United States v. Mulinelli-Navas ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1462
UNITED STATES,
Appellee,
v.
MARIA MULINELLI-NAVAS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin and Campbell, Senior Circuit Judges.
Linda
Backiel, with whom Luis F. Abreu-Elias was on brief for
appellant.
Maria A. Dominguez, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, Jose A. Quiles-
Espinosa, Senior Litigation Counsel, and Nelson Perez-Sosa,
Assistant United States Attorney, were on brief for appellee.
May 23, 1997
AMENDED
TORRUELLA, Chief Judge. On August 9, 1995, Maria
Mulinelli-Navas
("Mulinel
li") was charged with conspiracy to commit
bank fraud, in violation of 18 U.S.C. S 371, making false
statements to a federally insured financial institution, in
violation of 18 U.S.C. S 1014, and bank fraud, in violation of 18
U.S.C. S 1344. On December 21, 1995, a jury returned a guilty
verdict on all counts and she was subsequently sentenced to 27
months for each count, to be served concurrently, and three years
supervised release. Mulinelli appeals only her convictions,
claiming that: (1) the district court's limitation on her cross-
examination
of her accomplices deprived her of her Sixth Amendment
right to confrontation; (2) the district court abused its
discretion by not allowing Mulinelli to introduce extrinsic
evidence to impeach an accomplice; (3) the district court abused
its discretion by admitting into evidence an improperly
authenticated summary chart; and (4) the district court, by
overruling certain objections, deprived her of the ability to
present
her
defense
to
the jury. For the reasons stated herein, we
vacate Mulinelli's conviction and sentence on Counts V and VI and
affirm as to all other issues.
BACKGROUND
The
jury
could
have
found the following facts. Mulinelli
was
Senior
Vice President of First Federal Savings Bank, in charge
of
car
loans. Between 1985 and 1988, First Federal approved loans
to two dealers who, in fact, neither bought nor sold the cars for
which the loans were made. Furthermore, these loans involved
-2-
irregular financing, with low monthly payments and large balloon
payments at the end of one year.
The indictment charged Mulinelli with conspiring to
approve
fraudulent loans of $25,000 in 1985 and $273,000 from 1987
to 1988 to Lopez, and $130,000 in June 1988 to Exposito.
At trial, the two auto dealers testified. One of the
auto
dealers, Luis Lopez-Mendoza ("Lopez"), President and owner of
Cordillera
Auto,
testified that he was approached by Mulinelli with
a request that he loan her money. In response to his statement
that he was not in the business of lending money, Mulinelli
suggested
a
financing scheme by which Lopez would apply for a loan
on a non-existent car. According to the loan documents and
disbursement check, the loan was taken out in the name of
Mulinelli's daughter for a Volvo station wagon that was never
actually purchased. They carried out the scheme she described:
upon receiving the loan check, he deposited the amount, then gave
Mulinelli a $25,000 loan from cash on hand at his business.
Mulinelli's daughter testified that she signed for a $25,000 loan
to
purchase
a family car that Mulinelli put in the daughter's name
because
of
credit problems. She testified that the handwriting on
the sales contract "looked like my mother's."
In 1985, Lopez approached Mulinelli about obtaining
financing of a type not available from First Federal. Mulinelli
suggested a similar scheme, whereby Lopez would execute blank
contracts, stamped with the seal of Cordillera Auto and would
deliver the blank documents to Mulinelli for her approval. Lopez
-3-
used these loans to finance cars he was purchasing for eventual
resale. A similar strategy was used to provide loans to another
dealer,
Lazaro Exposito Cordoves ("Exposito"), President of Caguas
Auto
Wholesale.
Both
Lopez and Exposito testified that they signed
and sealed blank forms for car sales contracts, which they
delivered to the bank for completion.
During his testimony, Lopez recanted statements made in
an earlier affidavit, in which he denied that Mulinelli had
knowledge of the fraud. He testified that he lied because the
attorney to whom he made the affidavit told him, before starting
the tape recorder, that the attorney's purpose was to "protect"
Mulinelli. The defense sought to introduce the testimony of the
attorney regarding whether he actually stated that the purpose of
his
meeting
with
Lopez
was to protect Mulinelli. After hearing the
attorney's
proposed testimony out of the presence of the jury, the
trial court upheld the prosecution's objection that his testimony
was extrinsic evidence on a "collateral matter" and thus was
inadmissible.
