## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 15 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SONYA U. CASS, Defendant-Appellant. No. 96-2110

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR 95-164 LH)
James T. Martin, U.S. Attorney Office, District of New Mexico, Albuquerque, New Mexico, for the Plaintiff-Appellee. Judith A. Rosenstein, Office of the Federal Public Defender, Albuquerque, New Mexico, for the Defendant-Appellant.

Before PORFILIO , LOGAN and EBEL , Circuit Judges.

EBEL , Circuit Judge.

Sonya Cass was convicted of making a false statemen t to a federal agent in violation of 18 U.S.C. § 1001. Cass reported that she had been kidnapped and- 2 -

sexually assaulted, leading the F.B.I. to begin a k idnapping investigation. In the course of the investigation, the F.B.I. uncovered i nformation causing them to believe that Cass had been with a boyfriend during the time she claimed she was kidnapped. Cass appeals her conviction, arguing that the distr ict court erred in allowing the government to introduce, over objection, the he arsay statements of Cass’ husband, her employer, and F.B.I. agents. She also alleges error in the admission of hearsay statements that she was involved in extr amarital affairs. We agree with Cass that the complained-of statements are hea rsay and that the court erred in admitting them. However, we conclude that the e rror was harmless because the government introduced abundant admissible evidence of Cass’ guilt. Therefore, we affirm the defendant's conviction. Background Sonya Cass disappeared from her home on July 22, 19 94. The same day, her husband, Kevin Cass, filed a missing persons re port. On July 25, Mr. Cass called 911 to report that his wife had been kidnapp ed, which caused the F.B.I. to begin a kidnapping investigation. On July 28, 1994 , in a three-way taped phone conversation, Sonya Cass told Kevin Cass and F.B.I. Agent John Andrews that she had been kidnapped from a convenience store in Clovis, New Mexico, and had been transported to Waco, Texas. Sonya Cass sa id that a man grabbed her1 Although the defense repeatedly objected on hearsay grounds, it failed to

object on Confrontation Clause grounds. - 3 - and forced her to take her car to a mall, where it was left. The kidnapper then covered her face and drove her to Waco, Texas. Cas s said she escaped with another kidnap victim by throwing hot grease in the kidnapper's face. Agent Andrews began investigating the case as a kid napping, but soon began to suspect that Cass had left New Mexico volu ntarily to join her boyfriend Michael Lawrence in Arlington, Texas. After interv iewing Cass in Texas, F.B.I. agents there informed her that they did not believe her story. The agents threatened to prosecute her for making a false stat ement unless she recanted. Cass maintained that she had been kidnapped. The prosecution's first witness was Agent Andrews. While testifying, he repeated, over hearsay objections, 1 out-of-court statements of Kevin Cass, Sonya Cass’ employer, Dallas F.B.I. agents, bank official s, a taxi driver, and the driver of an airport shuttle. The objections were overrul ed on the grounds that the outof-court statements were not admitted for the truth of the statements. The government successfully argued that the statements were introduced to show the effect they had on the investigation and to show in consistencies between the account Cass gave to Texas F.B.I. agents of her whe reabouts and the information New Mexico agents had gathered in their investigati on. The government argued- 4 -

that the defense opened the door to such statements by asserting in its opening statement that the F.B.I. failed to conduct a prope r kidnapping investigation, and instead conducted an investigation aimed at showing that the allegations of kidnapping were false. Agent Andrews also testifie d, over hearsay and relevance objections, that prior to her disappearance, Cass w as rumored to be involved in extramarital affairs. Hearsay Evidence Statements by Kevin Cass Kevin Cass exercised his spousal privilege not to t estify. Nevertheless, on the stand, Andrews repeated statements made to him by Mr. Cass, including the statement that shortly after Sonya left the house o n July 22 she returned to get her birth and nursing assistant certificates, telling K evin that she needed the documents for work. During Andrews' testimony, the government introduce d an answering machine tape given to Andrews by Kevin Cass. On th e tape, a voice says, "the car is at the mall." Andrews testified that Kevin s aid the voice on the answering machine was Sonya's, and that after Kevin heard the message he picked up the car at the mall where Sonya normally parked it. Kevin said that he found Sonya's nursing uniform and shoes in the car.- 5 -

