Full opinion text
OPINION OF THE COURT HUTCHINSON, Circuit Judge. I. Harry Casoni (Casoni) appeals his convictions on one count of conspiracy to commit a crime against the United States, two counts of interstate travel in aid of racketeering, one count of bribery and four counts of mail fraud. We will affirm. Ca-soni’s convictions followed a jury trial in the United States District Court for the Middle District of Pennsylvania. Casoni argues that various evidentiary rulings the district court made were wrong, that they were prejudicial and that therefore the district court erred in denying his motion for a new trial. In making these arguments, Casoni challenges the district court’s admission of testimony by Richard Guida (Guida), attorney for James Gabler (Ga-bler), and documents Guida had prepared that corroborated Guida’s testimony. More specifically, after Gabler had testified against Casoni under a grant of immunity, Guida’s testimony about what Gabler told Guida about Casoni and co-defendant Kenneth Reeher (Reeher) was admitted under Federal Rule of Evidence 801(d)(1)(B) as evidence of a prior consistent statement by Gabler. Guida’s written proffer of what Gabler proposed to say, as Guida prepared and submitted it to the United States Attorney in pursuit of Gabler’s successful bid for immunity from prosecution, and Guida’s notes of a meeting with Gabler were also admitted as evidence of Gabler’s prior consistent statement under the “records of regularly conducted activity” exception to the hearsay rule set forth in Federal Rule of Evidence 803(6). Gabler’s disclosures to Guida and Guida’s notes about them formed much of the basis, but not all the details, of the proffer Guida prepared and presented to the government in Gabler's successful bid for immunity. While Gabler’s prior consistent statement would not be hearsay under Rule 801(d)(1)(B), Guida’s written out-of-court declarations about Gabler’s prior consistent statement, when offered as evidence of Gabler’s prior consistent statement, are hearsay subject to the prohibition found in Federal Rule of Evidence 802 unless they fall within one of the exceptions to the hearsay rule. At trial and here, Casoni contends that Guida’s testimony about what Gabler told Guida, as well as the notes and the proffer, are not admissible under Rule 801(d)(1)(B) as prior consistent statements. Casoni maintains that the statements are not entirely consistent with Gabler’s testimony at trial and argues that all three statements were made after Gabler’s recognition of his own potential criminal liability gave him a motive to falsify that should have led to the statements’ exclusion. With respect to the proffer itself, Casoni attacks not just the admission of the document under Rule 803(6) as Guida’s business record but argues that the district court compounded the error when it permitted the jury, during deliberations, to examine the document that Guida had shaped into narrative form from his notes of conference with Gabler. Finally, Casoni attacks a district court ruling that he says improperly prevented him from fully cross-examining Guida about an unrelated government criminal investigation concerning Guida. For the reasons set forth below, we reject Casoni’s argument that Gabler’s declarations to his attorney, Guida, were not prior consistent statements within the meaning of Rule 801(d)(1)(B). We hold that Gabler’s statements to Guida fall within Rule 801(d)(l)(B)’s definition of prior consistent statements because the rule does not require them to be consistent in every detail with Gabler’s testimony at trial. We also hold that they were not inadmissible for the limited rehabilitative purpose the government offered them in this case even though they were made after Gabler’s knowledge of the personal risk of criminal liability gave him motive to falsify. Ga-bler’s statements to Guida were also relevant within Federal Rule of Evidence 401’s broad rule of relevancy, and they were not so unfairly prejudicial as to warrant their exclusion under Federal Rule of Evidence 403. Therefore, we hold that the district court did not abuse its discretion or otherwise err in permitting Guida to testify about Gabler’s statements to him. With respect to the notes and the proffer, we hold that the district court abused its discretion in ruling that the hearsay declarations Guida set out in his notes and proffer fall under Rule 803(6)’s business records exception to the hearsay rule. The proffer did not meet Rule 803(6)’s requirement of trustworthiness. Since Guida was present and testified about Gabler’s prior statement based on Guida’s own recollection, as refreshed by the notes, and the notes were prepared with litigation implicating Gabler in criminal conduct in mind, we also believe the district court abused its discretion in admitting the notes. If the district court had simply permitted the jury to hear what was in the notes and proffer, however, its error in admitting them would have been unquestionably harmless. The availability to the jury of the exhibits that embodied the notes and proffer during its deliberations, particularly the jury’s possession of the proffer, is more troubling. We are nevertheless satisfied that the other evidence against Casoni is so strong that it is highly probable that the jury would have convicted him even if the exhibits containing the notes and the proffer had not been available to it. Accordingly, we hold that this error too is harmless. Finally we hold that the district court did not err in limiting Casoni’s cross-examination of Guida about the criminal investigation involving Guida’s violations of the federal drug laws that began after Guida interviewed Gabler and prepared the notes and proffer. II. Casoni and Reeher were indicted by a federal grand jury on April 14, 1989, for their roles in the award of a Pennsylvania state contract to Gabler’s company, Gabler Educational Management Services, Incorporated (GEM). Reeher was the director of the Pennsylvania Higher Education Assistance Agency (Agency), a state agency charged with granting and administering federally guaranteed student loans. Caso-ni was his deputy. The indictments charged one count of conspiracy to commit an offense against the United States, 18 U.S.C.A. § 371 (West 1966); three counts of interstate travel in aid of racketeering, 18 U.S.C.A. § 1952(a)(3) (West Supp.1991) and 18 U.S.C.A. § 2 (West 1969); one count of bribery, 18 U.S.C.A. § 666 (West Supp. 1991) and 18 U.S.C.A. § 2; one count of extortion, 18 U.S.C.A. § 1951 (West 1984) and 18 U.S.C.A. § 2; and six counts of mail fraud, 18 U.S.C.A. § 1341 (West Supp.1991) and 18 U.S.C.A. § 2. The trial began just over four months later. Among those who testified were Gabler and Loren Carlson (Carlson). Carlson and Gabler were the co-founders of GEM. Their testimony described Casoni’s role in a scheme to obtain a valuable state contract for GEM from the Agency. Other witnesses testified about the steps Casoni took to see that the Agency’s contract with GEM came to fruition. Yet others testified to Casoni’s transferring cash and other gifts to Reeher through third persons. GEM’s corporate counsel, Andrew Semmel-man (Semmelman), testified about statements Gabler made to him of a plan to secure