United States Court of Appeals For the First Circuit

Nos. 23-1458, 23-1884

BORIS O. BERGUS,

Plaintiff, Appellee,

v.

AGUSTIN M. FLORIAN,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Gelpí and Rikelman, Circuit Judges, and Katzmann,* Judge.

T. Christopher Donnelly, with whom Pietro A. Conte and Donnelly, Conroy & Gelhaar, LLP were on brief, for appellant.

Richard A. Goren, with whom The Law Office of Richard Goren was on brief, for appellee.

October 22, 2024

* Of the United States Court of International Trade, sitting by designation. RIKELMAN, Circuit Judge. Agustin Florian and Boris

Bergus were once colleagues in Bergus's medical practice and

eventually became co-investors in a company run by Florian's

brother-in-law. Bergus ultimately made two separate investments

in the company, purchasing stock in both 2012 and 2014.

Years later, after their relationship had soured, Bergus

sued Florian in federal court, alleging that Florian had omitted

material information about the two investments and thereby

violated the Massachusetts Uniform Securities Act ("MUSA"). The

trial featured a modest number of exhibits and only three

witnesses: Bergus, Florian, and Florian's brother-in-law. The

district court precluded Florian from cross-examining Bergus about

conduct that led a state medical board to conclude in 2013 that

Bergus had repeatedly misrepresented his medical credentials in a

way that was intended to deceive, or had the tendency to deceive,

the public. At the end of trial, the jury returned a verdict in

Bergus's favor with respect to the 2012 investment only.

On appeal, Florian challenges several of the district

court's rulings, including its limitation on his cross-examination

of Bergus. He points out that this was not a document-heavy case

and thus the trial boiled down to whether the jury believed Bergus,

who bore the burden of proof as the plaintiff. He also notes that

he sought to cross-examine Bergus about conduct highly probative

of truthfulness, given the medical board's findings of deception

- 2 - and Bergus's agreement to a reprimand and probation based on these

findings.

We agree that Bergus's credibility was pivotal to this

case and that Florian sought to cross-examine Bergus about conduct

that was probative of Bergus's character for truthfulness, as

permitted under Federal Rule of Evidence 608(b). Because we cannot

discern from the record why the district court decided to preclude

even brief cross-examination about the facts underlying the

medical board order, we conclude that the court abused its

discretion. We therefore vacate the judgment in part and remand

for a new trial on the 2012 investment.

I. BACKGROUND

A. Relevant Facts1

We begin with some details the parties do not dispute

before proceeding to the highly contested issues at trial. As the

record demonstrates, the district court took a proactive approach

to sorting out the facts and claims in this case.

Bergus and Florian are both doctors. After they met in

2011, Florian began working on a contractual basis at Bergus's

Because our decision focuses on an evidentiary ruling, we 1

review the record objectively and "present the facts relevant to the . . . ruling[] in a 'balanced' manner." Lech v. von Goeler,

(1st Cir. 2024) (quoting United States v. Velazquez-Fontanez,

(1st Cir. 2021)).

- 3 - medical practice in Norwood, Massachusetts. The two became

friends.

Eventually, Bergus and Florian discussed an investment

opportunity with Florian's brother-in-law, Edgardo Jose Antonio

Castro Baca, a Peruvian businessman. Baca is the president, board

chairman, general manager, and a shareholder of a Peruvian company

called Eserapal Juliaca Caracoto SAC (the "Company"). In 2009,

Baca began a project on behalf of the Company2 to develop a water

treatment plant and a sewage treatment plant that would serve the

Juliaca community in Peru. Baca planned to sell the plants in the

future to generate millions of dollars of profit. But before the

Company could begin to develop the treatment plants, it needed to

secure an exclusive "contract with the City of Juliaca to provide

water and sewer" utilities to the area. The Company secured that

contract in December 2010. The then-mayor of Juliaca signed the

contract, but after he left office in January 2011, the contract

required ratification by the new mayor.

At some point in 2011, the new Juliaca mayor demanded a

bribe of ten million Peruvian soles (the equivalent of about four

million U.S. dollars at the time) to ratify the contract. Baca

refused to pay the bribe, and the Company was unable to move

forward with the Juliaca project.

2 The Company was not officially incorporated, however, until December 2010.

- 4 - In 2012, Bergus and Florian discussed the possibility of

Bergus investing in the Company. By that time, Florian already

had invested in the Company, acquiring about 20% ownership. On

September 24, 2012, Bergus signed a contract via email with Baca,

who acted on the Company's behalf, to invest $125,000 for 2.5% of

the Company's stock. Bergus wired the money the next day.

