USA v . Maria M . Ulloa CR-12-02-JL 5/1/13 P

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE United States of America

v. Criminal N o . 12-cr-02-01-JL Opinion N o .

Maria M . Ulloa

MEMORANDUM ORDER

In advance of the jury trial of Maria M . Ulloa on several

counts of preparing and filing false or fraudulent income tax

returns, see

8 7 , the prosecution moved in limine to

preclude various evidence from being used to impeach its

witnesses. See L . C r . R. 12.1(c). Specifically, it sought to

exclude evidence o f :

• a 2007 letter from United States Citizenship and Immigration Services (“C.I.S.”) to a prospective prosecution witness, denying that witness’s application for travel;

another prospective witness’s divorce, which a 1987 U.S. government memorandum characterized as “not genuine and contrived to achieve immigration status”; and

• a third prospective witness’s marital infidelity, as well as the fact that the same witness had jointly filed an immigration form I-751 with his estranged wife.1

The court issued oral orders granting, or granting in part and

denying in part, these motions; those orders are explained below.

1 The prosecution also filed a motion in limine seeking to exclude evidence of another prospective witness’s residence in an apartment leased under her sister’s name, and that same witness’s 2010 tax returns. The court took that motion under advisement, but Ulloa did not seek to introduce any such evidence at trial. That motion is therefore denied as moot. At trial, an issue also arose as to the purposes for which

the jury could consider evidence that a prosecution witness had

engaged in conduct substantively identical to that charged in

this case. The court, adopting the position urged by the

prosecution, held that under Rule 404(b) of the Federal Rules of

Evidence, the jury could not use that evidence to infer that the

witness was likely to have also committed the acts charged

against Ulloa, and instructed the jury accordingly. This ruling

was erroneous, but, as explained below, was ultimately harmless.

I. 2007 C.I.S. letter

The prosecution’s first motion in limine seeks to preclude

Ulloa from impeaching its witness, M r . Torres, with a 2007 letter

from C.I.S. “stating that on April 3 0 , 2007, Torres filed form I-

131, Application for Travel, which was denied because the illness

from which [he] claimed his mother suffered could not be verified

by her doctor in Honduras.” The prosecution argues that the

letter and the incident related therein are not probative of

Torres’s “character for truthfulness or untruthfulness,” and thus

not proper impeachment evidence under Federal Rule of Evidence

608(b), because C.I.S. “never made a determination as to whether

Mr. Torres’s claim of family illness was false; rather, it

concluded only that there was insufficient corroborating evidence

to justify an issuance of the requested travel permit.” The

2 prosecution is mistaken about the probative value of evidence

regarding Torres’ application and its denial, which is admissible

both under Rule 608(b) and as evidence of possible bias.

C.I.S.’s letter is nonetheless inadmissible for certain purposes.

The motion is therefore granted in part and denied in part.

Rule 608(b) provides that “extrinsic evidence is not

admissible to prove specific instances of a witness’s conduct in

order to attack or support the witness’s character for

truthfulness.” S o , insofar as Ulloa might seek to use the 2007

letter itself to imply that Torres previously misrepresented his

mother’s medical condition, and is therefore more likely to give

false testimony in this action, the rule bars her from doing s o .

To that limited extent, the prosecution’s motion is granted.

Rule 608(b) also explains, however, that the court may

permit inquiry into “specific instances of a witness’s conduct

. . . if they are probative of the [witness’s] character for

truthfulness or untruthfulness.” Thus, if the conduct related in

the letter (as distinct from the letter itself) is probative of

Torres’s character for truthfulness, Ulloa may cross-examine him

about i t . This standard is plainly met. The Court of Appeals

has recognized that “a witness’s willingness to lie to the

government in an application . . . is highly probative of his

3 character for truthfulness.” United States v . Shinderman,

, 17 (1st Cir. 2008).

Though the prosecution suggests that evidence of the denial

of Torres’s application is not probative of his truthfulness

“absent any discernible finding of falsity” by C.I.S. as to his

claim of family illness, the test for admissibility under Rule

608(b) does not require the proponent to establish prior

untruthful conduct by the witness to a certainty before inquiring

about i t . Rather, “the general rule is that the questioner must

be in possession of some facts which support a general belief

that the witness committed the offense or the degrading act to

which the question relates.” United States v . Whitmore,

(D.C. Cir. 2004) (internal quotation marks omitted); c f .