The prosecutor showed Andrews photos taken at an A. T.M. on the morning that Sonya disappeared. Andrews testified that the photos were of a black female who was making a withdrawal of $100 from Sonya and Kevin's account using Sonya Cass’ personal identification number at 9:00 a.m. on the morning that Sonya disappeared. Andrews said that Kevin identifi ed Sonya as the woman in the photos, and said that she was not wearing the cloth ing she had been wearing when she left the house. The photos and the bank record s were introduced into evidence later in the trial. Statements by Sonya Cass’ Employer No one from Sonya's New Mexico employer was called as a witness. Yet Andrews testified that the employer verified that S onya did not need her nursing or birth certificate at work, as they were already on file. Statements by Dallas F.B.I. Agents Dallas F.B.I. agents interviewed Sonya immediately after she claimed to have escaped from her abductor. These agents were n ever called to testify. However, Andrews testified that Sonya told the agen ts that the kidnapper made her shop for and change into new clothes and that h e threw her nurse's uniform out of the window of the car. Andrews testified th at Sonya told the agents that she had withdrawn money from an A.T.M. machine at t he mall, a different machine than the one indicated by bank records. Sh e also said that after escaping- 6 -

from her kidnapper she accepted a ride from a stran ger to the bus station. Andrews also testified that Sonya never told Dallas agents that she tried to withdraw money from the Lubbock Airport A.T.M., alt hough bank records showed that someone had tried to access her accountusing her personal identification number at around 1 p.m. on July 22. Extramarital Affairs Testimony On cross-examination, Andrews testified that numero us people interviewed by the FBI said that Sonya was having an affair wit h one man and was seeing other men as well. He testified further that Sonya' s mother had said that Sonya may have been seeing two men, including one in Arli ngton, Texas, and that Sonya had bragged to friends, associates and relatives th at she could see other men without getting caught. The court interrupted the testimony, and after a lunch recess, instructed the jury to disregard "the last answer by Agent Andrews," which was the answer that disclosed the information aboutSonya’s reputation for affairs. The court found that the testimony was no t hearsay but that it should have been excluded under Fed. R. Evid. 403 because it was prejudicial. Admissible Evidence The government introduced abundant admissible evide nce that tended to prove that Sonya's statement to the F.B.I. that she had been kidnapped was false, including the taxi driver's testimony that on July 22, about 9:00 a.m., she drove- 7 -

Sonya from a mall in Clovis, New Mexico, to a shutt le bus that would take her to the Lubbock Airport. The driver had contacted the police after recognizing Sonya in a missing person's flier circulated by Sonya's f amily. She testified that she remembered Sonya Cass because Sonya did not have any luggage, which was unusual for someone who was going out of town. An airport shuttle driver testified that on July 22 he drove two passengers, a black woman without luggage and a woman from Minnes ota, from the Holiday Inn in Clovis to the airport in Lubbock. He testi fied that the shuttle arrived at the Lubbock Airport about 1:20 p.m. Central Time. The driver could not identify Sonya as the woman on the shuttle that morning, butsaid that he had seen Sonya somewhere before. Testimony of Michael Lawrence Michael Lawrence testified that Sonya had been stay ing with him in Texas from July 22 to July 27. He described first meeti ng Sonya in a nightclub in Dallas in 1994 and said that they spent the night t ogether. After they met, when Sonya returned to New Mexico, Lawrence testified th at they spoke to each other daily over the phone. Lawrence's phone records wer e introduced; they showed that he had called Sonya as often as four times a d ay. They also showed collect calls from Sonya to Lawrence. Lawrence testified t hat Sonya was unhappy in her marriage, and that they had planned for her to leav e her husband and move in with- 8 -

him. He testified that he expected Sonya to arrive on July 4, but she had disappointed him. When she still hadn't arrived on July 20, he told her that he was "tired of waiting" for her and to make up her m ind about whether she was coming. She finally arrived on July 22. Lawrence said that he picked her up at the airport and noticed that she did not have any l uggage, so that weekend he bought her clothes and toiletries. He also told he r how to transfer her nursing license from New Mexico to Texas. On Monday, July 25, Lawrence went to work at about 6:00 a.m. He returned from work late that evening. He testified that Sonya was the only person in his home that day. Phone records showed a call made from Lawrence's house to the Cass’ house at 6:45 a.m. that morning. Poli ce records showed that Kevin Cass had called 911 at 6:50 a.m. that morning to re port that his wife had been kidnapped. Lawrence testified that he was not at home on July 28 at 6:53 a.m. Phone records showed a call from Lawrence's home to the C ass’ home on July 28 at 6:53 a.m., the same morning that Sonya called Kevin and told him, in a tape recorded conversation, that she had just escaped from her ki dnapper and was at the Arlington, Texas, bus station. On July 29, she cal led Lawrence and told him that she was returning to Clovis, New Mexico. Lawrence testified that after Sonya- 9 -