In April 2014, the three met in person to discuss

Bergus's further investment in the Company. Florian interpreted

between Bergus (an English speaker) and Baca (a Spanish speaker).

On May 13, 2014, Bergus and Baca signed a second contract in which

Bergus agreed to invest an additional $250,000, for a total of 9%

of the Company's stock. Bergus wired the amount a week later.

Florian resigned from Bergus's medical practice in

October 2015. In April 2016, he sued Bergus in Massachusetts state

court for breach of contract and violation of state wage laws,

claiming that Bergus had failed to pay him in full for his work at

the medical practice.3 Two years later, Bergus initiated this

federal lawsuit, alleging that Florian had violated MUSA by making

several material omissions and misrepresentations in connection

with Bergus's 2012 and 2014 investments in the Company.

3 The parties correctly agree that we may take judicial notice of the state-court action. See Rodi v. S. New Eng. Sch. of L.,

(1st Cir. 2004) ("It is well-accepted that federal courts may take judicial notice of proceedings in other courts if those proceedings have relevance to the matters at hand." (quoting Kowalski v. Gagne,

(1st Cir. 1990))).

- 5 - The rest of the story is less clear. At the trial in

this case, the parties offered competing narratives about how

Bergus became an investor of the Company, whether Florian solicited

Bergus's investments (and, if so, to what extent), and whether

Florian or Baca informed Bergus about the mayor's bribe before he

invested in the Company.

For example, Bergus testified that Florian told him in

August 2012 about "a great investment opportunity" that would

guarantee him a 10% return within 90 days.4 According to Bergus,

Florian described the Company's project in Peru, explained that

the project was near completion and "ready for sale" but needed

additional funding "to get the paperwork in order for the sale,"

and asked him to invest $125,000 in the Company. Then in 2014,

Bergus testified, Florian approached him about investing more

money, explaining that the project had grown and required

additional funding. Although Bergus was unequivocal that it was

Florian who provided him with information about both the 2012 and

2014 investments, he also testified that Florian translated for

Baca during the 2014 meeting and that Baca showed him maps of the

project site, "pictures of the land[,] and pictures of the people."

4 Bergus initially testified at trial that Florian told him he "could double [his] money in 90 days" but recanted after he was confronted with his deposition testimony that Florian promised a "10 percent" return.

- 6 - According to Bergus, he had never spoken with Baca in person or

over the phone prior to that 2014 meeting.

Florian and Baca, in contrast, testified that Bergus and

Baca met in person about the Company in April 2012, before Bergus's

September 2012 investment, and that Florian interpreted between

Bergus and Baca at that initial meeting. Florian further testified

that he never solicited any investment from Bergus and that,

although he spoke with Bergus generally about the Company's

project, he never represented that the project was near completion

or sale. In Florian's telling, Baca provided the answers to

Bergus's questions at their meetings and negotiated the terms of

Bergus's investment agreements, while Florian merely translated.

The witnesses also presented conflicting testimony about

when Florian and Bergus each learned about the mayor's bribe

demand. Baca stated that he informed Florian about the bribe

before the three met in April 2012. He also testified that he

told Bergus about the bribe during their 2012 meeting and that

Bergus wanted to invest in the Company anyway. Florian testified

inconsistently as to when he learned about the bribe, at times

suggesting 2014, then the end of 2015 or the beginning of 2016,

and at other times claiming no memory of the date at all. But

when Florian's counsel asked Florian whether he "fail[ed] to

tell . . . Bergus at the April 2012 meeting that the [Juliaca]

mayor had demanded a bribe and the Juliaca project was put on

- 7 - standby," he answered "[n]o." Bergus, for his part, testified

that he was still in the dark about the bribe as late as the April

2014 meeting.

B. Relevant Procedural History

This case has seen many twists and turns, but we

highlight below only the procedural history relevant to the

district court's decision to limit Florian's cross-examination of

Bergus.

1. Bergus's Claims and Florian's Counterclaim

As we previewed earlier, Bergus filed this lawsuit

against Florian in 2018, invoking diversity jurisdiction and

alleging a violation of chapter 110A, section 410(a)(2), of MUSA.5

He claimed that, in connection with each of his 2012 and 2014

investments, Florian offered him securities by means of materially

false statements or omissions. See Mass. Gen. Laws Ann. ch. 110A,

§ 410(a)(2) (2024) ("Any person who . . . offers or sells a

security by means of any untrue statement of a material fact or

any omission to state a material fact . . . is liable to the person

buying the security from him . . . ."). Florian counterclaimed

for abuse of process, alleging that Bergus filed this suit to

5 Bergus also alleged breach of fiduciary duty and violations of subsections 410(a)(1) and (b) of MUSA, but he later voluntarily dismissed these MUSA claims, and the district court dismissed the breach-of-fiduciary-duty claim on summary judgment. That ruling is not on appeal.