also 2 Stephen A . Saltzburg et a l . , Federal Rules of Evidence

Manual § 608.02[9], at 608-19 (2011) (“[T]he courts have held

that a party must have a ‘plausible basis’ to believe that the

witness committed the bad act before it can be made the subject

of inquiry.”). Here, the 2007 letter’s reference to the fact

that Torres’s mother’s doctor could not verify the illness

claimed by Torres in his application “supports a general belief

4 that” Torres fabricated that illness, and Ulloa is entitled to

explore this issue with Torres on cross-examination.2

As Ulloa notes, moreover, evidence that the U.S. government

denied Torres’s application is also relevant and admissible on

cross-examination inasmuch as it shows possible bias in favor of

the government. That Torres must seek government approval to

travel–-and has relatively recently been denied such approval--

could suggest that Torres might shade his testimony to please the

government and improve his chances of obtaining approval in the

future. “There is no question of the relevance of” evidence that

a witness has a “motivation to lie to continue to curry favor

with the government.” United States v . Lynn,

3 0 , 433

(1st Cir. 1988). What’s more, “a witness’s self-interest or

motive to testify falsely is generally considered to be a non-

collateral issue,” United States v . Beauchamp,

, 4 (1st

Cir. 1993), so “extrinsic evidence is admissible to show bias,”

United States v . Gomes,

6 , 81 (1st Cir. 1999), even if

that evidence would otherwise be inadmissible under Rule 608(b),

United States v . Abel,

5 , 55-56 (1984). S o , if Ulloa

2 In so doing, of course, she will have to accept the answers Torres gives and cannot disprove them by reference to the letter itself. See United States v . Beauchamp,

, 3-4 (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.”) (internal quotation marks and alterations omitted).

5 wishes to use the 2007 letter to show Torres’s possible bias, she

may do so (subject to an appropriate limiting instruction, see

Fed. R. Evid. 1 0 5 ) . The motion is denied to the extent it seeks

to prevent this use of the letter.

II. “Contrived” divorce

The prosecution’s second motion in limine seeks to preclude

Ulloa from impeaching its witness, M r . Lantigua, by inquiring

into an incident related in a 1987 U.S. Embassy memorandum, in

which the government denied Lantigua’s application for a visa

“because his divorce was determined to be not genuine and

contrived to achieve immigration status.” This incident, the

prosecution argues, is too remote in time to be admitted into

evidence. The court agrees.

As already discussed, Rule 608(b) permits inquiry into

specific instances of a witness’s conduct on cross-examination if

those instances “are probative of the [witness’s] character for

truthfulness or untruthfulness.” That rule would ordinarily

permit inquiry into a witness’s willingness “to engage in

deceptive practices to avoid immigration laws.” United States v .

Thiongo,

5 , 60 (1st Cir. 2003) (concluding that service

“as a legal witness to a sham marriage designed to avoid

immigration laws” was “fairly probative of . . . truthfulness”).

To protect against abuse, however, “specific instances of conduct

6 inquired into . . . must not be remote in time.” United States

v . Mateos-Sanchez,

3 2 , 236 (1st Cir. 1988); see also

Thiongo,

(similar); c f . also 2 Saltzburg et a l . ,

supra § 608.02[4], at 608-10 (“[T]he older the act, the less it

says about the witness’ current propensity to lie on the stand.”)

(emphasis in original). Here, over a quarter-century had elapsed

between Lantigua’s sham divorce and the time of trial. This gulf

of time i s , in this court’s view, too large for evidence of that

instance of untruthfulness to have any value to the jury in

assessing Lantigua’s veracity. C f . United States v . Holden,

9 8 , 703 (6th Cir. 2009) (prior misrepresentations properly

excluded as having “little if any relevance to [witness’s]

ability to testify truthfully about an unrelated subject more

than a decade later”); United States v . Schwab,

(2d Cir. 1989) (trial judge erroneously permitted inquiry

into charges made against witness 23 and 18 years before trial).

This is true even i f , as Ulloa suggests, the denial of an

immigrant visa might otherwise demonstrate that a witness has a

motive “to slant his testimony in favor of the government[]”

because he is “subject to the policies and whims of immigration

authorities.” Extrinsic evidence offered to prove bias is

subject to Federal Rules of Evidence 402 and 403. See Fed. R.

Evid. 608 Advisory Committee Notes, 2003 Amendments (citing

7 United States v . Winchenbach,

(1st Cir. 1999)). As

is the case with Rule 608(b), under those rules evidence may

properly be excluded if its probative value has been “attenuated

by the passage of time.” United States v . Rodriguez,

(1st Cir. 2000); c f . Harrower v . L a . ex rel. L a .

Dep’t of Transp.,

0 1 , 502 (5th Cir. 2009)

(district court properly excluded evidence of 25-year-old

incident as “so remote in time that the probative value of the

evidence was extremely limited”). That is the case here, where–-

unlike M r . Torres’s relatively recent run-in with immigration,

see supra Part I--a decades-old contretemps with immigration

authorities does not make it particularly likely that Lantigua

has any present motive to shade his testimony to please the

government. The prosecution’s second motion in limine is

granted.

