugitive,” they would have concluded not only that Mr. Monzon was the sort of person who would flee, but that he would do anything necessary to successfully flee, including driving at a high speed from the checkpoint. Additionally, given the visceral reaction that people have upon hearing the word “fugitive” - as defense counsel pointed out, it could make jurors think he was wanted for murder or rape, ER489 - the jury may have concluded that Mr. Monzon was so dangerous that he should be incarcerated, whether he actually committed this offense or not.

 

In this case, the unfair prejudice is particularly exacerbated because the prejudicial evidence was false - Mr. Monzon was not in fact a “wanted fugitive” as stated in the radio transmission. This Court has found that there is a “special variety” of prejudice when concerning false information: “Where the testimony not only lacks *15 probative value but actually leads the jury to draw false inferences about the accused, only a slight showing of prejudice need be made to tip the scales toward exclusion.” United States v. Bush, 58 F.3d 482, 489 (9th Cir. 1995) (emphasis added).

 

In Bush, the defendant was charged with fraud and conversion related to false travel and other expenses made to his employer. After a witness testified as to the defendant’s good character, the government elicited testimony from the witness that the defendant had previously been accused of financial misconduct in a civil RICO suit. Id. at 489. In fact, the civil suit was for the same misconduct for which the defendant was on trial, but the jury was given the misleading impression that it was a separate incident of misconduct. Id. This Court concluded that the district court abused its discretion in admitting this testimony because it raised “a false damaging inference about the defendant.” Id. (emphasis in original).

 

This Court’s decision in United States v. Hitt is also instructive. In Hitt, which involved the charge of possession of an unregistered machine gun, the government introduced a photograph that contained not only the gun in question, but also nine other guns, all belonging to the defendant’s roommate. 981 F.2d at 423. Because the photograph did not refute the defendant’s theory of defense, the probative value was “exceedingly small.” Id. And the photograph was highly prejudicial because the jury would have incorrectly believed that the other guns belonged to the defendant and because jurors could have concluded that the defendant was so dangerous that he should be locked up regardless of whether he committed the offense. Id. at 424. Finding *16 that the admission of the photograph violated Rule 403, the Court emphasized the particularly inflammatory nature of this evidence given its inaccuracy:

The evidence here was not only highly prejudicial and at most marginally probative - it was also misleading. It’s bad enough for the jury to be unduly swayed by something a defendant did; it’s totally unacceptable for it to be prejudiced by something he seems to have done but in fact did not.

 

 

981 F.2d at 424-25 (emphasis added).

 

Like in Bush and Hitt, the jury in this case was presented with prejudicial evidence that was false and misleading. The radio transmission identifying Mr. Monzon as a “wanted fugitive” was inflammatory, conjured up images of a dangerous criminal, and was simply not true. On balance, the dangers of unfair prejudice substantially outweighed the minimal probative value of the radio transmission. As this Court has said, “where the evidence is of very slight (if any) probative value, it’s an abuse of discretion to admit it if there’s even a modest likelihood of unfair prejudice ...” Hitt, 981 F.2d at 424. And, here, because the evidence was false, only a “slight” showing of prejudice would warrant exclusion. See Bush, 58 F.3d at 489. There was obviously more than a slight risk of unfair prejudice from the false “wanted fugitive” transmission, and given the minimal probative value of it, the district court abused its discretion in admitting the evidence. See Gonzalez-Flores, 418 F.3d at 1098-1099 (abuse of discretion to admit testimony about the heat stroke experienced by two immigrant girls after the defendant smuggled them into the country, because risk of jurors having a sympathetic and emotional response substantially outweighed low probative value).

 

*17 The district court recognized that there was a concern of prejudice. ER484-85 (“The only question is whether there’s a 403 danger that can’t be mitigated by instructions or otherwise.”). But it ultimately admitted the evidence, finding that any prejudice would not be unfair if a limiting instruction was given telling the jury that it can only consider the evidence for motive and if the jury was told that the transmission itself was incorrect. ER486-87. As detailed below, this remedy was insufficient.

 

i. The court’s limiting instruction did not remedy the prejudice.

The district court attempted to remove any unfair prejudice from the false “wanted fugitive” radio transmission by offering a limiting instruction. While a timely limiting instruction from the court can typically “cure[ ] the prejudicial impact of evidence,” the instruction may not be sufficient when (1) the instruction is “clearly inadequate,” or (2) the evidence is “highly prejudicial.” United States v. Merino-Balderrama, 146 F.3d 758, 764 (9th Cir. 1998). Here, the instruction was not timely, it was clearly inadequate, and the evidence it related to was highly prejudicial.

 

The government called three witnesses who testified about the “wanted fugitive” radio transmission - Agents Olvera, Dion, and Abdelmuti. All three witnesses testified that soon after the transmission was made, Mr. Monzon fled the checkpoint. But the court’s limiting instruction about how to consider this evidence was not made until after the government’s last witness, Agent Abdelmuti, had testified. The instruction was therefore untimely.

 

*18 The instruction was also inadequate. After Agent Abdelmuti testified about the transmission, the court said:

You should consider this testimony about the radio transmission that was just testified to only in this regard: Whether it was heard by the defendant and whether that supplied him a motive for him to leave the checkpoint. It’s only relevant for that purpose, no other purpose. You’ve heard a stipulation between the parties that it turned out the information was erroneous. So you consider it only for that purpose.

 

 

ER264-65 (emphasis added). By using the phrase “that was just testified to,” the court essentially limited the application of its instruction only to Agent Abdelmuti’s testimony of the “wanted fugitive” radio transmission. And because the district court said that the limiting instruction applied only to the testimony of Agent Abdelmuti, the court neglected to provide any instructions as it relates to the testimony of Agents Olvera and Dion. Recognizing that the Supreme Court has held that juries are presumed to follow their instructions,3 if the jury did so here, it would have impermissibly used the evidence of the radio transmission as testified by Agents Olvera and Dion for non-motive purposes. This is particularly problematic since Agent Dion also referenced Mr. Monzon’s criminal history while explaining the radio transmission. Put another way, when Agents Olvera and Dion testified, the jury could have interpreted the *19 “wanted fugitive” transmission as evidence of criminal propensity and nothing in the court’s instructions would have remedied that.

 

3

 

“The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable, practical accommodation of the interests of the state and the defendant in the criminal justice process.” Richardson v. Marsh, 481 U.S. 200, 211 (1987).

 

 

In fact, the court’s instruction regarding motive exacerbated the prejudice by undercutting any benefit created by the parties’ stipulation that the transmission was inaccurate. Though the parties agreed that Mr. Monzon was not a wanted fugitive on the date of arrest, by telling the jury that they could consider the transmission for motive, the court implicitly suggested that Mr. Monzon believed himself to have been a wanted fugitive. The only person who would be motivated to flee after hearing a “wanted fugitive” radio transmission is someone who actually believes he is in fact a wanted fugitive, either because he knows he has an active warrant or because he believes he may have a warrant based on his criminal behavior. In other words, even accepting that the transmission is inaccurate, the admission of the transmission itself for the purpose of motive indicates to the jury that Mr. Monzon is someone who thought of himself as a wanted fugitive. The jury therefore likely found him guilty on the improper basis that he has criminal tendencies in light of his reaction to hearing that he was a fugitive.

 

C. The error was not harmless.

The government will not be able to meet its burden to establish that this error was harmless. See Merino-Balderrama, 146 F.3d at 763 (holding that the government bears the burden of proving the admission of prejudicial evidence was harmless).