the contract for GEM by offering valuable but unlawful personal benefits to Casoni and Reeher in exchange for official action favorable to GEM. Semmelman also described certain incriminating representations that Casoni made to him when GEM was about to enter into the contract with Reeher’s state agency. Gabler appeared at trial pursuant to an agreement that he would be immune from prosecution if he testified against Casoni and Reeher along the lines set forth in the proffer that Guida had prepared. On cross-examination, Casoni sought to impeach Gabler by suggesting that he had fabricated his testimony to implicate Casoni and Reeher in order to gain immunity for himself. Casoni pointed to various differences in detail between Gabler’s testimony at trial and the information he had given the Federal Bureau of Investigation (FBI) during the eight times the Bureau interviewed him in preparation for indictment and trial. For example, Gabler told the FBI that Reeher’s demand for a share of the GEM/Agency contract was made at a meeting at Reeher’s house. Gabler testified at trial that Reeher’s demand was made in a phone call to Carlson before Casoni, Carlson, Gabler and Reeher first met in Chicago, where GEM had its principal office. Gabler had also told the FBI that he could not remember who said that a discussion in a meeting in Reeher’s basement should be kept secret. At trial he testified that he remembered it was Reeher who urged they keep the discussion a secret. In the fall of 1987, Gabler had written a chronology of events surrounding his efforts to land the contract at issue for GEM. He presented this chronology to his first attorney, Scott Adams (Adams). It was inconsistent with his trial testimony. Perhaps, most significantly, Gabler’s early chronology lacked any mention of the Chicago meeting that loomed large in his trial testimony. At trial, Gabler said that the written chronology and the story that he told Adams were both lies. To rehabilitate Gabler the government called Guida, an experienced criminal lawyer to whom Adams had referred Gabler. Guida testified about his first meeting with Gabler. Guida’s testimony about this interview was admitted as Gabler’s prior consistent statement. Guida said that after hearing Gabler’s story he advised Gabler to seek immunity by offering testimony to incriminate Reeher and Casoni. Guida also described and identified the written proffer that he dictated and gave to the government shortly thereafter along with the notes upon which the proffer was based, all in the interest of securing immunity for Gabler. At trial, the notes and the proffer were marked as exhibits, admitted into evidence as Guida’s business records, and went out with the jury. By the time of trial Guida had himself been under investigation by federal prosecutors for drug use in 1986. He was also under investigation for other criminal activity at the time that he testified. The United States Attorney advised the court that the evidence currently available indicated that Guida may not have taken part in any criminal activity. Because of this representation and the fact that Guida was testifying about events that predated the investigation against him by almost two years, the district court did not let Casoni cross-examine Guida about Guida’s status as the target of a criminal investigation or Gui-da’s prior use of cocaine. Guida was eventually charged and pleaded guilty to distribution of cocaine and possession of cocaine with intent to distribute. The jury found Reeher not guilty on all counts, but convicted Casoni on one count of conspiracy, two counts of interstate travel in aid of racketeering, one count of bribery, and four counts of mail fraud. The jury acquitted Casoni on four other counts. The district court denied Casoni’s post-trial motions and sentenced him to five years of imprisonment, seven other concurrent five-year sentences and a $15,000.00 fine. Casoni then filed this timely appeal. III. In 1986, Casoni was the Senior Deputy for Contract Services at the Agency. The Agency is a state governmental organ that guarantees federally subsidized student loans. When a borrower becomes delinquent in repaying a student loan, federal law requires the holder of the loan to make diligent collection efforts for 180 days. The collection efforts the holder must make include letters and phone calls to the borrower demanding payment. At the lender’s request, an intermediate guarantor of the loan, in this case the Agency, must also assist the lender in its collection efforts from the 60th to the 120th days of the delinquency. The intermediate guarantor’s efforts are called “preclaim assistance.” If the holder properly and diligently makes these efforts to collect, but no payment is forthcoming within 180 days, the student loan is considered to be in default and ultimately the United States government’s obligations as guarantor of last resort are triggered. In the spring of 1986, Congress passed legislation that required additional collection efforts by the intermediate guarantors of delinquent student loans before a loan could be declared in default and so trigger the federal guarantee. Under the 1986 legislation, intermediate guarantors had to continue collection efforts from the 120th day of the delinquency until the 180th day. These later efforts are called “supplemental preclaims assistance.” Congress allowed state agencies to contract these additional collection efforts out to private entities. Most of the cost of these supplemental preclaim efforts is underwritten by the federal government. Gabler and Carlson saw an opportunity in the 1986 law. Gabler had previously worked for the Student Loan Division of the State of Illinois and Van Ru Credit Corporation, a company that lobbied strongly for the supplemental preclaims assistance legislation. Carlson was involved in the student loan industry as an investment banker specializing in bond issues for student loans. To pursue the opportunity they saw, Gabler, with Carlson and others, formed a company, GEM, to offer supplemental preclaims assistance to the state agencies that approve federally subsidized student loans. Gabler knew Casoni and Reeher through Gabler’s work in the student loan industry. In March of 1986, Casoni, Carlson, Gabler and Reeher met in Chicago to discuss the possibility of the Agency’s contracting out some of its preclaim supplemental assistance work to GEM. Gabler told Guida that Reeher, during the Chicago meeting, told Gabler and Carlson that Reeher and Casoni were considering retiring from the Agency and seeking employment with a company like GEM. Later that month, the four met in Harrisburg, Pennsylvania. Casoni helped Gabler make travel arrangements. During the Harrisburg meeting, Gabler openly worried about whether GEM’s resources were adequate to handle the $1,500,000.00 supplemental preclaims assistance contract the Agency could give it. A solution was found. It involved billing the Agency up front for services not yet completely performed in order to increase GEM’s working capital. According to Gabler and Carlson, all four went to Reeher’s house after dinner that night and discussed an arrangement between GEM and the Agency for preclaim assistance. Carlson testified that they