United States v. Jacob Manibusan , 529 F. App'x 818 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10258
Plaintiff - Appellee, D.C. No. 1:10-cr-00055-FMTG-1
v.
MEMORANDUM*
JACOB V. MANIBUSAN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge, Presiding
Submitted June 11, 2013**
Honolulu, Hawaii
Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.
A jury found Jacob Manibusan guilty of Financial Institution Fraud under 18
U.S.C. § 1344 after he made false statements to the Navy Federal Credit Union in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
his application for a car loan. We have jurisdiction to hear the appeal under 28
U.S.C. § 1291. We affirm.
Manibusan moved in limine to exclude government exhibits showing
computer screen printouts containing information that he relayed over the phone to
credit union employees who entered it into the computer system. The district court
recognized the exhibits as double-hearsay, but denied the motion on the grounds
that the exhibits fell within the business records exception under Federal Rule of
Evidence 803(6) and that the statements from Manibusan to the credit union
employees were non-hearsay party opponent admissions pursuant to Federal Rule
of Evidence 801(d)(2). Manibusan’s argument on appeal is premised on his
assertion that he did not place the calls to the credit union and that the government
failed to show that he was the source of the information entered into the computer.
Although Manibusan’s self-identification alone may not have been enough to
satisfy the authentication or identification requirement of Federal Rule of Evidence
901, Manibusan also verified his access account number, date of birth, and the last
four digits of his Social Security number and knew about his loan application. See
Advisory Committee Note to Rule 901(b)(4) (“[A] . . . telephone conversation may
be shown to have emanated from a particular person by virtue of its disclosing
knowledge of facts known peculiarly to him . . . .”). This evidence provided
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sufficient authentication of Manibusan’s identity to sustain the trial court’s holding
under Federal Rule of Evidence 801(d)(2). See United States v. Miller, 771 F.2d
1219, 1234 (9th Cir. 1985).
Manibusan’s only argument to defeat admission under the business records
exception is that the government did not prove that he was the caller. His reliance
on United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992), is misplaced. Unlike in
Patrick, Manibusan’s statements to the credit union are not hearsay because they
were not introduced for the truth of the matter asserted. See United States v.
Gibson, 690 F.2d 697, 700 & n.1 (9th Cir. 1982).
Manibusan’s final argument with regard to this evidence is that it should
have been excluded under Federal Rule of Evidence 403 as unfairly prejudicial
because the exhibits “all contain the name Jacob Manibusan on them, and would
certainly lead the viewer . . . to believe that Jacob Manibusan provided the
information . . . contained in those Exhibits.” Again, this relies on his contention
that the government failed to prove that he was the caller. Since that argument
failed, so must his argument under Rule 403.
The district court did not abuse its discretion when it admitted this evidence.
See, e.g., United States v. Cherer, 513 F.3d 1150, 1157–59 (9th Cir. 2008) (finding
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potential prejudice did not render evidence inadmissible when probative of identity
and intent, issues which the defendant had made relevant).
The district court did not abuse its discretion when it eliminated Paragraph
Ten of the second superseding indictment. See United States v. Terrigno, 838 F.2d
371, 373 (9th Cir. 1988). Paragraph Ten stated, “It was further part of the scheme
that defendant JACOB V. MANIBUSAN would and did default on the loan.” “It
is well settled that a portion of the indictment that the evidence does not support
may be withdrawn from the jury, and this is not an impermissible amendment,
provided nothing is thereby added to the indictment, and that the remaining
allegations charge an offense.” United States v. Wellington, 754 F.2d 1457, 1462
(9th Cir. 1985) (internal quotation marks omitted). Whether Manibusan defaulted
on the loan was not relevant to whether he violated 18 U.S.C. § 1344.
The district court did not abuse its discretion when it precluded Manibusan
from presenting evidence regarding his repayment of the loan. It was not relevant.
See FED. R. EVID. 402. “While an honest, good-faith belief in the truth of the
misrepresentations may negate intent to defraud, a good-faith belief that the victim
will be repaid and will sustain no loss is no defense at all.” United States v. Benny,
786 F.2d 1410, 1417 (9th Cir. 1986).
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Finally, the district court did not abuse its discretion by denying
Manibusan’s motion for a new trial based on alleged prosecutorial misconduct.
See United States v. Murillo, 288 F.3d 1126, 1140 (9th Cir. 2002). Even if the
prosecutor’s comments were improper, they did not amount to plain error that
prejudiced Manibusan such that a new trial was necessary. See United States v.
Falsia, 724 F.2d 1339, 1342 (9th Cir. 1983). “Every slight excess of a prosecutor
does not require that a verdict be overturned and a new trial ordered.” United
States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir. 1988). “A judge’s prompt
corrective action in response to improper comments usually is sufficient to cure
any problems arising from such improper comments.” United States v.
Washington, 462 F.3d 1124, 1136 (9th Cir. 2006). The prosecutor’s brief reference
to Manibusan stealing money was cured by the judge’s prompt instruction
thereafter informing the jury that Manibusan had, in fact, settled the loan—this was
sufficient to ameliorate any prejudice that may have resulted. Moreover, the fact
that Manibusan was acquitted of several charges indicates that “the prosecutor's
remarks did not undermine the jury’s ability to view the evidence independently
and fairly.” United States v. Young, 470 U.S. 1, 18 n.15 (1985).
AFFIRMED.
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