United States v. Bilotto , 245 F. App'x 410 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
August 29, 2007
No. 06-50587
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
VINNIE BILOTTO
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:04-CR-343-ALL
Before JONES, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
Following a jury trial, Vinnie Bilotto was convicted on four counts of
mail fraud in violation of 18 U.S.C. § 1341 for his role in procuring two “key
person” life insurance policies. Bilotto appeals, contending that (1)
insufficient evidence supported the verdict; (2) the district court improperly
limited his ability to cross-examine witnesses; (3) the district court denied
him a fair trial by disparaging his counsel in front of the jury; (4) the district
court erroneously refused to give a good-faith jury instruction; (5) the district
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-50587
court improperly admitted irrelevant and unfairly prejudicial evidence; and
(6) the cumulative effect of the errors made at trial, even if individually
harmless, require reversal. For the reasons that follow, we affirm.
1. To prove Bilotto committed mail fraud in violation of 18 U.S.C. §
1341, the Government had to show “(1) a scheme to defraud; (2)
the use of the mail to execute that scheme; and (3) the specific
intent to defraud.” United States v. Harms, 442 F.3d 367, 372
(5th Cir. 2006) (quoting United States v. Bieganowski, 313 F.3d
264, 275 (5th Cir. 2002)), cert. denied, 127 S. Ct. 2875 (2007).
Bilotto contends that the Government failed to prove that he had
the specific intent to defraud in that the definition of “key person”
provided at the trial was too vague to prove his belief and
fraudulent intent. When reviewing for the sufficiency of the
evidence, however, this court must affirm the conviction “if a
rational trier of fact could have found that the evidence
established the elements of the offense beyond a reasonable
doubt.” United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
Bilotto cannot meet that burden.
While several witness did not recite the same exact words
when defining “key person,” a common thread ran through each
definition: a key person was essentially somebody who did
valuable work for the company and whose death would cause the
company a significant loss. Moreover, the exact meaning of the
phrase is a red herring: regardless of whether Bilotto knew the
definition, a rational jury could have found that Bilotto had an
intent to defraud. Karen Hathaway testified that in filling out
the insurance form, Bilotto provided her information about
Donald Taylor. Taylor’s mother, among others, provided evidence
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indicating that this information was obviously false. Likewise,
testimony indicated that Bilotto had taken out a fraudulent key-
person insurance policy on another employee, Gilbert Edge. A
rational jury could properly infer from this, and other pieces of
evidence, that Bilotto had the requisite criminal intent.
2. Bilotto next contends that the district court violated his Sixth
Amendment rights by limiting cross-examination of Hathaway.
“Alleged violations of the Confrontation Clause are reviewed de
novo, but are subject to harmless error analysis.” United States
v. Bell, 367 F.3d 452, 465 (5th Cir. 2004). If no Sixth Amendment
violation exists, this court reviews the district court’s limitation
on cross-examination for abuse of discretion. United States v.
Townshend, 31 F.3d 262, 267–68 (5th Cir. 1994). Here, the
district court was within its discretion in its handling of
Hathaway’s cross-examination.
Bilotto’s complains that the district court unreasonably
limited and ultimately denied his attempts to impeach Hathaway
with an allegedly inconsistent prior statement she made
regarding whether Bilotto had helped her fill out the key person
insurance form. While the district court did restrict the flow of
questioning regarding what Hathaway had previously said—in
part, because of the confusing way in which defense counsel
questioned her—the district court gave Bilotto an opportunity to
cross-examine Hathaway on her statement, stating that defense
counsel could ask Hathaway about “anything under the sun.”
Defense counsel did not meaningfully use that opportunity. But
the opportunity is all that the law requires. See Delaware v.
Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985) (per curiam)
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(“[T]he Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense
might wish.”). Bilotto claims that he could not ask Hathaway
questions about her prior statement because the district court
said he could not “use” the transcript of the statement. But the
district court seemed to be referring only to actual physical use of
the transcript as opposed to questions about what she had said.
The jury was also able to hear Hathaway’s explanation of what
she claimed she meant.
