Appendix — Umpierre-Hernandez v. United States (Nos. 07-518, 07-530, 07-536)

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Nos. 04-1532, 04-1533, 04-1534, 04-1535

UNITED STATES OF AMERICA,

Appellee,

V.

LORENZO MUNOZ-FRANCO, FRANCISCO SANCHEZ-ARAN,

ARIEL GUTIERREZ-RODRIGUEZ, and

WILFREDO UNPIERRE-HERNANDEZ,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF PUERTO RICO

(Hon. Daniel R. Dominguez, U.S. District Judge]

Before

Boudin, Chief Judge,

Cyr, Senior Circuit Judge,

and Lipez, Circuit Judge.

May 22, 2007

LIPEZ, Circuit Judge. Appellants Lorenzo Munoz-

Franco, Francisco Sdanchez-Aran, Ariel Gutiérrez-

Rodriguez, and Wilfredo Umpierre-Hernandez appeal

their convictions for bank fraud, conspiracy, and

misapplication of bank funds, stemming from conduct

that persisted for nearly a decade. Munoz-Franco and

Sanchez-Aran appeal their convictions for bank fraud

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and conspiracy for a similar but separate series of

transactions also involving the improper use of bank

funds. Appellants challenge the sufficiency of the

evidence and raise many other substantive and pro-

cedural claims relating to their fifteen-month trial.

After careful review of this immense record, we

affirm.

A. Factual Overview

We provide here an overview of the relevant con-

duct drawn from the record, saving additional details

for our sufficiency analysis. Throughout the opinion,

we consider the evidence “in the light most favorable

to the prosecution.” See Jackson v. Virginia, 443 US.

307, 319 (1979).

1. The Gutiérrez Loans

During the relevant time period charged in the

Third Superseding Indictment, Mufioz-Franco was

President and Chief Executive Officer of Caguas Cen-

tral Federal Savings Bank of Puerto Rico (“Caguas”),

a federally chartered savings and loan association.

Sanchez-Aran was Executive Vice President and

Chief Lending Officer of Caguas. Gutiérrez was a

land developer who owned several companies that

received loans from Caguas. Umpierre-Hernandez

was an officer of several companies belonging to

Gutiérrez.

For nearly a decade, Mufioz-Franco and Sanchez-

Aran supervised a scheme to use proceeds from vari-

ous loans for purposes not authorized by Caguas’

Board of Directors (“Board”).' The loans were granted

' The Board was a body of ten to fifteen members responsible

for establishing policy for the operation of Caguas and oversee-

3a

for land development projects involving companies

that Gutierrez owned and Umpierre-Hernandez

helped to operate, including Transglobe, Modules,

and Transhore. In many instances the appellants

used proceeds from loans to Gutiérrez-cwned com-

panies to make payments on prior loans to Gutierrez-

owned companies without Board approval. In other

instances Mufioz-Franco and Sanchez-Ardn_ sub-

mitted loans to Gutiérrez-owned companies to the

Board for approval without disclosing the Gutiérrez-

owned companies’ failure to complete work on pre-

vious projects. On many occasions Gutiérrez and

Umpierre-Hernandez submitted certifications for

construction work that had not yet been completed,

and Munoz-Franco and Sdanchez-Aran accepted the

certifications and ordered disbursement of funds for

the projects. The Board also was not informed of this

practice. In January 1988, Munoz-Franco drafted and

obtained Board approval to send a letter to Richard

Denby, the Federal Home Loan Bank Board auditor

supervising Caguas, which responded to Denby’s

concerns regarding Caguas’ lending practices (“Denby

letter”). The letter contained many misrepresen-

tations regarding the status of Gutiérrez-related

projects and loans.

As the government explained in its opening state-

ment, this scheme contributed to the appearance that

Caguas remained a financially viable institution

under the leadership of Mufioz-Franco and Sanchez-

Aran. If the problems with the bank became known

ing the general operation of the bank. The Board oversaw the

Executive Committee (which reviewed and approved commercial

and real estate construction loans in excess of $500,000) and the

Loan Committee (which reviewed and approved commercial and

real estate loans under $500,000).

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and Mufoz-Franco and Sanchez-Aradn were removed

from their positions, “not only would that have de-

prived them of a very lucrative job, but it also would

have made it very difficult for them to obtain new

employment in the banking industry.” The scheme

also maintained the appearance of solvency for the

Gutiérrez companies, thus protecting the liveli-

hood and professional reputation of Gutiérrez and

Umpierre-Hernandez. |

The projects for which Gutierrez-owned companies

received loans included La Marina, Los Mameyes,

Cerrovista, and Jardines de Villa Alba. We provide a

brief overview of these projects here.”

a. La Marina

In June 1980, Mufioz-Franco and Sdanchez-Aran

caused Caguas to grant a $1,450,000 loan to Trans-

globe to finance the construction of seventy-five units

of residential housing, with construction to begin

within one month and to be completed within one

year. As of September 1981, the loan limit had been

increased four times, adding a total of $1.8 million,

yet not a single house had been built. Funds were dis-

bursed from the loan for the project based on certi-

fications submitted by Gutiérrez and Umpierre-

Hernandez and approved by Sanchez-Aran, and ap-

proximately $2 million was used to pay unrelated

Gutiérrez debts with a different bank. In October

1984, Mufnoz-Franco and Sdanchez-Ardn caused

Caguas to finance the sale of the La Marina project to

DO.W Group. The agreement for this sale provided

that Transglobe would remain the contractor for the

* Similar conduct also occurred on other Gutiérrez projects,

including Levittown, Country Club, Los Caciques, Quintas de

Humacao, and Quintas de Fajardo.

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project despite its failure to build a single house in

the preceding four years. In approving the loan, the

Board was not informed of Transglobe’s prior poor

performance. After this sale, appellants continued to

} apply funds from the La Marina loan to other projects

and to disburse funds for work not completed. Not a

single house was ever built on the project, and, in

1989, Caguas entered into a settlement agreement

with DO.W releasing DO.W’s debt on the project,

which totaled over $2 million.

b. Los Mameyes

In late 1985, Munoz-Franco and Sdanchez-Aran

caused the Board to grant Modules a commercial line

of credit to build two hundred housing units. Between

December 1985 and March 1986, Gutiérrez and

Umpierre-Hernandez submitted a series of certifi-

cations stating that a total of two hundred housing

units had been built. Even though Caguas’ inspector

reported that only fifty-five units had been com-

pleted, Sanchez-Aran approved disbursements total-

ing about $800,000. In March 1986 Gutiérrez and

Umpierre-Hernandez submitted a certification re-

questing $69,000 for “payment of subcontractors,” but

attached a list of interest payments due on the

Jardines de Villa Alba, Levittown, Country Club, La

Marina, and Los Caciques projects totalling exactly

$69,000. Sanchez-Ardan approved the certification and

Caguas disbursed the funds.

c. Cerrovista

In the spring of 1986, John Burns, a developer,

applied to Caguas for a loan to build residential

housing on land he owned but his application was

denied. After meeting with UmpierreHernandez and

agreeing to use Modules as a contractor, Caguas

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approved Burns’ application for a loan to build

twenty-three units of housing in what became known

as the Cerrovista project. Burns’ loan was approved

on the condition that he sign a $2 million note as a

down payment to Modules. Burns signed the note.

Shortly thereafter, however, Umpierre-Hernandez

told Burns that the project needed a new “sponsor”

because Burns had been “gossiping.” Umpierre-Her-

nandez then began to negotiate the sale of Cerrovista

to lantho, a company owned by Walter Frambes. In

August or September 1986, Burns read newspaper

articles indicating that the Cerrovista project might

be affected by the Puerto Rico Department of

Transportation’s plans to build a hospital and an

expressway. He inquired with the Department and

received confirmation that the development of four

lots would be “frozen.” When Burns brought this

information to Umpierre-Hernandez, Umpierre-Her-

nandez told him to “hide it, boy.”

On September 10, 1986, Sdanchez-Aran received

Board approval to offer Iantho an $8.9 million loan,

specifying that $1,412,177 would be used to purchase

land for the Cerrovista project. The sale was then

finalized on September 28. However, the actual land

cost was only $480,000, and the remaining $932,000

was used to make principal and interest payments on

other loans to Gutiérrez-owned companies. Over the

next few months Gutiérrez and Umpierre-Hernan-

dez submitted certifications showing approximately

$908,000 for “premanufacture” of housing units, and

Sanchez-Aran authorized disbursement of these

funds. As of May 1988, however, not a single unit

had been built on the project.

Ta

d. Jardines de Villa Alba

In 1985, a developer named Emilio Montilla sought

financing to build housing units on land he owned, —

and Caguas repeatedly denied his requests. Montilla

then met with UmpierreHernandez, who told him

that if he used Modules as a contractor his request

would be approved. In July 1985, the Board con-

sidered a proposed loan to Montilla with Modules as

contractor. Although by this time Modules had failed

to perform on the La Marina project for several years,

the Board was not informed_.of this information when

it considered the Jardines de Villa Alba project.

Moreover, over $231,000 was disbursed before the

Jardines de Villa Alba loan agreement was signed.

Although the Board eventually approved the loan,

this prior disbursement took place without Board

knowledge or approval. Only one unit was ever com-

pleted on the Jardines de Villa Alba project. How-

ever, the Board was not informed of this fact. The

Denby letter, which was drafted by Mufioz-Franco in

January 1988 and signed by the Board members,

refers to the “units” completed on this project.

2. The Mirandes Loans

As will be described in more detail in our suf-

ficiency discussion, Mufioz-Franco and Sanchez-Aran

supervised a similar scheme to use loan proceeds for

purposes not authorized by the Board with respect to

companies owned by Francisco Mirandes.” Mirandes

received construction loans from Caguas for at least

fourtezn different projects. In December 1989, the

Mirandes corporations collapsed due to insolvency,

owing Caguas a total of $23 million. In 1997, Miran-

* The Third Superseding Indictment did not charge Gutiérrez

and Umpierre-Hernandez with involvement in this scheme.

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des pled guilty to charges of participating in a

conspiracy to defraud Caguas, the Board, and the

regulatory institution, and to misapplication of bank

funds. As part of his plea agreement, he testified for

the government at appellants’ trial.

B. Procedural History

On November 22, 1995, the government filed an in-

dictment charging appellants with conspiracy, bank

fraud, misapplication of bank funds, and making

false entries. Three superseding indictments subse-

quently were filed on March 5, 1997; May 13, 1997;

and March 6, 1998.‘ The third superseding indict-

ment charged Munoz-Franco, SAnchez-Aran, Gutiér-

rez, Umpierre-Hernandez, Enrique Gutiérrez (Ariel

Gutiérrez’s brother, who was also involved in running

the Gutiérrez corporations), and Rafael Dominguez

Wolff (who purchased several projects from the

Gutiérrez brothers)’ with bank fraud, in violation of

18 U.S.C. 1344; conspiracy to commit bank fraud,

misapply bank funds, and make false entries, in

violation of 18 U.S.C. 371; and misapplication of bank

funds, in violation of 18 U.S.C. § 657. The indictment

also charged: Munoz-Franco and Sanchez-Aran with

bank fraud under 18 U.S.C. § 1344 and conspiracy

under § 18 U.S.C. § 371 with respect to the Miran-

des loans.

The trial began in federal district court in Puerto

Rico in January 2001 and the presentation of evi-

dence concluded in April 2002. On May 16, 2002, the

* Appellants protest the delay both preceding and resulting

from this series of superseding indictments on Fifth and Sixth

Amendment grounds. We will discuss the events surrounding

this series of indictments in more detail in Section IV.C, infra.

* Wolff died prior to trial.

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jury convicted Munoz-Franco, Sanchez-Aran, Ariel

Gutiérrez, and Umpierre-Hernandez on all charged

counts, but acquitted Enrique Gutiérrez. Following

the verdict, appellants filed motions for a judgment of

acquittal pursuant to Federal Rule of Criminal Pro-

cedure 29, raising numerous grounds, including the

sufficiency of the evidence. In a thoughtful seventy-

seven page opinion, the district court denied all of the

motions.”

