United States v. Bayard ( 2011 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 10-1112
    UNITED STATES,
    Appellee,
    v.
    SERGE ERIC BAYARD,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF NEW HAMPSHIRE
    [Hon. Steven J. McAuliffe, U.S. District Judge]
    Before
    Torruella, Stahl and Howard,
    Circuit Judges.
    James M. Fox for appellant.
    Donald Feith, Assistant United States Attorney, with whom John
    P. Kacavas, United States Attorney, was on brief, for appellee.
    April 15, 2011
    HOWARD, Circuit Judge.     A jury convicted Serge Bayard of
    use of an unauthorized access device, 18 U.S.C. § 1029(a)(2)
    (2006), and aggravated identity theft, 18 U.S.C. § 1028A (2006).
    On appeal he presses a litany of challenges, some counseled and
    others pro se, for the purpose of obtaining a new trial.         We affirm
    his conviction.
    I.    BACKGROUND
    A friendship blossomed between Bayard and Dorothy Shovan,
    an elderly widow more than thirty years his senior, shortly after
    the death of her husband.        A few years later, Bayard moved into
    Shovan's home; in exchange for room and board, Bayard helped her
    around the house.       Bayard's responsibilities increased over time.
    By 2004, he was Shovan's driver, repairman, grocery shopper and, as
    her   health   waned,    full-time   caretaker.    Some   of   these   tasks
    required monetary outlays and, although the precise nature of their
    financial arrangement is unclear, it appears that Bayard used her
    credit cards.      One of those credit cards -- a Bank of America Visa
    card (the "BofA Card") -- is at the center of this case.
    On July 25, 2008, after several months of hospitalization
    and severe dementia, Shovan died.          At some point in August 2008,
    Bank of America -- unaware of Shovan's demise -- re-issued the BofA
    Card, which was scheduled to expire around that time.          Bayard, who
    was still living in Shovan's home, intercepted the re-issued BofA
    Card and used it to make several purchases at a Wal-Mart store
    -2-
    totaling about $185.         That same day, he used the account number on
    the BofA Card to book a three-month trip to a resort in New
    Zealand.        In   e-mail    correspondence,          Bayard    told    a    resort
    representative that he wanted to pre-pay using a credit card that
    belonged to his "cousin," who Bayard identified in a subsequent e-
    mail as Shovan.        The representative agreed and charged Shovan's
    account nearly $3,000.              Two weeks later, Bayard left for New
    Zealand.      An attorney for Shovan's estate later discovered the
    curious account activity, cancelled the BofA Card, and notified
    authorities.
    In early 2009, shortly after he returned from abroad,
    Bayard was arrested in connection with charges that do not pertain
    to this appeal.       On April 10, 2009, while Bayard was detained and
    awaiting trial in state court, the government filed a criminal
    complaint against him in federal court.                 A two-count indictment,
    handed   up    on    April    29,    2009,    charged    him     with    use   of   an
    unauthorized access device, 18 U.S.C. § 1029(a)(2),1 and aggravated
    identity theft, 18 U.S.C. § 1028A.2            On August 5, 2009, Bayard was
    1
    Section 1029(a)(2) provides that "[w]hoever . . . knowingly
    and with intent to defraud traffics in or uses one or more
    unauthorized access devices during any one-year period, and by such
    conduct obtains anything of value aggregating $1,000 or more during
    that period . . . shall, if the offense affects interstate or
    foreign commerce, be punished . . . ."
    2
    Section 1028A(a)(1) provides that "[w]hoever, during and in
    relation to [a violation of section 1029(a)(2), among others],
    knowingly transfers, possesses, or uses, without lawful authority,
    a means of identification of another person shall, in addition to
    -3-
    released from state custody.          The next day he was arraigned in
    federal court, pled not guilty, and waived his right to counsel.
    A   two-day   jury    trial   began      in   October.     Bayard
    represented himself for most of it, but midway through the second
    day his stand-by counsel stepped in at Bayard's request. The focal
    point of trial was Bayard's authorization vel non to use the BofA
    Card after Shovan's death.         The government elicited testimony that
    Shovan was the only authorized user on the account; Bayard had no
    power of attorney over Shovan's financial affairs; and even if she
    had   informally     authorized    Bayard   to   use    the   BofA   Card,   that
    authorization was only for her benefit and expired upon her death.