Exposito
testified
about
two loans made in 1988 to Caguas
Auto Wholesale, purportedly to finance purchases for a rental
business ("Zoom") that Exposito never established. Exposito
approached Mulinelli and informed her that he needed money. She
told
him
to
bring her contracts and bills of sale for cars that he
would
sell
from his dealership to this sham car rental business so
that she could approve loans for their purchase. For the first
loan,
Mulinelli requested that Exposito provide her with a bill of
-4-
sale and a loan application reflecting the sale of cars that he
never purchased. Two hours after he delivered the documents to
Mulinelli, the loan was approved and he received a check in the
amount
of
$60,000. Exposito used the funds to buy other cars that
were not pledged as collateral for the loan. He also signed and
sealed blank sales contracts and delivered them directly to
Mulinelli. Exposito testified that Mulinelli knew the cars
referred
to
in
the
two
loan applications were not in Puerto Rico at
the time the loans were made and that he had no intention of
selling the cars to Zoom but rather that he intended to use the
money
to
buy
other cars. Moreover, Mulinelli determined the terms
of
these
loans,
which
included large balloon payments at the end of
the year. In return for her assistance with the loans, he made a
personal
loan to Mulinelli for $5,000 and did some personal favors
for her and her family.
DISCUSSION
I. The district court's limitation of Mulinelli's cross-
examination of Lopez and Exposito
At trial, Mulinelli's counsel cross-examined Lopez
regarding the benefits and conditions of his plea agreement.
Mulinelli
entered into evidence the information by which Lopez was
charged and the plea agreement under which he pled guilty to
conspiracy
to
commit
bank fraud. Mulinelli elicited testimony from
Lopez
that
he was not and would not be charged with bank fraud, in
addition to his conspiracy charge, as Mulinelli had been charged.
Lopez also testified that, as part of his plea bargain agreement,
the United States Attorney would make a recommendation for a
-5-
reduction in his sentence. The district court, however, cut off
Mulinelli's counsel when on several occasions he tried to elicit
testimony
from
Lopez
regarding the possible sentence he faced. The
district court noted that matters of sentencing were in the sound
discretion of the district court judge who was scheduled to
sentence Lopez.
Mulinelli elicited similar testimony from Exposito
regarding the substance of the plea agreement -- that he expected
the United States Attorney to make a recommendation for the
district court's consideration in his sentencing, that he was not
charged with bank fraud, but only with conspiracy and making a
false statement to a financial institution, and that he would not
be
charged
with
any
other crimes. Again, the district court barred
Mulinelli from eliciting testimony regarding the nature of the
sentence Exposito expected to receive.
Mulinelli argues on appeal that the district court's
limitation on her cross-examination regarding the potential
sentence
that
both
accomplices faced before and after entering into
the plea agreements so interfered with her ability to effectively
cross-examine the witnesses that it violated her Sixth Amendment
right to confrontation.
The Sixth Amendment guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted
with
the
witnesses against him." U.S. Const. amend. VI.
"[T]he right of a defendant in a criminal case to establish the
bias of witnesses against him through cross-examination is an
-6-
important
component
of
the Sixth Amendment right to confrontation."
United
States
v.
Jarabek
,
726 F.2d 889, 902 (1st Cir. 1984) (citing
Davis
v.
Alaska
,
415
U.S. 308, 315-16 (1974)). A defendant has the
right to cross-examine an accomplice regarding the nature of and
benefits, including unprosecuted crimes, afforded under the plea
agreement. United States v. Barrett, 766 F.2d 609, 614 (1st Cir.
1985). Although this right is extensive, it is not absolute or
unlimited.
Once
the
defendant has been afforded the constitutional
minimum of an opportunity for effective cross-examination, the
trial
court
"retain[s]
wide latitude to impose reasonable limits on
such
cross-examination
based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness's
safety, or interrogation that is repetitive or only marginally
relevant."
Delaware
v.
V
an Arsdall, 475 U.S. 673, 679 (1986). "An
abuse of discretion has occurred only if the jury is left without
'sufficient information concerning formative events to make a
"discriminating appraisal" of a witness's motives and bias.'"