Sentencing proceedings began on December 15,

2003. On February 12, 2004, the district court sen-

tenced Munoz-Franco and Sanchez-Aran to a term of

forty-six months on the conspiracy and bank fraud

counts and a concurrent term of sixty months on

the misapplication count. It also imposed a fine of

$50,000 on each defendant. The court sentenced |

Gutierrez to a term of thirty-seven months on the

conspiracy and bank fraud counts, and imposed a

_ concurrent term of sixty months on the misappli-

cation count. It also imposed a $60,000 fine. Fin-

ally, it sentenced Umpierre-Hernandez to a term of

twenty-four months on all counts.

C. Issues on Appeal

Appellants raise thirteen major issues for our con-

sideration on appeal. Three of these claims—con-

cerning the statute of limitations, the Ex Post Facto

Clause, and the pre-indictment and pre-trial delay—

implicate what might be termed the validity of the

entire proceedings. Although courts often begin by

* In addition to the sufficiency of the evidence, the district

court considered and rejected claims of prosecutorial miscon-

duct, improper jury instructions, inconsistent verdicts, and

violation of the right to a speedy trial, as well as challenges to

the admission of certain evidence and testimony.

10a

addressing such issues, we find, in light of the

exceptionally large record, that we must review the

sufficiency of the evidence in order to assess the

viability of any of appellants’ other claims. Thus, we

will first resolve two evidentiary issues to determine

the content of the record properly before us. We will

then employ that record in conducting our analysis of

the sufficiency of the evidence. Informed by a full

understanding of the record, we will then turn to the

host of other issues raised by appellants.

i.

We begin with two evidentiary issues: whether the

district court allowed witnesses to testify beyond

their personal knowledge, and whether the minutes

from the Board meetings were improperly admitted.

A. Personal Knowledge

Appellants argue that the district court improperly

permitted prosecution witnesses to testify beyond

their personal knowledge, in violation of Federal Rule

of Evidence 602. Rule 602 states, in pertinent part:

“A witness may not testify to a matter unless evi-

dence is introduced sufficient to support a finding

that the witness has personal knowledge of the

matter.” Fed. R. Evid. 602. Interpretation of the

Federal Rules of Evidence is a question of law subject

to de novo review, but the ‘application of a rule is

reviewed for abuse of discretion. United States v.

Sposito, 106 F.3d 1042, 1046 (1st Cir. 1997).

1. Arturo Somohano

Appellants argue that Arturo Somohano (the vice

president of Caguas’ commercial loan department

until 1988, at which time he became Caguas’ chief

lending officer) testified beyond his personal knowl-

lla

edge on three occasions: (1) in claiming that the

bank’s outside auditors were replaced for improper

reasons; (2) in stating that Caguas’ loan classifi-

cations for the loans to Modules were improper; and

(3) in questioning the propriety of certain construc-

tion loans. The district court excluded the first of

these statements after appellants objected, and we

therefore do not consider it further.’

With respect to Somohano’s testimony that Caguas’

loan classifications for Modules were improper,

appellants objected on the ground that Somohano

had previously stated that he was unaware of the

bank’s classifications for those loans. Somohano

acknowledged that he did not remember seeing the

loan classifications for Modules while at Caguas, but

his testimony did not rely on such knowledge of

_Modules’ status. Instead, Somohano explained that

loans at Caguas were classified from one (best) to ten

(worst) based on the amount of risk involved in the

loan, and that the bank would attach greater

reserves to riskier loans. While still on the witness

stand, Somohano then reviewed financial statements

indicating that Modules had a negative net worth of

$7.6 million at the end of 1986, and that Caguas’

" With respect to the replacement of the bank’s outside

auditors, appellants object to Somohano’s testimony that he

knew why Caguas’ outside auditors were replaced because

“someone told me.” This characterization is incomplete. Upon

further questioning, Somohano stated that he also knew this

information based on “[m]y own personal observations,” spe-

cifically, the fact that “the reserves were totally inadequate to

guarantee that the bank would not shake if a loss could occur.”

After the government asked how Somohano’s observation re-

lated to the auditors’ removal, however, appellants objected,

and, after a lengthy sidebar and research, the court excluded

the testimony altogether.

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reserves would not cover the loans to Modules be-

cause the reserves equalled only ten or fifteen per-

cent of the loans Modules was sustaining. Based

strictly on the amount of reserves, Somohano would

expect the Modules loan to have received a favorable

classification of either two or three; however, he

testified that, based on Modules’ “insolvent” financial

status, such classification would have been improper.

According to Federal Rule of Evidence 701, a lay

witness may offer opinions that are “(a) rationally

based on the perception of the witness, (b) helpful to

a clear understanding of the witness’ testimony or

the determination of a fact in issue, and (c) not based

on scientific, technical, or other specialized knowl-

edge within the scope of Rule 702.” Fed. R. Evid. 701.

Under Rule 701, courts have allowed lay witnesses to

express opinions about a business “based on the

witness’s own perceptions and ‘knowledge and par-

ticipation in the day-to-day affairs of [the] business.”

_ United States v. Polishan, 336 F.3d 234, 242 (3d Cir.

2003) (alternation in original) (quoting Lightning

Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1175 (3d Cir.

1993)); see also Medforms, Inc. v. Healthcare Mgmt.

Solutions, Inc., 290 F.3d 98, 110-11 (2d Cir. 2002)

(allowing a computer programmer to testify about the

meaning of terms used in the copyright registra-

tions for programs he had helped design); Williams

Enters., Inc. v. Sherman R. Smoot Co., 938 F.2d 230,

233-34 (D.C. Cir. 1991) (allowing an insurance broker

who had personal knowledge of an insured’s business

to offer lay opinion testimony on the cause of an

increase in the insured’s premiums). Here, Somo-

hano’s testimony was based on knowledge of Caguas’

banking practices that he acquired during his em-

ployment there, and thus the opinions he expressed

13a

were properly within the scope of Federal Rule of

Evidence 701.

Finally, appellants protest, without providing

specific examples, that Somohano “was permitted to

testify about the propriety of certain construction

loans even though he was not part of the construction

loan department and has no firsthand knowledge of

those loans.” We find this generalized objection

unfounded. Somohano’s opinions about the loans

were based on his firsthand observations of Caguas’

practices with respect to these loans. He testified

that, when the Modules loan was restructured, he did

not think Caguas ever would be repaid, and he

provided other examples of Gutiérrez loans receiving

special treatment. Given Somohano’s banking ex-

perience and his particular knowledge about the

Gutiérrez loans, his testimony about these loans also

was properly admissible as a lay opinion within the

scope of Rule 701. Consequently, we find no abuse

of discretion in the district court’s handling of

Somohano’s testimony.

2. Anabel Enriquez

Appellants also argue that Anabel Enriquez (the

senior vice president of Caguas’ mortgage depart-

ment from 1980-87, who reported directly to Sanchez-

Aran) testified beyond her personal knowledge when

she stated, based on her review of the minutes of

Board and Executive Committee meetings, that

certain information was not discussed at the meet-

ings that should have been discussed. This objection

is unfounded. At trial, Enriquez read the Board

meeting minutes into evidence, including minutes for

meetings at which she was not present. Appellants

objected, and, after considerable debate, the district

court ruled “that [Enriquez] may literally read what

l4a

each paragraph [of the minutes] says. If the United

States then wants an explanation as to the

paragraph she must then have an independent

source of knowledge.” Thus, Enriquez did not testify

whether certain events actually happened at a Board

meeting unless she was present; for meetings she did

not attend, she testified only “whether the minutes

reflect” that certain information was discussed. The

district court enforced this limitation, and required

the prosecutor to rephrase questions on more than

one occasion.’ Similarly, Enriquez’s testimony that

the Board “should have been told” certain infor-

mation was a lay opinion properly admitted under

Rule 701. Her position as a senior vice president

of Caguas’ mortgage department and her regular

attendance at Board meetings established her fa-

miliarity with Caguas’ business operations and made

it appropriate for her testify about information the

Board needed to make its decisions. Again, the

district court did not abuse its discretion in allowing

such testimony.

3. Victor Lugo

As part of its case, the government sought to prove

that Mufioz-Franco and Sanchez-Aran concealed ma-

terial information relating to the Gutiérrez loans

from the Board. Victor Lugo, the Board president,

offered testimony that he was not told or was not

* For example, when the prosecutor asked whether the Board

was told certain information about Modules, the court inter-

rupted: “You don’t know what the board was told unless you're

there. The most you can state is whether or not the minutes

reflect that information.” The prosecutor rephrased the ques-

tion, and Enriquez then responded that “from what I remember

of having reviewed the minutes, there is no mention anywhere

of that fact.”

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aware of significant information. Appellants claim

that Lugo’s testimony showed that he had no

independent recollection of the events in question,

some of which occurred nearly twenty years before

trial. However, appellants misconstrue Lugo’s testi-

mony about his own memory. For example, when

asked whether he was informed of Modules’ per-

formance history when the Board was making deci-

sions on the company’s loans in July 1985, he stated:

“I don’t recall that it was discussed. I believe that if it

was discussed I would remember and it is not re-

flected in the minutes.” Similarly, when asked

whether the number of houses built on Modules

projects was discussed when the Board was again

making decisions on the loans in September 1986, he

stated definitively: “No . . . that was not discussed.”

These statements show that Lugo had sufficient

recall to testify from his personal knowledge about

the information given to the Board.

Appellants also complain that the government

improperly suggested the truth of hypothetical

scenarios presented in certain questions to Lugo. The

purpose of these questions was to probe whether the

Board would have considered Gutiérrez companies’

past performance in deciding to approve later loans.

For example, the prosecutor asked Lugo: “[I|f the

Gutiérrez company, out of these 96 [housing] units

only built 22, would that have been information .. .

which you would have been interested in knowing for

purposes of voting on the approval of this loan?” The

court explained at sidebar that it would only allow

such hypotheticals when the government had already

introduced evidence that was the basis for the

hypothetical—specifically, when “there is a document

from the bank that clearly establishes a certain fact.”

It also instructed the jurors that they should not take

16a

the facts that were the basis for the hypotheticals

as true:

Okay. The fact that the Court has authorized

that question, ladies and gentlemen of the jury,

does not mean .. . that the Court is concluding it

is a foregoing fact that you should take those

facts as true. Those facts are subject to your

analysis and your credibility.

In other words, you have to decide in your

deliberations whether or not this project called

for 96 houses and you have to decide whether or

not actually 22 were built or whatever number

was built, that is subject to your credibility.

The fact that the Court is authorizing that this

question be expressed in these terms does not at

all mean that the Court has already determined

that it is a fact at-all. You have to decide. That’s

one of the issues that you're going to have to

decide in this case.

The court reiterated this instruction several times.

This detailed instruction was sufficient to advise the

jury that it should not accept the facts set forth in the

hypotheticals as true. Thus, Lugo’s response to these

questions did not have the effect of allowing him to

testify beyond his personal knowledge to the factual

correctness of the hypothetical. The district court did

not abuse its discretion in allowing such testimony.

4. Victor Kareh

Finally, appellants assert that Victor Kareh (the

assistant vice president of the construction loan de-

partment from 1980 to 1990) “was permitted . . . to

opine about what the project documents and ledger

cards indicated, without-any clear memory of the

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events and mixing summary testimony with what

was improper expert testimony.” To support this

proposition, appellants cite to three thirty-page

sections of the trial transcript, without specifying the

testimony to which they object or the grounds for

their objections. Although Kareh did not author all of

the documents about which he testified, this in itself

is not a basis for excluding his testimony about the

documents. Without developed argumentation on this

issue, we cannot conclude that the district court

abused its discretion in allowing Kareh’s testimony.

United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) (“[I]Jssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argu-

mentation, are deemed waived.”).

B. Admission of Minutes from Board Meetings

At trial, the prosecution introduced the Board and

Executive Committee meeting minutes under Federal

Rule of Evidence 803(6), which states that business

records are not excluded by the rule against hearsay

“if kept in the course of a regularly conducted

business activity, and if it was the regular practice of

that business activity to make the... record...

unless the source of information or the method or

circumstances of preparation indicate lack of trust-

worthiness.” Appellants do not claim that the min-

utes themselves were improperly admitted, but

rather protest the prosecution’s reliance on the

absence of certain information from the minutes to

prove that the Board was not informed about such

matters. Appellants argue that this use violated their

rights under the Confrontation Clause and the rule

against hearsay. We examine these claims in turn.