- 8 - retaliate against Florian for filing the earlier state-court

action. The parties subsequently agreed that the trial would not

include Florian's counterclaim.

2. Motions in Limine

Before trial, Bergus filed several motions seeking to

admit or exclude certain types of evidence. In one of these

motions, Bergus sought to preclude Florian from impeaching him at

trial "on collateral matters concerning his medical practice or

offering any extrinsic evidence concerning [his] professional

conduct . . . to attack [his] character for truthfulness." Bergus

explained that Florian proposed to attack his character for

truthfulness by providing the jury with a 2013 order from the Rhode

Island Board of Medical Licensure and Discipline (the "Medical

Board"), which "concern[ed] inaccuracies in [Bergus]'s C.V. and in

certain advertising for [his] medical practice" (the "2013 Consent

Order"). According to Bergus, Florian also planned to "elicit[]

testimony about the purportedly 'unethical' and 'fraudulent'

manner in which . . . Bergus has conducted . . . his medical

practice." Relying primarily on Federal Rules of Evidence 404(b)

and 608, Bergus argued that the 2013 Consent Order should be

excluded as improper extrinsic evidence. Bergus also contended

that Florian should be prohibited from even cross-examining him

about the facts underlying the order, because the order concerned

- 9 - "collateral matters" and would be "unfairly prejudicial" to him.

Bergus did not attach a copy of the order to his motion.

Just four days after Bergus filed the motion about the

2013 Consent Order and before Florian's response to the motion was

due, the district court held a final pretrial conference and

addressed all pending motions. When the court turned to Bergus's

motion to limit his cross-examination, it first requested a copy

of the 2013 Consent Order, but neither party had the order on hand.

The court then asked Bergus's counsel what the order "actually

sa[id]." Counsel responded that it "chides the plaintiff" and

then clarified that the order was "critical of the plaintiff's

descriptions in his CV and in the way he marketed his medical

practice." Based on that representation of the order's contents,

the district court provided its preliminary views on the motion:

I'll put to one side the question of marketing the medical practice. But I want to see the specifics of this. So I want you to file it forthwith, that is so that your friend can respond to it. I'm more than a little skeptical of the kind of treatment of registration statements as being or findings as being the equivalent of a conviction for crimen falsi. That's really what you're asking for on that. And cross-examination of specifics of the way in which [Bergus] conducted his medical practice seem to me to be far too collateral to permit getting in here, but if there's something specific, I'll look at it and you'll get to respond to whatever it is that precisely is --

[Bergus's counsel]: We will file that forthwith.

- 10 - THE COURT: If it's around, it must be, I'd like to see it and I think your friend has a right to take a look at it as well and the specifics. But this is [my] advice to you. Don't count on that being part of the trial in the case. You've got plenty of stuff to work with. That's not likely to be part of it, and I think it's unfairly prejudicial sufficiently so that I might, quite apart from the application of 404 or 404(b), use 403 to keep it out.

The court then turned to discuss other trial matters.

When Florian filed his response to Bergus's motion a

week later, he provided the district court with a copy of the 2013

Consent Order, along with a copy of a 2021 Medical Board order

summarily suspending Bergus's medical license (the "2021

Suspension Order"). Florian argued that he should be able to

cross-examine Bergus about these orders and the underlying facts

because Bergus was relying solely on his own testimony to prove

his claims, Rule 608 permitted a witness's credibility to be

attacked based on their character for truthfulness, and the Medical

Board had "found very specific facts against . . . Bergus which

[could] educate the jury about his character for telling the

truth."

As Florian pointed out, the Medical Board had concluded

in the 2013 Consent Order that Bergus had advertised his "medical

business [in a way that was] intended or ha[d] a tendency to

deceive the public." It found that Bergus had provided misleading

- 11 - information about his medical credentials on his medical

practice's website, in his CV, and in his communications to the

Medical Board.6 Based on those findings, Bergus "agreed" to a

"reprimand on his physician license" and to two years of probation

as part of the order. In the 2021 Suspension Order, the Medical

Board found that Bergus had been storing "expired

medications . . . in patient use areas" (such as patient exam

rooms and medication supply rooms). Based on this conduct, the

Medical Board concluded that he had violated a Rhode Island law

prohibiting "[i]ncompetent, negligent, or willful misconduct in

the practice of medicine." And because the public would be in

immediate danger if Bergus continued practicing medicine, the

Medical Board explained, it suspended his medical license. These

two orders, Florian argued, demonstrated that "Bergus ha[d] a

history of untruthfulness" and that Florian should have been

permitted to cross-examine him about his prior

"misrepresentations" and "deceit."

