169 F.3d 57 (1st Cir. 1999), 98-1392, United States v. Blasini-Lluberas

Docket Nº:98-1392.
Citation:169 F.3d 57
Party Name:UNITED STATES of America, Appellee, v. Jose F. BLASINI-LLUBERAS, Defendant-Appellant.
Case Date:January 25, 1999
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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169 F.3d 57 (1st Cir. 1999)

UNITED STATES of America, Appellee,


Jose F. BLASINI-LLUBERAS, Defendant-Appellant.

No. 98-1392.

United States Court of Appeals, First Circuit

January 25, 1999

Heard Sept. 24, 1998.

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Roberto Boneta, for appellant.

Jorge E. Vega-Pacheco, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Nelson Perez-Sosa and Thomas F. Klumper, Assistant United States Attorneys, were on brief for appellee.

Before BOUDIN, LYNCH, and LIPEZ Circuit Judges.

LIPEZ, Circuit Judge.

On April 5, 1995, a federal grand jury returned a multiple count indictment against defendant Jose Blasini-Lluberas ("Blasini"), a former executive vice president of Ponce Federal Bank, 1 and his co-defendant, Ramiro Col¢n-Munoz ("Col¢n"), president of the bank. The indictment charged both defendants with five counts of misapplication of bank funds under 18 U.S.C. § 657, one count of bank fraud under 18 U.S.C. § 1344, one count of false entry under 18 U.S.C. § 1006, one count of benefitting, directly or indirectly, from the loan transactions in question under 18 U.S.C. § 1006 and one count of conspiracy under 18 U.S.C. § 371. 2 The jury returned guilty verdicts against Blasini on all but one count, acquitting him on the charge of benefitting from the loan transactions. 3 On appeal, Blasini challenges the sufficiency of the evidence to support the verdict, instructions to the jury, and several aspects of the sentence. For the reasons discussed below, we conclude that there was insufficient evidence to support the jury verdict on four of the five counts of misapplication of bank funds and order an acquittal as to those counts. Finding no reversible error in the jury instructions, we affirm the remaining convictions and remand for re-sentencing.


From a review of the evidence in this case, the jury could have found the following. On July 15, 1987, co-defendant Ramiro Col¢n, president of Ponce Bank, and his wife purchased a farm from thirteen members of the Usera family who had inherited the farm from Julio Usera Santiago. The total purchase price for the farm, known as "La Esmeralda" and located in the municipality of Salinas, Puerto Rico, was $555,600. Col¢n paid $83,340 at the closing with the remaining balance due nine months later on April 14, 1988. 4 The agreement provided that no interest would be due on the outstanding balance. As security for the $472,260 balance, Col¢n granted the Usera family a mortgage on the property.

Following Col¢n's purchase of the farm, but prior to the due date of Col¢n's outstanding $472,260 obligation, four members of the Usera family approached Col¢n requesting money. Monserrate Usera and her sister Ana Usera were the first two, approaching Col¢n in August of 1987 for money to pay off personal debts: Monserrate Usera needed funds to pay student loans and her daughter's college tuition; Ana Usera needed funds to make repairs to a building. Although Monserrate Usera understood that Col¢n's obligation to the family was not due until the spring of 1988, she went to Col¢n for an advance. Col¢n said he would look into getting her the funds she needed. Monserrate

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Usera explained that when Col¢n agreed to help her, she understood that she would be taking out a loan from the bank, the obligation for which was hers alone. Ana Usera also decided to contact Col¢n in an effort to obtain money to pay off her current debts since it was taking such a long time to complete the sale of the farm. Ana Usera explained that, after Monserrate Usera made the initial contact with Col¢n, they both decided to "make a loan." Although Ana Usera understood that she and her sister had other options, she thought it best to take out a loan from the bank to satisfy her outstanding obligations.

Subsequent to these discussions, Col¢n sent the sisters to see Blasini, then an executive vice president of Ponce Federal Bank. Col¢n instructed Blasini to assist each of them in securing a loan from the bank, which he did. As vice-president of the bank, Blasini was authorized to approve unsecured loans up to $50,000 and secured loans up to $100,000. When the sisters arrived, he authorized an $11,000 loan for each, subject to a rate of interest and a due date. Neither loan application included a financial statement or credit history. Monserrate Usera and Ana Usera signed the promissory notes and executed partial assignments of their mortgage interests in the farm as security for the loans. The partial assignments were signed by both Blasini and Col¢n but were not included in the loan file. The stated purpose for the loans was personal; the means of repayment was the sale of a farm. Because the loans did not exceed $50,000, their approval did not require collateral.