We review alleged violations of the Sixth Amend-

ment’s Confrontation Clause de novo. United States

18a

v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005). As

discussed above, interpretation of the Federal Rules

of Evidence is subject to de novo review, but

application of a rule is reviewed for abuse of dis-

cretion. Sposito, 106 F.3d at 1046.

1. Confrontation Clause

The Confrontation Clause of the Sixth Amendment

guarantees defendants the right to confront adverse

witnesses. The Supreme Court has explained that

only “testimonial” statements “cause the declarant to

be a ‘witness’ within the meaning of the Confron-

tation Clause.” Davis v. Washington, 126 S. Ct. 2266,

2273 (2006) (citing Crawford v. Washington, 541 U.S.

36, 51 (2004)).’ Thus, “[i]t is the testimonial character

of the statement that separates it from other hearsay

that, while subject to traditional limitations upon

hearsay evidence, is not subject to the Confrontation

Clause.” Jd. Although the Court has yet to articulate

a precise definition of “testimonial,” it is beyond

debate that the Board minutes are nontestimonial in

character and, consequently, outside the class of

statements prohibited by the Confrontation Clause.

* Appellants filed their briefs before the Court’s decision in

Davis, and thus do not discuss its significance.

The Court has held that the term “testimonial” includes “at

a minimum ... prior testimony at a preliminary hearing, before

a grand jury, or at a former trial; and. . . police interrogations.”

Crawford, 541 U.S. at 68. In the context of police interrogations,

the Court indicated that a key factor is whether “the primary

purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution.” Davis, 126 S.

Ct. at 2274. In United States v. Hansen, 434 F.3d 92, 100 (ist

Cir. 2006), we also found that statements that “the declarant

would not reasonably expect to be available for use at a later

trial” were nontestimonial in character.

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The Court in Crawford plainly characterized busi-

ness records as “statements that by their nature [are]

not testimonial.” 541 U.S. at 56. If business records

are nontestimonial, it follows that the absence of

information from those records also must be non-

testimonial. Thus, the Confrontation Clause presents

no bar to reliance on the absence of certain .in-

formation from the Board meeting minutes to prove

that the Board was not given that information.

2. Hearsay

Appellants also complain that, once the minutes

were admitted, the prosecution used the absence of

certain information from the minutes to demonstrate

that Munoz-Franco and Sdanchez-Aran failed to in-

form the Board of these matters in violation of the

rule against hearsay. Appellants argue that the

minutes were intended to be a summary, rather than |

an exhaustive record, of the events that took place at

Board meetings, and that, consequently, the minutes

do not indicate whether such information was dis-

closed to the Board.

Federal Rule of Evidence 803(7) states that the

rule against hearsay does not exclude

[e]vidence that a matter is not included in the...

records . . . kept in accordance with the provi-

sions of [Fed. R. Evid. 803(6)], to prove the

nonoccurrence or nonexistence of the matter, if

the matter was of a kind of which a... record...

was regularly made and preserved, unless the

sources of information or other circumstances

indicate lack of trustworthiness.

Fed. R. Evid. 803(7). The Advisory Committee Note to

Rule 803(7) also states that the “[flailure of a record

to mention a matter which would ordinarily be

20a

mentioned is satisfactory evidence of its nonsexist-

ence.”" Thus, the absence of certain information in

minutes admissible under Rule 803(6) would be

admissible to show that the Board was not given that

information unless the circumstances indicated some

reason that these omissions from the record were

untrustworthy.

We note that Rule 803(6) excludes business records

if “the source of information or the method or cir-

cumstances of preparation indicate lack of trust-

worthiness,” Fed. R. Evid. 803(6), while Rule 803(7)

excludes records otherwise admissible under Rule

803(6) if “the sources of information or other cir-

cumstances indicate lack of trustworthiness,” Zd.

803(7). We think this repetition indicates that even if

a business record is deemed sufficiently trustworthy

to be admissible for its contents under Rule 803(6),

other circumstances might render omissions in that

record untrustworthy to show that the events omitted

did not occur. Thus, appellants’ concession that

the records are admissible under Rule 803(6) does

not necessarily preclude them from arguing that

omissions from the records are not admissible under

Rule 803(7).

'' The Advisory Committee Notes leave open the possibility

that the absence of evidence from a record is not hearsay at all.

Fed. R. Evid. 803(7) advisory committee notes (“While probably

not hearsay as defined in Rule 801, decisions may be found

which class the evidence not only as hearsay but also as not

within any exception. In order to set the question at rest in

favor of admissibility, it is specifically treated here.”). Moreover,

at least one court recently has noted the possibility that “evi-

dence that a record does not exist arguably is not hearsay at

all.” United States v. Cervantes-Flo.es, 421 F.3d 825, 832 n.4

(9th Cir. 2005). For present purposes we assume that such

evidence is hearsay, but admissible under Rule 803(7).

2la

The government introduced testimony from Enri-

quez, the vice-president who reported directly to

Sdnchez-Ardn, explaining that the minutes were

prepared by one of the executive vice presidents

before 1982, by Luis Pastor (an administrative as-

sistant to Mufoz-Franco) from 1982 to 1986, and by

Enriquez after that time. Enriquez stated that the

records prior to 1982 “were prepared and reviewed by

the board, they were set forth in a record book and

the secretary of the board and the president would

sign them.” The government submitted an affidavit

from Pastor, dated March 21, 2001, verifying that the

documents it introduced were, in fact, the minutes

from 1982 to 1986 and explaining that the minutes

“consist of transcriptions made from notes taken by

someone who was present at each meeting” and that

the minutes “were kept in the regular course of

business of Caguas .... [I]t was the regular business

practice of Caguas to compile and prepare [the

minutes] and to maintain them in its files.”

Finally, Enriquez explained that, after 1986,

“(w]lhen I was present I would take notes, subject to

the agenda and what was approved.” When Enriquez

was not present, Eliza Salina, the executive secretary

for Mufioz-Franco, would take notes at the meetings,

and Enriquez would then “review the files that were

prepared for use by the directors. And upon that

review, if there was something I did not understand

then I could ask the president.” Enriquez noted that

the minutes “were always ratified at the following

board meeting,” and that, after ratification, the

minutes would be stored either in the president’s

office or in the bank vault.

Appellants emphasize that Lugo (the president of

the Board) acknowledged on cross-examination that

22a

the minutes were only a summary of the meetings

and did not “word for word report discussions.”

However, a review of the Board and Executive Com-

mittee minutes reveals that, while not word for word

renditions of the meetings, the minutes capture more

than a skeletal outline of each meeting and include

descriptions of the considerations relevant to each

loan rather than simply the fact that the loan was

discussed and approved.”

After considering this evidence. we conclude that

the district court did not abuse its discretion in

allowing the use of the minutes to demonstrate that

the Board did not receive material information about

many of the transactions it considered. Enriquez’s

testimony and Pastor’s affidavit demonstrate that the

business records were prepared regularly after every

meeting, reviewed and ratified by the Board, and

stored securely following ratification. These circum-

stances do not indicate lack of trustworthiness.

Indeed, they permit a finding of trustworthiness.

Moreover, given the minutes’ thorough description of

information discussed at the meetings, we conclude

that the missing information relating to the loan

transactions was a “matter... of a kind of which a

* In a typical example involving a loan to a developer on a

project that did not involve any of the appellants, the Executive

Committee Minutes report: “Mr. Kareh explained that as a

result of discrepancies between the developer and the builder,

this project was parlyllized for many months. The developer

requested that he be allowed to substitute builders in order to

finish the project. Original builder was Las Américas Construc-

tion and the new builder would be a local small contractor

known as D.C. Inc. with ample experience in this field. Mr.

Kareh also explained that further delay in the conclusion of the

project would probably affect the final outcome of the project.”

23a

memorandum, report, record, or data compilation

was regularly made and preserved.” Fed. R. Evid.

803(7)."°

Il.

We proceed to the sufficiency of the evidence,

including in our analysis the previously-discussed

witness testimony and the absence of certain in-

formation from the Board minutes.

In considering 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.” United States v.

Woodward, 149 F.3d 46, 56 (1st Cir. 1998) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In

performing this inquiry, we “neither weigh|] the

credibility of the witnesses nor attempt [] to assess

whether the prosecution succeeded in eliminating

every possible theory consistent with the defendant’s

innocence.” United States v. Noah, 130 F.3d 490, 494

(1st Cir. 1997). Similarly, we “review {] a district

court’s denial of a defendant’s motion for a judgment

of acquittal ‘using the identical standard employed to

measure the sufficiency of evidence supporting a

guilty verdict.” United States v. Loder, 23 F.3d 586,

590 (1st Cir. 1994) (quoting United States v. Sanchez,

943 F.2d 110, 114 (1st Cir. 1991)).

Appellants wisely do not attempt to argue that it was

unnecessary for them to present such information to the Board.

As we will discuss more thoroughly in Section III, infra, this

information was highly material to the Board’s decisions re-

garding the loans.

24a

A. Bank Fraud with Respect to the Gutierrez Loans

The jury found all four appellants guilty of bank

fraud with respect to the Gutierrez loans. To prove

bank fraud under 18 U.S.C. 1344, the government

must show that the appellants knowingly engaged in

a scheme or artifice to defraud or obtain money from

a federally insured financial institution by means of

materially false statements or misrepresentations.

See United States v. Kenrick, 221 F.3d 19, 30 (1st

Cir. 2000). We first consider the evidence against

bank officers Mufoz-Franco and Sanchez-Aran, and

then the evidence against Gutiérrez and Umpierre-

Hernandez

1. Mufioz-Franco and Sanchez-Aran

In their positions as President and Executive Vice

President, respectively, Murfioz-Franco and Sanchez-

Aran were responsible for keeping the Board in-

formed of information relevant to current and pro-

spective loans. Moreover, Sanchez-Aradn was the

primary supervisor of the construction and com-

mercial loans to Modules, a Gutiérrez-owned com-

pany involved in many of the fraudulent trans-

actions. Munoz-Franco supported Sdanchez-Aran’s

recommendations on these projects. At trial, Lugo,

the president of the Board of Directors, explained

that he and the other Board members relied on the

reports prepared by Munoz-Franco and Sdanchez-

In full, 18 U.S.C. 1344 provides: “Whoever knowingly exe-

cutes, or attempts to execute, a scheme or artifice (1) to defraud

a financial institution; or (2) to obtain any of the moneys, funds,

credits, assets, securities, or other property owned by, or under

the custody or control of, a financial institution, by means of

false or fraudulent pretenses, representations, or promises;

shall be fined not more than $1,000,000 or imprisoned not more

than 30 years, or both.”

25a

Aran in making decisions regarding loans. Lugo

explained that it was not his job to “verify the

accuracy of information that was being given” to him

by the management of the bank, and added that he

“trusted fully that the information that was being

provided me was whole and true.”

Despite their responsibility to keep the Board fully

apprised, Mufioz-Franco and Sdnchez-Aran concealed

important information on many occasions. For exam-

ple, in July 1985 Caguas considered the Jardines de

Villa Alba project, for which Modules would be the

contractor. As of October 29, 1984, Modules had

completed none of the 212 units planned for the La

Marina project, even though the original loan

agreement from June 25, 1980 called for construction

to begin in thirty days and for seventy-five units to be

completed within twelve months. Despite the lack of

progress, the loan amount had been increased four

times between August 7, 1980 and September 17,

1981. Lugo testified that this poor performance

history was not discussed during the loan presen-

tation for the Jardines de Villa Alba project. Lugo

stated unequivocally that he would have wanted to

know Modules’ performance history in evaluating the

Jardines de Villa Alba loan, demonstrating the

materiality of such information.

Lugo further testified that, after the original loan

presentation, Mufioz-Franco and Sanchez-Aran con-

tinued to withhold information from the Board

regarding the Jardines de Villa Alba loan. Although

the record shows $231,000 was paid to Modules

before the Jardines de Villa Alba loan agreement was

signed, even at trial Lugo expressed surprise that

this had happened and stated that “it would have

been difficult for me to believe that” this occurred.

26a

More than a year after the Jardines de Villa Alba

loan was approved, in September 1986, Lugo did not

know that only one house had been built on the

project. Lugo also testified that as of September 1986

the performance history of Modules “as to con-

struction of homes that were to be constructed versus

the ones that were constructed . . . was not dis-

cussed.” Finally, on January 10, 1988, Lugo signed

the Denby letter, which was prepared by Munoz-

Franco and which referred to the “units” built on.

