United States Court of Appeals

For the First Circuit

No. 07-1569

UNITED STATES OF AMERICA,

Appellee,

v.

MARK S. SHINDERMAN, M.D.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Campbell and Selya, Senior Circuit Judges.

Michael A. Cunniff, with whom Jay P. McCloskey, Thimi R. Mina,

and McCloskey, Mina, Cunniff & Dilworth, LLC were on brief, for

appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.

Silsby, United States Attorney, was on brief, for appellee.

January 29, 2008
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SELYA, Senior Circuit Judge. The admonition "physician,

heal thyself" is a biblical proverb, Luke 4:23 (King James),

suggesting that people should address their own failings. In the

case at hand, this admonition has both literal and figurative

application. The tale follows.

Mark S. Shinderman, M.D., is a physician specializing in

psychiatry and the treatment of addiction. The federal government

indicted him on a gallimaufry of criminal charges stemming from his

unauthorized use of another doctor's name and Drug Enforcement

Administration (DEA) registration number. A jury convicted him on

many of those charges. 

On appeal, the defendant challenges both his convictions

and his sentence. He advances four assignments of error, which

impugn (i) the district court's refusal to apply the exclusionary

rule to evidence allegedly obtained in violation of federal

regulations designed to protect the confidentiality of substance

abuse treatment records, (ii) the foreclosure of a proposed

entrapment defense, (iii) an evidentiary ruling, and (iv) the use

of an obstruction of justice enhancement during sentencing.

Concluding, as we do, that each and all of these animadversions

lack merit, we affirm the judgment below.

I. BACKGROUND
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We rehearse here only those facts that are necessary to

place this appeal in perspective. Other facts are added in our

subsequent discussion of particular issues.

Following a dramatic increase in drug-overdose deaths in

Maine, the United States Department of Health and Human Services

(HHS) began investigating possible links between this spike in

mortality and health-care clinics specializing in the treatment of

drug addiction. One of the providers scrutinized in the course of

this administrative inquiry was CAP Quality Care, a high-dose

methadone treatment clinic located in Westbrook, Maine.

The defendant, an advocate of the combined use of

methadone and benzodiazepine in the treatment of patients addicted

to opiates, served as CAP's sponsor and national medical director.

Federal law stipulates that any doctor who prescribes a controlled

substance must possess a state-specific DEA registration number.

See 21 U.S.C. § 822(a), (e). When CAP opened in 2001, the

defendant had only an Illinois medical license and DEA number

(although he had obtained a temporary license to practice medicine

in Maine). 

In the course of HHS's administrative inquiry into CAP's

affairs, its investigators took a hard look at the defendant's

prescription-writing practices. The defendant apparently attempted

to write prescriptions for controlled substances using his Illinois

DEA number. After Maine pharmacies refused to fill those
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prescriptions, he started writing benzodiazepine prescriptions

under the name and Maine-specific DEA number of Dr. Steven Keefe,

a fully credentialled physician affiliated with CAP. 

At that point, the inquiry intensified. The government's

next step was to subpoena CAP's Medicaid records. Under statutes

and regulations governing the disclosure of substance abuse

treatment records, the government was required to obtain court

authorization to use the subpoenaed documents for prosecutorial

purposes. See 42 U.S.C. § 290dd-2(b)(2)(C); 42 C.F.R. § 2.66(a).

On April 24, 2003 — shortly after the government launched

a criminal investigation aimed at the defendant — a federal

magistrate judge granted an ex parte motion seeking leave to

disclose to federal law enforcement personnel the Medicaid records

garnered from CAP pursuant to HHS's original administrative

subpoena. On August 22, the magistrate judge granted a second ex

parte motion seeking authorization to release CAP patient treatment

records to the prosecutors. On September 5, the magistrate judge

granted yet a third ex parte motion; this motion sought access to

medical records seized in the course of executing a search warrant.

In each instance, the magistrate judge found good cause

for disclosure and honored the government's supplication that he

delay notice of the order granting the motion to avoid compromising

the criminal investigation. To that end, the magistrate judge

maintained the orders under seal and decreed that notice to the
On July 20, 2003, the magistrate judge granted the government 1

an additional sixty days within which to furnish notice of the

issuance of the April 24 disclosure order.

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defendant and all other affected parties could be deferred for up

to ninety days. The record contains copies of the notices 1

subsequently sent by the government to the defendant as well as an

affidavit from an HHS official attesting that notice of the

issuance of the disclosure orders had been given within the

allotted time frame.