111. Marital infidelity & joint filing of immigration form

In its third motion in limine, the prosecution seeks to

preclude Ulloa from impeaching its witness, M r . Mayor, with

evidence of (a) his 1999 filing of a joint I-751 Petition to

Remove the Conditions of Residence with his estranged wife; and

(b) his marital infidelity over eleven years ago. The

prosecution argues that neither topic is probative of Mayor’s

character for truthfulness, and that the latter topic is too

8 remote in time to have any significant probative value in any

event. The court agrees that Mayor’s marital infidelity is not

probative of his character for truthfulness (at least under these

circumstances), and the motion to exclude cross-examination on

that topic is granted. The motion is denied, however, as to

Mayor’s filing of a joint I-751 petition with his estranged wife.

The court turns again to Rule 608(b), which permits cross-

examination on prior instances of conduct if they “are probative

of the [witness’s] character for truthfulness or untruthfulness.”

Ulloa expressly disclaimed any intention of inquiring about

Mayor’s infidelity on cross-examination, and the court agrees

with the government in any event that this instance of marital

infidelity, standing alone, has no value in evaluating Mayor’s

character for truthfulness or untruthfulness. C f . Thiongo,

(“Evidence Defendant bore the man’s child while

married to another man does not appear to be relevant or

probative of Defendant’s truthfulness or untruthfulness.”);

United States v . Ndiaye,

(11th Cir. 2006)

(trial court should not have permitted inquiry into defendant’s

“attempt to engage in a surreptitious relationship with a woman

who was not his wife” as it did “not directly relate to [his]

truthfulness and honesty”). The prosecution’s motion is granted

as to that evidence.

9 Evidence that Mayor may have misrepresented his marital

status on an immigration form by filing jointly with his wife,

from whom he was estranged, however, is potentially probative of

Mayor’s character for truthfulness. As just mentioned, the Court

of Appeals has held that “a witness’s willingness to lie to the

government in an application,” Shinderman,

7 , or “to

engage in deceptive practices to avoid immigration laws,”

Thiongo,

0 , is fair game for cross-examination under

Rule 608(b). The prosecution, echoing an argument made in its

first motion in limine, see supra Part I , protests that Mayor’s

filing may just have been “a mistake born of inexperience” and

that cross-examination should not be permitted in the absence of

“evidence of intentional dishonesty.” But, as already discussed,

Rule 608(b) requires only that the questioner have some facts

supporting a belief that the witness engaged in prior dishonest

conduct, Whitmore,

2 2 , and the admitted inaccuracy

in the filing alone supports that belief. If Mayor’s conduct was

indeed just a “mistake,” as the prosecution suggests, then he can

provide that explanation on cross-examination (and Ulloa will

have to accept that answer, see supra n . 2 ) . The motion to

exclude cross-examination on this topic is denied.3

3 Prior to trial, the court tentatively ruled that the filing of the I-751 was too remote in time to be probative of Mayor’s truthfulness. C f . supra Part I I . That ruling was, however, only

10 IV. Evidence of witness’s similar crimes

At trial, prosecution witness Gladys Pena gave testimony

acknowledging that, while working for Ulloa, she had committed

crimes substantively identical to those with which Ulloa was

charged. (Indeed, Pena had herself been charged with and

convicted of violating

. See United States v .

Pena-Dominguez, N o . 10-cr-1252 (S.D.N.Y. judgment entered June

2 2 , 2011).) There was no dispute that this evidence was relevant

and admissible. The parties did disagree, however, as to the

ends to which the jury could consider i t . Ulloa contended that

the jury should be permitted to infer from this evidence that

Pena had a propensity to commit the type of offense with which

Ulloa was charged (and that it was therefore possible that she,

rather than Ulloa, had in fact committed the charged offenses).

The prosecution, for its part, asserted that Rule 404(b) of the

Federal Rules of Evidence explicitly prohibits the use of “other

crimes” evidence for this purpose, and only permits a jury to

consider it for other purposes including motive, opportunity, and

plan. The court, after due consideration of the authority cited

by both sides, agreed with the prosecution’s view and instructed

preliminary, and the court expressly invited Ulloa to revisit the issue during trial. This written order reflects the court’s reconsidered position on the admissibility of this evidence.

11 the jury accordingly.4 The court is now compelled to acknowledge

that it erred in doing so–-albeit harmlessly.