 

*20 First, erroneously admitting the radio transmission likely affected the jury’s verdict because the only issue at trial was whether Mr. Monzon exceeded the 65 miles per hour speed limit, and the government’s evidence supporting that he had was minimal. The only testimony presented at trial regarding Mr. Monzon’s speed came from Agent Raya. The government played the radio dispatch tape where Agent Raya, in pursuit of Mr. Monzon, stated that Mr. Monzon was driving “about 70” and “still about 75” miles per hour. ER226, 230. The fact that Agent Raya used the word “about” when referencing the speed emphasized that these numbers were estimates and not certainties. And there was no evidence corroborating Agent Raya’s measurements of speed. A radar gun was not used. ER244. No other witness testified about Mr. Monzon’s speed. Agent Raya admitted that he does not have training on how to gauge speed without a radar gun other than merely looking at his speedometer. ER227. Agent Raya also testified that trying to gauge Mr. Monzon’s speed was not the only thing he was focused on - he was simultaneously talking to dispatch, watching other traffic, and paying attention to road conditions. ER242. This was not a case where Mr. Monzon was speeding at 100 miles per hour or some exceedingly high speed. The estimated speeds Agent Raya reported were only five and ten miles per hour above the posted 65 miles per hour speed limit. Given the absence of evidence corroborating Agent Raya’s testimony, it is more probable than not that the jury convicted Mr. Monzon because the inflammatory reference to him being a “wanted fugitive” led *21 the jury to believe that he was a dangerous person who would flee at any cost, including at high speeds.

 

Second, as previously discussed, the district court’s limiting instruction did not cure the substantial prejudice, particularly because the instruction did not reference the testimony of Agents Olvera and Dion. An instruction itself is not a “sure-fire panacea” for the harm done by the improper admission of prejudicial evidence. In fact, social science research show that jurors do not follow limiting instructions related to prior bad acts, which is akin to the limiting instruction at issue here, and that such instruction can make jurors more likely to draw an impermissible inference. See Joel Lieberman and Jamie Arndt, Understanding the Limits of Limiting Instructions, 6 Psychol. Pub. Pol’y & L. 677, 685-701 (2000). With an inadequate and likely ineffective instruction, the jury was exposed to the full impact of the prejudicial and false radio transmission and likely used it as evidence of Mr. Monzon being a dangerous criminal who should be incarcerated.

 

Because the radio transmission was inadmissible under Rule 403, and the flawed jury instruction provided no adequate remedy for that error, the radio transmission should not have been admitted. Under these circumstances, the government cannot meet its burden to show harmlessness. Admission of the “wanted fugitive” radio transmission more probably than not affected the verdict by tipping the scales and encouraging the jury to err on the side of convicting Mr. Monzon rather than seeing someone who perceived himself as a “wanted fugitive” go free.

 

*22 II. The conviction should be reversed because the district court erroneously denied Mr. Monzon’s motion for a mistrial after a government witness’s inflammatory statement that he had “some criminal history.”

The Federal Rules of Evidence specify two limited circumstances where a defendant’s criminal history is admissible: (1) if it is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of motive or accident; or (2) if the defendant has placed his character in evidence by testifying. See Fed. R. Evid. 404.

 

It is undisputed that neither of the two circumstances permitting the admission of criminal history were present here. Yet, on direct examination, Agent Dion testified that he heard over the radio that Mr. Monzon “had some criminal history.” ER144.

 

Defense counsel timely objected and moved for a mistrial. ER144. The district court recognized that Agent Dion’s statements were improper. Before defense counsel could complete a sentence, the court jumped in and noted the witness’s reference to “criminal history.” Id. The prosecutor also admitted that the witness’s testimony was improper and contrary to the motions in limine rulings, noting that she had instructed Agent Dion not to discuss criminal history. ER144.

 

However, rather than granting a mistrial, the court offered a curative instruction to the jury that was insufficient. The court’s erroneous denial of Mr. Monzon’s motion for a mistrial requires the conviction to be reversed.

 

*23 A. Standard of review

A district court’s refusal to declare a mistrial is reviewed for an abuse of discretion. See, e.g., United States v. Mills, 280 F.3d 915, 921 (9th Cir. 2002); United States v. Sarkisian, 197 F.3d 966, 981 (9th Cir. 1999). When evidence is heard by the jury that is subsequently ruled inadmissible, a sufficient cautionary instruction from the judge may cure any prejudice caused to the defendant. See, e.g., United States v. Escalante, 637 F.2d 1197, 1202-03 (9th Cir. 1980). But when there has been “so much prejudice that an instruction is unlikely to cure” the prejudice, the court must declare a mistrial. Id.

 

B. The court erred in denying the defense’s motion for mistrial and its curative instruction was insufficient given the highly prejudicial reference to “some criminal history.”

The court’s curative instruction did not remedy any prejudice caused by the inflammatory reference to “some criminal history.” There is a strong presumption that a jury follows a court’s curative instruction when the court strikes testimony. United States v. Pavon, 561 F.2d 799, 803 (9th Cir. 1977). However, “under [some] circumstances, the trial court’s curative instruction[s] to the jury [are] not sufficient to obviate the prejudice.” United States v. Gillespie, 852 F.2d 475, 479 (9th Cir. 1988).

 

This Court has found curative instructions insufficient to remedy prejudice when inflammatory evidence regarding a defendant’s criminal record is presented to the jury. See, e.g., United States v. Bland, 908 F.2d 471, 473 (9th Cir. 1990). In Bland, in its introductory comments to the venire, the district court told the jury that the officer in the case believed that the defendant had a warrant for molestation and murder. *24 908 F.2d at 473. The court offered a limiting instruction advising the jury that information about the officer’s state of mind did not establish the defendant’s guilt for the crime described in the warrant and that the jury could not consider the evidence for that purpose. Id. This Court reversed the conviction, finding that the instruction did not cure the prejudice and that the error was not harmless: “We cannot expect jurors to remain impartial when information that should not have been mentioned permits them to believe that acquitting the defendant may mean releasing an exceedingly dangerous child molester and killer into the community.” Id.

 

Like in Bland, the cautionary instruction given here was insufficient to obviate the prejudice. The district court attempted to cure the prejudicial error with the following instruction:

Court: Ladies and gentlemen, the witness mentioned “criminal history.” You should disregard that. That - that should not enter into your deliberations at all. He - he said what he heard was something about a wanted fugitive and criminal history. Disregard the comment about criminal history.

 

Can all of you do that? Can all of you assure me that this will not enter into your thinking whatsoever in deciding this case?

 

Jurors: (Nodding heads).

 

 

ER145. The court’s instruction was ineffective, however, because no reasonable person could be expected to compartmentalize this stricken testimony from the contemporaneously admissible testimony that Mr. Monzon was a wanted fugitive. Agent Dion made both statements in the same breath. The reference to Mr. Monzon’s *25 criminal history was so intertwined with the transmission that he was a wanted fugitive that expecting the jurors to be able to separate the two is unrealistic.