The dénouement came much later. On August 25, 2005 — the

same date on which the government filed a civil action against CAP

for, among other things, Medicaid fraud — a federal grand jury

handed up a sixty-eight count indictment. The first twenty-five

counts charged the defendant with unlawful use of a DEA

registration number issued to another physician, in violation of 21

U.S.C. § 843(a)(2). Counts 26 through 50 charged him with aiding

and abetting the acquisition of a controlled substance by

misrepresentation, in violation of 21 U.S.C. § 843(a)(3). Counts

51 and 52 charged him with falsifying pharmacy records, in

violation of 21 U.S.C. § 843(a)(4)(A). The last sixteen counts

charged him with making false statements related to the delivery of

or payment for health-care benefits, in violation of 18 U.S.C. §

1035(a)(2). 

The defendant filed a host of motions, seeking among

other things to suppress the fruits of the administrative subpoenas
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and the search. Pertinently, he argued that all of the evidence

disclosed in pursuance of the ex parte court orders should be

excluded because the government had flouted the notice requirements

imposed by federal substance abuse treatment regulations.

The district court found that the reprieve for the giving

of notice granted by the magistrate judge had no legal basis and

that the defendant should have been given notice as soon as the

patient records were disclosed to prosecutors. United States v.

Shinderman, 432 F. Supp. 2d 149, 154 (D. Me. 2006). The court

nevertheless refused to suppress the evidence, reasoning that

suppression was too drastic a remedy. Id.

The trial lasted for nearly two weeks. A parade of CAP

patients testified to having seen the defendant write Keefe's name

and DEA number on controlled substance prescriptions. The

centerpiece of the government's case was Keefe's testimony that,

while he agreed to provide the defendant with pre-signed

prescription blanks, he never authorized the defendant to sign his

name or use his DEA number. In the defense case, the defendant

testified that Keefe had given him such permission.

After a day and a half of deliberations, the jury found

the defendant guilty on the twenty-five counts that alleged

unlawful use of a DEA number belonging to another physician,

twenty-four of the twenty-five aiding and abetting counts, both

counts dealing with falsification of pharmacy records, and seven of
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the sixteen false statement counts. The government voluntarily

dismissed the remaining aiding and abetting count, and the jury

acquitted the defendant on nine of the false statement counts.

The sentencing phase followed. The district court

applied enhancements for obstruction of justice and abuse of a

position of trust, and set the guideline sentencing range (GSR) at

15 to 21 months. The court then departed downward and imposed a

six-month incarcerative sentence. This timely appeal followed.

II. ANALYSIS

We separate the defendant's asseverational array into its

four component parts and treat those parts sequentially.

A. Suppression.

In the interest of guaranteeing the efficacy of substance

abuse treatment programs, Congress has directed that all substance

abuse treatment records be kept confidential. See 42 U.S.C. §

290dd-2(a). Disclosure is permitted only in narrow sets of

circumstances. These include consent, id. § 290dd-2(b)(1); audit,

id. § 290dd-2(b)(2)(B); and court order, id. § 290dd-2(b)(2)(C). 

Applicable regulations confirm and elaborate upon the

statute's commitment to confidentiality. See 42 C.F.R. §§ 2.1-

2.67. The regulations warn that such records "may be disclosed or

used only as permitted by these regulations and may not otherwise

be disclosed or used in any civil, criminal, administrative, or
The term "program" includes "an individual or entity . . . 2

who holds itself out as providing, and provides, alcohol or drug

abuse diagnosis, treatment, or referral for treatment." 42 C.F.R.

§ 2.11. We assume arguendo (and neither review nor pass upon) the

correctness of the district court's holding that the defendant

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legislative proceedings conducted by any Federal, State, or local

authority." Id. § 2.13.

The regulatory mosaic provides safeguards attendant to

the disclosure and use of substance abuse treatment records in

connection with a criminal case. See id. §§ 2.65-2.67. To

investigate or prosecute either a substance abuse "program" or a

"person holding the records," law enforcement personnel must obtain

a court order premised upon a showing of good cause, id. § 2.66(c)

(cross-referencing § 2.64(d)-(e)), and must employ certain

prophylactic measures to shield patients' identities, id. §

2.66(d). While a court may issue a disclosure order without any

particular form of prior notice, the regulations require that "upon

implementation of an order" the program, the person holding the

records, and any patient whose records are disclosed — a group whom

we shall call "the protected parties" — "must be afforded an

opportunity to seek revocation or amendment of that order." Id. §

2.66(b).