    Bayard testified that Shovan specifically authorized him to use the
    BofA Card as well as her other credit cards, not only for her
    benefit but also for his.          He further testified that Shovan had
    bequeathed $20,000 to him, and that the transactions at issue were,
    in his view, advances on money owed.                   After an afternoon of
    deliberation, the jury convicted Bayard on both counts in the
    indictment.       The court sentenced him to three years in prison.3
    This appeal followed.
    the punishment provided for such felony, be sentenced to a term of
    imprisonment of 2 years."
    3
    Bayard does not appeal his sentence.
    -4-
    II.   DISCUSSION
    We address each of Bayard's seven arguments in turn,
    adding background as necessary.
    A.      The J.P. Morgan Chase Card
    Before trial, the government moved in limine to admit
    evidence in its case-in-chief concerning a J.P. Morgan Chase credit
    card (the "Chase Card").       Bayard applied for the Chase Card in
    Shovan's name on June 23, 2008, when she was incapacitated, and --
    as with the BofA Card -- used it after her death.    According to the
    government, that evidence was probative of Bayard's intent and
    absence of mistake concerning his use of the BofA Card.              The
    district court denied the government's motion on the grounds that
    Bayard's conduct in connection with the Chase Card was propensity
    evidence, see Fed. R. Evid. 404(b), and that its probative value
    was substantially outweighed by the risk of prejudice, see Fed. R.
    Evid. 403.4      The court, however, left open the possibility that
    such evidence might be admissible later on for some other purpose.
    During trial, Bayard took the stand and testified that
    Shovan specifically authorized him to use her credit cards.          On
    cross-examination, the government began to question Bayard about
    the Chase Card.      That prompted Bayard's stand-by counsel, who by
    this time had stepped in, to request a sidebar conference.      There
    he objected on Rule 404(b) grounds. The government responded that,
    4
    The government does not challenge this ruling on appeal.
    -5-
    although the court previously had denied its motion in limine on
    that basis, a limited line of questioning on cross-examination was
    permissible under Federal Rule of Evidence 608(b), because it
    sought only to impeach Bayard's credibility. The court agreed with
    the government, adding that in this context the value of the
    government's proposed inquiry outweighed any possible prejudice
    that might result.       Bayard declined a limiting instruction and the
    sidebar concluded.          The government then continued with cross-
    examination.
    On    appeal,    Bayard   repeats    his    objection        that    any
    testimony about the Chase Card violated Rule 404(b).                His refrain
    is misguided.       By its very terms, Rule 404(b) prohibits the
    admission of a prior bad act "to prove the character of a person in
    order to show conformity therewith."           See, e.g., United States v.
    Landry, 
    631 F.3d 597
    , 601 (1st Cir. 2011) ("[Rule 404(b)] prohibits
    the admission of prior bad acts to establish an individual's
    character or propensity to commit a crime.").                      But here the
    government sought to cross-examine Bayard for the limited purpose
    of attacking his character for truthfulness.             That is a different
    purpose that invokes a different rule.                Compare Fed. R. Evid.
    404(b), with Fed. R. Evid. 608(b).          See generally United States v.
    Simonelli, 
    237 F.3d 19
    , 22-24 (1st Cir. 2001) (discussing interplay
    between   Rules    404   and   608;   explaining      that   the    latter      "'is
    centrally   concerned       with   character    for    veracity,     a    mode   of
    -6-
    accrediting or discrediting the witness that is based on the same
    'propensity'        reasoning   of   Rule      404   but    is    subject     to      quite
    different rules.'" (quoting United States v. Cudlitz, 
    72 F.3d 992
    ,
    996 (1st Cir. 1996) (internal brackets omitted))).
    Whether Bayard's actions in connection with the Chase
    Card were fair game under Rule 608(b) is a separate question.                           The
    government says that such questions are left to the discretion of
    the trial court -- a proposition that may be correct but not
    necessarily     dispositive      here.         Bayard      says    nothing       at   all.
    Although      the    applicability    of    Rule      608(b)      to   this      line    of
    questioning is less than clear, Bayard's failure to brief the issue
    waives it.      United States v. Zannino, 
    895 F.2d 1
    , 17 (1st Cir.
    1990).