United States v. Twomey, 806 F.2d 1136, 1140 (1st Cir. 1986)
(quoting United States v. Campbell, 426 F.2d 547, 550 (2d Cir.
1970)).
We find no such abuse here. During direct and cross-
examination
of both Lopez and Exposito, the jury was apprised that
they
were
not
charged
with bank fraud, one of the charges Mulinelli
faced. On cross-examination, Mulinelli was able to elicit
information regarding their plea agreements, including that the
accomplices expected the government to make a beneficial
-7-
recommendatio
n to the sentencing judge based on their cooperation,
and
that
they were granted immunity from prosecution for any other
crimes related to their testimony. The jury could infer from the
circumstances that the accomplices had avoided being charged with
offenses carrying greater sentences by testifying in the
government's case. Mulinelli was able, through her cross-
examination, to expose the biases and motivations of the
accomplices to favor the government and, once this threshold was
met,
the
district court's limitation was not improper. As we find
that
the
jury
had
before
it sufficient information on which to make
a
discriminating appraisal of the accomplices' motives and biases,
we find no abuse of discretion.
Additionally, Mulinelli's counsel sought to elicit
sentencing
information regarding the charges the accomplices faced
and avoided by pleading guilty to conspiracy. Had Mulinelli
successfully elicited this information, the potential punishment
she
faced,
should the jury find her guilty, would have been before
the
jury.
The actions taken by the district court to prevent this
information,
which could confuse the issues presented to the jury,
from reaching the jury were thus entirely proper. See United
States v. Alvarez, 987 F.2d 77, 82 (1st Cir. 1993) (finding the
district court did not abuse its discretion when it excluded
evidence of the penalty to be imposed on an accomplice as such
information
might
mislead or confuse the jury, "particularly where,
as
here,
the
witness sought to testify to the same penalties faced
by the defendants").
-8-
II. District court's decision not to allow Jerome Murray to
testify
During his cross-examination, Lopez referred to an
interview he had prior to the prosecution of this case with an
attorney named Jerome Murray ("Murray"). Lopez' trial testimony
regarding his interactions with Mulinelli differed from the
responses he had given during his interview with Murray, and he
stated that he lied during that interview because Murray told him
that the purpose of the interview was to "protect" Mulinelli.
Defense counsel stated that he wished to have Murray testify to
impeach
Lopez' testimony that Murray told Lopez that the interview
was intended to "protect" Mulinelli. The trial court refused to
allow Murray to testify.
Murray's testimony would have gone to the question
whether Lopez was lying about what Murray had said before the
interview,
and
therefore
related to Lopez' credibility. On appeal,
Mulinelli
contends that the district court usurped the jury's role
in making credibility determinations and thereby abused its
discretion.
Although
the use of contradictory testimony is a valid
means of impeachment, it is limited in several important ways.
United
States v. Payne, 102 F.3d 289, 294 (7th Cir. 1996). One of
these
limitations is the collateral issue rule, which bars a party
from
impeaching
a
witness on a collateral matter through the use of
extrinsic
evidence.
Unit
ed States v. Beauchamp, 986 F.2d 1, 3 (1st
Cir.
1993)
("[W]hen
a
witness testifies to a collateral matter, the
examiner 'must take [the] answer,' i.e., the examiner may not
disprove it by extrinsic evidence."). "A matter is considered
-9-
collateral
if 'the matter itself is not relevant in the litigation
to establish a fact of consequence, i.e., not relevant for a
purpose
other than mere contradiction of the in-court testimony of
the
witness.'" Id. at 4 (quoting 1 McCormack on Evidence S 45, at
169). In other words, "[a] matter is collateral if it could not
have been introduced into evidence for any purpose other than
contradiction. . . . [T]he evidence must have an independent
purpose
and
an independent ground for admission." Payne, 102 F.3d
at 294 (citation and internal quotation marks omitted); see also
United States v. Roulette, 75 F.3d 418, 423 (8th Cir.), cert.
denied
,
117
S.
Ct.
147(1996). The inquiry into what is collateral
is
squarely
within the trial court's discretion. United States v.
Kozinski, 16 F.3d 795, 806 (7th Cir. 1994).