The district court found that the defendant (as the

sponsor of CAP) qualified as a "program" for purposes of this

regulation and, thus, was entitled to seek revocation or amendment

of the ex parte disclosure orders issued by the magistrate judge.2
qualifies under this rubric.

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Shinderman, 432 F. Supp. 2d at 154. Building on this foundation,

the court ruled that the "opportunity" to revoke or amend each

order arose immediately upon disclosure of the records in question

to law enforcement personnel, that the regulations mandated

immediate notice to the protected parties at that juncture, and

that the window of delay countenanced by the magistrate judge

violated section 2.66(b). Id. The court concluded, however, that

since neither bad faith nor prejudice to the defendant existed,

suppression "was too drastic a remedy." Id.

Before us, the defendant claims that once the district

court found a regulatory violation, another section of the rules —

42 C.F.R. § 2.13 — required the suppression of any evidence

disclosed pursuant to the tainted order. His claim raises

potentially important questions anent the meaning of the

regulations and the appropriate use of the exclusionary rule to

address a regulatory infraction. When all is said and done,

however, we need not reach those questions; after all, "[w]e are

not wedded to the lower court's rationale, but, rather, may affirm

its order on any independent ground made manifest by the record."

InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir. 2003). 

In this case, any application of the exclusionary rule

must be premised on an underlying regulatory violation — and we
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discern none. The regulation at issue, 42 C.F.R. § 2.66(b), is

entitled "[n]otice not required." Its principal purpose is to

invest the court with discretion to grant disclosure orders ex

parte, that is, without notice to any protected party. It is thus

apparent that neither the text nor the purpose of the regulation

supports the notion that a delay in notice is per se unlawful.

To be sure, the regulation does direct that protected

parties be afforded an opportunity to revoke or amend any judicial

disclosure order. But in setting forth that directive, the

regulation nowhere makes explicit a duty to notify the protected

parties at a particular point in time. As we read its plain

language, section 2.66(b) requires only that protected parties be

given a chance to revoke or amend the order "upon [its]

implementation." It would be perverse to graft an immediate notice

requirement onto a regulation that explicitly grants district

courts the discretion to relax notification requirements.

In our view, section 2.66(b) should be construed as it is

written. Its text demands that a court issuing a disclosure order

afford protected parties with an opportunity to contest the

underlying validity and scope of the disclosure — nothing more. Of

course, that opportunity must be meaningful; otherwise, the

regulation would hold out only an empty promise. With this

qualification in mind and with full realization that each

individual case depends largely on context, we are confident that
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notice of a disclosure order does not always have to be coterminous

with the entry of the order. 

An opportunity to challenge a judicial decree does not

have to arise instantaneously in order to be meaningful. Analogies

are plentiful. Indeed, it is commonplace for a court to delay

notice of a search or seizure in order to protect the integrity of

a criminal investigation. See, e.g., 18 U.S.C. § 2518(8)(d)

(allowing district court to withhold notice from a person subject

to a wiretap for up to ninety days after the termination of the

underlying order); id. § 3103a(b) (giving district courts

discretion to delay any notice required in connection with the

issuance of a search warrant intended to obtain evidence of a

criminal offense). As long as the delay in notice does not erode

a protected party's right to challenge the order, we believe that

section 2.66(b) allows judges to exercise discretion as to the

timing and form of post-order notice. Up to the point where

prejudice looms, it makes no difference when the opportunity to

seek the revocation or narrowing of a disclosure order arises. 

This reading of section 2.66(b) does not eviscerate the

confidentiality protections afforded by the regulatory scheme. A

court can issue an ex parte disclosure order only after a finding

of good cause. See 42 C.F.R. § 2.66(c) (cross-referencing §

2.64(d)). Even then, no document released pursuant to such an

order can be used to investigate or prosecute a patient. Id. §
The absence of prejudice is unsurprising because section 3

2.66(b) limits challenges "to the presentation of evidence on the

statutory and regulatory criteria for the issuance of the court

order." We can perceive no argument based on those criteria that

the defendant might have lost in consequence of the delay. For

example, to issue a court order under section 2.66, a court must

find that "[o]ther ways of obtaining the information are not

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2.66(d)(2). In this vein, no public disclosure can be made without

redaction of all patient-related information. Id. § 2.66(d)(1).