Jardines de Villa Alba, without realizing that only

one house had been built on the project.

Lugo also testified that Mufioz-Franco and San-

chez-Ardn did not inform him and the Board of

other material information relating to Modules. For

example, he did not know that Modules remained the

contractor after the La Marina, Country Club, and

Levittown projects were sold from Transglobe to

DO.W in October 1984. He also did not know that,

between 1984 and 1986, Modules did not make any

principal or interest payment on any loan to Caguas

with funds generated from its own business as

opposed to proceeds from other loans. Likewise, he

was not informed, when the Board approved the sale

of Modules to Camero on September 10, 1986, in

conjunction with a restructuring of its loans, that

approximately seventy percent of Modules’ debt was

with Caguas and that over seventy-one percent of

Modules’ assets were intangibles.”

' The high percentage of assets that were intangible might

raise concerns about the ability of Modules to pay off its debts.

Such information would be relevant to the Board’s decision

process.

27a

Finally, Lugo testified that when the board ap-

proved a loan of $1,412,077 for land acquisition for

the Cerrovista project, for which Modules also was

the contractor, Mufioz-Franco and Sanchez-Aran did

not advise him or the Board that the cost of the land

was actually only $480,000—in other words, that

$932,177 would be used to make principal and in-

terest payments on other Modules loans.

Lugo’s testimony is corroborated by the absence of

this and other material information from the Board

minutes. Although the government did not rely

heavily on the absence of such information, we have

found these omissions properly admissible under

Federal Rule of Evidence 803(7) and note that they

lend support to the prosecution’s case.

There was substantial evidence that Mufoz-Franco

and Sanchez-Aran withheld all of this information

from the Board with full knowledge of the problems

with Modules and other Gutierrez companies. Anabel

Enriquez, who reported directly to Sanchez-Aran,

explained that the handling of Gutiérrez certifi-

cations at Caguas concerned her “[bJecause prac-

tically monthly, each time they invoiced[,] the

certifications would be ahead of the construction.”

She discussed her concerns with Mufioz-Franco at

least by the time La Marina was going to be sold to

DO.W in 1984, and with Sanchez-Aran around the

same time. She also discussed her concern with

Munioz-Franco that, following the sale, Modules

would remain a contractor for La Marina, Levittown,

and Country Club. However, Munoz-Franco and

Sanchez-Aran took no action in response to En-

riquez’s concerns.

Finally, Mufoz-Franco and Sdanchez-Aran took

steps to conceal their misrepresentations from both

28a

internal and external auditors. Juan Hernandez,

Caguas’ internal auditor, testified that, in 1981,

Kareh (the assistant vice president of the construc-

tion loan department) initially provided information

in connection with an audit of the construction loan

department, but, after a short meeting with Sanchez-

Aran, Kareh stopped providing the information

Hernandez requested. Hernandez further testified

that, although he requested the auditing committee

“several times” between 1980 and 1990 to allow him

to audit the construction loan department, Mujfioz-

Franco and Sanchez-Aran did not allow the audit to

take place. In a letter dated January 22, 1985, an

external auditing firm, Stephen P. Bradics and

Company, recommended “that the scope of internal

auditing be expanded to include . . . construction

loans.” After Caguas received this letter, Hernandez

again recommended to the audit committee on

several occasions that he should be allowed to audit

the construction department, but he still was not

allowed to do so. The audit committee minutes reflect

his recommendation at several meetings at which

Munioz-Franco and Sanchez-Aradn were present. At

one meeting, on January 28, 1988, Mufnoz-Franco

responded by telling Hernandez that “construction

loans was the area most audited by senior manage-

ment.””*° Sdnchez-Ard4n heard and agreed with

Mujfioz-Franco’s response, and Sdanchez-Ardn had

also made similar statements to Hernandez in the

past. How-

ever, Hernandez was never provided with any in-

ternal audit conducted by either Mufioz-Franco or

Sanchez-Aran.

* Hernandez testified that “senior management” consisted of

Munoz-Franco and Sanchez-Aran.

29a

Munoz-Franco and Sanchez-Aran also concealed

information regarding Caguas’ lending practices

from external authorities. Critically, Mufioz-Franco

drafted and obtained Board approval to send the

Denby letter, which states: “This Board of Directors

wishes to state in no unclear and uncertain terms

that it has never considered and much less approved

any policy or practice of permitting borrowers to use

construction loan proceeds to satisfy or make interest

payment(s] on other unrelated loans.””’ At the time of

the letter, however, Munoz-Franco and Sanchez-Aran

had, as discussed above, approved loans for such

purposes on many occasions.

Taken in the light most favorable to the govern-

ment, the evidence demonstrates that Mufoz-Franco

and Sanchez-Aran repeatedly concealed material

information regarding the status of the Gutierrez.

loans from the Board, approved disbursements for

work that was not completed, and prevented audits.

Such conduct caused Caguas to continue lending

money to Gutiérrez-owned companies despite the

companies’ financial instability, which demonstrates

appellants’ knowing scheme to defraud Caguas by

means of material misrepresentations within the

meaning of 18 U.S.C. 1344. Consequently, we affirm

the district court’s finding that a rational jury could

have found Munoz-Franco and Sanchez-Aran guilty

of bank fraud.

2. Gutiérrez and Umpierre-Hernandez

The record also contained considerable evidence

from which a reasonable jury could have found

" At trial, Joseph Gonzalez (an examiner for the Federal

Home Loan Bank) testified that “{a] loan that has a different

borrower, different property to me would be an unrelated loan.”

30a

beyond a reasonable doubt that Gutiérrez and

Umpierre-Hernandez knowingly engaged in a scheme

to defraud Caguas by misrepresenting material

information. The certifications they submitted and

signed contained many misrepresentations. For ex-

ample, on the Los Mameyes project, between

December 9, 1985 and January 10, 1986, Gutiérrez

and Umpierre-Hernandez submitted nine certifi-

cations attesting to the manufacture of 74 housing

units and requesting payments totaling $380,000,

even though the inspector’s report stated that only 19

houses had been built. Between January 16 and

February 21, 1986, Gutiérrez and Umpierre-Hernan-

dez submitted 10 more certifications attesting to the

manufacture of 90 additional housing units and.

requesting payment of approximately $500,000, at

which point payment had been disbursed for at least

164 housing units even though only 40 units had

been manufactured. As of February 25, 1986, Gutiér-

rez and Umpierre-Hernandez had certified the com-

pletion of 200 units, but an inspection report dated

March 23, 1986, indicated that only 55 units had

been built. On March 31, 1986, Gutiérrez and

Umpierre-Hernandez submitted a certification re-

questing $69,000 for “payment of subcontractors”

along with a list of interest payments they had made

on other projects, including Jardines de Villa Alba,

Levittown, Country Club, La Marina, and Los

Caciques, which equalled exactly $69,000. Finally, on

June 26, 1986, Gutierrez and Umpierre-Hernandez

submitted a “special certification” of $85,000 with no

justification for work allegedly completed; Kareh

testified that such a certification was not a usual

practice. Sanchez-Aran authorized the disbursements

based on these certifications.

sla

Gutiérrez and Umpierre-Herndndez submitted

similar certifications for work not completed on other

projects. For example, on the Jardines de Villa Alba

project, Modules hud installed only one unit as of the

time of the Denby letter on January 10, 1988; how-

ever, on October 22, 1985 Gutierrez and Umpierre-

Hernandez certified that twenty-two units had been

completed, causing $626,000 to be disbursed to

Modules.

Gutiérrez and Umpierre-Hernandez perpetuated

their scheme by recruiting other developers to obtain

loans from Caguas on the condition that they use

‘Modules as the contractor. This conduct allowed

Gutiérrez and Umpierre-Hernandez to obtain new

funding for Modules, which they would then use to

pay down prior loans and -keep Modules from

collapsing. Developer Burns, the original owner of the

‘Cerrovista project, was a typical example. After

unsuccessfully applying to Caguas for a loan to build

residential housing on land he owned, Burns met

with Umpierre-Hernandez, who told him that if he

used Modules as his contractor and'signed a $2

million note he would be approved for a loan. A week

later Burns received financing for the Cerrovista

project. He testified that the approval was “[dle-

finitely[] because of the use of Modules.” Burns met

with Umpierre-Hernandez on “many other occa-

sions,” and, after problems arose with the Cerrovista

project, with UmpierreHernandez and Sanchez-Aran

in Sanchez-Aran’s office. Subsequently, Umpierre-

Hernandez told Burns that the project would be sold

to Iantho, and explained that “this project was going

to contribute to paying off some interest for some of

the projects that were in default,” which caused

32a

Burns to understand “that was the reason... I was

918

rejected as sponsor.

On September 10, 1986, Sanchez-Ardn presented,

and the Board approved, a loan of $8.9 million to

Iantho Corporation to take over the Cerrovista proj-

ect; the loan agreement specified that Modules would

be the contractor for the project’s two hundred units.

Burns testified that, around the time the project was

being sold, he received confirmation that the De-

partment of Transportation’s plans to build a hospital

and expressway would cause the development of four

lots of the project to be “frozen.” When told the news,

Umpierre-Hernandez responded, “hide it, boy.” On

September 28, 1986, Cerrovista was sold to Iantho

with no mention of the impending development.

Taken in the light most favorable to the govern-

ment, the evidence shows that Gutiérrez and Um-

pierre-Hernandez knowingly concealed information

relevant to the viability of the Cerrovista project and

submitted many certifications for work that was not

completed. To sustain their schemes, they recruited

other developers and helped them receive funding

from Caguas on the condition that these developers

use Modules as a contractor. These activities caused

Caguas to continue lending money to Gutiérrez

owned companies despite the companies’ financial

instability, providing an ample basis for a jury to find

that appellants knowingly schemed to defraud

Caguas by means of material misrepresentations

within the meaning of 18 U.S.C. § 1344. Conse-

‘* Gutiérrez and Umpierre-Hernandez implemented similar

schemes involving developer Montilla on the Jardines de Villa

Alba project and developer Santiago on the Caciques project.

The contours of these schemes are similar to that involving

Burns, and thus we need not recount them in detail here.

33a

quently, we conclude that a reasonable jury could

have found beyond a reasonable doubt that both

Gutiérrez and Umpierre Hernandez were guilty of

bank fraud.

B. Conspiracy with Respect to the Gutiérrez Loans

The four appellants were charged with conspiring,

in violation of 18 U.S.C. § 371, to commit bank fraud

(18 U.S.C. § 1344), misapply bank funds (18 U.S.C.

§ 657), and make false entries in the books and

records of the bank (18 U.S.C. § 1006). To establish a

conspiracy, the government must prove beyond a

reasonable doubt that (1) a conspiracy existed; (2) the

defendant knew of and voluntarily participated in the

conspiracy; and (3) there was an overt act in fur-

therance of the conspiracy. United States v. Blasini-

Lluberas, 169 F.3d 57, 67 (1st Cir. 1999). The -

government must prove both intent to agree and

intent to commit the substantive offense. United

States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st

Cir. 1989). A formal agreement is not required, Am.

Tobacco Co. v. United States, 328 U.S. 781, 809

(1946); rather, “(t]he agreement may be shown by a

concert of action, all the parties working together

understandingly, with a single design for the ac-

complishment of a common purpose.” Am. Tobacco

Co. v. United States, 147 F.2d 93, 107 (6th Cir. 1944);

see also Adver. Special Nat'l Ass’n v. FTC, 238 F.2d

108, 115 (1st Cir. 1956). Where, as here, the in-

dictment alleges a conspiracy to commit multiple

‘* In pertinent part, 18 U.S.C. 371 states: “If two or more

persons conspire either to commit any offense against the

United States, or to defraud the United States, ... and one or

more of such persons do any act to effect the object of the

conspiracy, each shall be fined under this title or imprisoned not

more than five years, or both.”

34a

offenses, the charge may be sustained by sufficient

evidence of conspiracy to commit any one of the

offenses. See Griffin v. United States, 502 U.S. 46, 56-

57 (1991); see also United States v. Wedelstedt, 589

F.2d 339, 341-42 (8th Cir. 1978) (“[Plroof that

[defendant] agreed to commit one of the multiple

illegal objectives of the conspiracy sufficed to sustain

the conviction on that count.”).