    That leaves us with Rule 403's balancing test, which
    Bayard does make some attempt to address in his brief.                        Rule 403
    states that relevant evidence "may be excluded if its probative
    value    is    substantially     outweighed          by    the    danger    of     unfair
    prejudice, confusion of issues, or misleading the jury."                         We have
    characterized Rule 403 judgments as "battlefield determinations"
    subject to "great deference."              United States v. Shinderman, 
    515 F.3d 5
    , 17 (1st Cir. 2008).          "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 relative weighing of probative value and unfair
    -7-
    effect." 
    Id. (quoting Freeman
    v. Package Mach. Co., 
    865 F.2d 1331
    ,
    1340 (1st Cir. 1988)).
    We discern no abuse of discretion here.            Bayard does not
    adequately explain why his conduct surrounding the Chase Card was
    not probative of his credibility, so we assume without deciding
    that it was.   He does argue that the risk of unfair prejudice was
    high, but we disagree.         Our review of the government's cross-
    examination reveals that it was far from inflammatory. It was also
    quite short and limited in scope to what the government had
    proposed at the sidebar.           And, as noted, Bayard declined the
    district   court's    offer   to   give    a    limiting   instruction.   See
    
    Shinderman, 515 F.3d at 17
    ("Furthermore, the court offered to give
    a limiting instruction; that the defendant eschewed this course
    does not minimize the value of the court's offer.").              Given these
    circumstances,   we    are    reluctant    to    second-guess   the   district
    court's judgment in allowing cross-examination to proceed.
    B.    The CitiBank MasterCard
    During its case-in-chief, the government called Jeffrey
    Ramos, a custodian of records for Bank of America.                Among other
    things, Ramos authenticated account statements provided by Bank of
    America that reflected charges to the BofA Card.                Two of those
    charges, in addition to those described earlier, were balance
    transfers from a CitiBank MasterCard (the "CitiBank Card"), which
    was yet another of Shovan's credit cards that Bayard apparently
    -8-
    used after her death.   On direct examination, the government asked
    Ramos a series of questions concerning those transfers.        Based on
    certain questions Bayard posed on cross, the government sought on
    re-direct    to   clarify   Ramos's    testimony   by   referencing     a
    corresponding set of account statements provided by CitiBank.
    Bayard objected on the basis that he never received
    copies of the CitiBank records.        The government explained that
    Bayard had received copies and that they had been marked as an
    exhibit, although the exhibit was not yet in evidence.        The trial
    judge voiced his concern over questioning Ramos about an exhibit
    that was not in evidence and that he could not authenticate.          The
    government ultimately proposed to introduce the CitiBank records by
    means of a certification, and then conduct its examination of
    Ramos.   The court then admitted the CitiBank records over Bayard's
    relevancy objection.
    On appeal, Bayard argues that the prosecutor's questions
    on re-direct concerning the CitiBank Card amounted to prosecutorial
    misconduct. According to Bayard, the prosecutor "testified through
    his questions that there was another card which was allegedly
    obtained through improper means."      Bayard did not object on that
    ground at trial, so our review is for plain error.        United States
    v. Sánchez-Berríos, 
    424 F.3d 65
    , 73-74 (1st Cir. 2005).
    We see no error, plain or otherwise.        Bayard does not
    identify in his brief the specific questions that he challenges,
    -9-
    but our independent review of the trial transcript satisfies us
    that   his    hypothesis      is    unfounded.       None     of    the   prosecutor's
    questions on re-direct gives us pause, let alone rises to the level
    where, in rare cases, we have ordered a new trial.                          See, e.g.,
    United States v. Hardy, 
    37 F.3d 753
    , 757 (1st Cir. 1994) (vacating
    conviction      where   the    prosecutor        drew   an    analogy     between    the
    defendant's running and hiding from police on the night of the
    crime, and running and hiding again at trial by invoking Fifth
    Amendment right not to testify); United States v. Manning, 
    23 F.3d 570
    , 573 (1st Cir. 1994) (vacating conviction where the prosecutor
    suggested that government witnesses cannot lie and urged jury to
    "[t]ake      responsibility        for   your    community"        by   convicting   the
    defendant); United States v. Arrieta-Agressot, 
    3 F.3d 525
    , 527 (1st
    Cir. 1993) (vacating convictions where the prosecutor urged the
    jury to consider case as a battle in war against drugs, and the
    defendants as enemy soldiers corrupting "our society").