discussed an ownership interest in GEM for Reeher and a job for Casoni with GEM after Casoni retired from the Agency. The possibility of Casoni’s retirement as early as the next month was mentioned. No final understanding was reached at this meeting, but those present agreed the discussion about a contract with GEM should be kept secret. Casoni then started to negotiate his own post-government employment contract with GEM. GEM’s counsel, Semmelman, was at first skeptical about hiring Casoni. He objected on both legal and ethical grounds. Casoni hastened to Illinois to quell Semmel-man’s fears and explained to Semmelman the Agency’s statutory framework. He assured Semmelman that there would be a full disclosure of the contract between the Agency and GEM and his own contract with GEM and that this would cure any legal problem because such arrangements were common in Pennsylvania and brought no opprobrium on the state officials who benefitted from them. Casoni also told Semmelman that he would play no role in the awarding of the contract. Semmelman was persuaded and withdrew his objections on condition of full disclosure. A tentative agreement on Casoni’s role with GEM in the not so distant future followed. GEM was to give Casoni a thirty-five percent commission on the “first contract” he acquired plus a base salary of $130,000.00 “per year.” The salary would begin when Casoni went to work for GEM. The phrase “first contract” was a euphemism. It meant the GEM/Agency contract. Casoni hit on the term “first contract” instead of “Agency contract” to avoid public disclosure of his conflicting involvement with the Agency and GEM. The commission on the “first contract” was to be $450,-000.00 in the first year of its performance and commissions on the “first contract” were to continue thereafter during that contract’s life. Casoni later sought removal of the “first contract” language in favor of alternative compensation methods with a value equal to the discarded commission on the “first contract.” He asked that the draft agreement that included the phrase “first contract” be destroyed and a consulting contract providing equivalent compensation with a more deeply disguised linkage to GEM’s proposed contract with Casoni’s Agency be substituted. Apparently Semmelman did not, at first, see the disguised inconsistency between Casoni’s promise to stay aloof from the GEM-Agency contract and the terms of Casoni’s own employment contract with GEM. In any event, contrary to the promises that he made to Semmelman, Casoni did not step aside in the Agency’s handling of the $1,500,000.00 contract between GEM and the Agency for supplemental preclaims assistance. Instead, he pushed other Agency personnel to get this work out to GEM more quickly. While he was still negotiating his own contract with GEM, Casoni drafted, part of an equipment contract between GEM and the Agency. Even after he left the Agency, in 1987, Casoni continued to gather information for GEM from internal Agency reports. The Agency returned an executed contract for supplemental preclaims assistance to GEM on September 17, 1986. The next day, Casoni mailed a signed employment contract to Gabler. Gabler objected to certain terms that Casoni had altered and additional negotiations ensued. Eventually, Casoni mailed a revised copy of the contract to GEM. In a cover letter accompanying the contract Casoni wrote: “Now we can concentrate on hitting the jackpot and having fun at the same time.” Appellee’s Supplemental Appendix (Supp.App.) at 51. Gabler executed the contract on November 4,1986. However, Casoni did not leave the Agency until January 1, 1987. Casoni never disclosed his relationship with GEM or the GEM/Agency contract to the public or to any responsible state official, except perhaps Reeher, his boss and head of the Agency. If so, Reeher made no objections. Between October, 1986 and December, 1987, the Agency paid GEM $1,766,962.22. During this time GEM paid Casoni $360,-000.00 for working about fifty to seventy hours. This made Casoni GEM’s highest paid employee, outearning even Gabler. Casoni gave Reeher various gifts during his first year with GEM. They were petty in comparison to what GEM paid Casoni. He bought air conditioners for Reeher’s home. He gave an insurance agent $2400.00 and asked him to write a $2400.00 check to Reeher. The world of state government in Harrisburg is a small one. In November of 1987, perhaps inevitably, Casoni’s relationship with GEM leaked out and became a subject of public knowledge among those on the Harrisburg scene. Gabler, concerned about the effect of these leaks, sought legal advice from a lawyer named Adams. Adams referred Gabler to Guida. Guida had once been the Chief Deputy Attorney General for Pennsylvania. He met with Gabler on November 6, 1987. Guida listened to Gabler’s story and advised him that he could be subject to criminal liability. Guida explained Gabler’s options to him. The options included a bid for immunity in return for damaging testimony against Casoni and Reeher. Guida thought testimony against Reeher would be particularly attractive to prosecutors because Reeher, unlike Casoni, had left no incriminating paper trail about his dealings with GEM. Gabler decided to seek immunity. Hoping to save himself from the specter of jail, Gabler authorized Guida to pass Ga-bler’s information on to the authorities. Guida did not delay. On the night of November 6, a Friday, he contacted Pennsylvania prosecutors and set up a meeting the next morning with representatives of both state and federal prosecutors. The representatives expressed interest in Ga-bler’s proposed testimony against Reeher and Casoni as Guida generally described it but apparently asked for details in writing. Guida left the meeting and began to prepare a narrative proffer of Gabler’s testimony. He delivered the proffer to federal authorities on Monday, November 9, 1987. The proffer was based, in the main, on notes that Guida took during his meeting with Gabler on November 6. Guida described it as “a chronology of the events my client related to me concerning improprieties on the part of high ranking state officials.” Appellant’s Appendix (App.) at 61. The notes themselves were taken before Guida and Gabler discussed the possibility of immunity. The proffer, after outlining the sequence of events that led to its delivery, went on to spell out Gabler’s employment history and the concept of “supplemental preclaims assistance.” It then tracked the creation of GEM and the contacts between Gabler, Carlson, Casoni and Reeher. This portion of the proffer included the following language: Mr. Gabler said there was a stong [sic] inference given by Mr. Reeher that any business from [the Agency] would be directly connected to financial opportunities and employment which would flow from GEM, Inc., to Reeher and Casoni personally. Id. at 64. This part of the proffer omitted a statement in Guida’s notes that Gabler said “[Casoni] had nothing to do with it.... He wanted to distance himself.” Id. at 78. The proffer set out Semmelman’s opinions about the propriety of the arrangement with Casoni. It also stated that Casoni provided Semmelman with “purported copies of the PA Code and other Pennsylvania legislation” during Casoni’s