On the verdict form, the jury found Mufioz-Franco,

Sadnchez-Aran, Gutiérrez, and Umpierre-Hernandez

guilty of conspiracy “as charged in the indictment.”

Docket Nos. 1291, 1292, 1294, 1295. In considering

appellants’ motion for judgment of acquittal, the

district court found that there was more than enough

evidence with respect to bank fraud to sustain the

conspiracy conviction, and thus did not review the

evidence concerning the misapplication and false

entry crimes.

We agree with the district court’s assessment.

First, there was substantial evidence of an agreement

among the four men to defraud the bank. Sanchez-

Aran directly supervised the Gutiérrez loans and

worked closely with Mufioz-Franco on the loans.

Enriquez testified that Mufioz-Franco and Sanchez-

Aran always reached an agreement regarding the

treatment of these loans. Gutiérrez and Umpierre-

Hernandez submitted many certifications for work

not yet completed, and Sanchez-Aran then repeatedly

approved disbursements for this work. SAnchez-Aran

also facilitated Gutiérrez’s efforts to secure new

borrowers by ensuring that a loan would be approved

if Modules was used as a contractor. Sanchez-Aran

and Umpierre-Hernandez met frequently regarding

the status of the Gutiérrez companies. Burns testi-

fied, for example, that he met with Umpierre-Her-

35a

nandez many times in Sanchez-Aran’s office regard-

ing the Cerrovista project. Finally, Mufoz-Franco

and Sdanchez-Aran failed to disclose material infor-

mation to the Board on many occasions, and this joint

failure further demonstrates their collaboration in

defrauding the bank.

Given the many instances of concealing the

Gutiérrez companies’ performance from the Board of

Directors, submitting certifications for work not

completed, authorizing disbursements for such work

and preventing audits, a reasonable jury could easily

find the other two elements of conspiracy: that

appellants knew of and participated voluntarily in

the conspiracy, and that each committed overt acts in

furtherance of the conspiracy. Viewed as a whole, this

synchronized pattern of conduct demonstrates appel-

lants’ agreement to maintain the appearance of

financial viability of the Gutiérrez corporations by

securing new loans to make payments on outstanding ©

loans. Thus, we find that a reasonable jury could

have found each element of conspiracy beyond a

reasonable doubt with respect to each of the four

appellants.

C. Misapplication of Bank Funds

The jury found all four appellants guilty of mis-

application of bank funds under 18 U.S.C. 657 for a

single transaction related to the Cerrovista project.

The crime of misapplication eludes easy definition.”

” In pertinent part, 18 U.S.C. § 657 provides: “Whoever, being

an officer, agent or employee of or connected in any capacity

with the Federal Deposit Insurance Corporation . . . or savings

and loan corporation or association authorized or acting under

the laws of the United States . . . embezzles, abstracts, purloins

or willfully misapplies any moneys, funds, credits, securities or

36a

As we have previously noted, “(t]he problem that has

confronted and perplexed the courts is that there is

no statutory definition or common law heritage that

gives content to the phrase ‘wiilfully misapplies.“

United States v. Wester, 90 F.3d 592, 595 (1st Cir.

1996). However, we have held that misapplication

has two key elements: (1) wrongful use of bank funds;

and (2) intent to injure or defraud a bank. Blasini-

Lluberas, 169 F.3d at 63. We have also explained that

“the same facts can easily be the basis for deeming

the conduct to be wrongful and the intent fraudulent;

both misapplication and scienter are required.”

Wester, 90 F.3d at 595. Finally, the misapplication

statute applies only to officers, agents, and employees

of a bank. Thus, appellants who do not hold one

of these positions—here Gutiérrez and Umpierre-

Hernandez—may not be convicted as principals for

misapplication, but may be convicted as aiders and

abettors. See Giragosian v. United States, 349 F.2d

166, 167 (1st Cir. 1965) (“Since [defendant] was not

an officer, director, agent or employee of the bank, he

could not be guilty as a principal . . . for mis-

application of the bank’s funds, but only as an cider

and abettor.”).”

A reasonable jury could have concluded that ap-

pellants’ handling of the Cerrovista loan constituted

misapplication. The original loan offering, which was

other things of value belonging to such institution . . . [is guilty

of misapplication of bank funds)].”

*' Giragosian construed 18 U.S.C. § 656, which deals with

banks rather than savings and loan associations. However, “[i]n

the absence of legislative history to suggest that there is any

substantive difference in meaning, we find the reasoning in

cases construing § 656 equally applicable to our reasoning” in

cases involving 657. Blasini-Lluberas, 169 F.3d at 63 n.8.

37a

prepared according to Sanchez Aran’s instructions,

designated $1,412,177 for land costs and $855,323 for

“partial assumption of other loans.”” This document

did not disclose the purpose for which the funds were

actually used. Of the $1,412,177 designated for land,

only $480,000 was used to purchase land for the

project. The remaining $932,177 was disbursed to

the Gutiérrez-owned Quintas de Humacao company

and immediately applied to other Gutiérrez projects:

principal and interest on the Quintas de Fajardo

loan, interest on the Las Gaviotas loan, and interest

on a Modules commercial loan.

The documents associated with the Cerrovista loan

demonstrate appellants’ intent to defraud Caguas by

redirecting these funds. Although the. settlement

statement” for the Cerrovista loan, dated Sep-

tember 29, 1986, lists a disbursement of $932,177 for

“repayment of other loan” and lists the payee as

“Quintas de Humacao Inc. & Caguas Federal Sav-

ings,” these disclosures appear in a markedly dif-

ferent type, as does the total loan amount. Kareh

testified that this different type indicates that “the

entry was made later or at another place,” allowing

an inference that the document was amended to

make it appear that the Board had approved the use

” The loan offering was a document prepared by bank man-

agement (often Sanchez-Aran) that proposed the terms of a loan

to be offered to a borrower and was then submitted to the. Board

for approval.

* Kareh testified that the settlement statement “sums up the

conditions for the loan, the amount of the money, the payouts

that have been made for the loan and whatever pending bai-

ances may remain for the loan in process” and was “created and

maintained in the regular course of business of the construction

loan department.”

38a

of loan proceeds to make payments on other loans.

This inference is bolstered by the fact that the loan

settlement statement was not prepared until after

the Board had approved a loan. Kareh also testified

that, although the $855,323 amount designated for

“partial assumption of other loans” was listed on the

loan offering and disbursed on the date of closing,

the $855,323 amount was omitted from the settle-

ment statement at Sanchez-Aran’s instruction.” This

omission concealed the fact that two separate

disbursements, in the amounts of $932,177 and

$855,323, were used to pay down other loans.

Each appellant was sufficiently involved in con-

cealing the use of funds to allow an inference of

intent to defraud. Sanchez-Aran drafted the original

loan offering, which did not disclose that the

$932,177 difference between the amount allocated for

land purchase and the amount spent on land would

be used to pay principal and interest on other loans.

Moreover, according to Kareh, Sanchez-Aran explic-

itly instructed him to omit the $855,323 amount from

the loan settlement document. A jury could infer that

Munoz-Franco helped to conceal this wrongful use of

funds, thereby intentionally defrauding Caguas,

based on his supervisory role on the Gutiérrez loans

and his regular responsibility of conveying infor-

mation to the Board. Gutiérrez and Umpierre-

Hernandez were also involved in the wrongful use of

funds: they endorsed the checks, accepted the funds,

and immediately applied these funds to pay down

their other loans with the bank. Although appellants

“ The district court’s discussion of this issue suggests that

$932,177 was disbursed instead of $855,323, when in fact both

amounts were disbursed but the $855,323 was not disclosed on

the settlement statement.

39a

assert that the loan settlement documents demon-

strate that the transaction was disclosed to the

Board, the record indicates that the loan settlement

statement was prepared after the loan had already

been approved.

Appellants attempt to counter the charge by

segregating the activities relating to the Cerrovista

loan into two separate transactions: the disburse-

ment of the $932,177 land purchase differential to

Quintas de Humacao, and the use of those funds to

pay down other Gutiérrez loans. They argue that, at

the time the funds were disbursed to the Gutiérrez-

owned Quintas de Humacao, they ceased to be “bank

funds” under 18 U.S.C. § 657 and thus cannot ied

port a misapplication violation.

We do not find this technicality pertinent. The

disbursement of funds from the Cerrovista loan to

Gutiérrez-owned companies, and the subsequent use

of these loans to pay down other Gutiérrez loans,

was a single unified transaction. The district court

explained:

The funds did not cease to be controlled by the

express purpose for which they were disbursed.

The fact the $932,177 check was endorsed does .

not change the express purpose for which said

funds were to be used. The second transfer, the

Gutierrez’s endorsement back to Caguas Central

for the repayment of four separate loans, is still

the use of bank funds and subject to mis-

application.

By expressly designating these funds for “repayment

of other loan([s],” Munoz-Franco and Sanchez-Aran

retained control over the funds even if the funds

nominally changed hands. Moreover, Mufioz-Franco

40a

and Sanchez-Aran supervised the entire transaction,

as demonstrated by four entries in Caguas’ ledgers

showing the transfer of funds to the Gutiérrez

accounts.

Critically, appellants also ignore the separate con-

cealment of the $855,323, which although it was

listed on the original loan application, was left off, of

the loan settlement statement of September 29, 1986

at Sanchez-Aran’s explicit instruction. Although the

disbursement of the $855,323 was disclosed to the

Board, the fact that this disbursement was left off the

loan settlement statement indicates the bank

officials’ efforts to conceal the fact that two separate

disbursements, in the amounts of $855,323 and

$932,177, were used to pay down other loans. In

short, there was more than sufficient evidence for a

reasonable jury to conclude that appellants engaged

in wrongful use of bank funds with the intent to

defraud the bank.

D. Bank Fraud with Respect to Mirandes Loans

The jury also found appellants Mufioz-Franco and

Sanchez-Aram guilty of bank fraud in violation of 18

U'S.C. § 1344 with respect to the Mirandes loans.

The Mirandes scheme involved many of the same

elements as the Gutiérrez loans. In September 1981,

Munoz-Franco asked Mirandes to take over owner-

ship of a project called Reparto Valenciano, and

Mirandes, then the contractor for the project, agreed.

At the time the project was in debt to Caguas for $2.2

million, and delays and other problems continued

after Mirandes assumed ownership. On an ongoing

basis, Mufioz-Franco and Sanchez-Aran supervised

the transfer of funds from other projects to pay down

the debt on the Reparto Valenciano project. For

example, on September 30, 1986, approximately $2.2

4la

million was applied to the Reparto Valenciano project

from other Mirandes projects.” Mufioz-Franco and

Sanchez-Aran did not disclose these transfers of.

money among various Mirandes projects to the

Board. After the Reparto Valenciano debt increased

to $3.2 million, Mirandes received five contracts from

the Puerto Rico Housing Department to build basic

housing. Although Caguas initially denied Mirandes’

application for funding for these projects, it sub=

sequently agreed to finance the Villas de Gurabo

project if Mirandes would agree to apply the profits of

that project to the debt and interest of the Reparto

Valenciano project. These transfers temporarily

sustained the Mirandes projects, but the decreased

funds available to successive projects ultimately

made it impossible for those projects to be completed

or to yield profits.

Both Munoz-Franco and Sanchez-Aran were inti-

mately involved with the administration of the

Mirandes loans. Sanchez-Aran met with Mirandes on

many occasions, including, during one seven or eight

month period, meetings every fifteen days. Sanchez-

Aran was involved in most of the disbursements for

the Mirandes projects, whereas for other loans he

was typically involved only if a problem arose.

Munioz-Franco was also involved in the Mirandes

loans: he originally met with Mirandes to get him

to take over the loans, met with Mirandes several

times thereafter, was regularly informed of the loans’

progress, and reported on the loans’ status to the

Board.

* These transfers occurred on the last day of the’ bank’s fiscal

year, thus improving the appearance of Caguas’ finances to

anyone reviewing the bank’s records.

42a

Beginning thirty days after the Reparto Valenciano

loan agreement was signed, Sanchez-Aran authorized

many certifications for completed work. With two

exceptions, no work on the project had been com-

pleted at the time of the authorizations. On several

occasions, a transfer of funds from one loan to

another or an increase in the amount of a loan was

authorized without the approval of the loan com-

mittee or the Board. Mirandes also testified that the

disbursement schedule for loans “normally . . . wasn’t

complied with because money was taken out to pay

interest.” Thus, the disbursement schedule that the

Board approved was not the schedule that Munoz-

Franco and Sanchez-Aran subsequently followed.