returned to New Mexico she called him and told him that her mother had filed a missing person's report for her during the week that she was staying with him. Andrews’ Opinion Testimony Andrews testified that in his opinion Cass’ versionof her abduction was "highly unusual." He said it was unusual for an ab ductor to take someone to shop for clothes, or to allow a victim access to a weapo n such as hot grease. He also said that it would be unusual for a victim to accep t a ride from a stranger after being abducted or to split up from a fellow victim before going to the police. Closing Arguments In its closing, the government argued that the case was about the lies that Sonya had told the F.B.I., her husband, her family and even her boyfriend. The prosecutor said that Sonya said that she needed hernursing and birth certificates for work--but that she didn't need them for work in New Mexico. She said she was forced to drive to the mall--but her car was fo und parked where she normally parked it. She told the Dallas F.B.I agents that s he used an A.T.M. at a mall where she was forced to buy clothes, but she was se en in photographs using a different A.T.M. She said that her uniform was thr own out of the window of the car. The prosecutor argued from these "facts" thatCass planned to go to Texas and went there voluntarily to be with Michael Lawre nce.- 10 -

Defense counsel objected to the government's refere nces in closing argument to evidence that had not been admitted. T he court responded: "The jury will remember what the testimony was." The Defense During the government's case-in-chief, the defense tried to impeach the government's witnesses by showing that the taxi dri ver had little chance to observe Sonya, and that discrepancies existed in th e descriptions of Sonya's appearance offered by the taxi driver, the shuttle driver, and Lawrence. The defense also brought out that when the F.B.I. firstquestioned Lawrence, he told them Sonya had visited him in August or September o f 1994. It was only after the F.B.I. showed Lawrence phone records that he agreed that Sonya had arrived in Texas on July 22. The defense called a Delta Airlines supervisor who had been working at the Lubbock Airport on July 22. She testified that she could not identify Sonya and that Sonya's name did not appear on the passenger m anifests for July 22. The defense called a therapist who had seen Sonya a wee k and a half after she spoke to Dallas F.B.I. agents. The therapist testified t hat Sonya cried throughout the interview and said that she had been kidnapped and repeatedly raped. She gave her opinion that Sonya was suffering from post-trau matic stress disorder that was consistent with her having experienced a traumatic event. The therapist testified- 11 -

that if Sonya was lying about the kidnapping she wo uld have presented herself in a different way. In addition, family members testi fied that Sonya was an honest person. Sonya's cousin, Carla Hollings, testified that Sonya and Kevin were a happy couple. Sonya's medical records were admitte d. Although they revealed no physical evidence of sexual assault, she had receiv ed a diagnosis of sexual assault.
DISCUSSION Evidentiary rulings by the trial court are reviewed for abuse of discretion. United States v. Wilson, 107 F.3d 774, 780 (10th Cir. 1997). We review suc h rulings by considering the record as a whole. Id. Hearsay is defined in Fed. R. Evid. 801(c) as "a st atement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. " Hearsay is not admissible at trial, except as provided by the Federal Rules of E vidence or other statutory authority. See Fed. R. Evid. 802. The government argues that none of the out-of-courtstatements repeated by Andrews were hearsay because none were admitted to prove the truth of the matters asserted. Rather, they were admitted to sh ow the effect of the statements on the FBI investigation. For example, the governm ent asserts that Kevin Cass’ statement to Andrews that his wife called from some where in Texas to say that2 Many of the out-of-court statements complained of i n this case are "double