A few weeks after the pretrial conference, the district

court issued an electronic order ruling on all of the parties'

6 For example, according to the 2013 Consent Order, Bergus repeatedly misrepresented the length of his post-medical school training, stated that he had "participated in a residency at Brown University" even though he never completed that residency, and claimed, including on his medical practice's website, that he had "completed Fellowship training in a subspeciality of Cardiovascular Surgery at Boston Children's Hospital," even though his fellowship was not in a cardiovascular-related subspecialty.

- 12 - pretrial motions. It noted that it had afforded Florian time to

file written opposition to Bergus's various motions and then stated

that it "dispose[d] of the remaining outstanding motions in limine,

more or less consistently with my preliminary observations at the

pretrial conference." As to Bergus's motion to limit the scope of

Florian's proposed cross-examination, the court ruled that "motion

117 to preclude impeachment on collateral matters is GRANTED" and

ordered that "no party shall make reference to such matters."

3. Trial

In January 2023, just a few days after the district court

ruled on the parties' pretrial motions, trial began. Only three

witnesses testified: Bergus, Florian, and Baca. After the parties

rested their cases, the court discussed with counsel what questions

would be included on the verdict form. The court explained that,

for each of the 2012 and 2014 investments, the verdict form would

first ask the jury whether Florian was engaged in the solicitation

of securities purchased by Bergus. If the jury answered "yes" for

either investment, it would then continue to the next section of

the form, which would list Florian's alleged misrepresentations

and omissions. The district court then "turn[ed] to the question

of whether or not any of those [alleged] misstatements was

material" and explained that it was "prepared to make that

determination as a matter of law," depending on Florian's thoughts

on the issue. Florian objected, arguing that the issue of

- 13 - materiality was "obviously a question for the jury." The court

ultimately decided not to "put a materiality question to the jury,"

determining as a matter of law that the alleged misstatements and

omissions were material. The final verdict form, as the court

previewed, included a list of alleged misrepresentations and

omissions for each of the two investments. With respect to the

2012 investment, the omission presented to the jury was that

"Florian omitted to tell . . . Bergus that the Mayor of Juliaca

had demanded a bribe."7

After deliberating for about three hours, the jury

returned its verdict, finding that Florian had solicited Bergus's

2012 investment and that he omitted to tell Bergus about the

mayor's bribe demand. The jury further determined that Florian

had not made any other material omission or misrepresentation in

connection with the 2012 investment. As to the 2014 investment,

the jury concluded that Florian had not solicited that investment

and therefore did not proceed to determine whether he had made any

material misrepresentations or omissions in connection with that

investment.

4. Post-Trial Proceedings

A few months later, the parties appeared before the

district court for a hearing on various post-trial motions that

7 The verdict form included additional questions, but those are not important here.

- 14 - Florian had filed. During that hearing, the court shared its view

that there was no longer a "basis for the exercise

of . . . 'supplemental jurisdiction'" and that the parties should

litigate Florian's remaining counterclaim in state court. "In the

interest of judicial economy" and "proper exercise of federal

jurisdiction," the court explained, its final judgment would

include a dismissal of Florian's counterclaim.

The district court entered a final judgment in October

2023. As to Bergus's 2012 investment, the court ordered as

follows:

Judgment for . . . Bergus against . . . Florian in the amount of $125,000 . . . ; together with prejudgment interest at the rate of 6% per annum pursuant to M.G.L. c. 110A, § 410(2), from September 25, 2012 to Monday January 23, 2023, in the amount of $77,506.85; for a total Judgment . . . of $202,506.85, and,

As a predicate to execution of the money judgment and calculation of costs and attorney's fees herein, . . . Bergus shall forthwith tender the [2012 investment] securities . . . .

As for the 2014 investment, the court ordered that Bergus "take

nothing." In addition to the $202,506.85 in damages, the district

court also awarded Bergus $548,728.01 in attorney's fees,

expenses, and costs, resulting in a total judgment against Florian

of $751,234.86.

This timely appeal followed.

- 15 - II. STANDARD OF REVIEW

"We review a district court's decision to exclude

evidence . . . for abuse of discretion." IDC Props., Inc. v. Chi.

Title Ins. Co.,

(1st Cir. 2022) (quoting Ellicott

v. Am. Cap. Energy, Inc.,

(1st Cir. 2018)).

Under this standard, we will not set aside a court's evidentiary

decision unless we are left with "a definite and firm conviction

that the court . . . committed a clear error of judgment in the

conclusion it reached upon a weighing of the relevant factors."