And, finally, all protected parties retain the right to challenge

the issuance of the order. Given these features of section 2.66

and its eschewal of pre-order notice, reading that regulation to

require notice immediately upon release of the records to law

enforcement personnel would seem to create a curious anomaly and,

in the bargain, rein in the district court's normal discretion

without advancing any significant interest in confidentiality. 

Against this backdrop, we turn to the specifics of the

instant case. The record makes manifest that the delay in notice

did not erode the defendant's ability to contest the validity and

scope of the court orders. The periods of delay authorized by the

magistrate judge were not unreasonable. More importantly, the

district court found as a fact, at the hearing on the motion to

suppress, that the delay did not prejudice the defendant.

Shinderman, 432 F. Supp. 2d at 154-55. That finding is

unimpugnable: the defendant has identified no argument that he

could have employed immediately upon the issuance of a disclosure

order that was adversely affected by a delay in notice. 

3
available or would not be effective," 42 C.F.R. § 2.64(d)(1), and

that "[t]he public interest and need for the disclosure outweigh

the potential injury to the patient, the physician-patient

relationship and the treatment services," id. § 2.64(d)(2). 

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In all events, any profession of prejudice would be

undone by the defendant's failure to move under section 2.66(b) for

revocation or amendment. After all, once the government notified

him of the issuance of the disclosure orders, he had the

opportunity to object to their validity and scope — yet he

conspicuously failed to move for relief at that point. Instead, he

did nothing for almost two years and launched an effort to suppress

the fruits of the orders only after the grand jury handed up an

indictment.

The short of it is that no prejudice occurred here.

Given this lack of prejudice, the magistrate judge's authorization

of brief periods of delay in the giving of notice did not violate

the defendant's rights under the regulatory scheme. The lower

court's denial of the defendant's motion to suppress was,

therefore, unexceptionable.

B. Entrapment.

The defendant next challenges the district court's

refusal to instruct the jury on his envisioned entrapment defense.

We review a claim of erroneous failure to instruct a criminal jury

on a proffered theory of defense de novo. United States v.

Sánchez-Berríos, 424 F.3d 65, 76 (1st Cir. 2005); United States v.
The defendant's claim is one of classic entrapment. He has 4

expressly disavowed any claim of entrapment by estoppel. See,

e.g., United States v. Sousa, 468 F.3d 42, 46 (1st Cir. 2006);

United States v. Bunnell, 280 F.3d 46, 49 (1st Cir. 2002).

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Rodríguez, 858 F.2d 809, 812 (1st Cir. 1988). In conducting that

assay, we must refrain from differential factfinding and examine

the evidence in the light most favorable to the accused so as to

determine whether the record supports an entrapment theory. See

United States v. Ramos-Paulino, 488 F.3d 459, 462 (1st Cir. 2007);

Rodríguez, 858 F.2d at 812.

Entrapment is an affirmative defense. See United States

v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994). To undergird that

defense, the accused must make a prima facie showing both that the

government induced the commission of the charged crime and that he

(the accused) lacked a predisposition to engage in it. See 4

Mathews v. United States, 485 U.S. 58, 62-63 (1988); United States

v. Luisi, 482 F.3d 43, 52 (1st Cir. 2007). This is merely a burden

of production; once it is satisfied, the government must prove

beyond a reasonable doubt that no entrapment occurred. See

Sánchez-Berríos, 424 F.3d at 76; Rodríguez, 858 F.2d at 814-15.

The issue here is whether the defendant satisfied his

entry-level burden. This burden, though modest, see United States

v. Gamache, 156 F.3d 1, 9 (1st Cir. 1998), requires more than selfserving assertions. The defendant must adduce "some hard evidence"

that "governmental actors induced [him] to perform a criminal act
The government contends that any conversation between Masar 5

and the defendant occurred after the defendant had forged Keefe's

name and DEA number. Given the reasoning through which we resolve

the entrapment issue, we need not deal with this chronological

dispute. 

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that he was not predisposed to commit." Rodríguez, 858 F.2d at

814. 

Here, the district court concluded that the defendant had

not cleared this unprepossessing hurdle and, thus, refused to

instruct the jury on the entrapment defense. We test the strength

of this conclusion.

As enunciated at trial, the defendant's theory of

entrapment was configured as follows. He presented evidence which,

if credited, was competent to show that he possessed only a

temporary Maine medical license; that the DEA improperly withheld

the issuance of a Maine-specific DEA registration number; that

JoAnn Masar, a DEA agent, informed him that a permanent Maine

medical license was necessary in order to receive a Maine-specific

DEA number; that this information was incorrect; and that, 5

therefore, he had no choice but to use another physician's name and

DEA number to prescribe the benzodiazepine that his patients

needed.