hearsay." However, as in this example, the first l ayer of "hearsay" is often a statement by Sonya Cass, which is a party admission and is not considered hearsay under the Rules. Fed. R. Evid. 801(d)(2)(A ). Thus, in this example, defendant's complaint is about the second layer of "hearsay," Kevin Cass’ out-ofcourt statement to Andrews about what Sonya Cass sa id. - 12 - she had been kidnapped was not introduced to show that Sonya Cass actually called or that she was actually kidnapped, but rath er to explain why the FBI began a kidnapping investigation. 2 Similarly, the government asserts that statements made by Texas FBI agents about what Sonya told them were not introduced to prove that Sonya really made the statements or thatthe statements were true, but only to illustrate that the inconsistencies between the statements and other evidence uncovered by the FBI led the agency to sus pect that Sonya was lying and to change the focus of its investigation from a kid napping investigation to a false statement investigation. The government argues that it was justified in showing this process because the defense asserted in its op ening statement that the government did not adequately investigate the case as a kidnapping, but rather, quickly concluded that Sonya was lying. The government relies on United States v. Freeman , 816 F.2d 558 (10th Cir. 1987), for the proposition that statements off ered to explain why a government investigation is undertaken are not hear say. In Freeman , the defendant was convicted of delivery and possession of counterfeit federal reserve- 13 -

notes. At trial, a Secret Service Agent testified about how the investigation into the defendant's activities had come about. The age nt recited that a Kansas City police officer told him he had a reliable source wi th information about counterfeiters. The agent testified that he met wi th the informant who named certain counterfeiters other than the defendant and said that those counterfeiters were planning to meet with "an unknown white male" at a certain time for the purpose of passing counterfeit money. The agent se t up surveillance of the other counterfeiters and caught them passing the money to Freeman. Although the defense objected to the introduction o f the out-of-court statements of the Kansas City police officer and th e informant as hearsay, we affirmed the district court's decision to admit the evidence, holding that "out of court statements are not hearsay when offered for t he limitedpurpose of explaining why a Government investigation was undertaken." 816 F.2d at 563 (emphasis added); see also United States v. Farley , 992 F.2d 1122 (10th Cir. 1993) (out-of-court statements of child sexual abus e victim not hearsay if admitted to show why mother began investigation). This case differs from
Freemanand Farleyin the number and pervasiveness of out-of-court st atements that were allowed and because, in the present case, the government in fact used the testimony as proof of the matters asserted. Government's Use of Out-of-Court Statements Was Ext ensive and Prejudicial- 14 -

In Freemanwe held that it was not error to admit the stateme nts but cautioned that "out-of-court statements by informan ts offered to explain the background of an investigation, like all evidence, must be evaluated under the criteria in Fed.R.Evid.Rules 401 and 403 for releva nce and to prevent confusion or prejudice on the part of the jury." 816 F.2d at 563. We found the out-of-court statements in Freeman"neither confusing nor prejudicial" because they c ontained only a single reference to the defendant. Id. at 564; see also Farley , 992 F.2d at 1125 (one of out-of-court statements of abused chil d admitted where statement "was clearly not offered for the truth of the matte r asserted"). Other cases in which we have allowed such testimony involve the ad mission of, at most, only a few limited statements, and typically if a hearsay objection was raised the trial court immediately instructed the jury as to the lim ited use of the evidence. See,
e.g. , United States v. Barela , 973 F.2d 852, 855 (10th Cir. 1992) (approving use of single out-of-court statement of informant to sh ow why police began investigation); United States v. Bowser , 941 F.2d 1019, 1021 (10th Cir. 1991) (approving use of single out-of-court statement of informant that defendant carried gun, in prosecution for narcotics trafficki ng, to explain officer's aggressive conduct toward defendant). By contrast, in the present case, scores of out-of-court statements were admitted, many of whic h contained references to- 15 -

Sonya, and many such statements were not accompanie d by limiting instructions, notwithstanding the defendant’s objection. Courts and commentators have recognized that out-of -court statements should not be admitted to explain why a law enforce ment agency began an investigation if the statements present too great adanger of prejudice. See Garrett v. United States , 78 F.3d 1296, 1302-03 (8th Cir.), cert. denied , 117 S. Ct. 374 (1996) (noting, in the context of a conspiratorstatement, that if the "statement is both permissible background and highl y prejudicial, otherwise inadmissible hearsay, fairness demands that the gov ernment find a way to get the background into evidence without the hearsay") (int ernal quotation omitted); United States v. Forrester , 60 F.3d 52, 59 (2d Cir. 1995) ("The government's identification of a relevant non-hearsay use for su ch evidence, however, is insufficient to justify its admission if the jury i s likely to consider the statement for the truth of what was stated with significant r esultant prejudice.") (internal quotation omitted); United States v. Alonzo , 991 F.2d 1422, 1427 & n.5 (8th Cir. 1993) ("district court must control and limit the u se of background hearsay statements as the trial develops" to avoid possible prejudice and because of the "seriously prejudicial" nature of certain backgroun d hearsay, the trial court cannot simply rely on cautionary instructions to prevent p rejudice). McCormick has criticized the "apparently widespread abuse" of thi s hearsay exception:- 16 -