Enriquez testified such practices were not standard

at Caguas; along with the Gutiérrez loans, the

Mirandes loans were the only ones for which

disbursements were authorized for work that was not

completed. According to Enriquez, the Mirandes

projects commonly received “special” certifications,

which meant that “[w]hen one project didn’t have a

line [of credit] it would be taken from another

project.” When regular certifications were submitted,

they would have an itemization of expenses attached;

special certifications would not include such an

itemization and thus would not disclose the des-

tination of the funds.

Sanchez-Aradn also caused Caguas to finance the

sale of land from one Mirandes company to another

in order to pay interest en the Reparto Valenciano

loan. On September 11, 1984, Mirandes’ company

Deproco purchased property for $60,000, and, three

months later, sold the property to Bubao, another

Mirandes company, for $94,000. The proceeds from

the sale were used to pay interest on the Reparto

43a

Valenciano loan. The sale occurred despite the fact

that, according to Mirandes, the land was not worth

the purchase price and no improverments to the land

were made in the interim. The minutes did not reflect

that the Board was informed of the transaction.

After Mirandes was unable to improve the finances

of the Reparto Valenciano project, he was awarded

five projects from the Housing Department, including

Villas de Gurabo, but was denied funding from

Caguas. At that point, Mirandes met with Mufnoz-

Franco and Sanchez-Aran and asked to be released

from the debt on the Reparto Valenciano project

because he “felt that the debt was not my problem”

and “needed to seek financing for the project from

another bank.” Mufioz-Franco and Sdanchez-Aran

refused to release Mirandes from the debt. Sub-

sequently, however, Kareh informed Mirandes that

Caguas would give him financing on Villas de

Gurabo, but that the proceeds from that loan would

have to be used to pay off the debt on the Reparto

Valenciano project. Mirandes reluctantly agreed, and

this plan was implemented. Again, the minutes did

not reflect that the Board was informed of this

transaction.

The Denby letter provides further support for the

jury’s finding of fraud. Drafted and signed by Munioz-

Franco, it explicitly denies that Caguas’ Board

approved the practice of borrowers using construction

loan proceeds to pay interest on unrelated loans. At

the time of the letter, however, Mufoz-Franco and

Sanchez-Aran had on many occasions authorized the

payment of debts on the Reparto Valenciano project

with funds from other Mirandes loans. The fact that

the Denby letter was signed by all the members of

the Board would allow a reasonable jury to conclude

44a

beyond a reasonable doubt that Mufioz-Franco mis-

represented the practices associated with the Miran-

des loans to the Board.

This circumstantial evidence of the requisite intent

was bolstered by more explicit evidence of appellants’

knowledge. Mirandes was concerned that, on the

Reparto Valenciano project, “some projects were

being emptied out in order to deal with others” and

worried that “it was going to become paralyzed.”

Mirandes testified that he and Sanchez-Aran “spoke

constantly” about his concerns, and that he also

expressed his concerns to Mufoz-Franco. Despite

Mirandes’ repeated statements of concern, Sanchez-

Aran explicitly told Mirandes that the practices had

to continue. In many cases, the bank authorized the

disbursements directly rather than seeking authori-

zation from Mirandes, and Mirandes testified that,

although he knew of these disbursements; he was not

in agreement with them. The evidence that ap-

pellants continued with their scheme even over

Mirandes’ objections demonstrated that they acted

deliberately to defraud the bank.

Taken in the light most favorable to the govern-

ment, the evidence shows that Mufioz-Franco and

Sanchez-Aran repeatedly authorized disbursements

for work that was not completed and concealed

relevant information from the Board. As a result of

these activities, Caguas continued lending money to

Mirandes-owned companies despite their financial

instability. This course of conduct constitutes a

knowing scheme to defraud Caguas by means of

material misrepresentations within the meaning of

18 U.S.C. § 1344. Consequently, we conclude that a

reasonable jury could have found beyond a rea-

sonable doubt that Munoz-Franco and Sanchez-Aran

45a

were guilty of bank fraud with respect to the Miran-

des loans.

E. Conspiracy with Respect to Mirandes Loans

The jury also found Mufioz-Franco and Sdanchez-

Aran guilty of conspiracy with respect to the

Mirandes loans. Although there was no formal

agreement among Munoz-Franco, Sanchez-Aran aid

Mirandes, the three acted in concert to defraud the

bank. As described above, Mufioz-Franco originally

approached Mirandes to assume the Reparto Valen- |

ciano loans, and Mirandes agreed. After this initial

agreement, Mirandes met frequently with Sanchez-

Aran and on several occasions with Mufioz-Franco.

The appellants participated voluntarily in the

conspiracy and took overt actions in its furtherance.

When the Reparto Valenciano project was unable to

pay its debts, Mufioz-Franco and Sdanchez-Aran

always attempted to find solutions to sustain the

project, frequently by transferring funds from one

project to another. Such transfers, as well as their

approval! cf certifications for work not completed,

constituted overt acts in furtherance of the con-

spiracy. Thus, we find sufficient evidence to sustain

the jury’s verdict on charges of conspiracy to commit

- bank fraud in violation of 18 U.S.C. § 1344 with

respect to the Mirandes loans.

The district court held that the evidence of

conspiracy to commit bank fraud was sufficient in

itself to sustain the conspiracy charges, but also

noted that there was sufficient evidence that ap-

pellants conspired to misapply bank funds in

violation of 18 U.S.C. § 657 and make false entries in

violation of 18 U.S.C. § 1006. However, because we

agree with that court’s assessment of the bank fraud

46a

conspiracy, we need not discuss the other two bases

for the conspiracy conviction.

IV.

Having found sufficient evidence to support the

convictions, we must now address three of appellants’

claims that challenge the validity of the proceedings.

First, appellants claim that the charges filed against

them were barred by the statute of limitations.

Second, they argue that their convictions violated

the Ex Post Facto Clause. Finally, they contend

that their convictions were invalid because of pre-

indictment and pre-trial delay.

A. Statute of Limitations

Under 18 U.S.C. § 3293, an individual may not be

charged with bank fraud or conspiracy to commit

bank fraud unless the indictment is returned within

ten years after the commission of the offense.”

Appellants raise three arguments regarding this

statute of limitations. First, they argue that the

original indictment was untimely. Next, they argue

that the First, Second, and Third Superseding

Indictments substantially amended the original

indictment, do not relate back, and consequently

were untimely. Finally, they argue that the district

court erred in failing to instruct the jury on the

statute of limitations.

1. Timeliness of Original Indictment

We review de novo a district court’s decision not to

dismiss on statute of limitations grounds. Lépez-

Gonzdles v. Mun. of Comerio, 404 F.3d 548, 551 (1st

* Appellants do not contend that the misapplication charges

against them were outside the statute of limitations.

47a

Cir. 2005). Here, the original indictment was re-

turned on November 22, 1995. Appellants contend

that.the Board was fully informed of the practices at

issue in two of the alleged violations—bank fraud and

conspiracy on the Gutiérrez loans—by a regulator

report dated August 31, 1985. Consequently, they

argue, any deception in the scheme ended more than

ten years prior to the original indictment, making the

indictment untimely for those charges.

In light of the activities discussed in Section III,

supra, most of which took place after November 22,

1985, appellants’ argument overstates the signifi-

cance of the regulator report in question. The report

describes several Modules loans and expresses gen-

eral concern about Modules’ financial state. The

report notes that the loans “are considered to be

substandard loans subject to special comment since

the future viability of the main borrower, Modules,

could be impaired by uncertainties involving the

collectibility of an accounts receivable due from an

affiliated party.” These general statements do

nothing to inform the Board of such practices as the

use of proceeds from one loan to make payments on

another loan or the ongoing certification of and

payment for work that was not completed. Moreover,

the report itself contains certain misleading state-

ments by Sanchez-Ardn. For example, despite his

knowledge of Modules’ uncertain financial status and

poor performance on several projects, he defended the

loans to Modules by explaining that “the borrower

should have sufficient funds to satisfy the loans in a

timely manner.” Thus, the district court did not err in

ruling that the original indictment was timely.

48a

2. Relation Back of Superseding Indictments

Appellants next argue that each of the three

superseding indictments materially broadened and

substantially amended the charges against them

and, consequently, do not relate back to the date of

the original indictment. As a result, they argue

that these indictments are untimely because they

allege conduct that concluded more than ten years

previously.

In United States v. O’Bryant, 998 F.2d 21, 23 (1st

Cir. 1993), we held that “a superseding indictment

which supplants a timely-filed indictment . . . is itself

to be regarded as timely . . . so long as it neither

materially broadens nor substantially amends the

charges against the defendant.” Consequently, “the

superseding indictment relates back to the filing date

of the original indictment so long as a strong chain of

continuity links the earlier and later charges.” Id. at

24. We emphasized that “notice-related concerns .. .

comprise the touchstone for determining when a

superseding indictment materially broadens or

substantially amends earlier charges,” explaining

that a timely indictment serves notice by apprising

defendants “that they will be called to account for

their activities and should prepare a defense.” Id.

(quoting United States v. Grady, 544 F.2d 598, 601

(2d Cir. 1976)).

In this case, the original indictment charged the

four appellants with bank fraud and conspiracy, ©

alleging fifty-eight overt acts spanning nearly a

decade and involving unlawful disbursement of bank

funds by Mufioz-Franco and Sanchez-Aran, unlawful

receipt of the funds by Gutiérrez, Umpierre-Her-

nandez, and Mirandes, and concealment of these

activities from Caguas’ Board of directors and reg-

49a

ulatory agencies. The First Superseding Indict-

ment, returned on March 5, 1997, added allegations

concerning five additional loan projects and forty-four

overt acts and added two additional defendants.”

It also changed the alleged starting date of the

conspiracy from December 1981 to June 1980,

lengthening the duration of the conspiracy from eight

years and five months to nine years and eleven

months. The Second Superseding Indictment, re-

turned on May 13, 1997, added allegations about two

more loan projects and ten overt acts. Finally, the

Third Superseding Indictment, returned on March 6,

1998, separated the allegations relating to the

Gutiérrez and Mirandes loans, which the previous

indictments had presented as a single unitary

conspiracy, into two separate conspiracies set forth in

separate counts.

We conclude that these revisions do not materially

broaden or substantially amend the original indict-

ment. The government “is not limited in its proof at

trial to those overt acts alleged in the indictment.”

United States v. Adamo, 534 F.2d 31, 38 (3d

Cir. 1976). Therefore, allegations of additional loan

projects and overt acts in the superseding indict-

ments do not broaden the original indictment; they

simply provide more specific examples to substan-

tiate the original fraud and conspiracy charges.

Similarly, the addition of eighteen months to the

beginning of a conspiracy spanning nearly a decade

does not materially broaden the scope of the

indictment. Virtually none of the conduct supporting

appellants’ convictions occurred between June 1980

* Defendant Enrique Gutierrez was acquitted by the jury,

and defendant Rafael Dominguez Wolff died before trial.

50a

and December 1981, and the dates were expanded

primarily to allow factual completeness by including

the dates of the original loans Caguas extended to

various companies. Thus, appellants had adequate

notice of the charges against them despite the

expanded time frame.”

Finally, we find that the separation of the original

unitary bank fraud and conspiracy scheme into two

separate schemes, one alleging bank fraud and

conspiracy with respect to the Gutierrez loans and

one alleging bank fraud and conspiracy with respect

to the Mirandes loans, did not materially broaden or

substantially amend the indictment. Mufoz-Franco

and Sanchez-Aran still had to explain the same set of

actions. With respect to Gutierrez and Umpierre-

Hernandez, the division also provided adequate

notice. The only difference was that they no longer

had to contend with the allegations that related only

to the Mirandes loans. Thus, we conclude that

the Third Superseding Indictment relates back to

November 22, 1995, the date of the original in-

dictment, and find no error in the district court’s

_refusal to dismiss the indictment for untimeliness.”

* Courts have réeognized an expanded time span as a sub-

stantial amendment on!y when the expansion was far more

significant than the ome here, and then only in conjunction with

numerous other factors. See, e.g., United States v. Ratcliff, 245

F.3d 1246, 1253-54 (11th Cir. 2001) (finding that a superseding

indictment materially broadened or substantially amended the

original indictment when it increased the length of time of the

conspiracy from six or seven months to thirteen years, increased

the number of conspirators from five to fifteen, and increased

the amount of marijuana imported from 1,500 pounds to 6,800

pounds).