 

Not only was it unlikely that the jury could compartmentalize the stricken testimony, it was also unlikely that the jury could forget the testimony - further underscoring the inadequacy of the court’s instruction. Though the reference to criminal history here did not include specifics on the nature of the prior crimes, it was still as prejudicial as in Bland. The broad nature of Agent Dion’s statement - that Mr. Monzon had “some criminal history” - left the jury to speculate about the types of prior convictions Mr. Monzon had. The jury could easily have imagined that Mr. Monzon had prior convictions for child molestation and murder like the defendant in Bland. This is the exact type of prejudice Rules 403 and 404(b) were designed to prevent. And the phrase “some criminal history” is particularly nefarious because it suggests that Mr. Monzon had many prior convictions and was likely a hardened criminal.

 

During the motions in limine hearing, the district court conducted a balancing test under Rule 403 and determined that the “wanted fugitive” radio transmission could only be introduced to show motive. ER484. Recognizing the potential for unfair prejudice, the court said that it would not permit the government to “go any deeper into it ... [other] than to say this is what was broadcast.” ER489. The court recognized that it would be unduly prejudicial to admit that Mr. Monzon actually had a warrant in *26 the past. ER491, 493 (“And it really does invite a problem that then we’re getting into the validity of the 2010 warrant.”).

 

But Agent Dion’s testimony at trial was exactly what the court recognized would be problematic. Agent Dion went “deeper” into the “wanted fugitive” radio transmission by testifying that he heard that Mr. Monzon had “some criminal history.” Hearing the two statements together implicitly indicated to the jury that Mr. Monzon likely was a wanted fugitive at some point in the past based on his criminal history. While it was conceivable, though unlikely, that a juror could have believed the “wanted fugitive” statement was made in error due to some mix-up in names, any innocent explanation for why Mr. Monzon was said to be a “wanted fugitive” was eviscerated by the contemporaneous statement that he had criminal history. This would have had a substantial injurious effect on the jury in its determination of a verdict. These statements led the jury to believe that Mr. Monzon was likely a dangerous individual that needed to be incarcerated to protect society.4 This is not the kind of fact a juror could forget, regardless of the court’s instruction to do so.

 

4

 

Here, the improper testimony led the jury to believe that Mr. Monzon was a “bad man deserving of punishment,” a concern specifically contemplated by Rule 404(b). Rule 404(b), which permits prior crimes evidence in limited circumstances, is designed to avoid “a danger that the jury will punish the defendant for offenses other than those charged, or at least that it will convict when unsure of guilt, because it is convinced that the defendant is a bad man deserving of punishment.” United States v. Brown, 880 F.2d 1012, 1014 (9th Cir. 1989) (citing 2 J. Weinstein & M. Berger, Weinstein’s Evidence section 404, at 404-29 (1988)). The reference to “criminal history” did not fall under the parameters of admissibility under Rule 404(b) and resulted in exactly what that rule was designed to avoid - a conviction based on propensity evidence.

 

 

*27 The instruction given in this case was insufficient to repair the prejudice caused by the admission of the inflammatory statement regarding criminal history. See, e.g., United States v. Bradley, 5 F.3d 1317, 1322 (9th Cir. 1993) (limiting instruction did not cure prejudice caused by admission of evidence of a separate uncharged homicide). Because the court’s cautionary instruction was unlikely to have cured the prejudicial impact of the error, the court instead should have granted the defense’s motion for mistrial. See Pavon, 561 F.2d at 802-803 (finding that the district court erred in denying a motion for mistrial when evidence pointing strongly to an inference of criminal conduct was improperly admitted at trial).

 

III. The cumulative effect of the district court’s trial errors deprived Mr. Monzon of a fair trial.

In this case, the district court’s trial errors reinforced each other. As recognized by the Supreme Court, where the combined effect of individually harmless errors renders a criminal defense far less persuasive than it otherwise may have been, the resulting conviction violates due process. Chambers v. Mississippi, 410 U.S. 284, 294, 302-303 (1973); see United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (“[A] balkanized, issue-by-issue harmless error review is far less effective than analyzing the overall effect of all the errors in the context of the evidence introduced at trial against the defendant.”) (internal quotation marks omitted).

 

The cumulative effect of the numerous errors - which included the district court’s error in admitting the false “wanted fugitive” radio transmission; the court’s *28 inadequate limiting instruction on this evidence; and the denial of a mistrial after the government witness’s impermissible reference to Mr. Monzon’s criminal history - was so prejudicial that it denied Mr. Monzon due process and rendered his trial unfair. These errors committed by the government and the district court had a combined effect of making Mr. Monzon’s defense that he did not travel above the speed limit far less persuasive than it might have otherwise have been.

 

This case was close. Agent Raya testified that Mr. Monzon traveled at “about 70” and “still about 75” miles per hour - speeds that are consistent with the typical flow of freeway traffic and only slightly greater than the 65 miles per hour posted speed limit. If the jury were to decide whether or not to give Agent Raya’s testimony or Mr. Monzon’s defense the benefit of the doubt in this type of close call, hearing that Mr. Monzon was a wanted fugitive and that he had criminal history would be exactly the kinds of evidence that would improperly tip the scale against Mr. Monzon. The prejudice resulting from the inferences regarding Mr. Monzon being a wanted fugitive with criminal history may well have materially affected the verdict.

 

Thus, even if no single error warrants reversal and a new trial, the cumulative effect of those errors warrants a new trial.

 

*29 CONCLUSION

The Court should find that the district court abused its discretion by admitting the radio transmission and denying the motion for mistrial. It should remand for a new trial.

 

Respectfully submitted,

 

AMRUTHA N. JINDAL

 

Federal Defenders of San Diego, Inc.

 

Attorneys for Defendant-Appellant

 

Appendix not available.

End of Document

 

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

 

 

 

1.2.1.4 OPTIONAL: Commonwealth v. Williams 1.2.1.4 OPTIONAL: Commonwealth v. Williams

Read this if you want to hear a judge describing the abuse of discretion standard in the context of a case. In the majority opinion (not included) the majority affirmed Mr. William's conviction, even though the trial jude struck a Black juror for cause because of her perspective on racism in the criminal justice system. In the concurrence here, Judge Gants is explaining "I would have done this differently (the questioning of the prospective juror) but I don't think the trial judge abused his discretion." 

The case illustrates how the abuse of discretion standard defers to the trial judge, even when everybody seems capable of recognizing that something unjust has happened!

COMMONWEALTH
v.
Quinton K. WILLIAMS.

SJC-12549

Supreme Judicial Court of Massachusetts, Plymouth..

Argued October 2, 2018.
Decided February 13, 2019.

Edward Crane, Cambridge, for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Anthony Mirenda, Caroline S. Donovan, Amanda Hainsworth, Christopher J. Cifrino, & Justin Marble, Boston, for Massachusetts Association of Criminal Defense Lawyers & others, amici curiae, submitted a brief.

Rebecca Kiley, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

BUDD, J.

**443*612The defendant, Quinton K. Williams, an African-American man, was charged with possession of a class B substance with the intent to distribute pursuant to G. L. c. 94C, § 32A (a ). During jury selection, over the defendant's objection, the judge excused for cause a prospective juror who stated that she believed that "the system is rigged against young African American males." The defendant subsequently was convicted and now appeals, claiming that the judge abused his discretion in dismissing the prospective juror.

**444Our jurisprudence regarding how to assess beliefs or opinions expressed by prospective jurors during voir dire has been less than clear. Accordingly, we take this opportunity to set forth the factors that a judge should consider when a prospective juror discloses a belief or opinion based on his or her world view. We conclude that although the voir dire was incomplete, it did not prejudice this defendant. Thus, we affirm the conviction.1

Background. During jury selection, the judge asked questions of the entire venire, including the following:

"[Y]ou've been read a copy of the complaint which charges [the defendant], which is just an allegation, that he possessed [a] class B controlled substance, cocaine, with the intent to distribute.
"Is there anything about the subject matter or your views about the subject matter that would affect your ability to be fair and impartial in deciding the case?"

