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 . 2013 DNH 070P 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 18 U.S.C. § 2 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, 515
F.3d 5 , 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, 359 F.3d
609, 622 (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, 856 F.2d 4 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, 986 F.2d 1 , 4 (1st
Cir. 1993), so “extrinsic evidence is admissible to show bias,”
United States v . Gomes, 177 F.3d 7 6 , 81 (1st Cir. 1999), even if
that evidence would otherwise be inadmissible under Rule 608(b),
United States v . Abel, 469 U.S. 4 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, 986 F.2d 1 , 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, 344 F.3d 5 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, 864 F.2d 2 3 2 , 236 (1st Cir. 1988); see also
Thiongo, 344 F.3d at 59 (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, 557
F.3d 6 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, 886 F.2d 509,
513-14 (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, 197 F.3d 548 (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, 215 F.3d
110, 120-21 (1st Cir. 2000); c f . Harrower v . L a . ex rel. L a .
Dep’t of Transp., 327 Fed. Appx. 5 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, 344
F.3d at 60-61 (“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, 434 F.3d 1270, 1289-90 (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, 515 F.3d at 1 7 , or “to
engage in deceptive practices to avoid immigration laws,”
Thiongo, 344 F.3d at 6 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, 359 F.3d at 6 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 18 U.S.C. § 287. 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,
700 F.3d 5 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, 547 U.S. 319 (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, 925 F.2d 1229 (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, 825 F.2d 5 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, 940
F.2d 7 2 2 , 736 (1st Cir. 1991); see also United States v .
Procopio, 88 F.3d 2 1 , 29 n.1 (1st Cir. 1996); United States v .
Isabel, 945 F.2d 1193, 1200 (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, 695
F.3d 2 5 , 29 (1st Cir. 2012); c f . United States v . Levy-Cordero,
67 F.3d 1002, 1011 (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, 328 U.S. 7 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 .