*” Appellants present various arguments that the alleged

conduct concluded more than ten years prior to the dates of the

5la

3. Jury Instruction on Statute of Limitations

Appellants also argue that the district court erred

-in failing to instruct the jury on the statute of

limitations on the ground that the jury could have

relied on conduct outside the limitations period

in finding defendants guilty. At trial, however,

Gutiérrez’s attorney explicitly declined to seek a

statute of limitations instruction, and the other

appellants made no request for such an instruction.

We addressed a similar situation in United States

v. Walsh, 928 F.2d 7, 11-12 (1st Cir. 1991). There, we

rejected the defendant’s claim that the district court

should have issued an instruction on the statute of

limitations, explaining that the defendant “failed to

identify any point in the record where such an

instruction was requested. Absent such a request, the

point was waived.” Jd. at 12. This holding is logical

because “{a] statute of limitations claim presents ‘an

affirmative defense’ that is ‘not cognizable on appeal

unless properly raised below.” United States v. Spero,

331 F.3d 57, 60 n.2 (2d Cir. 2003) (quoting United

States v. Walsh, 700 F.2d 846, 855-56 (2d Cir. 1983)).

The situation here is identical. We hold that because

appellants failed to request an instruction, the dis-

trict court had no-obligation to instruct sua sponte on

the limitations issue.”

First, Second, and Third Superseding Indictments. However,

because we find that the superseding indictments did not

materially broaden or substantially amend the charges, we need

not address these arguments.

* We also note that there was more than sufficient evidence

to allow a reasonable jury to conclude that the alleged offenses

were completed within the limitations period, see supra Section

III, and thus our holding that appellants waived their right to .

request an instruction on the statute of limitations in no way

risks a miscarriage of justice.

52a

B. Ex Post Facto

Appellants claim that their convictions for bank

fraud and conspiracy violated the Ex Post Facto

Clause, U.S. Const. art. I, § 9, cl. 3, because the bank

fraud statute, 18 U.S.C. § 1344, was not enacted until

October 12, 1984, and the jury could have convicted

them entirely on the basis of conduct that occurred .

prior to that date.”

The Ex Post Facto Clause “forbids the application

of any law or rule that increases punishment for pre-

- existing conduct.” United States v. Regan, 989 F.2d -

44, 48 (lst Cir. 1993) (quoting United States v.

Havener, 905 F.2d 3, 5 (1st Cir. 1990)). For “con-

tinuing offenses” such as the bank fraud and con-

spiracy charges at issue here, however, the critical

question is when the conduct ended.” As we have

* With respect to the Gutiérrez loans, the indictment alleged

a conspiracy to commit bank fraud among all four appellants

from approximately June 25, 1980 through May 25, 1990. It also

charged those appellants with bank fraud with respect to those

loans “on or about the dates listed below” and listed a series of

fifty-eight overt acts, of which the earliest took place on March

24, 1977, and the latest took place on December 19, 1989. With

respect to the Mirandes loans, the indictment alleged a con-

spiracy to commit bank fraud between Mufioz-Franco and

Sanchez-Aran from approximately December 1981 through May

25, 1990. It also charged Mufioz-Franco and Sanchez-Aran with

bank fraud with respect to the Mirandes loans “on or about the

dates listed below” and listed a series of forty-seven overt acts,

of which the earliest took place in December 1981 and the latest

took place on December 7, 1989.

* We have held that conspiracy is “often a continuing

offense,” United States v. Welch, 15 F.3d 1202, 1207 (1st Cir.

1993), and, in the context of determining venue, we have

acknowledged that “[bjank fraud is also a continuing offense,”

United States v. Scott, 270 F.3d 30, 36 (1st Cir. 2001). The other

circuits that have considered the issue generally have agreed

53a

explained, “[w]here a ‘continuing offense’ straddles

the old and new law .. . applying the new is

recognized as constitutionally sound.” Jd. In other

words, “[a] conviction for a continuing offense

straddling enactment of a statute will not run afoul of

the Ex Post Facto clause unless it was possible for

the jury, following the court’s instructions, to con-

vict ‘exclusively’ on pre-enactment conduct.” United

States v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999)

(citation omitted). As suggested, “the question of

whether the violation extended beyond the effective

date of [the statute is] one that ha[s] to be resolved by

the jury.” United States v. Tykarsky, 446 F.3d 458,

480 (3d Cir. 2006).

Appellants contend that the district court should

have issued instructions informing the jury that it

must find beyond a reasonable doubt that the bank

fraud and the conspiracy to commit such fraud

continued past October 12, 1984. In the absence of

such an instruction, they argue, the jury’s verdict

was ambiguous because it could have been premised

exclusively on conduct that occurred prior to the date.

of enactment. Under such circumstances, a conviction

either for bank fraud or conspiracy to commit bank

fraud would violate the Ex Post Facto Clause.

Appellants failed to raise the possibility of an ex

post facto violation at any time prior to or during

that both conspiracy and bank fraud are continuing offenses.

See, e.g., United States v. Lemmon, 372 F.3d 535, 541 n.8 (3d

Cir. 2004) (conspiracy); United States v. Nash, 115 F.3d 1431,

1440-41 (9th Cir. 1997) (bank fraud); United States v. Duncan,

42 F.3d 97, 104 (2d Cir. 1994) (bank fraud and conspiracy).

Under the circumstances present here, there is no question

that the conspiracy and bank fraud charges reflect continuing

offenses.

54a

trial, including in their proposed jury instructions.

They also failed to raise the issue in their post-trial

Rule 29 motions. In their pre-sentencing briefs, they

argued for the first time that their convictions should

be vacated on ex post facto grounds. The district

court rejected the claim.”

An unpreserved ex post facto claim is subject to

plain error review. See, e.g., Tykarsky, 446 F.3d at

479; United States v. Julian, 427 F.3d 471, 481 (7th

Cir. 2005). Under such review, an appellant must

show: “(1) that an error occurred (2) which was clear

or obvicus and which not only (3) affected the

defendant’s substantial rights, but also (4) seriously

impaired the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001).

In its brief, the government agrees that the district

court should have issued an instruction that the jury

must find that the conduct continued past the

enactment date of the bank fraud statute. Its position

is consistent with recent circuit court decisions

holding that the failure to issue such an instruction

satisfies the first two prongs of the plain error

analysis by establishing that an error occurred that

was obvious. See Tykarsky, 446 F.3d at 479-80

(“[Blecause the communications spanned two differ-

ent versions of the statute with different minimum

penalties, the question of whether the violation

“ The court applied plain error review, finding that: (1) the

overwhelming weight of the evidence established bank fraud

continuing beyond the date § 1344 was enacted; (2) the con-

spiracy statute, § 371, was valid prior to any of the conduct

alleged; and (3) the jury’s conviction on the misapplication

counts occurring in 1986 substantiated a finding of culpable

conduct continuing beyond the date § 1344 was enacted.

55a

extended beyond the effective date of the amended

version was one that had to be resolved by the jury. .

. . We also conclude that the error in not requiring a

special jury finding was ‘plain’ in that it was an

obvious mistake in retrospect.”); Julian, 427 F.3d at

482 (“This was a plain error in the sense of being an

obvious mistake in retrospect.”). Thus, our task is to

determine whether this error affected appellants’

substantial rights, and, if so, whether the fairness,

integrity or public reputation of -the judicial

proceedings was impaired.

The other circuits have taken varying approaches

to applying these prongs of the plain error test in

assessing a claimed ex post facto violation. In United

States v. Calabrese, 825 F.2d 1342, 1346 (9th Cir.

1987), the Ninth Circuit held that the “jury’s verdict

represents a finding that a crime was committed

as alleged in the indictment.” Because the indict-

ment alleged an offense that continued past the date

of enactment, the court concluded that there was

no plain error in the court’s failure to issue an

instruction. Id.

The Fifth Circuit has examined the record to see

whether the bulk of the evidence occurred after the

enactment of the statute. In United States v. Todd,

735 F.2d 146 (5th Cir. 1984), that court held that

where “(mlost of the evidence focused on events that

occurred within the effective date of the amend-

ments,” and “the record . . . clearly establishes

violations of the amended act by the appellants

during the relevant time period,” the failure to give

the jury instruction did not “result in the likelihood-of

a grave miscarriage of justice or circumstances that

seriously affect the fairness, integrity, or public

reputation of judicial proceedings.” Jd. at 150.

56a

The Second and Third Circuits have adopted an

approach in which prejudice is established if there

was a reasonable possibility that the jury convicted

appellant on the basis of pre-enactment conduct. In

Tykarsky, for example, the Third Circuit explained

that a district court’s failure to issue an instruction

means that a defendant “has been prejudiced if there

is a reasonable possibility that a jury, properly

instructed on this point, might have found [the

defendant] guilty based exclusively on acts that

occurred before the increased penalty took effect.”

446 F.3d at 480. The court noted that “(t]he most that

can be said here is that it is improbable, rather than

impossible, as a factual matter, that the jury con-

victed Tykarsky exclusively on the basis of” pre-

enactment conduct, which was “insufficient to

persuade us that [the defendant’s] substantial rights

were not affected.” Id. at 482.“ The court concluded

that this prejudice “tainted the integrity and repu-

tation of the judicial process” and consequently

“ The Third Circuit’s holding is similar to that of the Second

Circuit. See United States v. Harris, 79 F.3d 223, 229 (2d Cir.

1996) (“Because the | | statute is a continuing crime statute, we

must determine whether it was possible for the jury, following

the district court’s instructions, to convict [the defendant]

exclusively on pre-{ Jenactment conduct. After examining the

jury instructions, we think that such a scenario was im-

possible.”). Appellants also refer to United States v. Torres, 901

F.2d 205 (2d Cir. 1990). However, that case is distinguishable

because appellants did raise a general ex post facto challenge

before the district court. Jd. at 228. On appeal, the Second

Circuit discussed plain error review but did not explicitly apply

such review. Jd. It concluded only that “it is inappropriate to

impose a mandatory life sentence upon [the defendants] where

there was an ex post facto violation in the instruction actually

given, and the defendants brought the general ex post facto

question to the attention of the district court.” Jd. at 229.

57a

vacated the defendant’s sentence and remanded to

the district court. Jd. at 483.

Finally, in Julian, the Seventh Circuit considered

an alleged conspiracy and found, on the third prong

of the plain error analysis, that a court’s failure to

issue an ex post facto instruction “affected [the

defendant’s} substantial rights in the sense that it

exposed him to a longer sentence.” 427 F.3d at 482. It

then focused on the fourth prong, explaining that “[iJf

a jury, properly instructed on this point, might have

found that the conspiracy had come to an end before

the increased penalty took effect or that [defendant]

had withdrawn from the conspiracy before that date,

then the error is one that implicates the fairness,

integrity, or public reputation of the judicial process.”

Id. It concluded that a reasonable jury could not have

found that the conspiracy at issue ended prior to the

enactment date of the statute. Jd. at 483.

Ultimately, we need not settle on a rule here. The

plain error analysis used by the Second and Third

Circuits is most favorable to defendants because it

requires a finding of prejudice if there was a

“reasonable possibility” that the jury convicted ap-

pellants solely on the basis of pre-enactment conduct.

Here, even under that test, appellants cannot dem-

onstrate an ex post facto violation because no reason-

able jury would have convicted appellants based

exclusively on conduct that occurred prior to the

enactment date. Moreover, even if we were to apply

the “miscarriage of justice” approach of the Seventh

Circuit, we would conclude there was no miscarriage

of justice here because the government presented so

much evidence of the involvement of the defendants

in the ongoing conspiracy and bank fraud following

the enactment of the bank fraud statute in 1984.