Prospective juror no. 15 (prospective juror), among other potential jurors, answered in the affirmative. Subsequently, the judge and the prospective juror had the following exchange at sidebar:

Q.: "I believe you might have answered a question affirmatively. Was that a -- a hardship question?"
THE CLERK : "No.... It was on fair and impartial ... [o]r bias."
Q.: "You feel like you might have a bias in the case?"
A.: "Yeah. I worked with, like, low income youth in a school setting. I worked a lot with people who were convicted of *613-- like teenagers who were convicted of drug crimes.
"And frankly, I think the system is rigged against young African American males.
"I'm happy to serve on the jury trial -- on the jury because I think it's important, but -- "
**445Q.: "You think that belief might interfere with your ability to be fair and impartial?"
A.: "I don't think so."
Q.: "You -- you think you can put aside that opinion and bias -- "
A.: "I don't think I can put it aside. I think that's --"
Q.: "No?"
A.: " -- the lens that I view the world through, but I think I can be unbiased -- I think I can be -- I think I can listen to the evidence."
Q.: "All right. But you're going to have to be able to put that out of your mind and look at only the evidence. Do you think you can do that?"
A.: "I think so."
Q.: "I have to be assured that you can though. You think you -- as -- as you sit in there, it might -- your experiences with -- with people in that type of a situation is going to have you look at it differently?"
A.: "Probably."
Q.: "Okay. Step over there for a minute."

When the prospective juror stepped away from the sidebar, the Commonwealth requested that she be excused for cause and the following discussion ensued between the judge and the parties:

THE PROSECUTOR : "I ask that she be excused for cause."
THE JUDGE : "Okay. What do you say?"
DEFENSE COUNSEL : "Judge, I'm objecting.
"I mean there -- there's -- the drug -- the issues regarding the mass incarceration of young African American males has been all over the news. Everybody has read about it. This is -- she has a little more information, but she did say she could be impartial.
"And by the way, he's not a juvenile. He's an adult."
THE JUDGE : "Yeah. But he's a youthful looking guy, and she says she's going to have trouble. She hesitated quite a bit, **446Counsel, and I -- I -- I find on the record that she really struggled with it.
"She said I'll try to and then that --
"I'm going to let her go for cause. I think -- "

The judge thereafter excused the prospective juror for cause. By the end of jury selection, the Commonwealth and the defendant each had one remaining peremptory challenge. Ultimately, the jury found the defendant guilty. We granted the defendant's application for direct appellate review.

Discussion. The defendant argues on appeal that it was error to dismiss the prospective juror for cause because neither her work experience nor her belief that the criminal justice system is unfair to African-American men rendered her unfit to serve, and further that the dismissal was prejudicial.

We agree that holding particular beliefs about how African-American men are treated in the criminal justice system should not be automatically disqualifying. See Mason v. United States, 170 A.3d 182, 187 (D.C. 2017). However, that is not what happened here. The judge undertook to determine whether, given her opinion about the criminal justice system, the prospective juror could nevertheless be an *614impartial juror in the trial of an African-American man. However, the voir dire ultimately was incomplete because the judge did not inquire further to determine whether, given the prospective juror's beliefs based on her life experiences, she nevertheless could fairly evaluate the evidence and follow the law.

Instead, the judge decided that the prospective juror was not able to be impartial because she expressed uncertainty about being able to "put aside" her beliefs and experiences and because she acknowledged that she would look at the case "differently" due to her experiences. As discussed infra, a judge in this situation should focus not on a prospective juror's ability to put aside his or her beliefs formed as a result of life experiences, but rather on whether that juror, given his or her life experiences and resulting beliefs, is able to listen to the evidence and apply the law as provided by the judge.

A judge's discretion in this realm, although broad, is rooted in determining a prospective juror's impartiality based on the juror's answers in a sufficiently thorough voir dire. Because the voir dire of the prospective juror here did not address whether she could **447fairly evaluate the evidence and apply the law given her belief regarding the justice system, the judge's assessment of her ability to be a fair and impartial juror was incomplete. However, because we conclude that the defendant was not prejudiced as a result, we affirm.

1. Standard. A criminal defendant is entitled to a trial by an impartial jury pursuant to the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Vann Long, 419 Mass. 798, 802, 647 N.E.2d 1162 (1995), and cases cited. That is, each juror must be "impartial as to the persons involved and unprejudiced and uncommitted as to the defendant['s] guilt or past misconduct." Commonwealth v. Ricard, 355 Mass. 509, 512, 246 N.E.2d 433 (1969). General Laws c. 234A, § 67A, addresses the situation when a prospective juror indicates that he or she may not be able to be impartial, stating in pertinent part:

"To determine whether a juror stands indifferent in the case, if it appears that, as a result of the impact of considerations which may cause a decision to be made in whole or in part upon issues extraneous to the case, including, but not limited to, community attitudes, possible exposure to potentially prejudicial material or possible preconceived opinions toward the credibility of certain classes of persons, the juror may not stand indifferent, the court shall, or the parties or their attorneys may, with the permission and under the direction of the court, examine the juror specifically with respect to such considerations, attitudes, exposure, opinions or any other matters which may cause a decision to be made in whole or in part upon issues extraneous to the issues in the case."

Thus, if it appears that a juror might not stand indifferent, the judge must hold an individual voir dire, the scope of which is within the judge's sound discretion. See Commonwealth v. Flebotte, 417 Mass. 348, 355, 630 N.E.2d 265 (1994). Concluding whether a prospective juror stands indifferent is also within the judge's discretion. Commonwealth v. Ruell, 459 Mass. 126, 136, 943 N.E.2d 447, cert. denied, 565 U.S. 841, 132 S.Ct. 153, 181 L.Ed.2d 69 (2011). However, this discretion is not unfettered; the judge's conclusion must be supported by a voir dire that sufficiently uncovers whether the prospective juror can fairly evaluate the evidence and follow the law. See Commonwealth v. Perez, 460 Mass. 683, 688, 954 N.E.2d 1 (2011) ("judge's duty is to 'examine jurors *615fully regarding possible bias or prejudice' "). **448We have not been particularly precise when discussing the handling of juror opinions, and, as a result, our jurisprudence is somewhat muddled regarding the proper procedure for determining impartiality when a prospective juror expresses any preconceived opinions he or she has regarding the case to be tried as compared to an opinion formed based on his or her life experiences or belief system. Nonetheless, there is an important difference between the two: asking a prospective juror to put aside his or her preconceived notions about the case to be tried is entirely appropriate (and indeed necessary)2 ; however, asking him or her to put aside opinions formed based on his or her life experiences or belief system is not.