    Separately,      Bayard      hints     in      his    brief    that    the
    prosecutor's questions provided an improper "shortcut" for the
    admission of the CitiBank records. If that cryptic remark is meant
    to challenge the admission of the Citibank records, presumably on
    Rule 404(b) grounds, the argument is woefully underdeveloped, and
    thus waived.     
    Zannino, 895 F.2d at 17
    .           Even if it were not waived,
    Bayard's failure to object on that ground below would subject the
    argument to plain error review, and under that standard it would
    -10-
    certainly fail.          See 
    Sánchez-Berríos, 424 F.3d at 73
    ("[U]nder
    plain error review, we have leeway to correct only the most
    egregious of unpreserved errors.").
    C.        The Jury Instructions
    During the charge conference, there was considerable
    debate as to the identity of the access device in this case.                 The
    government, pointing to the broad statutory definition of "access
    device," said that it was the plastic BofA Card itself (either the
    expired or re-issued version), the account number embossed on the
    plastic, and the Bank of America account to which the card was
    linked.         See 18 U.S.C. § 1029(e)(1).5   Bayard's counsel took a much
    narrower view. He argued that the government must show that Bayard
    used an "unauthorized access device," 
    id. § 1029(a)(2)
    (emphasis
    supplied), which is an access device that was "lost, stolen,
    expired, revoked, cancelled, or obtained with intent to defraud,"
    
    id. § 1029(e)(3).
           According to him, evidence adduced at trial
    established that Shovan authorized Bayard to use the (by then
    expired) BofA Card, along with its number and associated account,
    both       of   which   remained   unchanged   since   the   time   Bayard   was
    5
    Defining "access device" as "any card, plate, code, account
    number, electronic serial number, mobile identification number,
    personal identification number, or other telecommunications
    service, equipment, or instrument identifier, or other means of
    account access that can be used, alone or in conjunction with
    another access device, to obtain money, goods, services, or any
    other thing of value, or that can be used to initiate a transfer of
    funds (other than a transfer originated solely by paper
    instrument)."
    -11-
    authorized to use them.    Thus, he posited that the only access
    device that the government could argue was "unauthorized" was the
    re-issued plastic BofA Card, on the theory that it was "stolen" or
    fraudulently "obtained" when Bayard intercepted it in August 2008.6
    The court agreed with Bayard that, under the rather
    unique circumstances of this case, only the re-issued plastic BofA
    Card -- and not its account or account number -- was arguably
    "unauthorized."   Based on that understanding, the court delivered
    the following instruction over the government's objection:
    The term "access device" means any card, plate,
    code, account number, or other means of account access
    that can be used alone or in conjunction with another
    access device to obtain money, goods, services or any
    other thing of value, or that can be used to initiate a
    transfer of funds other than a transfer originated solely
    by paper instrument. In this case, the access device
    alleged to be unauthorized is the credit card issued in
    August of 2008 ending in account number [supplied].
    The term "unauthorized access device" includes any
    credit card that was either stolen or obtained with the
    intent to defraud. In this case the government claims
    that the defendant stole and/or obtained with the intent
    to defraud the Bank of America Visa card, last four
    6
    This was important because the bulk of Bayard's transactions,
    including his New Zealand booking and CitiBank balance transfers,
    were executed online or over the phone using only the account or
    account number. Under Bayard's hypothesis, those transactions did
    not violate the statute because he did not physically "swipe" the
    plastic BofA Card. See 18 U.S.C. § 1029(a)(2) (prohibiting "use"
    of an "unauthorized access device"). Although he did swipe the
    card at Wal-Mart, the amount of his purchases there fell below the
    statutory threshold. See 
    id. (imposing liability
    on purchases of
    "value aggregating $1,000 or more" during any one-year period).
    We do not address these contentions head-on, however, because
    Bayard has not appealed the denial of his motion for judgment of
    acquittal.
    -12-
    digits [supplied], that had been issued to Dorothy
    Shovan. Accordingly, the government must prove beyond a
    reasonable doubt either that the defendant stole that
    credit card or that he obtained it with the intent to
    defraud.7
    Having gotten what he requested, Bayard now assails the
    court's instruction as confusing.      In particular, he argues that
    listing "account number" as among the possible access devices
    "created a serious risk that the jury would be confused as to
    whether an account number satisfied the statute."     Because Bayard
    failed to object to the instruction as delivered, we review for
    plain error, Ji v. Bose Corp., 
    626 F.3d 116
    , 125 (1st Cir. 2010),
    and quickly dispatch his plaint.       We see no likelihood of juror
    confusion, given the court's clear and repeated statements that the
    access device here was the re-issued plastic BofA Card. The phrase
    "account number" appears only in a list of what access devices
    could be in general.   The court was free to include that list,
    which closely tracked the statute, for context.    Cf. United States
    v. Alicea, 
    205 F.3d 480
    , 484 (1st Cir. 2000).