United States v. Kilmartin,

(1st Cir. 2019)

(quotation marks and citation omitted). A district court abuses

its discretion when it overlooks "a relevant factor deserving of

significant weight," accords "an improper factor . . . significant

weight, or . . . considers the appropriate mix of factors, but

commits a palpable error of judgment in calibrating the decisional

scales." United States v. Soler-Montalvo,

, 14 (1st

Cir. 2022) (quoting United States v. Taylor,

(1st Cir. 2017)).

Even if a court erroneously excludes certain evidence,

however, we will not upset the jury's verdict and grant a new trial

"if the error was harmless, that is, 'if it is highly probable

that the error did not affect the outcome of the case.'" Neece v.

City of Chicopee,

(1st Cir. 2024) (quoting

McDonough v. City of Quincy,

, 19–20 (1st Cir. 2006)).

- 16 - To evaluate the probable impact of erroneously excluded evidence

on the verdict, we consider "[t]he centrality of the evidence, its

prejudicial effect, whether it is cumulative, the use of the

evidence by counsel, and the closeness of the case." Lech v. von

Goeler,

(1st Cir. 2024) (alteration in original)

(quoting Kowalski v. Gagne,

(1st Cir. 1990)).

III. DISCUSSION

Florian challenges several of the district court's

rulings on appeal. Specifically, he contends that the court erred

by: (1) awarding Bergus $125,000 for the 2012 investment, given

the jury's rejection of Florian's liability related to the 2014

investment; (2) determining that any omission about the bribe

demand was material "as [a] matter of law," thereby taking the

materiality issue away from the jury; (3) preventing Florian from

cross-examining Bergus about his "repeated public [lies] about his

medical credentials" and "misrepresent[ations] to patients that he

was treating them with safe, effective medications"; (4)

determining the amount of reasonable attorney's fees recoverable

from Florian under MUSA; and (5) dismissing Florian's

abuse-of-process counterclaim for lack of jurisdiction.

We conclude that the district court abused its

discretion when it precluded Florian from cross-examining Bergus

about the facts underlying the 2013 Consent Order. Further,

because we are unable to conclude that it was "highly probable"

- 17 - that the error did not affect the verdict, we hold that this error

was not harmless. Neece,

(quotation marks and

citation omitted). Given this ruling, which requires a new trial,

we bypass Florian's remaining arguments on appeal. See Rhode

Island v. Shell Oil Prods. Co.,

, 53 (1st Cir. 2022)

("[I]f it is not necessary to decide more, it is necessary not to

decide more." (quoting PDK Labs. Inc. v. U.S. D.E.A.,

(D.C. Cir. 2004) (Roberts, J., concurring in part))).

A. Limitation on Florian's Cross-Examination of Bergus

Although at trial Florian sought to introduce both the

2013 and 2021 Medical Board orders into evidence and to

cross-examine Bergus about the orders to undermine Bergus's

credibility, on appeal Florian presents a more targeted argument.

He now focuses on the district court's ruling prohibiting any

cross-examination about the orders as "fatally prejudic[ing]" his

case and abandons any claim that the orders themselves were

admissible. Framing this as a "he-said/she-said" dispute with

only three witnesses (Bergus, Florian, and Baca), Florian argues

that his "liability concerning the 2012 [investment] undoubtedly

boiled down to the jury's credibility assessments of" him and

Bergus. Because the case rose and fell on credibility, Florian

contends, he should have been permitted to cross-examine Bergus

about the facts underlying the 2013 Consent Order, including the

fact that Bergus had misrepresented his medical credentials in a

- 18 - manner that was designed to deceive or tended to deceive the

public. And because the district court restricted such

cross-examination "without any ruling from which Florian could

discern the court's reasoning," Florian argues, the court abused

its discretion.

We begin with the touchstone of our analysis here,

Federal Rule of Evidence 608. Under Rule 608(b), "extrinsic

evidence is not admissible to prove specific instances of a

witness's conduct in order to attack or support the witness's

character for truthfulness," but a district court "may" permit

cross-examination about such instances "if they are probative of

the [witness's] character for truthfulness or untruthfulness."

Fed. R. Evid. 608(b); see also Lech,

. Further,

both Rule 608(b) and Rule 403 grant a district court broad

discretion to control the scope and extent of cross-examination.

See Tigges v. Cataldo,

(1st Cir. 1979) ("The

court . . . has considerable discretion [under Rule 608(b)] to

exclude avenues of cross-examination which promise to lead far

afield from the main controversy."); United States v. Shinderman,

(1st Cir. 2008) (explaining that "a trial court's

discretion to determine the scope and extent of cross-examination

is broad" but "subject to the overarching need to balance probative

worth against prejudicial impact" under Rule 403).