We acknowledge that we have said repeatedly that, in determining juror impartiality, the general rule is that a judge must look at whether jurors can "set aside their own opinions." See, e.g., Commonwealth v. Kennedy, 478 Mass. 804, 819, 90 N.E.3d 722 (2018) ; Commonwealth v. Brown, 477 Mass. 805, 821, 81 N.E.3d 1173 (2017), cert. denied, --- U.S. ----, 139 S.Ct. 54, 202 L.Ed.2d 41 (2018) ; Commonwealth v. Andrade, 468 Mass. 543, 547-548, 11 N.E.3d 597 (2014) ; Perez, 460 Mass. at 688-689, 954 N.E.2d 1 ; Commonwealth v. Bryant, 447 Mass. 494, 501, 852 N.E.2d 1072 (2006) ; Commonwealth v. Leahy, 445 Mass. 481, 495, 838 N.E.2d 1220 (2005) ; Commonwealth v. Stroyny, 435 Mass. 635, 639, 760 N.E.2d 1201 (2002). However, in so doing, we have not differentiated between opinions regarding the case and opinions about particular topics based on a prospective juror's life experiences or world view. Even so, none of the above-cited cases has to do with the latter.

Where a prospective juror "has expressed or formed an opinion regarding the case, or has an interest, bias, or prejudice related to the unique situation presented by the case," the judge must satisfy him or herself that the prospective juror will set aside that opinion or bias and properly weigh the evidence and follow the instructions on the law. Commonwealth v. Soares, 377 Mass. 461, 482, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Otherwise, removal of the prospective juror "is clearly appropriate in the interest that persons actually prejudiced not be seated on the jury even if it tends to skew an otherwise balanced panel." Id. Where, on the other hand, a prospective juror has expressed an opinion or world view based upon his or her life experience or belief system, rather than **449asking him or her to set it aside (which is difficult if not impossible to do), a judge must determine whether, given that particular opinion, the juror nevertheless is able to be impartial in the case to be tried.3 See id. at 487, 387 N.E.2d 499 ("No *616human being is wholly free of the interests and preferences which are the product of his cultural, family, and community experience. Nowhere is the dynamic commingling of the ideas and biases of such individuals more essential than inside the jury room").

Thus, we emphasize that, in determining each prospective juror's ability to be impartial, although a judge may require a prospective juror to set aside an opinion regarding the case, the judge should not expect a prospective juror to set aside an opinion born of the prospective juror's life experiences or belief system.

2. Analysis. After the prospective juror responded affirmatively to the question put to the entire venire regarding whether there was anything about their views on the subject matter that would affect their ability to be fair and impartial in deciding the case, she was called to sidebar for an individual voir dire. See Flebotte, 417 Mass. at 355, 630 N.E.2d 265. At sidebar, the prospective juror stated her opinion that the "system is rigged against young African American males." The judge asked questions in an attempt to determine whether the prospective juror could be impartial. See Perez, 460 Mass. at 688-689, 954 N.E.2d 1. See also G. L. c. 234A, § 67A. The colloquy that followed warrants closer review.

The judge's first question to the prospective juror was proper: "You think that belief might interfere with your ability to be fair and impartial?" The prospective juror responded, "I don't think so."4 The judge went on to ask the juror: "You ... think you can put aside that opinion and bias --." He did not get a chance to **450finish the question because the prospective juror interrupted him, stating that she did not think that she could put "it" aside, and that "it" was "the lens that [she viewed] the world through." Although she also affirmed that she could be unbiased and could listen to the evidence, it was within the judge's discretion to inquire further if he was not satisfied that her answer was unequivocal. See Commonwealth v. Clark, 446 Mass. 620, 629-630, 846 N.E.2d 765 (2006).

The judge did continue to question the prospective juror, telling her that she would "have to be able to put that out of [her] mind and look at only the evidence." When the judge asked her, "Do you think you can do that?" the prospective juror responded, "I think so." Finally the judge asked: "You think ... your experiences with ... people in that type of a situation is going to have you look at it differently," implying that the prospective juror could not take her life experiences into account as a juror. After the juror responded, "Probably," the judge excused her for cause.

Although the prospective juror indicated that, due to experiences she had, she believed that the "system is rigged against young African American males," and that this belief was not one that she could "put *617aside," she did not express any opinions having to do with the defendant or the case about to be tried.5 Nevertheless, the record here indicates that the judge required the prospective juror to "put aside" her firmly held beliefs shaped by her life experiences in order to serve, and excused her because her experiences would cause her to "look at [the case] differently."

Every prospective juror comes with his or her own thoughts, feelings, opinions, beliefs, and experiences that may, or may not, **451affect how he or she "looks" at a case. Indeed, this court has acknowledged on multiple occasions that jurors do not approach their duties with a tabula rasa. See, e.g., Commonwealth v. Mutina, 366 Mass. 810, 817-818, 323 N.E.2d 294 (1975) ("Jurors do not come to their temporary judicial service as sterile intellectual mechanisms purged of all those subconscious factors which have formed their characters and temperaments such as racial or ethnic background, sex, economic status, intellectual capacity, family status, religious persuasion, political leanings, educational attainment, moral convictions, employment experience, military service or their individual appreciations of the social problems of the moment"); Ricard, 355 Mass. at 512, 246 N.E.2d 433 ("Every individual has impressions and beliefs, likes and dislikes").

It would neither be possible nor desirable to select a jury whose members did not bring their life experiences to the court room and to the jury deliberation room. See, e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 149, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (O'Connor, J., concurring) ("Individuals are not expected to ignore as jurors what they know as men -- or women"). See also Mutina, 366 Mass. at 820, 323 N.E.2d 294 ("Juries are generally instructed by judges in their charges and urged by counsel in their argument that they must not leave their common sense outside the jury room"). Thus, a prospective juror may not be excused for cause merely because he or she believes that African-American males receive disparate treatment in the criminal justice system.6

*618For that reason a trial judge must take care to determine whether such an opinion would affect a prospective **452juror's ability to be impartial.

The questioning here raises two concerns. First, as discussed supra, a judge should not require a prospective juror to disregard his or her life experiences and resulting beliefs in order to serve.7 As we have acknowledged, bringing one's life experiences to jury service is appropriate (and perhaps inevitable). Mutina, 366 Mass. at 820, 323 N.E.2d 294. Asking prospective jurors to "put aside" or "disregard" what they think, feel, or believe comes perilously close to improperly requiring them to "leave behind all that their human experience has taught them." Beck v. Alabama, 447 U.S. 625, 642, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) ("Jurors are not expected to come into the jury box and leave behind all that their human experience has taught them").

Second, a judge who proceeds in this fashion mistakenly equates an inability to disregard one's life experiences and resulting beliefs with an inability to be impartial. A judge should not assume that a prospective juror is unable to be impartial merely because he or she expressed uncertainty about being able to put aside his or her firmly held beliefs. Instead, an otherwise qualified prospective juror should only be excused for cause if, given his or her experiences and resulting beliefs, the judge concludes that the prospective juror is unable to fairly evaluate the evidence presented and properly apply the law. See Commonwealth v. Entwistle, 463 Mass. 205, 221-222, 973 N.E.2d 115 (2012), cert. denied, 568 U.S. 1129, 133 S.Ct. 945, 184 L.Ed.2d 736 (2013) ("defendant is not entitled to a jury that knows nothing about the crime, so long as jurors are able fairly to weigh the evidence in the case, set aside any information they learned outside the court room, follow the judge's instructions, and render an impartial verdict").

