U.S. v. Rodriguez-Estrada

• Citation: 877 F.2d 153
• Decision Date: 05 May 1989
• Docket Number: RODRIGUEZ-ESTRAD,D,No. 88-2093,88-2093
• Parties: 28 Fed. R. Evid. Serv. 102 UNITED STATES of America, Appellee, v. Hector M.efendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 153

877 F.2d 153

28 Fed. R. Evid. Serv. 102

UNITED STATES of America, Appellee, v. Hector M. RODRIGUEZ-ESTRADA, Defendant, Appellant.

No. 88-2093.

United States Court of Appeals First Circuit.

Heard May 5, 1989.

Decided June 14, 1989.

Jose R. Aguayo with whom Joaquin Monserrate Matienzo, Hato Rey, was on brief, for defendant, appellant.

Luis A. Plaza, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for U.S.

Before SELYA and ALDRICH, Circuit Judges, and RE, ^* Judge.

SELYA, Circuit Judge.

We turn to the latest chapter in the engrossing saga of the El San Juan Hotel. Unlike many epics, the tale--arising out of financial difficulties which brought the luxurious resort hotel onto the reefs of an ill-fated Chapter 11 reorganization and thereafter onto the shoals of a Chapter 7 liquidation--is short on heroes. We have chronicled the general nature of the hotel's vicissitudes in a series of previous civil cases, see, e.g., In re San Juan Hotel Corp., 847 F.2d 931 (1st Cir.1988); In re El San Juan Hotel Corp. 841 F.2d 6 (1st Cir.1988); Connecticut General Life Ins. Co. v. Universal Ins. Co., 838 F.2d 612 (1st Cir.1988); In re El San Juan Hotel, 809 F.2d 151 (1st Cir.1987); and we need not respade that much-dug terrain. For our purposes, it suffices to say that the criminal prosecution which underlies the instant appeal is related to many of the same events. The defendant, Hector Rodriguez Estrada (Rodriguez), who served at various times as trustee of the debtor corporation, remains the central character in the drama.

Rodriguez was indicted by a federal grand jury on a myriad of charges involving embezzlement, misappropriation of property belonging to the bankruptcy estate, fraudulent withholding of financial records from the successor trustee, and false statements to the Internal Revenue Service. After a five day trial, a jury found Rodriguez guilty of twenty counts of embezzlement, 18 U.S.C. Sec. 153; three false statement counts, 18 U.S.C. Sec. 1001; and one count which charged that he unlawfully withheld information relating to the affairs of the debtor in violation of 18 U.S.C. Sec. 152. At the same time, the jury exonerated defendant on several other counts. Following imposition of sentence, Rodriguez appealed.

We consider each of defendant's three assignments of error; but, given the plethora of opinions which pave our way, including the district court's expository account of Rodriguez's alleged foibles, see In re San Juan Hotel Corp., 71 B.R. 413, 418-26 (D.P.R.1987), we think it unnecessary to embark upon yet another exegesis. Rather, we will discuss the facts only to the extent necessary to put appellant's main arguments into perspective.

Other Bad Acts

The first issue raised on appeal relates to the twenty charges of embezzlement. Each count represented a weekly expense allowance paid to appellant from the debtor's funds. Rodriguez portrayed these payments as comprising reimbursement for expenses legitimately incurred in the course of official duties. The prosecution had a markedly different theory: the claimed expenses were bogus and the allowances no more than an avaricious device to milk the bankruptcy estate.

At trial, the prosecution introduced the twenty checks upon which the embezzlement counts were predicated. Then, over defendant's objection, the district court allowed into evidence thirty-one similar checks drawn to appellant's order. While acknowledging that these checks were obtained under virtually identical circumstances, ¹ appellant contends that their admission was cumulative, confusing, and unfairly prejudicial.

Determining the admissibility of evidence of other (uncharged) bad acts requires a bifurcated inquiry. First, the district court must be satisfied that the proffered material has "special" probative value, that is, that the evidence is relevant not to show a defendant's propensity toward evil, but to prove some controverted issue in the case. See, e.g., United States v. Flores Perez, 849 F.2d 1, 4-6 (1st Cir.1988); United States v. Ingraham, 832 F.2d 229, 231 (1st Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988); United States v. Lau, 828 F.2d 871, 874 (1st Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1729, 100 L.Ed.2d 194 (1988). Thus, evidence of other bad acts may be relevant to show, say, a defendant's intent, or his knowledge, or the existence of a scheme. See Fed.R.Evid. 404(b). ²

Once shown to be relevant in the requisite sense, the evidence must pass still another sentry, embodied in Fed.R.Evid. 403. ³ If the evidence brings unwanted baggage, say, unfair prejudice or a cognizable risk of confusing the jury, and if the baggage's weight substantially overbalances any probative value, then the evidence must be excluded. See United States v. Collamore, 868 F.2d 24, 29 (1st Cir.1989); Flores Perez, 849 F.2d at 4. Such determinations are committed to the trial court's sound discretion. Ingraham, 832 F.2d at 231. "Only rarely--and in extraordinarily compelling circumstances--will we, from the vista of a cold appellate record, reverse a district court's on-the-spot judgment concerning the ... weighing of probative value and unfair effect." Freeman v. Package Machinery Co., 865 F.2d 1331, 1340 (1st Cir.1988); see also Lau, 828 F.2d at 874 (noting that trial court "is more directly familiar than a court of appeals with the need for the evidence and its likely effect on the jury").