- 19 - Rule 608(b) plainly barred the admission of the 2013 and

2021 Medical Board orders to prove Bergus's character for

untruthfulness, and Florian does not contend otherwise on appeal.8

The narrower argument he presses is that the district court erred

in precluding any cross-examination of Bergus about his conduct

underlying those Medical Board orders. Affording considerable

deference to the district court in these circumstances, as we must,

we conclude that it was well within the court's discretion to

preclude cross-examination about Bergus's storage of expired

medications. At the same time, and while emphasizing our respect

for the district court, we determine that the court did abuse its

discretion by prohibiting any cross-examination about Bergus's

misrepresentations regarding his medical credentials.

As an initial matter, to the extent the district court

concluded that Bergus's storage of expired medications at his

medical practice was not probative of his credibility under the

terms of Rule 608(b) or "too collateral," we agree. Florian offers

8Specifically, Rule 608(b) would prohibit Florian from introducing into evidence the 2013 and 2021 Medical Board orders themselves as "specific instances of [Bergus's] . . . conduct for the purpose of showing [his] alleged penchant for untruthfulness." Lech,

; see also

(explaining that "extrinsic evidence includes any evidence other than trial testimony" (quotation marks and citation omitted)). Florian does not dispute this conclusion. Instead, he focuses on the second half of Rule 608(b), which permits cross-examination about conduct if it is probative of the witness's character for untruthfulness, so we do too.

- 20 - no compelling argument on appeal as to how that conduct is

probative of untruthfulness as opposed to, for example,

carelessness.9

By contrast, cross-examination about Bergus's repeated

misrepresentations of his medical credentials to two state medical

boards, to a hospital and a health plan, and on his own

website -- in a manner that tended to deceive the public -- would

have been probative of Bergus's character for untruthfulness. See,

e.g., United States v. Simonelli,

(1st Cir. 2001)

(explaining that whether prior conduct is probative of

untruthfulness under Rule 608(b) depends on whether the prior

conduct is likely to have occurred and similar to the conduct at

issue, or remote in time or cumulative of other evidence, and

concluding that deceptive business practices such as altering time

cards and inflating bills tended to show untruthfulness); United

States v. Fulk,

(7th Cir. 1987) (holding

that Rule 608(b) allowed cross-examination about the suspension of

the defendant's chiropractor license for deceptive practices);

United States v. Whitehead,

(4th Cir. 1980)

(permitting cross-examination about the defendant's suspension

9We briefly add that Florian, relying on the 2021 Suspension Order, suggests that the Medical Board suspended Bergus's license "for misrepresenting to patients that he was treating them with safe, effective medications." The order, however, details the Medical Board's findings that Bergus was storing expired medications in patient care areas at his two medical offices.

- 21 - from legal practice for "conduct involving deceit or

misrepresentation"). Of course, the district court did not have

the benefit of having the 2013 Consent Order before it, or

Florian's briefing on the issue, when it offered its preliminary

views about the evidentiary value of the order and the conduct

underlying it. And as we explained above, any decision to exclude

the order itself as inadmissible extrinsic evidence under Rule

608(b) was correct. Similarly, although neither party had brought

up Rule 609, the district court rightly noted that this rule also

would not have permitted admission of the 2013 Consent Order

because the order was not equivalent to a criminal conviction.10

As to why the district court concluded that Florian could

not cross-examine Bergus about the conduct underlying the 2013

Consent Order consistent with Rule 608(b), however, the record is

unclear. See Lech,

(noting that although Rule

608(b) prohibited defendants from playing recordings of phone

calls in which plaintiff lied, it did not restrict them from asking

her "on cross-examination whether she lied during the phone

calls"). Based on Bergus's representations about the contents of

In particular, the district court stated that it was 10

"skeptical of the kind of treatment of registration statements as being or findings as being the equivalent of a conviction for crimen falsi." We read that reasoning to refer to Rule 609, which permits a party to attack a witness's character for truthfulness with evidence of a conviction for crimes involving dishonesty. See Fed. R. Evid. 609(a). We agree with the district court that Rule 609 does not apply here.

- 22 - the order during the pretrial conference, the district court

suggested that "cross-examination of the specifics of the way"

that Bergus "conducted his medical practice" would be "far too

collateral," a factor under Rule 608(b). Then, in another

reference to the 2013 Consent Order itself, the court also stated:

"I think it's unfairly prejudicial sufficiently so that I

might . . . use 403 to keep it out."

The parties treat the district court's decision to

preclude all cross-examination about the facts underlying the 2013

Consent Order as falling under Rule 403, and so do we. This

approach makes sense given the similarity between the analyses

required under Rule 608(b) and Rule 403. With regard to whether

cross-examination about prior conduct should be permitted, the

ultimate question under both rules is the same: Is the conduct

probative enough, relative to "the potential dangers and costs of

the evidence," that the conduct is worth delving into at trial?