**453Thus, when a prospective juror states an opinion or belief, whether it is specific to the case or not, the judge must satisfy himself or herself that the prospective juror will be able to fairly evaluate the evidence and apply the judge's instructions on the law.8 See *619Perez, 460 Mass. at 688-689, 954 N.E.2d 1 ; Commonwealth v. Auguste, 414 Mass. 51, 53-54, 57, 605 N.E.2d 819 (1992) (judge was required to investigate whether "juror would be impartial in his or her determination of the evidence" after juror expressed concern regarding convicting based on defendant's race). See also Commonwealth v. McAlister, 365 Mass. 454, 459 & n.4, 313 N.E.2d 113 (1974), cert. denied, 419 U.S. 1115, 95 S.Ct. 794, 42 L.Ed.2d 814 (1975) (before excusing three jurors for cause, "judge took pains to assure that the attitudes expressed were more than just personal convictions and that they would interfere with the jurors' capacity to perform their duty"). Compare Vann Long, 419 Mass. at 804-805, 647 N.E.2d 1162 ; Commonwealth v. Somers, 44 Mass.App.Ct. 920, 921-922, 691 N.E.2d 225 (1998) (juror improperly empaneled in case where defendant charged with firearm-related offenses and juror stated he has "strong opinions about gun control" and defendant "would not want me on a jury").

Judges are expected to, and indeed must, use their discretion and judgment to determine whether a prospective juror will be fair and impartial based on verbal and nonverbal cues as well as the totality of the circumstances. See Ruell, 459 Mass. at 136, 943 N.E.2d 447. Here, however, the judge made that determination based upon whether the prospective juror could do something that is arguably impossible to do -- put aside her life experiences and her resulting world view.9 See Mutina, 366 Mass. at 820, 323 N.E.2d 294.

3. Prejudice. At oral argument the defendant conceded, and we **454agree, that he suffered no actual prejudice from the error, as the Commonwealth completed jury selection with a peremptory challenge left available to use (and which could have been used on the prospective juror had she not been excused for cause). Moreover, the defendant has not argued that any member of the jury that ultimately convicted him was biased. We therefore address only the defendant's arguments that the error should result in an automatic reversal of his conviction.

The defendant claims that striking the prospective juror for cause resulted in structural error,10 warranting automatic *620reversal for two different reasons: (1) it effectively resulted in an extra peremptory challenge for the Commonwealth; and (2) it infringed on the defendant's constitutional right to a jury comprised of a representative cross section of the community.11

Structural error is "[g]enerally ... error that 'necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.' " Commonwealth v. Hampton, 457 Mass. 152, 163, 928 N.E.2d 917 (2010), quoting Washington v. Recuenco, 548 U.S. 212, 218-219, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). As such, structural errors defy harmless error analysis, and when claims of structural error that are timely raised and preserved on appeal are upheld, they require automatic reversal. Commonwealth v. Cohen (No. 1), 456 Mass. 94, 118-119, 921 N.E.2d 906 (2010) (no prejudice analysis necessary where defendant's right to public trial was violated). Structural errors "have been recognized in limited circumstances ... [and] occur rarely." Hampton, supra, citing Recuenco, supra at 218 n.2, 126 S.Ct. 2546. The defendant argues that the facts here are analogous to cases that have resulted in structural error. We conclude that the defendant's comparisons miss the mark.

**455a. "Extra" peremptory challenge for Commonwealth. The defendant contends that the dismissal of a prospective juror for cause at the Commonwealth's request had the practical effect of giving the Commonwealth an "extra" peremptory challenge, and claims that in such an instance prejudice should be presumed. He argues that an extra peremptory challenge erroneously awarded to the Commonwealth is equivalent to denying a valid peremptory challenge to the defendant. We have held that the latter results in the automatic reversal of a conviction. See Commonwealth v. Wood, 389 Mass. 552, 564, 451 N.E.2d 714 (1983). The defendant reasons that a bonus peremptory challenge for the Commonwealth should similarly result in presumed prejudice. Although the argument is creative, we are not convinced.

Denying a defendant the right to exercise a valid peremptory challenge is prejudicial per se because "[t]he purpose of the properly exercised peremptory challenge is to aid the constitutional right to a fair and impartial jury." Id. at 560, 451 N.E.2d 714, citing Swain v. Alabama, 380 U.S. 202, 216-220, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). And we have held that "the right to be tried by an impartial jury is so basic to a fair trial that an infraction can never be treated as harmless error." Wood, supra at 564, 451 N.E.2d 714.

Here, the judge did not deny the defendant the opportunity to exercise a peremptory strike; instead, the judge dismissed a prospective juror whom the defendant had hoped would be on the jury. This scenario did not implicate the defendant's right to an impartial jury because where a potential juror is erroneously excused, the presumption is that that individual was replaced by another fair and impartial juror. See Northern Pac. R.R. v. Herbert, 116 U.S. 642, 646, 6 S.Ct. 590, 29 L.Ed. 755 (1886) (after judge excused juror favored by employer, "[a] competent and unbiased juror was selected and sworn, and the [employer] had ... a trial by an impartial jury, which was all it could demand"). See also Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (defendants are not entitled to jury of any particular *621composition). The defendant is not entitled to automatic reversal based on an extra, unused peremptory strike provided to the Commonwealth.

b. Fair cross section of community. A defendant's right to a fair and impartial jury includes the right to a jury drawn from a venire representing a fair cross section of the community. See Soares, 377 Mass. at 478, 387 N.E.2d 499. The defendant acknowledges that "the right to a jury representative of a cross-section of the community cannot require that each jury include constituents of every group in the **456population." Commonwealth v. Benjamin, 430 Mass. 673, 677, 722 N.E.2d 953 (2000), quoting Soares, supra at 481, 387 N.E.2d 499. However, he claims that erroneously dismissing the prospective juror was reversible error because it deprived him of his constitutional right to a jury made up of a fair and representative cross section of the community by limiting the chance that citizens, including African-Americans, holding this viewpoint about the criminal justice system would be represented on the jury. We disagree.

The defendant asserts that his case may be compared favorably to Soares, supra. In Soares, this court held that the intentional use of peremptory challenges to exclude certain "discrete groups," including African-Americans,12 from a jury is an art. 12 violation of a defendant's right to a fair and impartial jury.13 Id. at 486, 488, 492, 387 N.E.2d 499. As a result, this error, unaddressed at the time of trial, was held to be prejudicial per se. Id. at 492, 387 N.E.2d 499. See Commonwealth v. Jones, 477 Mass. 307, 325-326, 77 N.E.3d 278 (2017) ( Soares violation is structural error).

The defendant argues that although the error in this case is different, he is harmed similarly in that it reduced the likelihood that his jury would be drawn from a representative cross section of the community. The comparison is inapt.

In Soares, 377 Mass. at 488-490, 387 N.E.2d 499, the Commonwealth improperly used peremptory challenges to strike prospective jurors because they were members of a discrete group. In contrast, here, the prospective juror was not struck due to being a member of a discrete group. Instead, after conducting a voir dire, the judge excused the prospective juror because he found that she could not be a fair and impartial juror based on how she responded to his questions. Although, as discussed supra, the judge made this finding without determining whether the prospective juror could fairly evaluate the evidence and follow the instructions on the law, the judge made a good faith attempt to gauge whether she was qualified to serve. The judge did not conclude or otherwise suggest that the prospective juror's belief about the criminal justice system was disqualifying in and of itself.

**457It is the exclusion of prospective jurors "solely by virtue of their membership in, or affiliation with, particular, defined groupings in the community" that violates a defendant's constitutional right to a fair and impartial jury, Soares, 377 Mass. at 486, 387 N.E.2d 499, not excusing prospective jurors for cause because the judge *622believes, after voir dire, that they cannot be impartial, see id. at 482, 387 N.E.2d 499. This is so even if, as here, the voir dire is not complete.

