Q. Do recording contracts use the term "recording expenses" or "recording costs"?

A. I, in all the recording contracts I've seen, in many of them, I don't remember the term "recording expenses" ever used, it's always "recording costs" that I've seen in the clause.

(Day 13, pages 110-112). He followed up on this in his closing argument, stating that "[q]uestions were asked about recording costs, but recording costs is not the word used [in the FMA]." (Day 15, page 18). We find that this additional testimony by Engel counters the potential prejudicial effect of his challenged statement. Scholz argues on appeal that the prejudicial effect of the testimony was compounded by the statement of Ahern's counsel in his closing argument that there is no testimony before you, ladies and gentlemen, that legal costs in litigation that Mr. Scholz was in is a recording cost. In fact, to the contrary, the only testimony here has been that legal costs -- legal fees and legal costs are not recording costs.

You may recall Mr. Engel uncomfortably on the witness stand, after I qualified him on his expertise in matters of this sort, acknowledging that this was the case.

(Day 15, page 45). However, between the totality of the evidence at trial and the additional statements Engel himself made, both as witness and as counsel, we do not feel that this reference to Engel in the hour spent in closing argument by Ahern's counsel could be found to sway the jury's decision, prompting harmful error. See Espeaignnette , 43 F.3d at 9.

B. The Omitted Testimony

Scholz contends that the district court made a separate harmful error in upholding the objections made by Ahern's trial counsel when Engel's co-counsel called Engel to the stand on the thirteenth day of trial and tried to have him address his earlier testimony. After stating that the FMA used the term "recording expenses," not "recording costs," and reading out the pertinent section of the FMA, Engel's testimony continued as follows:

Q. Have you seen contracts using only [the] words "recording costs" where artists were paid for legal fees?

A. Yes.

Q. As an expert, how do you interpret recording expenses as it's used in the Further Modification Agreement?

MR. PHILLIPS: Objection.

THE COURT: Sustained.

THE WITNESS: Your Honor, I was asked --

THE COURT: Sustained.

Q. Does the language in the Further Modification Agreement --

THE COURT: He asked you a question, did you ever see it before? Your answer was no. Now you're saying -- I won't allow any questions as to where you saw it.

THE WITNESS: He asked me, your Honor, I remember the exact question, because I answered it, he asked me about interpreting recording costs. Now, if he can ask me to interpret --

MR PHILLIPS: Objection, your Honor.

THE COURT: Sustained, sustained. Sustained.

THE WITNESS: Well --

BY MR. PASSIN:

Q. Does the -- Does the language of the Further Modification Agreement affect other deductions you mentioned in [the Scholz Statements]?

MR. PHILLIPS: Objection. He's simply interpreting the agreement.

THE COURT: I'm going to sustain it.

THE WITNESS: Your Honor, could we have a side bar, because I think --

THE COURT: No. No.

Let's get going.

(Day 13, pages 112-14).

On appeal, Scholz argues that the court "apparently believed that it would be too prejudicial to Ahern to permit Engel to explain his apparently adverse expert testimony but that it was not too prejudicial to Scholz to permit Engel to testify adversely to Scholz in the first place, a horrendous conclusion." (Appellant's Brief, page 34). We disagree. The first time Engel testified, he was asked about "contracts of performing artists and groups in the musical field." (Day 7, page 71). He stated in the disputed testimony that he had "never seen legal fees designated in a contract as anything , and certainly not as recording costs." (Day 7, page 73 (emphasis added)). When next called to the stand, Engel agreed that he had seen "contracts using only [the] words 'recording costs' where artists were paid for legal fees." (Day 13, page 112). The court's decision to sustain the objection made by Ahern's counsel in the ensuing dialogue was not a refusal to allow Engel to explain his evidence on the basis of its prejudicial effect against Ahern: it was evidently a reaction to the apparent inconsistency between these statements.

Essentially, on appeal Scholz maintains that Engel's co-counsel was not allowed to "cross-examine" him on the subject of his direct testimony for Ahern, thereby precluding him from presenting clarifying evidence or diminishing the "sting" of an attorney testifying against his own client. This error compounded the error of admitting Engel's expert testimony, Scholz contends. He complains that because of the court's ruling, the jury never got to hear Engel's testimony regarding other types of contracts, such as agreements between performers and managers, or the difference between "recording costs" and "recording expenses." Nor did they hear his explanation that his answer might differ if asked about "commercially reasonable recording expenses," not "recording costs," he notes. We view this final protest with some skepticism, however, in light of Engel's testimony on the stand that he had never seen legal fees designated "as anything," which would, presumably, include commercially reasonable recording expenses.

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