meeting with Semmelman. Id. at 67. The rest of the proffer narrates Gabler’s recollections about the negotiation of both the Casoni and Agency contracts, their terms and Casoni’s work history with GEM. The proffer includes statements about the actual signing of the GEM/Agency contract: On September 17, 1986, Kenneth Reeher returned to James Gabler a fully executed contract with the Commonwealth of Pennsylvania which purports to be signed by Mr. Reeher on August 13,1986 said date being changed to August 11, 1986. The contract is approved for form and legality by John Killion, Esq., [Agency] legal counsel, and, in an updated approval section, signed by what now appears to be a stamped signature. The contract returned also has an original received stamp dated August 14,1986 by the Office of Attorney General but the received stamp is not initialed, nor is the contract number which is part of the stamp filled in on the back of the contract. Id. at 68-69. The information Guida’s notes and proffer contained about Casoni’s dealings with GEM for his own benefit, while still acting in an official capacity with respect to the contract between his agency and GEM for supplemental pre-claims assistance, was independently confirmed, not just by Ga-bler’s trial testimony, but also in the trial testimony of Carlson and Semmelman. IV. The sentence the district court imposed on Casoni is included in a final order. Thus, we have jurisdiction over Casoni’s appeal by virtue of 28 U.S.C.A. § 1291 (West Supp.1991). The United States District Court for the Middle District of Pennsylvania had jurisdiction over the charges against Casoni pursuant to 18 U.S.C.A. § 3231 (West 1985). We review the district court’s evidentiary rulings for abuse of discretion. United States v. Stewart, 806 F.2d 64, 68 (3d Cir.1986). Its decision to limit Casoni’s cross-examination of Guida is also reviewed for abuse of discretion. See United States v. Beros, 833 F.2d 455, 465 (3d Cir.1987). Our scope of review is so restricted because “[t]he admission or exclusion of evidence is a matter particularly suited to the broad discretion of the trial judge.” In re Merritt Logan, Inc., 901 F.2d 349, 359 (3d Cir.1990). That discretion, however, is not unlimited. If we conclude that any of the evidentia-ry rulings are an abuse of discretion, then we must review that error to see if it is harmless. Harmless error is “[a]ny error, defect, irregularity or variance which does not affect substantial rights.” Fed. R.Crim.P. 52(a). An error is harmless when, as we stated in United States v. Stevens, 935 F.2d 1380, 1406-07 (3d Cir.1991): [W]e are ... left with “a sure conviction that the error did not prejudice the defendant,” United States v. Jannotti, 729 F.2d 213, 220 n. 2 (3d Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984), and can say that it is “highly probable” that the district court’s errors did not contribute to [sic] jury’s judgment of conviction. Government of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir.1976). With these standards in mind, we turn to the merits of Casoni’s arguments. V. On the merits, we reject all of Casoni’s contentions save one. We agree with Caso-ni’s argument that the district court committed error when it allowed Gabler’s notes and proffer to be admitted and then compounded the problem by letting the jury take them to the jury room and examine it during deliberations. The problem is particularly acute with respect to the proffer. It was a highly incriminating narrative carefully constructed by skilled criminal defense counsel seeking immunity for his client in exchange for testimony against Casoni and a prominent state government official. It was especially incriminating with respect to Casoni. A skilled criminal advocate like Guida would be duty bound to shape and prepare the proffer in the manner he thought most likely to accomplish his goal of securing immunity for his client. Guida was frank about this. He said he recommended that Gabler offer to incriminate Casoni and Reeher because a prosecutor would be highly interested in convicting such high-ranking public officials of crimes involving corruption. Moreover, the proffer’s presence in the jury room could have emphasized the prosecution’s version of events over Casoni’s testimonial denials. Nevertheless, this record contains so much other damning evidence against Casoni that we hold the jury’s possession of Guida’s notes and proffer during its deliberations was harmless error. We do so because we believe that Casoni’s convictions would have still been highly probable if the jury had not had before it during its deliberations Guida’s notes and proffer of what Gabler proposed to and indeed did say about Caso-ni in return for his own immunity from prosecution. A. Casoni objected to Guida’s testimony about the proffer, to the district court’s admission of the proffer and the notes upon which the proffer was based and to their presence in the jury room during the deliberations. Casoni’s objections fall into two general categories. He first attacks all of the evidence about Gabler’s statements to Guida (Guida’s testimony, Guida’s notes about his interview with Gabler and the proffer Guida prepared) as outside the category of prior consistent statements admissible under Rule 801(d)(1)(B). Second, he attacks the admission of Guida’s notes and the proffer as hearsay that does not fall within the business record exception of Rule 803(6), Rule 803(5)’s exception for recorded recollection or any other exception to the hearsay rule. He also argues that even if the notes and proffer were admissible as exceptions to the hearsay rule, it was error to let the jury have them while it deliberated. 1. We start with a general discussion of the Federal Rules of Evidence that are central to Casoni’s arguments against the admission of Guida’s testimony and his written declarations about what Gabler said. Federal Rule of Evidence 801(c) states: “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Federal Rule of Evidence 802 provides: Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. Prior consistent statements of a witness are expressly excluded from the category of hearsay and are admissible under Rule 801(d)(1)(B) for the purpose of rehabilitating a witness if certain conditions are met. Federal Rule of Evidence 801(d)(1)(B) provides a prior statement is admissible if: the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. 