This evidence is inadequate to satisfy the defendant's

entry-level burden of showing improper inducement. Taking that

evidence in the light most flattering to the defendant, the most
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that can be said is that Masar's incorrect information and the

DEA's improper withholding of a Maine-specific DEA number were "but

for" causes of the later criminal conduct. That is not enough: the

tort concept of "but for" causation does not constitute the

appropriate test for inducement, and that concept is ultimately too

attenuated a link on which to hinge an entrapment defense.

Improper inducement requires a showing not only that the government

afforded a defendant an opportunity to commit a crime but also that

it brought to bear "something more — something akin to excessive

pressure, threats, or the exploitation of an unfair advantage."

Ramos-Paulino, 488 F.3d at 462; see also Sorrells v. United States,

287 U.S. 435, 454 (1932) (Roberts, J., concurring) (defining

entrapment as "the conception and planning of an offense by an

officer, and his procurement of its commission by one who would not

have perpetrated it except for the trickery, persuasion, or fraud

of the officer"). 

In this instance, the defendant's evidence does not even

show that the government furnished him with an opportunity to

commit a crime, much less that the government took unfair advantage

of him. We cannot tease from the defendant's proffer anything that

might reasonably be expected to encourage an individual to engage

in criminality. See, e.g., Gamache, 156 F.3d at 9 (explaining that

government action must "create[] a risk of causing an otherwise

unwilling person to commit the crime charged"). Even if the
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defendant was fed incorrect information and the issuance of a DEA

number was wrongfully withheld, there is simply no evidence that

Masar ever urged or instructed the defendant, nor even hinted to

him, that he should try to evade the law either by using another

physician's DEA number or by forging another physician's signature.

The archetypical entrapment case involves a government

"sting" operation, see, e.g., United States v. Gendron, 18 F.3d

955, 961 (1st Cir. 1994), or some other situation in which the

government procures the defendant's commission of a crime, see,

e.g., Sorrells, 287 U.S. at 454, or at least a situation in which

the government provides material assistance to the defendant in

order to enable him to commit a crime, see, e.g., United States v.

Russell, 411 U.S. 423, 427 (1973). This case does not come close

to fitting that mold. 

At the expense of carting coal to Newcastle, we add that

even if the government provided the defendant with the opportunity

to commit a crime — which it did not — the necessary "plus" factor

is entirely lacking. There is no evidence of excessive pressure,

threats, or unfair exploitation on the government's part. There is

no suggestion that the government used coercive tactics, see, e.g.,

United States v. Stanton, 973 F.2d 608, 610 (8th Cir. 1992);

employed any hard-sell rhetoric or dogged insistence, see, e.g.,

Rodríguez, 858 F.2d at 815-16; or engaged in any arm-twisting or

exploitation of economic need, see, e.g., Sherman v. United States,
Since we find that the defendant failed to carry his entry- 6

level burden as to the first prong of the entrapment defense, we

need not inquire as to whether the record contains any evidence

showing a lack of predisposition.

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356 U.S. 369, 376 (1958). While such evidence, standing alone,

would be insufficient to demonstrate improper inducement, it may in

certain circumstances be a starting place for mounting a colorable

showing of inducement. 

To be sure, we have suggested that, in certain

circumstances, a government agent's false statements might sustain

a finding of improper inducement. See Gamache, 156 F.3d at 9. But

in the classic entrapment context, false statements constitute

improper inducement only when they have the purpose or effect of

preying on the sympathy, weakness, or goodwill of a defendant.

See, e.g., United States v. Sullivan, 919 F.2d 1403, 1419 & n.21

(10th Cir. 1990) (telling defendant that undercover agent was

suicidal and in desperate need of money). We discern no proof of

any such manipulative behavior here.

We have said enough on this score. We conclude, without 6

serious question, that the entrapment defense cobbled together here

was a mirage and that the district court appropriately declined to

instruct the jury on it.

C. Cross-Examination.

The defendant further complains that the district court

violated Rules 403 and 608(b) of the Federal Rules of Evidence when
We quote this question substantially as it appears in the 7

transcript and in other filings, disregarding minor linguistic

variations. We note that the record on appeal does not contain the

original applications (and, thus, does not contain the actual

question).