In light of the collateral issue rule, in order to be
admissible, Murray's offered testimony must not only contradict a
statement
of
Lopez',
but
must also be material to Mulinelli's guilt
or innocence. Mulinelli fails, however, to indicate any
independent
and
material
ground for admitting Murray's testimony as
to
what
he
told
Lopez
at
the time of the interview. See Payne, 102
F.3d at 295 (noting that defendant's proffer for the purpose of
impeaching
a
witness was collateral, as it did not directly relate
to substantive issues concerning his guilt or innocence, and
therefore was inadmissible); see also United States v. Zuno-Arce,
44 F.3d 1420, 1422-23 (9th Cir.) (where accomplices testifying on
behalf of the government presented contradictory testimony, trial
court
acted
within
its
discretion in determining that "whether they
-10-
lied, or erred in their perceptions or recollections" were
questions of credibility for the jury), cert. denied, 116 S.
Ct.
383(1995).
The
district court did not abuse its discretion in
excluding Murray's testimony, which was relevant only to Lopez'
credibility on a matter immaterial to Mulinelli's guilt.
III. Evidentiary rulings
A. Admission of the summary chart
The government's first witness was Fernando Iglesias
Iglesias ("Iglesias"), an auditor for First Federal, whose
investigation
of First Federal's unusual car loan transactions led
to Mulinelli's indictment. During direct examination, the
government moved to admit a summary chart that Iglesias had
prepared during the course of his investigation, based upon
information
he gleaned from bank loan records. Mulinelli objected
to the admission of the summary chart, arguing that the chart was
not
an
original.
On
appeal, she changes her position, arguing that
the summary chart was not properly qualified under the business
record
hearsay exception. See Fed. R. Evid. 803(6). When a party
raises
on
appeal an argument she failed to present to the district
court, she has forfeited the argument and can only obtain a
favorable
ruling upon a showing of plain error. See United States
v.
Smith
,
101 F.3d 202 (1st Cir. 1996) (explaining that failure to
argue, at time of objection, grounds offered on appeal results in
plain error review), cert. denied, S. Ct. , 1997 WL 106695(Mar. 31, 1997). Mulinelli must show that the error "resulted in
a miscarriage of justice or seriously affected the fairness,
-11-
integrity or public reputation of the judicial proceedings."
Coastal
Fuels
of
Puerto
Rico, Inc. v. Caribbean Petroleum Corp., 79
F.3d 182, 189 (1st Cir.) (quotation marks omitted), cert. denied,
117 S. Ct. 294 (1996). The plain error standard affords reversal
"only in 'exceptional cases or under peculiar circumstances to
prevent a clear miscarriage of justice.'" United States v.
Griffin, 818 F.2d 97, 100 (1st Cir. 1987). Mulinelli fails to
indicate any error in the admission of this summary chart "so
shocking that [it] seriously affect[ed] the fundamental fairness
and
basic
integrity of the proceedings below." Id. Moreover, the
summary
chart
probably
have been admissible as a business record as
the
district
court would likely find Iglesias a "qualified person"
within
the
meaning of Federal Rule of Evidence 803(6). We find no
plain error.
B. Admission of copy of a check
During the testimony of Iglesias, the government
introduced into evidence a microform copy of a check disbursing
loan
funds
to Mulinelli's daughter. Mulinelli objected "only [to]
the
issue
of
authenticity," Trial Transcript, Dec. 18, 1995, at 81,
of the copy of the check. On appeal, Mulinelli argues that the
admission
of
the microform copy was an abuse of discretion because
the
government should have introduced the original and because the
check was not properly authenticated.
Regarding
the
admission
of the duplicate, rather than the
original, the district court acted well within its discretion.
Under Federal Rule of Evidence 1003, "[a] duplicate is admissible
-12-
to
the
same
extent as an original unless (1) a genuine question is
raised as to the authenticity of the original or (2) in the
circumstances
it would be unfair to admit the duplicate in lieu of
the original." A duplicate is
a counterpart produced by the same impression
as the original, or from the same matrix, or
by means of photography, including
enlargements and miniatures, or by mechanical
or electronic re-recording, or by chemical
reproduction, or by other equivalent
techniques which accurately reproduces the
original.
Fed. R. Evid. 1001(4). The microform copy introduced here was a
"duplicate"
of
the
original check and was admissible subject to the
limitations of Federal Rule of Evidence 1003. Although Mulinelli
objected below to the document's "authenticity" and elicited
testimony that the microform was not the original, she failed to
elicit any testimony or make any proffer suggesting that the
original
had
been tampered with or altered in any way and that the
copy was not what it purported to be. See United States v.
