United States v. Ulloa

760 F.3d 113

UNITED STATES of America, Appellee,

v.Maria M. ULLOA, Defendant, Appellant.

No. 13–1577.

United States Court of Appeals, First Circuit.

July 28, 2014.

Bjorn Lange, Federal Public Defender Office, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.

Before THOMPSON and SELYA, Circuit Judges, and McCONNELL, Jr., ^* District Judge.

McCONNELL, District Judge.

A jury convicted Maria Magdelena Ulloa of ten counts of submitting fraudulent federal tax returns in violation of 18 U.S.C. § 287. On appeal, Ms. Ulloa argues that the district court erred in three ways: by (i) finding that the jury instruction preventing the jury from considering a co-worker's criminal conduct as propensity evidence under the Federal Rules of Evidence Rule 404(b) was harmless error; (ii) declining to strike the summary testimony of Internal Revenue Service (“IRS”) Agent Tama Mitchell; and (iii) refusing to grant Ms. Ulloa's motion for acquittal on Count Eight pursuant to the Federal Rules of Criminal Procedure Rule 29. Finding no reversible error in the district court's rulings, we affirm.

I. BACKGROUND

We recount the facts in the light most favorable to the jury verdict, consistent with the court record below. United States v. Noah, 130 F.3d 490, 493 (1st Cir.1997).

Ms. Maria Magdelena Ulloa, owner of Main Travel in Nashua, New Hampshire, provided services, including travel, as the name suggests, as well as tax preparation and filing, the services at issue in this case. It seems that Ms. Ulloa had a reputation within the Nashua community for maximizing her customers' refunds by embellishing certain details. Many witnesses testified at her trial that they began using Main Travel's services because they heard that Ms. Ulloa could prepare returns claiming fictitious dependents and day care costs. On some occasions, she included this information on tax returns with the customers' knowledge, but sometimes they were not aware. In all cases, Ms. Ulloa would prepare these false returns, file them with the IRS, and take a fee. That fee came in several different forms.

Ms. Ulloa's tax preparation business partnered with Santa Barbara Bank and Trust (“SBBT”) to establish a refund anticipation loan program so that Main Travel customers could be given expedited tax refunds in the amount anticipated in the form of a loan. Ms. Ulloa would electronically file the individual's tax return with the IRS and simultaneously, SBBT would receive the refund anticipation loan application. Ms. Ulloa would either pay a reduced refund up front to the customer and then fraudulently endorse the bank loan check to Main Travel or demand cash payment from the customer who later received a refund directly from the IRS.

The thrust of Ms. Ulloa's defense was to blame a Main Travel employee, Gladys Pena, for all of the fraudulent activity at Main Travel. Ms. Ulloa employed Ms. Pena at Main Travel from January until June of 2007. Prior to working with Ms. Ulloa, Ms. Pena and her two children lived with Ms. Ulloa. Ms. Pena had a prior criminal conviction for fraud and served a ninety-day prison term for that offense. While employed at Main Travel, Ms. Pena learned that Ms. Ulloa was falsifying tax returns and began to do the same. At Ms. Ulloa's direction, Ms. Pena forged a customer's name on a refund anticipation loan check for Ms. Ulloa to deposit in her own bank account. Ms. Pena had access to Ms. Ulloa's bank accounts.

Meanwhile, Ms. Pena also filed fraudulent tax returns on behalf of Main Travel customers without Ms. Ulloa's knowledge. She concealed her activity and deposited the ill-gotten gains in her own bank accounts. While Ms. Pena was away in the Dominican Republic in June of 2007, Ms. Ulloa discovered her crimes. Ms. Pena never returned to Main Travel. Ms. Pena ultimately pled guilty to charges arising from her employment at Main Travel, but testified that she was not responsible for filing any of the returns for which Ms. Ulloa was charged.

Ms. Ulloa was tried on ten counts of presenting false tax returns to the IRS for the 2006 and 2007 tax years. Following a five-day trial, the jury convicted Ms. Ulloa on all counts. Ms. Ulloa was sentenced to 21 months in prison. She has timely appealed to this court.

II. ANALYSIS

Ms. Ulloa argues that the district court committed three errors at trial that are fatal to her convictions.