In arguing that prejudice should be presumed in these circumstances, the defendant points to Mason v. United States, 170 A.3d 182 (D.C. 2017), and King v. State, 287 Md. 530, 414 A.2d 909 (1980). These extrajurisdictional cases are distinguishable. In King, supra at 910, prospective jurors were excused because they disagreed with marijuana laws in a marijuana possession case. In Mason, supra at 185, a potential juror was disqualified specifically because of her belief that the criminal justice system is biased against African-American men. In both cases the trial court judges treated the beliefs of the prospective jurors as "in themselves disqualifying." Id. at 187. See King, supra at 910-913. Here, by contrast, as discussed supra, the judge conducted a voir dire to determine whether the prospective juror could be impartial.

4. Conclusion. Although the voir dire of the prospective juror was incomplete, the defendant has not shown that the resulting dismissal of the prospective juror for cause resulted in prejudice. We therefore decline to set aside the verdict.

Judgment affirmed.

GANTS, C.J. (concurring, with whom Gaziano, J., joins).

I agree with the court that a prospective juror may not be excused for cause from sitting on a jury simply because the juror believes that "the system is rigged against young African American males." And I would like to believe that, if I were once again a trial court judge, I would have conducted the voir dire of this prospective juror a bit differently from how the judge in this case did after the juror raised her hand to the question, "Is there anything about the subject matter or your views about the subject matter that would affect your ability to be fair and impartial in deciding the case?"

I would like to believe that I would have acknowledged that I respect the juror's point of view, but noted that it was this particular defendant and not the criminal justice system that was on **458trial, and then asked whether the juror was confident that she could fairly and impartially decide in this case, based on the evidence she would hear at trial and the law I would explain to her, whether the Commonwealth had met its burden of proving beyond a reasonable doubt each element of the offense charged. And I would like to believe that I would have evaluated her answer to that question, including her demeanor and any apparent equivocation, to determine whether she would be a fair and impartial juror.

But I know, based on my experience questioning thousands of prospective jurors during more than eleven years as a Superior Court judge, that a trial judge often needs to discuss with potential jurors whether their personal beliefs, opinions, and life experience would affect their ability to be fair and impartial, and that not every such discussion travels down the same road. And I know from that experience that there are times, with the benefit of additional thought and the wisdom of hindsight, in which a judge will recognize that a discussion with a juror could have been handled more artfully. We have no template for such questioning; nor would it make sense to attempt to create one because there are so many different ways that prospective jurors may share their concerns about the risk of possible bias. Addressing such concerns is necessarily improvisational, and therefore often imperfect.

*623It is with the benefit of this trial court experience that I examine whether the judge abused his discretion in excusing this prospective juror for cause, recognizing that we "afford a trial judge a large degree of discretion in the jury selection process." Commonwealth v. Vann Long, 419 Mass. 798, 803, 647 N.E.2d 1162 (1995).

Every prospective juror brings his or her opinions, beliefs, and life experience to the court house when asked to perform juror service. We do not require jurors to leave them at the front door; nor could they. See Commonwealth v. Mutina, 366 Mass. 810, 817, 323 N.E.2d 294 (1975) ("Jurors do not come to their temporary judicial service as sterile intellectual mechanisms purged of all those subconscious factors which have formed their characters and temperaments ..."). Indeed, we expect jurors to apply common sense derived from their life experience when evaluating the evidence presented at trial. See Commonwealth v. Caruso, 476 Mass. 275, 289, 67 N.E.3d 1203 (2017) ("Jurors may rely on their own common sense and life experience in their role as fact finders"). And we aim for diverse juries precisely because we believe that the quality of fact finding **459will be enhanced by jurors' varied life experiences and points of view. See Commonwealth v. Soares, 377 Mass. 461, 487, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979) ("No human being is wholly free of the interests and preferences which are the product of his cultural, family, and community experience. Nowhere is the dynamic commingling of the ideas and biases of such individuals more essential than inside the jury room"); id. at 478, 387 N.E.2d 499 ("fair jury is one that represents a cross section of community concepts" [citation omitted] ). The goal in jury selection is not to select jurors without opinions or beliefs, but to select jurors whose opinions and beliefs do not affect their ability fairly and impartially to find the facts, to follow the law, and to render a just verdict. See Commonwealth v. Kennedy, 478 Mass. 804, 818, 90 N.E.3d 722 (2018) (judge "required to determine whether jurors ... were capable of setting aside their own opinions, weighing the evidence without considering extraneous issues, and following his legal instructions").

But there certainly are opinions, beliefs, and life experiences that might affect a juror's ability to fairly and impartially find the facts or apply the law, or a judge's confidence in the juror's ability to do so. If a juror were to characterize himself or herself as a white nationalist, we would expect a judge to inquire into whether those beliefs would affect the juror's ability to be fair and impartial, especially in a case with an African-American defendant. See G. L. c. 234A, § 67A ("if it appears that, as a result of the impact of considerations which may cause a decision to be made in whole or in part upon issues extraneous to the case, ... the juror may not stand indifferent, the court shall ... examine the juror specifically with respect to such considerations, attitudes, exposure, opinions or any other matters which may cause a decision to be made in whole or in part upon issues extraneous to the issues in the case"). And even if such a juror were to insist that he or she would be fair, we would not fault a judge -- who has the benefit of observing the juror's affect and demeanor -- for questioning the sincerity of the juror's claim and deciding to excuse the juror for cause. See Commonwealth v. Mattier (No. 2), 474 Mass. 261, 274-275, 50 N.E.3d 157 (2016) (judge's determination regarding juror bias "is essentially one of credibility, and therefore largely one of demeanor" [citation omitted] ); Commonwealth v. Ruell, 459 Mass. 126, 136, 943 N.E.2d 447, cert. denied, *624565 U.S. 841, 132 S.Ct. 153, 181 L.Ed.2d 69 (2011) ("A judge has broad discretion in deciding whether a prospective juror is impartial ...").

Nor need the opinion or belief be on the fringe to warrant such inquiry. Opinions about the proper balance between the needs of **460law enforcement and the protection of civil liberties in a criminal case, about defensive medicine in a medical malpractice case, or about the prevalence of racism in a discrimination case, for instance, could provide reason for further individual questioning. And while we do not expect people to transform into blank slates upon taking a seat in the jury box, dismissal for cause is appropriate where the judge, after evaluating a prospective juror's responses to voir dire questions, reasonably concludes that a belief or opinion will cloud that juror's ability fairly to evaluate the evidence and follow the court's instructions. See Commonwealth v. Colton, 477 Mass. 1, 17, 73 N.E.3d 783 (2017) ("As a general principle, it is an abuse of discretion to empanel a juror who will not state unequivocally that he or she will be impartial").

Here, the prospective juror indicated that she was concerned about her own potential bias by raising her hand when members of the venire were asked whether anything about the subject matter of the case, or their views on the subject matter, would affect their ability to be fair and impartial. Under such circumstances, it was certainly appropriate for the judge to explore through individual voir dire whether this juror would, in fact, be fair and impartial. See G. L. c. 234A, § 67A.