Rule 404(b)(1) provides that “[e]vidence of a crime, wrong,

or other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in

accordance with the character.” The rule therefore prohibits the

introduction of evidence of other crimes solely “for the purpose

of showing villainous propensity.” United States v . Rozkowski,

0 , 56 (1st Cir. 2012). That is exactly what Ulloa

sought to do with evidence of Pena’s substantially similar prior

offenses. Ulloa argued, however–-among other things–-that Rule

404(b)’s limitation does not apply to witnesses other than the

defendant. In support of this argument, Ulloa relied primarily

on Holmes v . South Carolina,

(2006), in which the

United States Supreme Court held that the Constitution “prohibits

the exclusion of defense evidence under rules that serve no

legitimate purpose or that are disproportionate to the ends that

4 In full, the instruction stated: You have heard evidence that one of the witnesses, Gladys Pena, previously engaged in conduct similar to that charged in this case. You may not infer simply that because Pena committed the similar acts, that she also committed the acts of which the defendant is accused. You may consider the evidence only for the limited purpose of deciding whether Pena had an opportunity to commit the acts of which the defendant is accused, as well as the identity of the person who committed the offenses.

12 they are asserted to promote,” but did not interpret (or so much

as mention) Rule 404(b). In response, the prosecution cited

United States v . McCourt,

(9th Cir. 1991), a

decision of the Court of Appeals for the Ninth Circuit directly

rejecting the interpretation of Rule 404(b) urged by Ulloa. As

the decision in McCourt was entirely consistent with the language

and structure of Rule 404(b), and Ulloa had not cited any

apposite authority of her own, the court found the prosecution’s

argument more persuasive.

Curiously, neither side cited any of the multiple cases from

the Court of Appeals for this Circuit holding that “Rule 404(b)

does not exclude evidence of prior crimes of persons other than

the defendant,” United States v . González-Sánchez,

7 2 ,

583 (1st Cir. 1987), and that “[o]bjections based on Rule 404(b)

may be raised only by the person whose ‘other crimes, wrongs, or

acts’ are attempted to be revealed,” United States v . David,

2 2 , 736 (1st Cir. 1991); see also United States v .

Procopio,

1 , 29 n.1 (1st Cir. 1996); United States v .

Isabel,

(1st Cir. 1991). While Rule 404 has

undergone several minor amendments since the time these cases

were decided, none of those amendments would appear to have any

effect on the outcomes, which have not been overruled or

otherwise questioned by the Court of Appeals. In light of this

13 authority, it is clear that the court’s limiting instruction to

the jury was legally incorrect. And, although it is tempting to

lay the responsibility for this error at the feet of the parties,

given their failure to cite any of the directly controlling

authority, the fault lies with the court.

But “[e]ven an incorrect instruction to which an objection

has been preserved will not require [the court] to set aside a

verdict if the error is harmless.” United States v . Sasso,

5 , 29 (1st Cir. 2012); c f . United States v . Levy-Cordero,

(1st Cir. 1995) (concluding erroneous 404(b)

limiting instruction was harmless). Where, as here, an error is

“not of constitutional dimension,” the defendant’s conviction may

“stand, error notwithstanding, as long as it can be said with

fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.” Sasso, 695 F.3d at

29 (quoting Kotteakos v . United States,

5 0 , 765

(1946)). That is the case here.

The jury was not precluded from considering Pena’s prior

convictions at all; rather, the jury heard about those

convictions in detail. Consistent with Rule 404(b)(2)–-which

provides that evidence of a person’s other crimes, wrongs, or

acts “may be admissible for another purpose, such as proving

14 mistake, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of evidence”–-the court

instructed the jury that it could consider that evidence in

“deciding whether Pena had an opportunity to commit the acts of

which the defendant is accused, as well as the identity of the

person who committed the offenses.” In other words, the jury was

told that evidence of Pena’s prior conduct was relevant to the

identity of the person who committed the offenses of which Ulloa

was accused, and that it was entitled to take that evidence into

account when considering whether Ulloa was in fact the person who

committed those offenses. That is precisely the purpose for

which Ulloa sought to use the evidence, and the erroneous

limiting instruction given to the jury did not prevent her from

doing s o . Because this error cannot have “substantially swayed”

the jury’s verdict, it was harmless and the court will grant no

relief as a result.

V. Conclusion

For the reasons set forth above, the government’s motions in

limine nos. 1 and 3 5 are GRANTED IN PART and DENIED IN PART. The

5 Documents nos. 41 & 43.

15 government’s motion in limine n o . 2 6 is GRANTED, and its motion

in limine n o . 4 7 is DENIED as moot.

SO ORDERED.

0C J^(ff6*%& Joseph N . La'plante United States District Judge

Dated: May 1 , 2013

cc: Bjorn R. Lange, Esq. Nick Abramson, Esq. William E . Morse, Esq.

6 Document n o . 4 2 . 7 Document n o . 4 4 .

16