2. Casoni concedes, as he must, that a prior consistent statement by Gabler would be admissible to rebut any inference Casoni’s cross-examination raised that Gabler fabricated his testimony or had an improper motive in giving it. He argues instead that Gabler’s prior statement to Guida is not consistent because it differs in some of its details from Gabler’s testimony at trial. Moreover, other inconsistencies that the cross-examination revealed in Gabler’s story were not mentioned in his earlier statements to Guida and Guida’s statements on his behalf in the proffer. Casoni concedes that Gabler’s statements to Guida were generally consistent with Gabler’s trial testimony. Casoni argues, however, that Ga-bler’s statements to Guida were not consistent with all of Gabler’s testimony on direct examination and that some of the inconsistencies concerned differences specifically highlighted in the cross-examination of Gabler. For example, at trial Ga-bler said that he learned of Reeher’s demands for a share of GEM before their first meeting. In his FBI interview, Gabler said that this demand was made at the second meeting. Guida’s testimony about Gabler’s statements and the proffer agree with the FBI version that was used to impeach him and not the trial version that the cross-examination attacked. Other contradictions about who ordered the second meeting’s details to be kept secret or whether Carlson was kidding when he talked to Gabler about destroying documents concerning Casoni’s contract with GEM were not covered by Guida’s testimony or the proffer. Casoni also contends that the proffer could contain no prior statement consistent with Gabler’s testimony at trial because the proffer was made after Gabler wrote the untruthful chronology that he gave to his first attorney, Adams. Casoni maintains that Gabler’s earlier untruthful chronology shows that he had a motive to fabricate his testimony. The government correctly responds that prior consistent statements are not limited to statements concerning specific inconsistencies brought out on cross-examination. Rather, there need be only a suggestion that the witness consciously altered his testimony in order to permit the use of earlier statements that are generally consistent with the testimony at trial. See United States v. Vest, 842 F.2d 1319, 1329 (1st Cir.), cert. denied, 488 U.S. 965, 109 S.Ct. 489, 102 L.Ed.2d 526 (1988); cf. United States v. Brantley, 733 F.2d 1429, 1438 (11th Cir.1984) (court need not exclude portions of prior consistent statement “that do not relate specifically to matters on which the defendant has been impeached”), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985). Casoni’s cross-examination of Gabler suggested that Gabler fabricated his trial testimony. The specific inconsistencies brought out in the cross-examination were merely evidence from which Casoni asked the jury to infer fabrication. The differences Casoni mentions go to the weight of the prior statement as evidence, not its admissibility. 3. We also reject Casoni’s contention that Gabler’s prior statements to Guida were inadmissible under Rule 801(b)(1)(D) because Gabler had an improper motive to fabricate his statements to Guida. Casoni sees that improper motive in Gabler’s natural desire to save himself from criminal liability by giving damning false testimony against Casoni and Reeher, important public officials, whose conviction would be of more interest to prosecutors than Gabler’s. Casoni reasons that this motive would have been present even before Gabler ever met with his first lawyer, Adams, because the qualms he had about the legality of the GEM/Agency/Casoni arrangement motivated him to seek legal advice. Casoni notes that Gabler admitted at trial that he lied about his activities to Adams. Casoni says this pattern of behavior shows that Gabler’s motive to fabricate preceded his meeting with Guida. Casoni’s argument simply proves too much. It stands Rule 801(d)(1)(B) on its head. The very basis the rule gives for admission of the statement — to rebut recent fabrication, improper influence or motive — becomes the basis for the prior statement’s exclusion. Casoni’s argument might have force to a jury, but it does not preclude the statement’s admission. When a motive to fabricate exists at the time a prior consistent statement is made, the statement is not relevant to rebut an implication of recent fabrication. Accordingly, the case law indicates that the existence of a motive to fabricate when the statement is made is a matter of relevance. In sum, Casoni’s argument about Gabler’s motive to fabricate his statement to Guida is more properly considered under the rules relating to relevancy. See United States v. Harris, 761 F.2d 394, 399 (7th Cir.1985); United States v. Hamilton, 689 F.2d 1262, 1273-74 (6th Cir.1982), cert. denied, 459 U.S. 1117, 103 S.Ct. 753, 74 L.Ed.2d 971 (1983). But see United States v. Quinto, 582 F.2d 224, 234 (2nd Cir.1978). Rule 401 defines relevant evidence. It provides: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Not all relevant evidence is admissible, however. Rule 403 provides: Although 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, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Gabler’s prior statement to Guida is relevant under Rule 401. Rule 801(d)(1)(B) does not impose the requirement that the statement must have been made before the motive to fabricate. Here, we cannot say as a matter of law that the motive to fabricate arose when Casoni says it did, as opposed to when the government says it did, i.e., when Gabler was negotiating for immunity. The statement in question antedated Gabler’s negotiation for immunity. Accordingly, the decision to admit the statement as relevant was within the district court’s discretion. Additionally, we do not believe the district court abused its discretion in admitting evidence of Gabler’s prior consistent statements to Guida for the purpose of buttressing Gabler’s credibility despite the provisions of Rule 403. Certainly, considering all the circumstances, we cannot say the probative value of Gabler’s prior statement on the issue of fabrication was substantially outweighed by the danger of unfair prejudice. The prior statement was not likely to confuse the issues or mislead the jury. For the purpose of rebutting a charge of recent fabrication, the only purpose for which the statement was admitted, the prior statement was not cumulative. 4. The notes of the Advisory Committee state that Rule 801(d)(1)(B) was intended to make prior consistent statements admissible not only to rehabilitate the credibility of a witness but also as substantive evidence of the events asserted. Fed.R.Evid. 801 advisory committee’s note. This interpretation was apparently accepted by the House and Senate Committees on the Judiciary when they considered the rules as submitted by the Supreme Court. See S.Rep. No. 1277, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 7051, 7062-63; H.R.Rep. No. 650, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 7075, 7087. Despite the fact that its use as substantive evidence is not supported by the language of the rule, see Fed.R.Evid. 801(d)(1)(B), prior consistent statements have been accepted as substantive evidence of the facts they recite by a number of courts. See, e.g., United States v. Provenzano, 620 F.2d 985, 1002 n. 21 (3d Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980). Admittedly, the rule is confusing. It first states that hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Fed.R.Evid. 801(c). The rule then goes on to say that a statement is not hearsay if it is “consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” Fed.R.Evid. 801(d)(1)(B). Indeed, it is not; for it is then not offered to prove the truth of the matter asserted. In Provenzano, this Court noted the puzzling difference between the conditions the rule imposes on admission of a prior consistent statement and its use as substantive evidence as envisioned by the Advisory Committee. See Provenzano, 620 F.2d at 1002 n. 21 (“Evidence admitted under