## Facts

- Brian Eugene Meserve was tried in the District of Maine for robbery and related firearms offenses arising from an armed robbery of Ferris Market in Vassalboro, Maine.
- The government’s proof included testimony from Meserve’s girlfriend, Holly Grant, describing the planning and execution of the robbery and Meserve’s use of a sawed-off shotgun.
- Meserve presented a defense case and called his brother, Kevin Meserve, as a witness.
- On direct examination, defense counsel questioned Kevin about a relatively recent conviction for unlawful sexual contact.
- On cross-examination, the prosecutor asked Kevin whether he had other convictions; Kevin answered that he had.
- The prosecutor then asked whether one of those convictions occurred in 1979 (more than 10 years before trial). Defense counsel objected under Federal Rule of Evidence 609; the district court overruled the objection.
- The prosecutor also questioned Kevin about whether he had been “in a lot of fights.” Defense counsel objected, arguing improper character impeachment; the court overruled the objection and permitted additional questions on the topic.
- Although counsel objected (including by stating a continuing objection), counsel did not move to strike Kevin’s answers after the court overruled the objections.
- After the jury convicted Meserve, he appealed, claiming the district court erred by allowing improper impeachment of Kevin (and that the claimed evidentiary missteps required a new trial).

## Issues

1. Whether the district court erred under Federal Rule of Evidence 609(b) by permitting impeachment of a defense witness with a conviction from 1979, and whether the objection was preserved for appellate review.
2. Whether the district court erred under Federal Rules of Evidence 608 and 609 by allowing cross-examination about the defense witness’s history of fighting and other misconduct, and whether those objections were properly preserved.
3. If any evidentiary ruling was erroneous, whether the error warranted reversal under the applicable harmless-error or plain-error standard.

## Decision

- The First Circuit affirmed Meserve’s convictions.
- The court held that the challenges to Kevin’s impeachment were largely unpreserved or inadequately preserved, limiting review and weakening the claim for relief.
- Even assuming some impropriety in questioning about an old conviction or fighting history, the court concluded the examination did not justify a new trial in light of the record as a whole and the limited impact of the disputed impeachment.
- Any error was, at most, harmless; and where preservation was lacking, the court found no plain error.

## Legal Principles

- To preserve an evidentiary claim for appeal, a party generally must make a timely, specific objection; when testimony comes in after an overruled objection, a motion to strike may be required to fully preserve the issue.
- Federal Rule of Evidence 609(b) sharply limits impeachment with convictions more than ten years old; admission requires a heightened showing that probative value substantially outweighs unfair prejudice (and compliance with notice requirements).
- Federal Rule of Evidence 608(b) permits inquiry into specific instances of conduct on cross-examination only when they are probative of the witness’s character for truthfulness; violence-related conduct (such as fighting) typically bears on aggression, not veracity.
- Trial courts have discretion over the scope of cross-examination and impeachment; appellate courts reverse only for prejudicial error, and unpreserved claims are reviewed (if at all) under the demanding plain-error standard.
- A conviction will not be reversed for an evidentiary misstep that did not materially affect the verdict.

## Conclusion

The First Circuit upheld Meserve’s robbery and firearms convictions, concluding that his objections to the impeachment of his brother were not properly preserved in key respects and that, in any event, the challenged questioning about an old conviction and fighting history did not warrant reversal under harmless-error or plain-error review.


United States v. Meserve, 271 F.3d 314 (2001)