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it allowed the government to cross-examine him, over objection,

about his responses to certain questions when applying for medical

licensure in Maine. We review the disputed ruling for abuse of

discretion. See, e.g., United States v. Brown, 500 F.3d 48, 58

(1st Cir. 2007); United States v. Winchenbach, 197 F.3d 548, 557

(1st Cir. 1999).

We set the stage. The defendant applied for a Maine

medical license in 2001 and again in 2002. As part of each

application, he answered "no" to the following question: "have you

EVER been charged, summonsed, indicted, arrested or convicted of

any criminal offense, including motor vehicle offenses, but not

including minor traffic or parking violations?" Evidence 7

available to the government suggested that the defendant had been

arrested in 1965 and again in 1970 for drug-related offenses

(although neither arrest culminated in a conviction).

At trial, the defendant testified in his own behalf. The

government sought to cross-examine him about these answers, seeking

to cast doubt upon his credibility. The defendant objected and

moved in limine to exclude any such inquiry. While he admitted

that he had been arrested, he asserted that the arrests had been

expunged and that, therefore, he had answered the questions
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truthfully and in line with the advice of counsel. In support of

this assertion, he submitted an affidavit from his Illinois lawyer

attesting that, to the best of the lawyer's recollection, the

arrests had been expunged. The defendant also argued, in the

alternative, that any probative value that might be derived from

the cross-examination would pale in comparison to the prejudice

that would accrue.

The district court concluded that the carefully worded

affidavit provided "no convincing ground" to support the

defendant's professed belief that the arrests had vanished and did

not have to be revealed on the license applications. Then, in the

exercise of its discretion, the court ruled that the government

could cross-examine the defendant about his arrest-related answers.

Withal, the court precluded the government from introducing the

arrest records themselves into evidence. The defendant ascribes

error to the former ruling.

The touchstone of our analysis is Federal Rule of

Evidence 608(b), which pretermits the use of extrinsic evidence of

specific instances of a witness's conduct for the purpose of

bolstering or attacking the witness's credibility. Despite this

general proscription, the rule explicitly grants district courts

discretion to allow cross-examination of a witness about specific

instances of misconduct as long as those instances are probative of

his "character for truthfulness or untruthfulness."
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Typically, a trial court's discretion to determine the

scope and extent of cross-examination is broad. See, e.g.,

Delaware v. Van Ardsdall, 475 U.S. 673, 679 (1986); United States

v. Beltrán, 761 F.2d 1, 11 (1st Cir. 1985). That discretion is

nonetheless subject to the overarching need to balance probative

worth against prejudicial impact. See United States v. Simonelli,

237 F.3d 19, 23 (1st Cir. 2001); Fed. R. Evid. 608(b) advisory

committee notes. That balancing function is spelled out in Federal

Rule of Evidence 403, which states in pertinent part that relevant

evidence "may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury." 

Rule 403 judgments are typically battlefield

determinations, and great deference is owed to the trial court's

superior coign of vantage. "Only rarely — and in extraordinarily

compelling circumstances — will we, from the vista of a cold

appellate record, reverse a district court's on-the-spot judgment

concerning the relative weighing of probative value and unfair

effect." Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st

Cir. 1988).

In this instance, we discern no abuse of discretion.

After all, a witness's willingness to lie to the government in an

application for a license is highly probative of his character for

truthfulness. See, e.g., United States v. Carlin, 698 F.2d 1133,
The defendant attempts to use the gap between the dates of 8

the unreported arrests and the time of trial as a basis for a

finding that temporal considerations cut the other way. This

tactic is disingenuous. The relevant issue at trial was whether

the defendant had lied on his license applications in 2001 and

2002. Consequently, the relevant temporal span is the time between

those answers and the occurrence of the alleged criminal acts.

-22-

1137 (11th Cir. 1983); see also United States v. Tse, 375 F.3d 148,

166 (1st Cir. 2004) (discussing false statements in employment

application). 

Here, moreover, temporal considerations favored use of

the evidence; the defendant's answers were not remote in time but,

rather, were roughly contemporaneous with the criminal conduct with

which he had been charged. See Simonelli, 237 F.3d at 23. And, 8

finally, the central factual issue at trial revolved around the

defendant's intent. Hence, his credibility was highly relevant to

the outcome of the case. See United States v. Mateos-Sánchez, 864

F.2d 232, 237 (1st Cir. 1988). Taking all of these factors into

account, the district court's determination that the defendant's

untruthful answers in his license applications were fair game for

cross-examination falls comfortably within the encincture of

judicial discretion.