rule 801(d)(1)(B), while conditioned upon the need to rebut a charge of fabrication, may be used by the jury for any substantive purpose to establish the truth of what it says. Fed.R.Evid. 801(d)(1)(B) Advisory Comm. Note.”). This still leaves us with a problem concerning the internal logic of the rule itself, which takes a prior consistent statement out of the hearsay category because it is offered only for rehabilitative purposes instead of for the truth of the matter asserted but then inconsistently permits its use to prove the truth of the matters it asserts. Nevertheless, under the Advisory Committee’s interpretation, an interpretation we seem to have accepted in Provenzano, the government could have offered Guida’s testimony, the notes and the proffer as substantive evidence of the events they described. The government, however, did not choose to do so but instead limited the purpose to rehabilitation, as shown by the following colloquy: THE COURT: I think the purpose of this [Guida’s testimony] is only to establish what was said to him and in turn furnished to you [the government] I guess. THE GOVERNMENT: Yes, Your Honor. Supp.App. at 102. Because the evidence was offered only for rehabilitative purposes, we do not reach or decide the issue of whether this prior consistent statement offered as substantive evidence of the events it described would be admissible under the plain language of Rule 801(d)(1)(B). Accordingly, those cases which hold that a prior consistent statement must pre-date a motive to fabricate when the statement is used as substantive evidence have no application in Casoni’s case. See United States v. Harris, 761 F.2d 394, 399 (7th Cir.1985) (listing cases). The admission of evidence of Gabler’s prior statements to Guida did not violate Rule 801(d)(1)(B). B. The inclusion of extraneous opinions and statements by others in the proffer itself is another matter, and Casoni also attacks the proffer because it included such information. He takes special exception to several conclusions of law that Guida advanced in the proffer. They include the statement that there were “illegal activities on the part of high-ranking officials.” App. at 61. Casoni says the proffer includes other inadmissible opinions by Guida such as the statement in the proffer that it was “obvious” that the Casoni contract was linked with the GEM contract. Id. at 64. Still other language, such as the reference to Casoni’s providing Semmelman with “purported” copies of the Pennsylvania Code, is said to be suggestive. Id. at 67. Finally, the whole proffer is said to be compromised by Guida’s statement that he might have misrepresented some details of what Gabler told him. Though this last argument is presented primarily in the context of Rule 801(d)(1)(B), it can also be considered in the hearsay context. Considered either way, it does not persuade us that the admission of Guida’s testimony, the notes or the proffer was an abuse of discretion. Basically, the proffer did no more than summarize the government’s case, in narrative form, a case that was fully supported by overwhelming independent evidence of Casoni’s guilt, and the extraneous statements Casoni points to had only de minim-is import. C. Casoni has additional arguments, however, that relate only to the notes and proffer which we now consider. 1. The admission of narrative proffers of incriminating testimony against prominent citizens or officials by a person who is himself subject to criminal liability but seeks immunity from prosecution for his own admitted criminal conduct by implicating another raises troubling issues that go beyond mere technicalities in the application of Rule 801(d)(1)(B) relating to the use of prior consistent statements. Consider the problem defense counsel faces when confronted with damning testimony by a guilty informant. Persons who face criminal punishment are often ready to point the finger at another if they believe they can escape or reduce their own punishment by doing so. Prosecutors are understandably anxious to get testimony against prominent persons whom they believe are involved in corrupt practices. Yet, the moment defense counsel begins any cross-examination that casts doubt upon the credibility of the witness testifying under immunity, he risks opening the door to admission of a narrative containing incriminating statements that the government could not otherwise have had admitted. Under the Advisory Committee’s view of the rule, those statements can then be considered by the jury, not just as evidence of the credibility of an informant seeking to save himself at the expense of others, but as substantive evidence of the events the proffer describes, events which may not only be highly material to guilt or innocence but may not otherwise appear in the record. See United States v. Asher, 854 F.2d 1483, 1501-15 (3d Cir.1988) (Higginbotham, J., dissenting), cert. denied, 488 U.S. 1029, 109 S.Ct. 836, 102 L.Ed.2d 969 (1989). Thus, counsel for a criminal defendant before cross-examining a witness testifying under immunity must consider whether the potential gain from use of cross-examination is worth the risk of opening the door to a narrative proffer skillfully designed to induce a grant of immunity, a proffer that may contain material substantive evidence of guilt the government could not otherwise produce. When witnesses testify under immunity, cross-examination on the damning testimony those witnesses give is often crucial, but the risk in opening the door to a proffer is intensified. The Advisory Committee’s view that prior consistent statements are substantive evidence of the facts they relate to is likely to chill a cross-examiner’s effort to ferret out the truth that hides within conflicting stories, through the exposure of inconsistencies, assumptions or bias in the testimony of a government witness testifying under immunity. Unrestricted use of statements in a proffer of immunity poses deep questions affecting the functioning of our adversary system. The problems posed are intensified if the proffer is not only read or described but also admitted as an exhibit and presented to the jury for ready reference throughout deliberations. We address Ca-soni’s arguments concerning the use the government made of the notes and proffer in that context; always, however, examining those issues more narrowly in relation to the text of the rules, their legislative history and their common law background. 