In January of 1988, Carmen Maduro Usera, the mother of Monserrate Usera and Ana Usera, received a loan from Ponce Federal Bank under similar circumstances. Although the loan documentation was introduced at trial, Carmen Maduro died before trial and her testimony was never taken. Ana Usera testified that she helped her mother make arrangements over the phone to obtain a $15,000 loan and then accompanied her mother to the bank. The documents themselves indicated that Blasini authorized the loan, that the purpose of the loan was personal and that it was needed to pay off an outstanding $5,000 loan to the bank. The promissory note set a rate of interest and a due date for repayment. Although the application did not include a financial statement or credit history, it noted that Carmen Maduro was well known to the Col¢n family. Carmen Maduro also executed a partial assignment of her mortgage interest as security for the loan one day after the loan was disbursed to her, signed by Blasini and Col¢n, but it did not appear in the loan portfolio.

In March of 1988, Vicente Usera Tous received a $20,000 loan from the bank, authorized by Blasini. Vicente Usera also died prior to trial and never testified about the loan transaction. Although he was a member of the Usera family, he did not stand to inherit proceeds from the sale of the farm. Instead, he was due a commission of $23,613 for his assistance in brokering the sale of the farm. His loan application, admitted in evidence, was missing a financial statement and a credit history, but the application stated that he was well known to the bank, in particular to Col¢n, and that he was a responsible person. The stated means of repayment was the commission from the sale of a farm.

When Col¢n's debt to the Usera family came due on April 14, 1988, he was unable to meet his obligation. On April 19, 1988, another member of the Usera family, Consuelo Garcia-Gomez, went to the bank and demanded payment of her share of the purchase price. Consuelo Garcia-Gomez was entitled to $200,000, the largest share of the inheritance. Wendell Col¢n, Col¢n's brother, told Consuelo Garcia-Gomez that the money was not immediately available. She then asked for $100,000. Thereafter, Blasini brought Consuelo Garcia-Gomez to a loan officer and instructed the officer to disburse a $100,000 loan to her. The information in her loan application was provided to the loan officer by Blasini and the application stated that collateral for the loan was a partial assignment of Consuelo Garcia-Gomez's mortgage interest in the farm. The listed purpose of the loan was the purchase of an apartment. Directly above Blasini's signature, Blasini wrote, "discussed and agreed to

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by attorney R.C. Col¢n." 5 At trial Consuelo Garcia-Gomez explained that, although she signed loan documents to receive the $100,000, she did not go to the bank to obtain a loan and she never read the loan documents before signing the documents. She maintained that the $100,000 was partial payment of the money owed to her rather than a loan.

A few weeks later, in May, Col¢n wrote two sets of checks. The first set paid off the debts of Monserrate Usera, Ana Usera, Carmen Maduro, Vicente Usera and Consuelo Garcia-Gomez. He listed the appropriate amount of their outstanding debts and named both the bank and the borrower as joint payees. The second set paid each Usera the balance of what he or she was owed. Each member of the Usera family then signed a cancellation of the mortgage.

On December 19, 1996, a jury convicted Blasini of the charges described herein. On February 23, 1998, he was sentenced to thirteen months imprisonment to be followed by two years supervised release. He was fined $8,000. Blasini now appeals.


  1. Sufficiency of the Evidence

    When there is a challenge to the sufficiency of the evidence to support a guilty verdict, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A conviction may rest, in whole or in part, on circumstantial evidence. See United States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir.1993). It is well established that "an appellate court plays a very circumscribed role in gauging the sufficiency of the evidentiary foundation upon which a criminal conviction rests." United States v. Woodward, 149 F.3d 46, 56 (1st Cir.1998). Nevertheless, we have cautioned that "[d]espite the deference that characterizes appellate review of jury verdicts, juries do not have carte blanche. The appellate function ... requires the reviewing court to take a hard look at the record and to reject those evidentiary interpretations and illations that are unreasonable, insupportable, or overly speculative." Id. (quoting United States v...

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