This brings us to the question of prejudice. While we

agree with the defendant that the revelation of his prior arrests

carried with it some potential for untoward effect, we do not

believe that effect was so stark as to compel the exclusion of the

evidence. We long have recognized that "all evidence is meant to
-23-

be prejudicial; it is only unfair prejudice which must be avoided."

United States v. Rodríguez-Estrada, 877 F.2d 153, 156 (1st Cir.

1989) (emphasis in original). Thus, the court appropriately could

discount whatever prejudice flowed from the impeaching effect of

the answers. Beyond that, the answers themselves were not

particularly inflammatory, and the court did not permit the

government to elicit any tawdry details. 

It is also noteworthy that the court took affirmative

steps to minimize any risk of unfair prejudice. For example, it

allowed the defendant to tell the jury about the ultimate

disposition of the arrests and about his belief that they had been

expunged. Furthermore, the court offered to give a limiting

instruction; that the defendant eschewed this course does not

minimize the value of the court's offer. Given the totality of the

circumstances, we find unconvincing the argument that the court

committed a palpable error in judgment in allowing the crossexamination to proceed.

The defendant cites our decision in United States v. Tse

for the proposition that cross-examining a witness about responses

to questions included in an employment application violated Rule

608(b). This argument misreads Tse, in which the court permitted

the defendant to cross-examine a government witness regarding his

answers in an employment application. 375 F.3d at 166. 
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Tse also upheld the trial court's discretion to deny the

defendant the opportunity to refresh the witness's recollection by

showing him the application, itself excludable as extrinsic

evidence under Rule 608(b). See id. From this portion of the

opinion, the defendant selectively quotes out of context dicta to

the effect that "[u]sing the employment application [to impeach the

witness] would be a clear violation of Rule 608(b)." Id. (dictum).

The defendant misreads this as suggesting a barrier to

any and all use of evidence deemed "extrinsic" under Rule 608(b) to

refresh a witness's recollection. The statement can equally as

well be read to articulate the less controversial proposition that

introducing such extrinsic evidence for the purpose of proving the

witness's truthfulness (as opposed to using it merely to refresh

the witness's memory) would violate the express prohibition of Rule

608(b).

We believe the latter reading is sounder and correctly

captures the meaning of the Tse court. For one thing, Rule 612,

rather than rule 608(b), governs the use of evidence to refresh a

witness's recollection. That rule never has been construed to

require that a writing used to refresh a witness's recollection

must be independently admissible into evidence. The case law holds

to the contrary. See, e.g., United States v. Kusek, 844 F.2d 942,

949 (2d Cir. 1988); United States v. Scott, 701 F.2d 1340, 1346

(11th Cir. 1983). The commentators agree. See, e.g., Jack B.
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Weinstein & Margaret A. Berger, 4 Weinstein's Federal Evidence §

612.03[3][b], at 612-14 (2d ed. 2007).

For another thing, as stated in a leading treatise,

"[w]hile extrinsic evidence in the form of documents may not be

admitted under Rule 608(b) to impeach, nothing in that rule

prohibits the use of documents merely to refresh the recollection

of a witness who is the target of impeachment." 28 Charles Alan

Wright & Victor James Gold, Federal Practice & Procedure: Evidence

§ 6117, at 12 (1993 & Supp. 2007) (citing United States v.

Chevalier, 1 F.3d 581, 584 n.2 (7th Cir. 1993)). Thus, Tse does

not help the defendant here. 

D. Sentencing.

In sentencing the defendant, the district court placed

him in criminal history category I, set his base offense level at

10, and applied two-level enhancements for abuse of a position of

trust and obstruction of justice, see USSG §§3B1.3, 3C1.1. The

court then departed downward, USSG §5K2.0, on the basis that the

defendant's actions were outside the heartland of offenses

typically occurring under the principal statute of conviction, 21

U.S.C. § 843(a)(3). The court sentenced the defendant to a sixmonth term of immurement and a two-year term of supervised release.

On appeal, the defendant protests only the obstruction of

justice enhancement. His protestation targets the district court's

finding that he committed perjury at trial (and, thus, obstructed
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justice). Because this is a direct challenge to a factual finding

made at sentencing, our review is for clear error. See United

States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006); United States

v. Akitoye, 923 F.2d 221, 229 (1st Cir. 1991).

