United States v. Maria C. Calzon , 366 F. App'x 115 ( 2010 )


Menu:
  •                                                              [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________                   FILED
    U.S. COURT OF APPEALS
    No. 09-13406                  ELEVENTH CIRCUIT
    FEBRUARY 18, 2010
    Non-Argument Calendar
    JOHN LEY
    ________________________
    CLERK
    D. C. Docket No. 08-23045-CV-JEM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MARIA C. CALZON,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (February 18, 2010)
    Before BLACK, BARKETT and PRYOR, Circuit Judges.
    PER CURIAM:
    Maria Calzon, an attorney proceeding pro se, appeals the district court’s
    judgment in favor of the United States in its action to recover upon a defaulted
    student loan. Calzon argues that the district court erred when it allowed a
    government witness, Alberto Francisco, to refresh his memory at trial by looking at
    a record prepared by the Department of Education (“DOE”) in preparation for trial.
    Calzon further argues that the district court erred when it entered a final judgment
    for the government because the government did not present a Disclosure Statement
    and Repayment Schedule setting forth Calzon’s repayment terms and schedule.
    I.    Alleged Evidentiary Error
    Generally, we review a district court’s evidentiary ruling for abuse of
    discretion, and will reverse only if the moving party establishes that the rulings
    resulted in a substantial prejudicial effect. Conroy v. Abraham Chevrolet-Tampa,
    Inc., 
    375 F.3d 1228
    , 1232 (11th Cir. 2004). Where the party failed to make a
    timely objection, however, we will only examine an objection made for the first
    time on appeal for plain error in an exceptional civil case, if the error would result
    in a miscarriage of justice. S.E.C. v. Diversified Corporate Consulting Group, 
    378 F.3d 1219
    , 1227 n.14 (11th Cir. 2004). Under plain error review, we will reverse
    if, (1) an error occurred, (2) the error was plain, (3) the error affected substantial
    rights, and (4) not correcting the error would seriously affect the fairness of the
    judicial proceeding. Farley v. Nationwide Mut. Ins. Co., 
    197 F.3d 1322
    , 1329 (11th
    2
    Cir.1999) (citations omitted).
    Fed.R.Evid. 612 provides that a witness may use a writing to refresh her
    memory for the purpose of testifying. Fed.R.Evid. 612. “The principal
    requirements for the use of the statement for the purpose [are] that the witness
    demonstrated a need for having his memory refreshed and that the paper used had
    that effect.” Thompson v. United States, 
    342 F.2d 137
    , 139 (5th Cir. 1965)
    (citation omitted). “The reliability or truthfulness of the statement [is] relevant
    only to the problem of the weight and credibility to be accorded the witness'
    testimony.” 
    Id. at 139
     (citation omitted). Counsel may not refresh recollection
    simply as an excuse to bring inadmissible material before the fact-finder. See 
    id. at 140
    . Nonetheless, we said in a criminal context that “[w]hen there is careful
    supervision by the court, the testimony elicited through refreshing recollection may
    be proper, even though the document used to refresh the witnesses' memory is
    inadmissible.” United States v. Scott, 
    701 F.2d 1340
    , 1346 (11th Cir. 1983)
    (citation omitted); see United States v. Horton, 
    526 F.2d 884
    , 888-89 (5th Cir.
    1976).
    We conclude, based on this record, that the district court did not err, plainly
    or otherwise, when it allowed Francisco to use the Borrower’s History and Activity
    Report to refresh his memory during his testimony. The record shows that
    3
    Francisco, during trial, referred to that business record so that he could remember
    the date when her loan was disbursed. Francisco also looked at the report so that
    he could testify about the exact dates when the DOE sent letters to Calzon,
    informing her that her loan payments were past due. Francisco permissibly used
    this data, from underlying records prepared and relied upon in the ordinary course
    of business, to refresh his memory of when her loan was disbursed and the DOE
    sent her the past due notices.
    II.   Ultimate Judgment
    A district court’s findings of fact are reviewed for clear error, and its
    conclusions of law are reviewed de novo. Wexler v. Anderson, 
    452 F.3d 1226
    ,
    1230 (11th Cir. 2006). Additionally, we “will not overturn an evidentiary ruling
    and order a new trial unless the objecting party has shown a substantial prejudicial
    effect from the ruling.” Maiz v. Virani, 
    253 F.3d 641
    , 667 (11th Cir. 2001).
    Calzon’s argument that she was not on notice that her loan payments were
    due is predicated on her contention that Francisco’s testimony was improper.
    Calzon contends that, without Francisco’s allegedly improper testimony, the
    government could not prove she defaulted on her loan. However, as discussed
    above, Francisco’s testimony, in which he refreshed his memory using Calzon’s
    Borrower’s History and Activity Report, was not improper. Moreover, even if
    4
    Francisco’s testimony was improper, Calzon has not shown that it resulted in
    substantial prejudice. See Maiz at 253 F.3d at 667. It is undisputed that Calzon
    had executed a promissory note with DOE and had made no repayments on her
    loan. In light of her note and her admitted failure to make any payments on her
    note, Calzon has not demonstrated how she suffered substantial prejudice from
    Francisco’s allegedly improper testimony. The district court did not err when it
    entered judgment against Calzon on her student loan obligation.
    AFFIRMED.
    5