In the present case, we see little question but that the thirty-one checks were appropriately admitted. Inasmuch as the checks were virtual replicas of those that formed the basis of the indictment, they afforded compelling proof of intent to embezzle, existence of a calculated plan to siphon off funds, and absence of mistake. We have said before, and today reaffirm, that extrinsic offense evidence which is "inextricably intertwined" with the crimes charged is often admissible under Rule 404(b). United States v. Fields, 871 F.2d 188, 193 (1st Cir.1989) (quoting United States v. Mills, 704 F.2d 1553, 1559 (11th Cir.1983), cert. denied, 467 U.S. 1243, 104 S.Ct. 3517, 82 L.Ed.2d 825 (1984)); see also United States v. D'Alora, 585 F.2d 16, 20 (1st Cir.1978) (discussing admission of proof of prior conduct to "complete the story of the crime on trial") (citation omitted). When, as in this case, the linked incident occurs close in time, and is highly relevant, to the charged conduct, the argument for admissibility is powerful. See Fields, 871 F.2d at 196-97. The thirty-one checks plainly possessed the necessary relevance and special probative value.

Nor was the probative value of this evidence necessarily outweighed by adverse considerations. To be sure, the evidence was somewhat cumulative; but in this case, the repetition of the conduct was itself distinctly probative. That the evidence helped the prosecution and hurt the defendant's chances cannot be gainsaid--but that did not require exclusion. By design, all evidence is meant to be prejudicial; it is only unfair prejudice which must be avoided. Ingraham, 832 F.2d at 233-34; Onujiogu v. United States, 817 F.2d 3, 6 (1st Cir.1987). Given the clarity of the court's charge and the frequency of its cautionary instructions, there was small risk of confusion.

When all is said and done, the district court must be ceded considerable latitude in steadying the balance which Rule 403 demands. See Ingraham, 832 F.2d at 233-34; United States v. King, 827 F.2d 864, 867 (1st Cir.1987) (per curiam). The trial judge, after all, "is Johnny-on-the spot; he has savored the full taste of the fray, and his considerable discretion must be respected so long as he does not stray entirely beyond the pale." United States v. Tierney, 760 F.2d 382, 388 (1st Cir.), cert. denied, 474 U.S. 843, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985). In this instance, the judge stayed well within bounds.

The Rule 29 Motion

At the close of the prosecution's case, appellant moved for acquittal on the embezzlement counts under Fed.R.Crim.P. 29(a). ⁴ He grounded entitlement to acquittal on the basis that, in a prior civil case, we had held the evidence insufficient to sustain a finding that Rodriguez misappropriated the expense allowances. See In re San Juan Hotel Corp., 847 F.2d at 953-54. The district court rejected the motion, pointing out that the government did not have the requisite opportunity fully to litigate the issue in the civil suit. Rodriguez then went forward with his defense. At the close of all the evidence, he chose not to renew the Rule 29 motion.

We think appellant's point has been procedurally defaulted. When a motion for judgment of acquittal is denied at the close of the government's case, the defendant's election to offer evidence constitutes a waiver of the motion. See United States v. Notarantonio, 758 F.2d 777, 788 (1st Cir.1985); United States v. Greenleaf 92 F.2d 182, 185 (1st Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1523, 75 L.Ed.2d 946 (1983). To retain its vitality, the Rule 29 motion must be renewed at the close of all the evidence. See United States v. Cheung, 836 F.2d 729, 730 n. 1 (1st Cir.1988) (per curiam). Failing a timely end-of-case motion, we treat the point as defaulted and will only disturb an ensuing conviction to prevent "clear and gross injustice." United States v. Jimenez Perez, 869 F.2d 9, 11 (1st Cir.1989); Cheung, 836 F.2d at 730 n. 1; Greenleaf, 692 F.2d at 185. For three reasons, we believe justice did not miscarry here.

First, it is not at all plain that the issue in the two suits was the same. The expense checks were drawn on the debtor's account at a New York bank. After Rodriguez endorsed them, they were stamped for deposit to one of debtor's accounts at a San Juan bank. In the civil case, the district court found that the allowances were bogus in that they were unsupported by documented expenses. In re San Juan Hotel Corp., 71 B.R. at 425....