Simonelli,

(noting that the principles controlling

a district court's discretion under Rule 608(b) are "recognized in

Rules 403 and 611").

Thus, we turn to Rule 403. Even when testimony is

admissible under Rule 608(b), a district court may still exclude

it under Rule 403 "if its probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or

- 23 - needlessly presenting cumulative evidence." Fed. R. Evid. 403;

see also Shinderman, 515 F.3d at 16–17. Relying on this principle,

Bergus argues that the district court had the discretion to

preclude cross-examination by Florian about the facts underlying

the 2013 Consent Order as "unfairly prejudicial."

The record does not indicate why the district court

concluded that it would be unfairly prejudicial for Florian to

cross-examine Bergus, even briefly, about Bergus's previous

representations of his medical credentials. But of course district

courts need not always make "explicit [Rule 403] findings." United

States v. De La Cruz,

(1st Cir. 1990); see also

United States v. Breton,

(1st Cir. 2014) ("We give

great deference to a district judge's balancing of probative value

versus unfair prejudice. . . . even when a judge does not

expressly explain the Rule 403 balancing process on the record.").

Thus, "[w]here the record is silent, we have on prior

occasions . . . independently engaged in that analysis without

resort to the district court's decision." United States v. Smith,

(1st Cir. 2002); see, e.g., De La Cruz,

n.1 ("Despite the lack of express findings, we believe that

the record reflects the district court's awareness of its

responsibility to weigh the relevant factors and perform a

balancing test prior to allowing the government to use the disputed

evidence.").

- 24 - Based on an independent analysis, we agree with Florian

that it was an abuse of discretion to prohibit all

cross-examination about the conduct underlying the 2013 Consent

Order as unfairly prejudicial to Bergus.11 Certainly, asking

Bergus about conduct that the Medical Board had found "intended to

deceive or ha[d] a tendency to deceive the public" would be

prejudicial to him. That is especially so when Bergus's

representations about his credentials were arguably made for the

purpose of financial gain. But "[w]e long have recognized that

all evidence is meant to be prejudicial" and that Rule 403

prohibits "only unfair prejudice." Shinderman,

(quotation marks and citation omitted).

Further, under Rule 403, "the evidence's dangers of

unfair prejudice" must "substantially" outweigh -- not merely

"somewhat" outweigh -- the evidence's probative value.

Soler-Montalvo, 44 F.4th at 16. And "unfair prejudice ensues when

particular evidence 'serves only to evoke an improper emotional

response' and distracts 'from careful consideration of the

relevant issues.'" Kilmartin,

(quoting United

States v. Fulmer,

(1st Cir. 1997)). But Bergus

offers no reason why cross-examination about how he represented

In so holding, we do not imply that the district court made 11

an elementary mistake. The facts underlying the 2013 Consent Order were not presented to the district court with utmost clarity.

- 25 - his medical credentials to the public would serve only to evoke

"an improper emotional response."

Nor does he explain more

broadly how he would have been unfairly prejudiced by such

cross-examination or argue that the danger of any prejudice

substantially outweighed the evidence's probative value.

Additionally, the district court likely could have mitigated the

potential for unfairness by providing an appropriate limiting

instruction if requested. See Davignon v. Hodgson,

(1st Cir. 2008); see also Rubert-Torres v. Hosp. San Pablo,

Inc.,

(1st Cir. 2000) ("Because the Federal Rules

of Evidence favor the admissibility of evidence, less intrusive

measures to minimizing the prejudicial effect of evidence are

preferred to excluding evidence.").

Finally, we note that Bergus does not even argue that

cross-examination on the topic of his prior representations would

risk implicating Rule 403's other concerns: "confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence." Fed. R. Evid. 403. And of course

Florian would have been "stuck" with the answers Bergus provided

during the cross-examination, and the district court would have

been well within its discretion in instructing counsel to move on

if the questioning on this topic were taking too long. See Lech,

(explaining that the cross-examining party is "stuck

- 26 - with the witness's answer" (quotation marks and citation

omitted)).

B. Harmless-Error Inquiry

We now turn to consider whether "it is highly probable

that the error [in precluding the evidence] did not affect the

outcome of the case." Neece,

(quotation marks and

citation omitted). When viewing "the record as a whole," we

conclude that limiting Florian's cross-examination of Bergus was

not harmless. Lech,

.