2. Essential to Casoni’s attack on the admission of the notes and proffer is his argument that they should be treated as Guida’s assertions because Guida recorded and narrated a summary of Gabler’s statement and then transcribed and corrected it before presenting it to federal authorities. This argument, that the statements in the notes and proffer were Guida’s assertions and therefore inadmissible because the pri- or consistent statement that Rule 801(d)(1)(B) permits must be a statement by Gabler, the witness whose credibility the statement was supposed to rehabilitate, takes us directly into the hearsay provisions of Rules 801 and 802. If the notes and the proffer are Guida’s statements, not Gabler’s, they must pass two hurdles to admission. Thus, the government’s argument that the proffer and the notes can be admitted under the rule on prior consistent statements clears only the first hurdle if the notes and proffer must first qualify under Rule 801(d)(1)(B) and then qualify for admission under one of the exceptions to the hearsay rule. Our earlier analysis of Rule 801(d)(1)(B) establishes that the notes and proffer are prior statements consistent with Gabler’s trial testimony. See supra at 902-06. Accordingly, they pass the first test. 3. Before considering the merits of the second part of this “double hearsay” problem, we must deal with the government’s argument that Casoni did not properly preserve this objection. If so, we must review Casoni’s hearsay arguments under a plain error standard. Casoni, in support of his objection that the notes and proffer were not admissible as prior consistent statements, advanced arguments that the notes and proffer were not statements made by Gabler and that they included Guida’s unfairly prejudicial opinions. It is because of the specifics Casoni referred to in advancing these arguments that the government says he failed to preserve his contention that the notes and proffer did not clear the second hearsay hurdle to their admission. Essentially, the government contends that Casoni waived his hearsay argument by not making a specific enough objection at trial. The government’s waiver argument cuts too fine. Casoni did object to both the proffer and the notes on the grounds that they were not admissible as prior consistent statements and that they were not business records. A fair reading of the record convinces us that Casoni fairly alerted the district court to his argument that the notes and proffer were Guida’s out-of-court statements about what Gabler said and as such were inadmissible, even if consistent with Gabler’s trial testimony. Here and in the district court, Casoni plainly said that while the proffer is based on Gabler’s statements to Guida, it is Gui-da’s statement, not Gabler’s. As an example, Casoni pointed to the statement in Gui-da’s notes that Casoni wanted to distance himself from the GEM/Agency contract, a statement that does not appear in the proffer. This, according to Casoni, shows that the proffer was “crafted” by Guida in his role as a counselor and so is not a “statement” by Gabler. Since we think Casoni fairly raised the “double hearsay” issue, we will consider the merits of Casoni’s argument that the notes and proffer Guida prepared fall within the definition of hearsay. 4. The Federal Rules of Evidence define hearsay. They say: “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c). The matter asserted in Guida’s notes and proffer is that Gabler told Guida the facts those documents contain. In classic terms, the notes and proffer say that (a) Guida said (b) Gabler said (c) Casoni traded his public duty for private gain. The notes and proffer were written assertions Guida made outside the courtroom in which he was testifying, and they were offered to prove the truth of the assertion that Gabler made them. Thus, they come within Rule 801(c)’s definition of hearsay. 5. Still, our agreement with Casoni that the notes and proffer are Guida’s statements and so only hearsay evidence of Gabler’s prior statement does not solve Casoni’s problem. Recognizing the hearsay nature of Guida’s written statements, the district court nevertheless overruled Casoni’s objections to their admission by concluding they fell under the business records exception of Rule 803(6). Casoni contends that, unlike the usual business record, the information Guida recorded was not routine, it was not based upon Guida’s personal knowledge and Ga-bler was not passing it to Guida in the normal course of business. In this context, Casoni renews his argument that Gabler had a motive to fabricate that is absent from the usual business record. Moreover, unlike most business records that are recorded fairly soon after the events took place, Casoni notes that here there was more than a one year time lag between the events and Guida’s recording of them. The government contends simply that the notes and proffer are business records because they are normally prepared in client interviews, are kept in the normal course of business and are relied on by Guida in the normal course of his business. The rules of evidence define a business record as: A memorandum ... in any form, of ... events ... made at or near the time ... from information transmitted by ... a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, ... all as shown by the testimony of the custodian or other qualified witness, unless the source of the information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Fed.R.Evid. 803(6). The government cites only one case dealing with the treatment of an attorney’s memorandum under the business record exception to the hearsay rule. In MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081, 1142-43 (7th Cir.), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983), the Seventh Circuit avoided deciding whether a corporate counsel’s memorandum to certain managers of the firm was a business record. The memorandum interpreted parts of a Federal Communications Commission decision and the effect of an injunction that MCI had recently obtained from a federal district court. The attorney who prepared the memorandum stated that he regularly prepared similar memoranda on topics relevant to the corporation’s business. Id. at 1142. The Seventh Circuit said: Although [the district court] may have erred in refusing to admit the document on [the] grounds [that it was a business record], the error was harmless. The evidence was merely cumulative.... Id. at 1143. Casoni says the Seventh Circuit’s dictum concerning admission of an attorney’s memo has no application here. He cites United States v. Snyder, 787 F.2d 1429, 1434 (10th Cir.), cert. denied, 479 U.S. 836, 107 S.Ct. 134, 93 L.Ed.2d 78 (1986). In Snyder, the court held that an investigating officer’s written report that contained statements by inmates was not a business record. Because the business records exception is “based on a presumption of accuracy” that stems from the precision that accompanies records kept in the ordinary course of business, the court stated that the investigator’s own observations fell within the business records’ exception to the rule against hearsay, but the inmates observations did not. Id. at 1433. In Snyder, the court reasoned that the prisoners had no business interest in the accuracy of their statements. Guida’s notes and proffer, Casoni says, are even worse. Gabler’s interest, and thus Guida’s as his advocate, lay in exaggerating the improprieties of Casoni and Reeher in the interest of securing immunity for Gabler. We summarized the requirements of Rule 803(6) in United States v. Furst, 886 F.2d 558 (3d Cir.1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990). There we said: The business record exception to the hearsay rule requires that the witness who lays the foundation for the admission of the evidence [must] testify that: (1) the declarant in the records had knowledge to make accurate statements; (2) that the declarant recorded the statements contemporaneously with the actions which were the subject of the reports; (3) that the declarant