The applicable sentencing guideline requires a two-level

increase in a defendant's offense level if the sentencing court

finds that "the defendant willfully obstructed or impeded, or

attempted to obstruct or impede the administration of justice with

respect to the investigation, prosecution, for sentencing of the

instant offense of conviction." USSG §3C1.1. A finding of perjury

falls within the purview of this guideline. See United States v.

Dunnigan, 507 U.S. 87, 92-94 (1993); USSG §3C1.1, cmt. n.4(b).

Perjury consists of false testimony under oath concerning

a matter material to the proceeding, as long as the testimony is

given "with the willful intent to provide false testimony, rather

than as a result of confusion, mistake, or faulty memory."

Dunnigan, 507 U.S. at 94 (citing 18 U.S.C. § 1621(1)). To impose

an obstruction of justice enhancement premised on perjury, a

sentencing court must make an independent finding that the elements

of perjury have been satisfied. Id. at 95; Gobbi, 471 F.3d at 314.

The record makes pellucid that the district court

followed these teachings. In a presentence order, the court

carefully evaluated the defendant's veracity, identified material

inconsistencies in his trial testimony, and concluded that he had
 While it would be improper to impose an obstruction of 9

justice enhancement "merely . . . because the jury rejects the

defendant's explanation of the facts and finds him guilty," Gobbi,

471 F.3d at 314, that verdict nonetheless can provide support for

the sentencing court's independent findings, see United States v.

Villarmán-Oviedo, 325 F.3d 1, 16 (1st Cir. 2003) (upholding a

finding of perjury in part because the jury "must perforce have

determined that [the defendant's] testimony was false"). Here, the

court noted that the jury must have chosen to credit Keefe's

account. The jury's view thus supported the district court's

rationale. See id.

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prevaricated. In the process, the court expressly found that the

fabricated portions of the defendant's testimony were part and

parcel of "a willfully false reconstruction" of what had transpired

and could not "be attributed to confusion, mistake, or faulty

memory."

In particular, the court found irreconcilable differences

between the defendant's testimony and Keefe's testimony as to

whether Keefe had authorized the defendant to coopt his name and

DEA number. This was no garden-variety testimonial conflict about 9

a peripheral matter but, rather, a head-on clash about a central

issue in the case. Where, as here, the sentencing judge has

presided over the trial, we must allow him reasonable latitude for

credibility assessments. See Gobbi, 471 F.3d at 314-15; Akitoye,

923 F.2d at 228; see also United States v. Ruiz, 905 F.2d 499, 508

(1st Cir. 1990) (explaining that, insofar as factfinding is

concerned, "the sentencing court's choice among supportable

alternatives cannot be clearly erroneous").
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The defendant strives to weaken this robust finding by

suggesting that there was no direct conflict between his testimony

and Keefe's. This suggestion elevates hairsplitting to an art

form. A review of the record leaves no doubt about the direct and

inescapable contradiction between these two men concerning the

defendant's use of Keefe's name and DEA number. Keefe testified

unequivocally that he did not give the defendant permission to use

his name and DEA number in issuing prescriptions; the defendant

testified to the contrary. The district court acted within its

proper province in concluding that Keefe's testimony was truthful

and that the defendant's was not.

The defendant offers two last arguments. First, he

cautions that in evaluating his trial testimony the district court

had to afford him "the benefit of any plausible doubt." Gobbi, 471

F.3d at 314. That is true as far as it goes — but it does not go

very far. 

This cautionary language to which the defendant adverts

"does not mandate the resolution of every conflict in testimony in

favor of the defendant." United States v. Rojo-Alvarez, 944 F.2d

959, 969 (1st Cir. 1991) (quoting United States v. Wallace, 904

F.2d 603, 605 (11th Cir. 1990)). It merely resolves in the

defendant's favor "those conflicts about which the judge, after

weighing the evidence, has no firm conviction." Id. (quoting
-29-

Wallace, 904 F.2d at 605). The firmness of the sentencing court's

conviction here scarcely can be questioned. 

Finally, the defendant suggests that upholding an

obstruction of justice enhancement may chill a criminal defendant's

exercise of his constitutional right to testify. This suggestion

is baseless: sentencing enhancements for obstruction of justice

premised on perjurious trial testimony do not give rise to Sixth

Amendment concerns. See Dunnigan, 507 U.S. at 96; Akitoye, 923

F.2d at 228.

III. CONCLUSION

We need go no further. For aught that appears, the

defendant was fairly tried, fairly convicted, and fairly sentenced.

Affirmed.