Balzano, 687 F.2d 6, 8 (1st Cir. 1982) (declining to question
authenticity of duplicate where appellant failed to proffer
testimony,
beyond statement that evidence was not the original, of
alteration or tampering). The duplicate complied with the
requirements
of
Federal
Rule of Evidence 1003 and was admissible to
the
same
extent as the original. The district court did not abuse
its discretion in admitting the microform copy.
Mulinelli's challenge below as to the "authenticity" of
the copy does not clearly identify the argument that the copy was
improperly authenticated. Nevertheless, giving Mulinelli the
-13-
benefit of the doubt as to the scope of her objection below, we
r 1
states:
"The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence
sufficient
to
support
a
finding that the matter in question is what
its proponent claims." Such authentication can be provided by,
among
other
things, testimony of a custodian or percipient witness
through "the document's '[a]ppearance, contents, substance
eview
the
copy's
authentication. Federal Rule of Evidence 901(a)
or ,
internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances.'" United States v. Holmquist, 36
F.3d 154, 167 (1st Cir. 1994) (quoting Fed. R. Evid. 901(b)(4)).
We
have
recognized that "[i]f the court discerns enough support in
the record to warrant a reasonable person in determining that the
evidence is what it purports to be, then Rule 901(a) is satisfied
and the weight to be given to the evidence is left to the jury."
United States v. Paolino, 13 F.3d 20, 23 (1st Cir. 1994).
Iglesias' testimony regarding the conduct of the bank's loan
department and surrounding the issuance of this check, which
disbursed
funds for a fraudulent loan to Mulinelli's daughter, and
the characteristics of the check itself, adequately authenticated
1 Mulinelli directs our attention to three cases that deal with
the inadmissibility of evidence under the business records
exception to the hearsay rule. See United States v. Benavente
Gomez
,
921
F.2d
378(1st
Cir. 1990); United States v. Kim, 595 F.2d
755 (D.C. Cir. 1979); United States v. Davis, 571 F.2d 1354 (5th
Cir. 1978). As the inadmissibility rulings in these cases relate
only to hearsay and not to authentication of evidence, they are
inapposite.
-14-
the copy of the check, and we find no abuse of discretion in the
district court's admission of the copy.
C. Leading questions
During the government's direct examination of Exposito,
Mulinelli's counsel repeatedly objected to the leading nature of
the government's questions. Mulinelli restates the objection on
appeal, claiming that Exposito was not adverse or hostile to the
prosecution so as to warrant leading questions, and that the
court's overruling this objection limited her ability to properly
cross-examine Exposito because the prosecution, rather than
Exposito, was testifying.
Federal Rule of Evidence 611(c) provides:
Leading questions should not be used on the
direct examination of a witness except as may
be necessary to develop the witness'
testimony. Ordinarily leading questions
should be permitted on cross-examination.
When a party calls a hostile witness, an
adverse
party, or a witness identified with an
adverse
party, interrogation may be by leading
questions.
"[T]he use of leading questions '. . . must be left to the sound
discretion of the trial judge who sees the witness and can,
therefore, determine in the interest of truth and justice whether
the circumstances justify leading questions to be propounded to a
witness
by
the
party
producing.'" United States v. Brown, 603 F.2d
1022, 1025 (1st Cir. 1979). Our review of the transcript reveals
a witness who was, at times, unresponsive or showed a lack of
understanding. The prosecutor's use of leading questions was
limited to questions intended to lay a foundation for a line of
-15-
questioning
or
to
assist
in developing coherent testimony. We find
that
such
questions were not improper and the district court acted
within its discretion when it allowed this manner of questioning.
See id. at 1025-26.
Mulinelli also suggests that the district court
improperly questioned Exposito during his testimony. The few
occasions that Mulinelli points to do not suggest an abuse of
discretion.