Importantly, as Florian notes, Bergus bore the burden of

proof here and his case rested on his own testimony that Florian

did not disclose the Juliaca mayor's bribe demand before he

invested. This was not a document-heavy case, and there was no

other witness who corroborated Bergus's side of the story. Put

simply, "the case hinged on [the jury's] competing credibility

assessments" of Bergus and Florian.

(concluding that

exclusion of testimony from sole witness who could corroborate

plaintiff's testimony was not harmless because "case centered on

a credibility battle between" the parties). Bergus's success at

trial was therefore dependent on the jury's finding that he was a

more credible witness than Florian.

Further, in our view, the probative value of the conduct

underlying the 2013 Consent Order was not minimal. The underlying

facts concerned deceiving the public, arguably for financial gain,

- 27 - and Bergus had agreed to accept a reprimand on his license and two

years of probation as a result.

In an effort to demonstrate harmlessness, Bergus points

out that "Florian chose not to cross examine Bergus about what, if

anything, in 2012 Bergus was told about the Juliaca mayor's demand

for a bribe." He also argues that "[n]either on direct examination

of Florian nor cross examination of Bergus did Florian's

counsel . . . seek to elicit opinion testimony about Bergus'

purported character for untruthfulness."

We are not persuaded. The fact that Florian chose not

to cross-examine Bergus on what he was told about the mayor's bribe

demand is hardly surprising. Bergus unequivocally testified on

direct examination that Florian did not tell him about the bribe

demand before he made his 2012 and 2014 investments. And Florian

argued in his opposition to Bergus's motion that he had "knowledge

to testify to . . . Bergus'[s] reputation for truthfulness at work

and in the medical profession," and the district court, in granting

Bergus's motion, prohibited Florian from offering such testimony

on direct examination.

In sum, we conclude that cross-examination about

Bergus's conduct underlying the 2013 Consent Order could have

impacted a reasonable juror's evaluation of the trial evidence,

including the comparative credibility of Bergus and Florian. See

Lech,

(considering in harmless-error analysis "[t]he

- 28 - centrality of the evidence, its prejudicial effect, whether it is

cumulative, the use of the evidence by counsel, and the closeness

of the case" (alteration in original) (quotation marks and citation

omitted)); cf. United States v. Mulinelli-Navas,

(1st Cir. 1997) (concluding that limitation on cross-examination

was not harmless in criminal case because proof of defendant's

knowledge relied solely on government witness's testimony and

allowing the cross-examination could have allowed jury to

discredit witness's testimony). Thus, we cannot say that it was

"highly probable that" the court's limitation on Florian's ability

to cross-examine Bergus "did not affect the outcome of the case."

Neece,

(quotation marks and citation omitted).

IV. CONCLUSION

For these reasons, we vacate the judgment as to the 2012

investment as well as the dismissal of Florian's counterclaim, and

we remand for a new trial on the 2012 investment and any other

proceedings consistent with this opinion.12 The jury's verdict as

12 See Dopp v. HTP Corp.,

(1st Cir. 1991) ("An appellate court has broad discretion to remand for a new trial on all, or only some, of the issues in the case."); see also, e.g., Holdam v. Middlesex Supply, Inc.,

(1st Cir. 1966).

We make one final point about the scope of any new trial. Florian argues that the jury's verdict on the 2014 investment precludes, as a matter of law, a verdict against him on the 2012 investment, but we disagree. Bergus purchased 3,750 shares, or 2.5% of the Company, for $125,000 under the 2012 contract. Later,

- 29 - to the 2014 investment remains intact. The parties shall bear

their own costs.

Bergus and the Company executed the 2014 contract, which required an additional investment by Bergus of $250,000 and increased his equity to 9% of the Company.

Florian claims that the initial 3,750 shares Bergus purchased in 2012 were "cancelled" in 2014 as partial consideration for Bergus's increased 9% stake in the Company. Florian then argues that because Bergus received value for those initial 3,750 shares as part of the 2014 transaction the jury concluded was lawful, Bergus no longer owned those shares and was not entitled to damages under MUSA for the 2012 purchase. See Mass. Gen. Laws ch. 110A, § 410(a)(2) (2024).

The record belies Florian's argument that Bergus returned his initial 3,750 shares in 2014. The minutes of the Company's shareholders meeting confirm that the 2014 contract involved a "transfer[] of 9,750 . . . shares equivalent to 6.5% in equity stakes" that resulted in "a new total of 13,500 shares" for Bergus, equivalent to "9.0% of capital shares." The 2014 contract therefore represented an additional purchase by Bergus of 9,750 shares for $250,000, and Bergus continued to own the 3,750 shares he purchased in 2012, for a total of 13,500 shares. Thus, Bergus is not precluded from pursuing a MUSA claim about the 2012 investment at a new trial.

- 30 -