    D.   Remaining Arguments
    We briefly address Bayard's four remaining claims raised
    in his supplemental pro se brief, and reject the lot.
    7
    We wish to add that we take no position on the court's
    statutory interpretation that led to this instruction.      Our
    precedent is unsettled and the answer is far from obvious. See,
    e.g., United States v. DiPietro, 
    936 F.2d 6
    , 7 & n.3 (1st Cir.
    1991). We therefore save the question for another day.
    -13-
    Bayard    argues      that    the   district    court   should   have
    dismissed the case on speedy trial grounds, because 116 days
    elapsed between the return date of the indictment and when he moved
    for dismissal.           But the critical date, for purposes of the Speedy
    Trial Act, was August 7, 2009, the day after he was arraigned in
    federal court.8           See 18 U.S.C. § 3161(c)(1) (2006) ("[T]rial . . .
    shall commence within seventy days from the filing date (and making
    public) of the information or indictment, or from the date the
    defendant has appeared before a judicial officer of the court in
    which       such      charge   in     pending,    whichever     date   last    occurs."
    (emphasis supplied)); see also United States v. Muñoz-Amado, 
    182 F.3d 57
    ,   60    (1st    Cir.    1999)     (rejecting   argument    in    similar
    circumstances).            The period between that date and the start of
    Bayard's trial in October 2009 was well under seventy days.
    Next, he asserts that the court denied his requests to
    subpoena four individuals, in violation of the Sixth Amendment.
    See Fed. R. Crim. P. 17(b).              Not true.     The transcript from the ex
    parte hearing in which Bayard sought subpoenas reveals that he
    withdrew his requests for three of those four individuals.9                         The
    judge took under advisement Bayard's request for the remaining
    8
    Bayard specifically disavows any claim under the Sixth
    Amendment's Speedy Trial Clause. See generally Barker v. Wingo,
    
    407 U.S. 514
    (1972).
    9
    The government does not point this out in its brief.  It
    explains in a footnote that it was not present at the ex parte
    hearing and that a transcript was "not made available."
    -14-
    individual -- Tania Booth, the New Zealand resort representative --
    although it appears that the court never ruled on that particular
    request.   But at no point thereafter did Bayard ask the trial judge
    for an up-or-down ruling, so the issue has been waived. DesRosiers
    v. Moran, 
    949 F.2d 15
    , 22-23 (1st Cir. 1991).                   In any event,
    because Bayard's e-mail correspondence with Booth was admitted into
    the record, her testimony likely would have been cumulative.
    Third,   Bayard     critiques    the   timing   of    the   district
    court's ruling that precluded the government from using a prior
    conviction.    According to Bayard, by waiting until the last day of
    trial to issue its ruling the court "interfered" with his "tactical
    decisions," including his decision to proceed pro se. If the court
    had ruled earlier, Bayard contends, he would have retained counsel
    for the entire trial.    We think not.      Bayard never indicated below,
    in extensive discussions on the matter, that his decision to
    proceed pro se hinged on an evidentiary ruling.                 Moreover, the
    record reveals that Bayard asked his stand-by counsel to step in
    before   the   court   ruled    on   the    admissibility       of   his   prior
    conviction, fatally undermining his claim.
    Lastly, Bayard argues that the cumulative effect of the
    district court's errors necessitates a new trial.                    See United
    States v. Gonzalez-Melendez, 
    594 F.3d 28
    , 37 (1st Cir. 2010)
    -15-
    (discussing the so-called cumulative error doctrine).   But without
    any errors, there is nothing to accumulate.10
    Affirmed.
    10
    Bayard's counsel asserted at oral argument that the
    government did not satisfy its burden of showing intent to defraud.
    The argument comes too late, United States v. Poulin, 
    631 F.3d 17
    ,
    19 n.2 (1st Cir. 2011) (arguments raised at oral argument but not
    in a party's initial brief are considered waived), and anyway
    Bayard did not appeal the denial of his motion for judgment of
    acquittal, see supra note 6.
    -16-