While the district court might be faulted for stating in front
of the jury that the prior statement was not inconsistent with the
witness’s testimony, that statement was harmless. The district
court warned the jury that except for his instruction “on the law,”
they should “disregard anything [he] may have said during the
trial in arriving at your own findings as to the facts.” See United
States v. McClatchy, 249 F.3d 348, 358 (5th Cir. 2001) (holding
that a judge’s improper comments in front of the jury could be
rendered harmless error by an instruction similar to the one
given here). Additionally, as noted above, defense counsel was
provided an opportunity to explore Hathaway’s allegedly
inconsistent statement.
Finally, Bilotto asserts that the district court improperly
limited the cross-examination of three other witness. After
reviewing the record, we have determined that the district court
did not improperly limit cross-examination of those witnesses.
3. Bilotto also contends that the district court denied him a fair trial
with its treatment of his counsel. In reviewing claims of judicial
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misconduct, this court’s role is to “determine whether the judge’s
behavior was so prejudicial that it denied the defendant a fair, as
opposed to a perfect, trial.” United States v. Bermea, 30 F.3d
1539, 1569 (5th Cir. 1994). The proceedings must be viewed as a
whole to determine whether the judge’s actions “amount to an
intervention that could have led the jury to a predisposition of
guilt by improperly confusing the functions of judge and
prosecutor.” Id. Bilotto’s argument primarily rests on several
sarcastic comments the district court made in front of the jury
that were allegedly humiliating for defense counsel, thus making
it impossible for the attorney to win the respect of the jury.
The district court’s conduct did not deprive Bilotto of a fair
trial. Overall, the trial was conducted in an impartial manner.
The challenged exchanges are minor, isolated incidents, which
seem to have been taken as a joke at the time. And while the
district court, at times, interjected himself into a witness’s cross-
examination, his questions were aimed at clarifying the witness’s
testimony.
4. Bilotto next argues that the district court erred when it refused
all three of his good-faith jury instructions. As a threshold issue,
however, the parties disagree on the standard of review: Bilotto
contends that he objected to the exclusion of his requested good-
faith defense instruction and the standard of review is therefore
abuse of discretion. United States v. Chaney, 964 F.2d 437, 444
(5th Cir. 1992). The Government counters that Bilotto failed to
preserve error and thus plain-error review is warranted. Even
assuming that Bilotto did preserve error, he cannot show that the
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district court abused its discretion in denying his requested good-
faith charges.
This court has already held that the failure to give a good-
faith instruction is not reversible error as long as the defendant
has the opportunity to argue good faith to the jury and a good-
faith instruction is substantially given to the jury through an
instruction on the meaning of the word “knowingly.” Id. at
444–46. Here, Bilotto was never denied an opportunity to argue
good faith to the jury. The jury was also essentially given a good-
faith instruction through the definition of “knowingly,” which the
district court defined as doing something “ voluntarily and
intentionally, not because of mistake or accident” and through the
definition of “intent to defraud,” which the district court defined
as “an intent to deceive or cheat someone.”
5. Bilotto further argues that the district court erred when it
admitted testimony from Taylor’s mother that she did not have
sufficient funds from a life insurance policy to pay for her son’s
funeral expenses. Bilotto argues that the information should
have been excluded because it was irrelevant, and even if it were
relevant, any purported probative value was substantially
outweighed by the testimony’s unfairly prejudicial effects. See
Fed. R. Evid. 403. In determining whether the district court
erred, this court reviews evidentiary rulings for an abuse of
discretion, although that review is heightened in criminal cases.
United States v. Anderson, 933 F.2d 1261, 1267-68 (5th Cir.
1991). The district court did not abuse that discretion here.
Taylor’s mother’s statement that she could not afford a
funeral was relevant to show that Taylor himself did not have
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much money, supporting the Government’s contention that
Bilotto lied about Taylor’s alleged $50,000 annual salary. See
Fed. R. Evid. 401 (defining relevant evidence as “evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more . . . or less
probable than it would be without the evidence” (emphasis
added)). Furthermore, the district court was within its discretion
to determine that the unfair prejudice did not substantially
outweigh the statement’s probative value.
6. Finally, Bilotto contends that the cumulative effect of the
multiple errors alleged resulted in an unfair trial, requiring
reversal. There were not multiple errors. See United States v.
Villarreal, 324 F.3d 319, 328 (5th Cir. 2003).
AFFIRMED.
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