In criminal cases, an arresting or investigating of ficer should not be put in the false position of seeming just to have h appened upon the scene; he should be allowed some explanation of his presence and conduct. His testimony that he acted "upon information received," or words to that effect, should be sufficient. Nevert heless, cases abound in which the officer is allowed to relate hi storical aspects of the case, replete with hearsay statements in the fo rm of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight, the likelihood of misuse great. 2 McCormick on Evidence (4th ed.) § 249, at 104 (citations omitted). Here, the hearsay problem is exacerbated because the evidence the government presented to "explain the course of its investigation"--Kevin's statements, statements of Dallas F.B.I. agents, statements of Sonya's employer, etc.--go to precisely the issue the government was required to prove--that Sonya lied about being kidnapped. Hearsay evidence that directly goes to guilt is particularly difficult to limit to background purpo ses. See United States v. Evans , 950 F.2d 187, 191 (5th Cir. 1991) (evidence otherwi se admissible as background "becomes inadmissible hearsay if it also points dir ectly at the defendant and his guilt in the crime charged"); United States v. Brow n , 767 F.2d 1078, 1084 (4th Cir. 1985) (error to admit out-of-court statements as "background" where statements implicated defendant in charged crime an d "effect of the evidence could only have been a substantial bolstering of th e government's case by inadmissible hearsay"). The Government in Fact Used Out-of-Court Statements for Their Truth- 17 -

Although the government's purported use for the statements was to show why the investigation focused on Sonya herself, rat her than on an alleged kidnapper, in fact, from the beginning of the trial to the end, the government relied on the out-of-court statements for their tru th. For example, in its opening statement, the government said that the jury would learn that the defendant's account of her kidnapping was not true because: "[ T]he defendant left for work on that day, July 22, 1994, and took her nursing ce rtificate and birth certificate"; "[i]nstead of withdrawing money from a bank in the mall, she went to an automatic teller machine at another location"; "aft er the defendant withdrew money, she left a message on her home answering mac hine for her husband saying, 'The car is at the mall.'" The only eviden ce admitted at trial to prove those facts, however, was the testimony of Agent An drews in which he repeated the out-of-court statements of Kevin Cass and Dalla s F.B.I. agents. During its closing argument, the government again r eferred to Sonya's taking her nursing and birth certificates on the mo rning of July 22. But no evidence--other than the out-of-court statement of Kevin Cass--was introduced to support that assertion. The government also argued that Sonya lied about the reason for taking the documents, an assertion that could only be maintained if the out-of-court statements of Kevin Cass and Sonya Cas s’ employer were treated as evidence of the truth of the matters asserted. Mor eover, during the trial, Agent- 18 -

Andrews relied on out-of-court statements of Dallas agents as the basis of his opinion that the kidnapping was unusual. Courts have not hesitated to find error under similar circumstances. See, e.g. , United States v. Sallins , 993 F.2d 344 (3d Cir. 1993) (finding out-of-court "background" state ments hearsay where government relied on the contents of the statement for their truth during closing argument and where admissible evidence sufficiently established background). As the government's first witness, Agent Andrews us ed out-of-court statements to "outline" the entire prosecution case . Police witnesses may not simply repeat on the stand what other witnesses hav e told them and justify the practice by arguing that the statements are introdu ced to explain how they went about their investigation. That would be stretchin g the Freemanrule beyond the breaking point. Freemanallows the out-of-court statements to be admitted for the limitedpurpose of explaining why an investigation was beg un. Here, the government used the out-of-court statements for that purpose, as well as to establish the basis for Andrews’ opinion and, in op ening statement and closing argument, as proof of the matters asserted. Perhaps in this case it would have been proper for the government to introduce some limited out-of-court statements to e xplain why a kidnapping investigation was undertaken and even why the focus of the investigation shifted away from an alleged kidnapper to Sonya herself bec ause the defendant focused3 The government argues that the transcript of the Da llas agents' interview

with Sonya Cass was admitted into evidence by the d efense and thus the government was free to refer to those statements fo r their truth. In fact, the defense introduced only portions of the transcript, and they apparently did not relate to the out-of-court statements at issue in t his appeal.