See United States v. Olmstead, 832 F.2d 642, 648 (1st
Cir. 1987). The questions posed by the judge "served to . . .
clarify lines of inquiry or develop the witness's answer. Such
conduct is well within the court's discretion." Id.D. Limiting cross-examination as irrelevant
In her attack on the prosecutor's use of leading
questions, Mulinelli juxtaposes the leeway granted the prosecutor
with
the
district court's curtailment of a line of questioning she
sought to pursue. Mulinelli argues that her defense was that
Exposito was brought to the bank by one of the bank officers, who
vouched for Exposito as creditworthy, and that, thus, Mulinelli
relied on the bank officer's support of Exposito. Because of her
reliance, Mulinelli argues, she was duped by the two into
unknowingly
providing
fraudulent bank loans to Exposito. Mulinelli
argues
on
appeal that she presented this theory to the jury in her
opening statement, but was unable, due to the district court's
limitation on her cross-examination of Exposito, to properly
present
the
theory during the course of the trial. The references
-16-
to this defense during her opening statement consisted of the
following, separated by several pages of transcript.
The evidence will show that Lazaro Exposito
was brought to the bank by one of the highest
officers of the bank. He did not come in by
the regular channels. And the documents that
were presented to the car department were
brought by this highest officer of the bank.
The
evidence
will show that he was recommended
by this highest officer of the bank, and he
started to buy repossessed automobiles, which
was a department, an office under [Mulinelli]
in
the
department of car loan that was managed
or
directed
by a man named Otero. Of course,
all under the general supervision of
Mulinelli.
* * *
And finally, I think that the evidence, when
you hear it in its totality, you will be
convinced that there is a conspiracy of two
crooks against Maria Mulinelli.
Trial Transcript, Dec. 18, 1995, at 26-27, 30.
During Mulinelli's cross-examination of Exposito, the
following interchange took place:
Q. Now, sir, you were not brought to First
Federal in the usual way other dealers were
brought in.
MS. DOMINGUEZ:2 Objection as to relevance.
MR. ABREU:3 It's an introductory question.
THE COURT: Well --
MR. ABREU: May I make a proffer?
THE
COURT:
Why don't you ask him how did he
come to the bank to begin with.
2 The Assistant United States Attorney.
3 Mulinelli's counsel.
-17-
Q. (Mr. Abreu) Sir, how did you get to
First Federal Savings to the loan department
as a dealer?
A. It was through Mr. Alcocer.
Q. Mr. Alcocer was one of the highest
officers of the bank at that time, wasn't he?
MS. DOMINGUEZ: Objection as to relevance.
THE COURT: It think it's irrelevant.
Sustained.
MR. ABREU: May I make a proffer as to a
line?
THE COURT: Well, perhaps you should
approach the bench and make a proffer.
(Bench conference.)
MR. ABREU: Your Honor, the proffer is the
following: The regular practice in First
Federal was sending young people to recruit
dealers.
In
this particular case he came from
one
of
the
highest officer[s] of the bank, who
collected his information about the
corporation to the department. He highly
recommended [Exposito], said he had an
excellent credit, and that's how he got --
that's how they trusted him.
THE COURT: It is total[ly] irrelevant to
the issues of this case. This is a very
discreet,
unique, well-defined conduct that is
the object of these charges. Has nothing to
do with Mr. Alcocer.
Trial Transcript, Dec. 19, 1995, at 177-78.
As we noted above, a defendant has a right to effective
cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986).
Once
that
constitutional threshold has been met, the trial
court
"retain[s] wide latitude to impose reasonable limits on such
cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness's
-18-
safety, or interrogation that is repetitive or only marginally
relevant." Id. The question before us is whether the district
court judge "exceeded his powers to limit cross-examination."
United States v. Malik, 928 F.2d 17, 19 (1st Cir. 1991). In this
case, we find that the district court exceeded the boundaries of
its power and deprived Mulinelli of her ability to present her
theory of defense to the jury.
The information presented by Mulinelli in her opening
statement and her proffer adequately indicated to the district
court
the
theory
of
defense she wanted to pursue. She mentioned in
her opening statement that "[t]he evidence will show that he
(Exposito) was recommended by this highest officer of the bank,"
which
suggests that the person with whom Exposito might have acted
to defraud the bank was not Mulinelli, but Alcocer, and at the
least that Mulinelli was influenced by the recommendation of
Alcocer. Such a theory of defense might suggest that, although
Mulinelli may have been negligent in relying on Alcocer's
recommendation and not questioning Exposito's loan applications
more closely than she did, she had no knowledge of Exposito's
fraudulent
transactions.