I infer from the judge's questions that he wanted to be assured that the juror would decide the case based solely on the evidence, and that her fact finding would not be unfairly influenced by her opinion and life experience. The judge began his questioning by asking whether the prospective juror felt that she might have a bias in the case. When the juror answered in the affirmative and expressed her view that "the system is rigged against young African American males," the judge proceeded to ask whether her belief might interfere with her ability to be fair and impartial. "I don't think so," the juror responded. The judge followed up on this response, asking whether the juror thought she would be able to "put aside that opinion and bias." When the juror told the judge that she did not think she could "put it aside" and that her belief was "the lens that [she] view[ed] the world through," the judge informed the juror that she was "going to have to be able to put that out of [her] mind and look at only the evidence." It is not clear from this instruction whether the judge -- who properly emphasized the importance of looking only at the evidence -- was directing the juror to set aside any preconceived notions that may affect her ability fairly to consider the evidence in this case or to set aside the "lens" through which she viewed the world.

**461While asking a juror to set aside preexisting opinions regarding a particular case or set of circumstances is proper, see Kennedy, 478 Mass. at 818, 90 N.E.3d 722, I agree with the court that it would be improper to instruct a juror to set aside his or her life experiences or beliefs more broadly. Cf. Soares, 377 Mass. at 486 n.30, 387 N.E.2d 499 (where "tendencies do not stem from individual biases related to the peculiar facts or the particular party at trial, but from differing attitudes toward the administration of justice and the nature of criminal offenses," "differences in juror attitudes" enhance jury deliberations). I also agree that the judge's subsequent question, which asked whether the juror's experience working with low-income youth was "going to have [her] look at it differently" wrongly implied that the *625juror was required to set aside her world view.

Nevertheless, I infer from the judge's spare findings (and findings are routinely spare when a prospective juror is dismissed) that the judge excused this juror for cause not because of her opinions or world view, but because he was not assured of her ability to be impartial. A juror certainly may not be excused for cause solely because he or she believes that the criminal justice system disfavors African-American defendants. See Mason v. United States, 170 A.3d 182, 187 (D.C. 2017) ("Standing alone, the belief that the criminal-justice system is systemically unfair to blacks is not a basis to disqualify a juror"). In fact, the belief voiced by this prospective juror is shared by many in our community, including most African-Americans.1 Aggressively excusing jurors who hold this belief therefore risks excusing a disproportionate number of African-American **462jurors. Here, however, the judge appeared less concerned with the juror's beliefs about the inequities of the criminal justice system or her specific answers to his questions than with the manner in which she responded. The judge noted that the juror "hesitated quite a bit" and "really struggled with it."2 I infer from these findings that the judge understood the juror's hesitation and struggle to reflect her uncertainty whether she could decide the case based solely on the evidence. And because the judge was not assured that she would be fair and impartial, he exercised his discretion to err on the side of caution and excuse the juror for cause. Cf. Commonwealth v. Seguin, 421 Mass. 243, 246, 656 N.E.2d 1229 (1995), cert. denied, *626516 U.S. 1180, 116 S.Ct. 1280, 134 L.Ed.2d 226 (1996) (judge properly "pursued the subject" where prospective juror hesitated before answering question regarding opinion on insanity defense).

I might have exercised my discretion differently and denied the prosecutor's motion to excuse this juror for cause, leaving it to the prosecutor to use a peremptory challenge if she wanted to remove the juror from the panel. And I might have credited the juror's assertion that she did not think her opinion of the criminal justice system might interfere with her ability to be fair and impartial, and that she believed she could decide the case based solely on the evidence. But I did not speak with this prospective juror -- the trial judge did. His evaluation of the juror's demeanor and her confidence in her ability to be fair is therefore entitled to great deference. See Commonwealth v. Stroyny, 435 Mass. 635, 639, 760 N.E.2d 1201 (2002) ("Whether to accept the declaration of a juror that he or she is disinterested lies within the broad discretion of the trial **463judge"). See also Mattier (No. 2), 474 Mass. at 274-275, 50 N.E.3d 157. "An appellate court's review of a trial judge's decision for abuse of discretion must give great deference to the judge's exercise of discretion; it is plainly not an abuse of discretion simply because a reviewing court would have reached a different result." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014).

Because judges' quick and often difficult decisions concerning whether to excuse a juror for cause are entitled to substantial deference, I am reluctant to find that a judge abused his discretion where, as here, the judge made a good faith decision to excuse the juror because of concerns about her ability to decide the case based solely on the facts and the law. I do not believe that such a decision satisfies the test for an abuse of discretion articulated in L.L., 470 Mass. at 185 n.27, 20 N.E.3d 930 : that "a judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted).

Therefore, as much as I appreciate the concerns raised by the defendant regarding the judge's manner of addressing the prospective juror's opinion on racial biases in our criminal justice system, I would decide the issue the court did not decide and conclude that the judge's decision to excuse the juror was not an abuse of discretion. For these reasons, I concur.

OPTIONAL: More detail on definitive rulings and the obligation to continue objecting OPTIONAL: More detail on definitive rulings and the obligation to continue objecting

The Advisory Committee Notes to Rule 103 state:

 When the ruling is definitive, a renewed objection or offer of proof at the time the evidence is to be offered is more a formalism than a necessity. See Fed.R.Civ.P. 46 (formal exceptions unnecessary); Fed.R.Cr.P.51 (same); United States v. Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir. 1993) (“Requiring a party to review an objection when the district court has issued a definitive ruling on a matter that can be fairly decided before trial would be in the nature of a formal exception and therefore unnecessary.”). On the other hand, when the trial court appears to have reserved its ruling or to have indicated that the ruling is provisional, it makes sense to require the party to bring the issue to the court's attention subsequently. See, e.g., United States v. Vest, 116 F.3d 1179, 1188 (7th Cir. 1997) (where the trial court ruled in limine that testimony from defense witnesses could not be admitted, but allowed the defendant to seek leave at trial to call the witnesses should their testimony turn out to be relevant, the defendant's failure to seek such leave at trial meant that it was “too late to reopen the issue now on appeal”); United States v. Valenti, 60 F.3d 941 (2d Cir. 1995) (failure to proffer evidence at trial waives any claim of error where the trial judge had stated that he would reserve judgment on the in limine motion until he had heard the trial evidence).

The amendment imposes the obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point. See, e.g., Walden v. Georgia-Pacific Corp., 126 F.3d 506, 520 (3d Cir. 1997) (although “the district court told plaintiffs’ counsel not to reargue every ruling, it did not countermand its clear opening statement that all of its rulings were tentative, and counsel never requested clarification, as he might have done.”).

Even where the court's ruling is definitive, nothing in the amendment prohibits the court from revisiting its decision when the evidence is to be offered. If the court changes its initial ruling, or if the opposing party violates the terms of the initial ruling, objection must be made when the evidence is offered to preserve the claim of error for appeal. The error, if any, in such a situation occurs only when the evidence is offered and admitted. United States Aviation Underwriters, Inc. v. Olympia Wings, Inc., 896 F.2d 949, 956 (5th Cir. 1990) (“objection is required to preserve error when an opponent, or the court itself, violates a motion in limine that was granted”); United States v. Roenigk, 810 F.2d 809 (8th Cir. 1987) (claim of error was not preserved where the defendant failed to object at trial to secure the benefit of a favorable advance ruling).

A definitive advance ruling is reviewed in light of the facts and circumstances before the trial court at the time of the ruling. If the relevant facts and circumstances change materially after the advance ruling has been made, those facts and circumstances cannot be relied upon on appeal unless they have been brought to the attention of the trial court by way of a renewed, and timely, objection, offer of proof, or motion to strike.