4 If an error is not constitutional, we will affirm aconviction as long as the error is harmless. See United States v. Cestnik , 36 F.3d 904, 910 (10th Cir. 1994)

. - 19 - on the nature of the investigation in her defense. See United States v. Reyes , 18 F.3d 65, 71 (2d Cir. 1994) (noting that certain def ense tactics might "justify rebuttal through the state of mind evidence" but re quiring that such use be limited and redacted to the extent possible and that specia l precautions be taken to prevent the use of such evidence on the merits of t he case). However, here the extensive admission of out-of-court statements, the fact that such evidence went directly to the defendant’s guilt, and the use of s uch evidence to establish the truth of the matters asserted compel the conclusion that such evidence was used for hearsay purposes. 3 Because the use of the evidence was clearly not l imited to the reason for which it was admitted, its admission constitutes error. Harmless Error A trial court's admission of inadmissible evidence will disturb a defendant's conviction only if the error is not harmless. 4 See Fed. R. Crim. P. 52(a). "[T]he erroneous admission of evidence under a well-establ ished exception to the hearsay rule is harmless unless it had a `substanti al influence' on the outcome or- 20 -

leaves one in `grave doubt' as to whether it had su ch effect." United States v. Cestnik , 36 F.3d 904, 910 (10th Cir. 1994) (internal quotations omitted). Thus, the question is whether the admission of the statem ents substantially influenced the jury's verdict. Even without the hearsay testimony the government p ut on a very strong case. The story told by the admissible evidence--t he testimony of Michael Lawrence, the taxi and shuttle drivers, the bank an d phone records, the answering machine tape, and the taped phone conversations--wa s quite damning. The defense case was weak, consisting primarily of char acter evidence and testimony that Sonya was suffering from post-traumatic stress disorder consistent with a kidnapping. Nevertheless, the inquiry is not whether there was enough evidence to convict the defendant without the inadmissible evid ence, but whether the inadmissible evidence had a "substantial influence" on the outcome of the trial. The out-of-court statements of Kevin Cass are parti cularly troublesome, as they point to planning on Sonya's part. Nevertheless, g iven the wealth of evidence put forth by the prosecution, we believe the error was harmless. However, the fact that it is harmless error in this particular case d oes not render the conduct any less erroneous, and it is worth repeating again the caut ion that the use of hearsay evidence to establish background or to establish th e investigator’s state of mind- 21 -

presents a situation where “the need for the eviden ce is slight [and] the likelihood of misuse great.” McCormick , supra , § 249, at 104. Cass also maintains that the admission of hearsay v iolated her Constitutional rights under the Confrontation Claus e. However, because Cass failed to raise this objection at trial we review i t under a plain error standard. See United States v. Perez , 989 F.2d 1574, 1582 (10th Cir. 1993) (en banc). For the reasons described above, the admission did not cons titute plain error. Extra-Marital Affairs Testimony The district court realized that it erred in admitt ing hearsay testimony regarding Cass’ extramarital affairs because the pr obative value of the evidence was substantially outweighed by the danger of unfai r prejudice. See Fed. R. Evid.
403. After a break, the court gave a curative instructio n to the jury, directing it to "disregard the last answer," which pertained to the defendant’s reputation of extra-marital affairs. On the authority of United States v. Sands , 899 F.2d 912 (10th Cir. 1990), Sonya asks us to find the jury in capable of disregarding the testimony and to reverse. However, in Sands evidence of a defendant's prior criminal convictions came in over the express instr uctions of the judge that such evidence was not to come in unless the defendant to ok the stand. Here, the jury properly heard in detail from Michael Lawrence abou t one of Sonya's affairs. Thus, the possibility of serious prejudice from the admission of the evidence was- 22 -

less than that faced by the defendant in Sands . Further, cautionary instructions are ordinarily sufficient to cure any alleged preju dice to the defendant. See United States v. Peveto , 881 F.2d 844, 859 (10th Cir. 1989). Given the st rength of the prosecution's case as a whole, and the cauti onary instruction, we find the error harmless. Accordingly, we AFFIRM the district court's judgment of conviction.