The information presented to the district
court adequately apprised the court of the relevance of the
channels
through
which
Exposito's loans were brought to Mulinelli's
attention, and the court, by foreclosing the introduction of any
testimony to support Mulinelli's theory of defense, violated
Mulinelli's
Sixth
Amendment right to confrontation. We next review
this error for harmlessness.
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On direct appeal, we apply the harmless error standard
set
forth
in
Chapman v. California, which requires that we reverse
the conviction unless the government can prove that the
constitutional error complained of was "harmless beyond a
reasonable doubt." Chapman, 386 U.S. 18, 24 (1967); see also
United States v. Maguire, 918 F.2d 254, 266 (1st Cir. 1990)
(ordering a new trial where government failed to show
constitutional errors were harmless beyond a reasonable doubt).
Under this standard, we may not declare a constitutional error
harmless if there is a "reasonable possibility" that the error
influenced
the
verdict.
See United States v. Levy-Cordero, 67 F.3d
1002, 1015 n.15 (1st Cir. 1995) (holding that district court's
failure
to
hold
an
evidentiary hearing into validity of defendant's
proposed defense "was not 'harmless beyond a reasonable doubt'
because there is a 'reasonable possibility' that exclusion of the
proffered alibi evidence influenced the jury's verdict").
On the particular counts that involved the Exposito
transactions, the government's proof of Mulinelli's knowledge
relied solely on the testimony of Exposito. While documentary
evidence was presented to support Exposito's acquisition of these
loans,
that
evidence did not necessarily corroborate his testimony
that Mulinelli encouraged him to apply for the loans or that she
set the terms of the loans. The alternative version of events --
that Exposito was brought to the bank by the officer and that the
officer
vouched for him -- would not necessarily have contradicted
Exposito's
testimony on direct examination but would have provided
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Mulinelli
with
the
opportunity to develop her own theory of defense
against these two counts.
The
Sixth
Amendment, and thus the constitutional minimum
that must be allowed a criminal defendant before a trial court's
discretion
to
limit
cross-examination adheres, includes the ability
to develop and present a defense. See United States v. Muhammad,
928 F.2d 1461, 1467 (7th Cir. 1991) (holding that only after
satisfying the constitutional minimum of allowing a defendant to
present sufficient evidence for the jury to assess her theory of
defense and witness bias does the district court's discretion to
limit cross-examination inure); see also Washington v. Texas, 388
U.S. 14, 18 (1967) ("'A person's right to reasonable notice of a
charge against him, and an opportunity to be heard in his defense
-- a right to his day in court -- are basic in our system of
jurisprudence; and these rights include, as a minimum, a right to
examine the witnesses against him, to offer testimony, and to be
represented
by counsel.'" (quoting In re Oliver, 333 U.S. 257, 273
(1948)). The district court's ruling worked a severe restriction
on
Mulinelli's
ability
to elicit evidence relating to her theory of
defense.
Had the jury been presented with the theory, it may well
have accepted it and believed that Exposito's testimony was not
credible. As Exposito's testimony was the prosecution's only
evidence regarding Mulinelli's knowledge, the error of excluding
her theory of defense could not have been harmless, and warrants
reversal with regard to the loan transactions with Exposito. We
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therefore
vacate Mulinelli's conviction and sentences4
CONCLUSION
affirm in part and vacate
and remand in part.
4
on Counts 5
and 6 and remand to the district court for further proceedings in
conformity with this decision.
For the foregoing reasons, we
We note, however, that this outcome will not ultimately change
Mulinelli's sentence. Her original base offense level was six,
increased
eight levels under U.S.S.G. 2F1.1(b)(1) because the loss
was
determined
to
be
$349,000. The level was further increased two
levels in accordance with U.S.S.G. S 2F1.1(b)(2) because the
offense involved more than minimal planning and two levels in
accordance with U.S.S.G. S 3B1.3 because Mulinelli abused a
position
of
trust. Her sentence, based on these calculations, was
27 months for all six counts, to be served concurrently. The
calculations
remain
the
same, even after the loss from Counts 5 and
6 ($130,000) is excluded, because the district court enhanced for
an amount of loss over $200,000 under U.S.S.G. S 2F1.1(b)(1), and
the total loss for Counts 1 through 4 remains over $200,000.
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