A. THE RULE 404(B) JURY INSTRUCTION

At trial, both the Government and Ms. Ulloa's counsel asked Ms. Pena about the other fraud-based crimes that she committed before and after her employment at Main Travel. During the trial, the district court declined to give the propensity instruction that Ms. Ulloa proposed. Instead,the district court instructed the jury that it could not infer based on the evidence of Ms. Pena's other crimes that she had a propensity to commit the crimes of which Ms. Ulloa was charged, but that it could consider Ms. Pena's prior criminal acts on the issue of opportunity or identity. However, upon reconsideration, after the trial and verdict against Ms. Ulloa, the district court found that it had erred in limiting the jury's consideration of and ability to infer a propensity to commit fraud based on Ms. Pena's other crimes. Citing this court's prior decisions, the district court concluded that the jury should not have been limited in its consideration of Ms. Pena's other crimes. See United States v. David, 940 F.2d 722, 736 (1st Cir.1991) (“Objections based on Rule 404(b) may be raised only by the person whose ‘other crimes, wrongs, or acts' are attempted to be revealed.” (citation omitted)); United States v. Gonzalez–Sanchez, 825 F.2d 572, 583 (1st Cir.1987) (“Rule 404(b) does not exclude evidence of prior crimes of persons other than the defendant.”); see also United States v. Procopio, 88 F.3d 21, 29 n. 1 (1st Cir.1996); United States v. Isabel, 945 F.2d 1193, 1200 (1st Cir.1991). The district court determined that its error was “not of constitutional dimension,” however, and undertook to analyze the effect of the error under a conventional harmless error standard. Reflecting on the record as a whole, the district court determined that the error was harmless.

On appeal, Ms. Ulloa challenges the district court's denial of her request for an instruction to the jury that it could consider Ms. Pena's prior criminal acts as evidence of her (Ms. Pena' s) propensity to commit crimes of fraud. Ms. Ulloa agrees with the district court that it erred in its instruction, but urges that the error was not harmless as it found. She adds that because the jury was not permitted to consider Ms. Pena's other, similar crimes, for the purpose of showing propensity to have committed these crimes, the error violated her constitutional right to present a complete defense and thus was of constitutional dimension. Therefore, the district court should have applied a more stringent standard, requiring the Government to prove beyond a reasonable doubt that the error did not influence the verdict. The Government, on the other hand, argues that the district court's reliance on the above cases was misplaced and therefore, it did not err in instructing the jury on Rule 404(b). Alternatively, the Government argues that if the district court did err, then its analysis under the harmless error standard was appropriate as was its conclusion of harmless error. For purposes of this appeal, this court will assume without deciding that the district court was correct in concluding that the jury instruction it gave on Rule 404(b) evidence was in error. Beyond that assumption, we must consider whether the assumed error is of constitutional magnitude. After all,

[t]here are two standards for measuring harmless error in a criminal case. The less grueling standard (viewed from the government's coign of vantage) allows a conviction to stand as long as a reviewing court can say 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. This less grueling standard applies chiefly to errors of a non-constitutional dimension. The stricter standard, which applies to errors of constitutional dimension, requires reversal unless the government proves beyond a reasonable doubt that the error did not influence the verdict.

United States v. Melvin, 730 F.3d 29, 39 (1st Cir.2013) (internal quotation marks and citations omitted).

While the opportunity to present a complete defense is constitutionally guaranteed, see Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006), this court finds that the district court's erroneous jury instruction on propensity did not abridge Ms. Ulloa's right to present a complete defense. While it did restrict the jury's consideration of Ms. Pena's propensity, it did not prevent Ms. Ulloa from introducing copious amounts of evidence of Ms. Pena's similar fraudulent acts. She did introduce that evidence and the district court instructed the jury that it could consider it 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.” United States v. Ulloa, 942 F.Supp.2d 202, 209 (D.N.H.2013). As the district court found below, Ms. Ulloa was able to defend herself by arguing to the jury that Ms. Pena was the person who committed the fraudulent acts despite the legally incorrect instruction. Therefore, she was not deprived of her defense and the instruction was not an error of constitutional dimension meriting review under the harmless beyond a reasonable doubt standard.

Using the less stringent harmless-error standard, the district court determined that Ms. Ulloa's convictions should stand because the jury heard about Ms. Pena's convictions for similar conduct and was told that “evidence of Pena's...