made the record in the regular course of the business activity; and (4) that such records were regularly kept by the business. Id. at 571. If we interpret Rule 803(6) as in Furst, an attorney’s objective memorandum may sometimes be a business record. According to Casoni, though, Guida’s notes and proffer present special problems. First, while Guida's memorandum was made as he learned of the information, Gabler was relaying his version of the facts over a year after they had occurred. Since the government limited the purpose of the notes and proffer to proof of Guida’s assertion that Gabler made the statements they contain, Guida himself certainly had the knowledge necessary to make accurate statements about what Gabler previously said. After all, Gabler made the statements directly to Guida. Thus, the memorandum does not run afoul of Furst’s initial requirement of knowledge. The memorandum may pose a problem under the second condition Furst imposes, viz. contemporaneous recording. See Furst, 886 F.2d at 571. Even though it is undisputed that Guida heard what Gabler said and that Gabler had personal knowledge about the events he recorded, Ga-bler’s delay in reporting them may undercut the trustworthiness of Gabler’s statements to some degree. In this connection, Casoni relies on United States v. Kim, 595 F.2d 755, 760-63 (D.C.Cir.1979). There, the court held that a delay of two years between the event and its recording was a circumstance demonstrating a lack of the trustworthiness courts have generally held the rule on business records requires. See Kim, 595 F.2d at 760-63. We do not, however, place great weight on the lapse of time between Gabler’s experience of the events Guida noted and shaped into his narrative proffer because Guida’s records were not offered to show the events occurred but only that Gabler so described them. Our opinion in Furst does not include trustworthiness in the four specific requirements it lists, but all of the four listed seem designed to insure some degree of reliability. Moreover, in Furst, we did recognize that Rule 803(6) requires us to consider the trustworthiness of a record. Cf. Furst, 886 F.2d at 573 (analyzing trustworthiness of relevant documents found in bank files). The government seeks to have admission of the notes and the proffer upheld by characterizing them as “business records.” Casoni’s counsel argues that Gabler’s statements to Guida could not be prior consistent statements because they were not made “prior to a motive to fabricate” or ante litem motam. Our analysis has focused on a closely related problem: Guida’s motive or state of mind as he took down Gabler’s statements and later converted those notes into a proffer that was handed over to the United States Attorney’s Office in Harrisburg. There may at first glance seem to be tension between Rule 803(6)’s express inclusion of trustworthiness as a factor in its application and the Advisory Committee’s criticism of pre-existing case law that spoke in terms of motivation under the old “shop book rule.” Rule 803(6)’s version of the modern business records exception to the rule against hearsay shows considerable evolution from its common law antecedent. The legislative history of Rule 803(6), as shown in the statement in the Advisory Committee’s notes on Rule 803(6) disparaging use of the motivation factor in considering a shopkeeper’s entries in his original records of account, illustrates the difference between the original rationale and current thinking. The Advisory Committee, criticizing the common law rationale of absence of motivation to misrepresent as a basis for admitting the hearsay statements that make up business records, said: The direct introduction of motivation is a disturbing factor, since absence of motivation to misrepresent has not traditionally been a requirement of the rule; that records might be self-serving has not been a ground for exclusion. Fed.R.Evid. 803(6), Advisory Committee’s note. In support, the Committee went on to quote Hoffman v. Palmer, 129 F.2d 976 (2d Cir.1942) (Clark, J., dissenting): “I submit there is hardly a grocer’s account book that could not be excluded on that basis.” Id. at 1002. The Federal Rules of Evidence treat such records as exceptions to the hearsay rule. Federal Rule of Evidence 803(6) does not explicitly mention the phrase ante litem motam. It does say records of regularly conducted activity are not admissible if “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Id. (emphasis added). In this case, our consideration of whether the notes and proffer meet this general trustworthiness requirement is affected by the professional relationship between Gui-da and Gabler. The proffer and the notes were statements by a declarant, who, as Gabler’s attorney, had a motive to minimize Gabler’s criminal responsibility and maximize that of Gabler’s potential co-defendants, including Casoni, in an effort to obtain immunity for Gabler. In addition, Gabler, like the prisoners in Snyder, was under no business duty to report or record the events that he talked about. Of importance in this case, however, is the principle referred to that restricts the admission of documents that could otherwise fall under an exception to the hearsay rule if they were prepared for use in litigation. The presence of a motive to falsify is a more general analogue to the principle summed up in the Latin phrase ante litem motam. As stated, Casoni renews his argument based on a pre-existing motive to falsify in the hearsay context. The proffer and the notes were prepared in connection with a criminal proceeding on behalf of a person seeking to escape criminal liability after his exposure was apparent. Accordingly, we think the portion of the rule relating to the trustworthiness of testimonial or documentary evidence offered for admission can, however, be examined in some cases in light of the principles underlying the common law restriction of statements made out of court to statements “ante litem motam.” In doing so, however, we must be careful not to make motivation a general overriding concern in the application of Rule 803(6). The phrase “ante litem motam” has been defined as follows: At time when declarant had no motive to distort truth. Before suit brought, before controversy instituted. Also, before controversy arose. Black’s Law Dictionary 84 (5th ed. rev. 1979). Wigmore’s discussion of the principle restricting business records to those prepared ante litem motam is confined to the subject of statements of facts against interest. 5 Wigmore, Evidence §§ 1455-1477 (Chadboume rev.1974). In that connection, Wigmore notes that preparation ante litem motam is not required under the hearsay exception afforded to statements of facts against interest, but cautions that it is a factor that enters into consideration on a case-by-case basis. Id. §§ 1464, 1467. The restriction on admissibility summed up in the phrase ante litem mo-tam has been a factor for consideration but not a requirement in connection with the admissibility of kinds of evidence other than business records. See Health Products Corp. v. Ex-Lax Mfg. Co., 22 F.2d 286, 287 (2d Cir.1927) (L. Hand, J.) (“The plaintiff attempts to discredit the defendant’s proof ... by appealing to the well-kno