58a

As the district court correctly noted, the govern-

ment presented overwhelming evidence of appellants’

conduct, the majority of which occurred after October

12, 1984. Re:atively few of the overt acts for any of

the charges alleged in the indictment occurred prior

to October 12, 1984: only twelve of fifty-eight overt

acts on the charges of conspiracy and bank fraud

with respect to the Gutiérrez loans, and only ten of

forty-seven acts om the charges of conspiracy and

bank fraud with respect to the Mirandes loans. The

government presented considerable evidence of

activities occurring after October 12, 1984, including

all of the transactions involving the Los Mameyes

project, all of the transactions involving the Jardines

de Villa Alba project, and many of the transactions

involving the Reparto Valenciano project. The Denby

letter, which contained several material misrepre-

sentations, was not signed until 1987. Indeed, the

bulk of our sufficiency aralysis details conduct

occurring after the enactment date. See Section

Ill, supra.

Moreover, we find nothing to differentiate appel-

lants’ pre-enactment conduct from subsequent con-

duct. The government’s key witnesses—Lugo, Miran-

des, Enriquez, Somohano and Kareh—testified to

conduct that occurred both before and after the

enactment date. Given that the testimony of these

witnesses spanned the enactment date, we find it

implausible that the jury would find such testimony

compelling only for events that occurred prior to

October 12, 1984. Similarly, no transformative event

occurred prior to October 12, 1984 that would alter a

reasonable jury’s perception of the nature of any

appellant’s involvement. Although appellant Gutiér-

rez protests that he sold his construction loans with

Caguas on October 29, 1984, and sold Modules on

59a

December 31, 1985, it is uncontested that he and

Umpierre-Hernandez remained employed by the

company, and the record contains evidence that their

culpable conduct (such as submitting certifications

for incomplete work) continued uninterrupted after

the sale of the company.

Because we see no reason to differentiate the

conduct occurring prior to the enactment date, we

find that a reasonable jury would not have convicted

the appellants based solely on pre-enactment con-

duct. Thus, appellants were not prejudiced, nor did

their convictions implicate the fairness or integrity of

the judicial process. We conclude that there is no

plain error from the absence of a limiting instruction

on the ex post facto issue.

C. Pre-Indictment and Pre-Trial Delay

Appellants argue that the district court erred in

refusing to dismiss on the grounds that (1) the

five-year pre-indictment delay violated their Fifth

Amendment right to due process, and (2) the five-

year pre-trial delay violated their Sixth Amendment

right to a speedy trial. We review both claims for

abuse of discretion. United States v. Picciandra, 788

F.2d 39, 43 (1st Cir. 1986) (“[T]he district court did

not abuse its discretion in holding that the pre-

indictment delays did not violate the defendants’ fifth

amendment rights of due process.”); United States

v. Salimonu, 182 F.3d 63, 69 (lst Cir. 1997)

(“This circuit reviews a district court’s ruling on a

Sixth Amendment speedy trial claim for abuse of

discretion.”).

1. Pre-Indictment Delay

In United States v. Lovasco, 431 U.S. 783 (1977),

the Supreme Court noted that “statutes of lim-

60a

itations, which provide predictable, legislatively

enacted limits on prosecutorial delay, provide the

primary guarantee[] against bringing overly stale

criminal charges.” Jd. at 789 (citations and internal

quotation marks omitted). However, the Court also

acknowledged that “the Due Process Clause has a

limited role to play in protecting against oppressive

delay.” Jd. A prosecutor is not obliged to file charges

as soon as probable cause exists, id. at 791, and has

“wide discretion” in delaying indictment “limited only

by the requirement that it not violate those

‘fundamental conceptions of justice which lie at the

base of our civil and political institutions,“ United

States v. Ciampaglia, 628 F.2d 632, 639 (1st Cir.

1980) (quoting Lovasco, 431 U.S. at 790). To show a

violation of “those ‘fundamental conceptions of jus-

tice’ a defendant must. prove that (1) pre-indictment

delay caused substantial prejudice to his right to a

fair trial and, (2) the Government intentionally

delayed indictment in order to gain a tactical

advantage over the accused.” Picciandra, 788 F.2d at

42 (citation omitted). With respect to prejudice, a

defendant must do more than allege that witnesses’

memories had faded or that evidence had been lost

that might have been helpful to him. United States v.

Lieberman, 608 F.2d 889, 902 (1st Cir. 1979).

Appellants have failed to meet that burden here.

They assert that they suffered prejudice from the

unavailability of nineteen potential defense wit-

nesses.” However, we find that the unavailability of

these nineteen individuals did not impair appellants’

defense, either because appellants could have, but did

not, obtain testimony from similarly situated in-

* Of these nineteen unavailable witnesses, fifteen had died,

three were seriously ill, and one could not be located.

6la

dividuals who were available to testify; or because

appellants failed to demonstrate that the testimony

of these individuals would have included exculpatory

evidence.

Of the nineteen unavailable witnesses, appellants

contend that the deaths of two individuals—Phillip

Saffold and Luis Dorta—prevented cross-examination

relating to reports these witnesses prepared. Saffold

was an invéstigatur who authored reports that

appellants claim would have allowed them to im-

peach Roman Cruz, a plant manager who testified

that buildings were not built at the Modules plant;

however, Cruz’s testimony was a minor part of the

government’s case against appellants and appellants’

inability to impeach Cruz did not significantly

prejudice them. Similarly, Dorta inspected the

Transglobe and Modules sites and prepared reports

that were admitted at trial; appellants emphasize

that his death prevented them from cross-examining

him, but do not specify how this opportunity would |

have helped their case.

Appellants claim that nine other unavailable wit-

nesses (Gilberto Pol Segarra, Luis Acevedo Gonzalez,

Jaime Sitiriche, Juan Hernandez, Celestino Seneriz,

Pedro Bull Nater, Francisco Susoni Lens, Jose

Feliciano, and Rafael Toro Nazario) were members of

the Board who “could have testified to the extent of

the disclosures made to the Board, in response to

Lugo []’s imprecise testimony.” However, appellants

offer no reason to believe that these Board members

would have offered testimony contradictory to Lugo’s.

Moreover, appellants do not explain why they did not

call as witnesses other Board members who were

available to testify throughout the trial.

62a

Finally, appellants contend that the remaining

eight unavailable witnesses (Gilberto Mayo Aguayo,

Nelson Soto Velasquez, Stephen P. Radics, Emil de

Pentima, Troy Chapman, Stanley Orenstein, Hugo

Lopez, and Fernando Rivera) “could have testified” or

“could have confirmed” information relating to

financial practices at Caguas, without offering any

evidence that these individuals would, in fact, have

been able to provide such testimony.

Similarly, appellants protest the unavailability of

three sets of documents: inspection reports, com-

mercial loan files, and miscellaneous Modules docu-

ments. With respect to the first two sets of docu-

ments, however, appellants make no attempt to

establish that the reports disappeared after indict-

ment but prior to trial. With respect to the third,

appellants claim only that “the unavailability of the

Modules documents made it impossible to fairly cross

examine [Transhore and Modules accountant Jorge]

Fabrigas” and that, generally, the evidence might

have allowed them to refresh witness recollection and

corroborate their defense. However, Fabrigas’ testi-

mony was a minor part of the trial, and these

generalized objections do not establish prejudice

resulting from an impaired defense.

Even if appellants had demonstrated some degree

of prejudice from the delay, they have made no

concomitant showing that the government inten-

tionally delayed indictment to gain tactical advan-

tage. Thus, we conclude that the district court did not

abuse its discretion in denying their motion to

dismiss for pre-indictment delay.

63a

2. Pre-Trial Delay

The Sixth Amendment right to a speedy and public

trial attaches upon arrest or indictment, whichever

occurs first. United States v. MacDonald, 456 U.S. 1,

6-7 (1982). Thus, the time frame relevant to ap-

pellants’ claim extends from the date of indictment,

November 22, 1995, until the date of trial, January

29, 2001—a span of over five years. We note that

appellants do not raise a claim under the Speedy

Trial Act, 18 U.S.C. § 3161, and thus their claim is

based exclusively on constitutional rather than

statutory grounds.

In Barker v. Wingo, 407 U.S. 514 (1972), the

Supreme Court established a four-part balancing test

to determine whether a defendant’s Sixth Amend-

ment right to a speedy trial has been violated. Under

Barker, a court should consider: (1) the length of the

delay; (2) the reasons for the delay; (3) the de-

fendant’s assertion of his speedy trial right; and (4)

the prejudice to the defendant caused by the delay.

Id. at 530. However, the Court identified the first

factor, the length of the delay, as “to some extent a

triggering mechanism. Until there is some delay

which is presumptively prejudicial, there is no

necessity for inquiry into the other factors that go

into the balance.” Id. The Court also has indicated

that post-accusation delay approaching one year is

presumptively prejudicial. Doggett v. United States,

505 U.S. 647, 652 n.1 (1992). Consequently, the five-

and-a-half year delay in this case creates a

presumption of prejudice.

Under Barker, we must then consider the remain-

ing three factors. We have described the second

factor, the reasons for the delay, as “the focal in-

quiry.™ See, e.g., United States v. Santiaqgo-Becerril,

64a

130 F.3d 11, 22 (1st Cir. 1997) (citation omitted).

Here, there are two main reasons for the pre-trial

delay. First, the appellants filed numerous requests

for continuances,. some of which the district court

granted, as well as many motions requiring time and

consideration by the district court.” Second, two days

before the trial was originally scheduled to begin on

May 26, 1998, the government filed a motion to

disqualify the trial judge assigned to the case on the

ground that she had a banking relationship with

Caguas that might prejudice her in the trial of the

case. The district court originally denied the motion

to disqualify and the government sought mandamus

from this court. We denied mandamus, but noted that

“the judge would have been well-advised either to

bow out of the case or to ask that the recusal motion

be assigned to a different judge for hearing” and that

“the government hardly can be faulted for bringing”

the motion. In re United States, 158 F.3d 26, 33-34

(1st Cir. 1998).” The trial judge assigned to the case

* For example, on August 27, 1997, Mujioz-Franco filed

seventeen separate motions, including one entitled “Motion

Requesting Order Concerning Additional Motions.” Similarly, on

March 24, 1998, Gutiérrez filed what the district court termed

a “deluge” of “ten separate and distinct motions of varying

complexity.”

” Appellants imply that the government acted in bad faith by

waiting to file the recisal motion until immediately prior to

trial. However, the government explains that it did not learn

about the banking relationship until one year prior to trial, and

was delayed in learning the details of the relationship due to

resistance to the subpoenas it filed. In fact, the government still

had not been able to obtain some of the documents it requested

by the time it filed the recusal motion. In light of this ex-

planation, and the fact that appellants produced no evidence of

bad faith on the part of the government below, we still have no

basis for questioning the government's explanation.

65a

then recused herself voluntarily, resulting in a delay

in the proceedings of approximately one year. In sum,

the pre-trial delay arose largely from the complexity

of the case and the events related to the recusal.

The third Barker factor weighs in favor of ap-

pellants. They raised their speedy trial objection

three times during the proceedings below, and now

renew that objection.

The Supreme Court has held that the final Barker

factor—prejudice to appellants—“should be assessed

in the light of the interests of defendants which the

speedy trial right was designed to protect.” Barker,

407 U.S. at 532. The Court identified three such

interests: “(i) to protect oppressive pretrial incar-

ceration; (ii) to minimize anxiety and concern of the

accused; and (iii) to limit the possibility that the

defense will be impaired.” Jd. The first of these

interests has no bearing here because appellants

remained free prior to trial. With respect to the

second interest, “considerable anxiety normally

attends the initiation and pendency of criminal

charges; hence only ‘undue pressures’ are consid-

ered.” Santiago-Becerril, 130 F.3d at 23 (citations

omitted). Appellants allege no such “undue pressure,”

and therefore we assign negligible weight to this

interest. Finally, in our discussion of pre-indictment

delay, we have already analyzed appellants’ argu-

ments that their defense was impaired. These

arguments are equally applicable to the pre-trial time

frame, and we find no materia! prejudice resulting

from the delay.”

* We note that, of the nineteen unavailable witnesses that

appellants name in their brief, five of these witnesses (Hugo

Lopez, Celestino Seneriz, Pedro Bull Nater, Francisco Susoni

66a

The five years that elapsed between indictment

and trial is a troublesome length of time. None-

theless, our inquiry has revealed no constitutional

violation. Thus, after considering the factors listed in

Barker, we conclude that the district court did not

abuse its discretion in denying appellants’ motion to

dismiss for pre-trial delay.

¥.

Appellants also raise several challenges to evidence

they contend was improperly admitted. We address

these claims in turn.

A. Evidence Regarding Loss

Appellants challenge three aspects of the admis-

sion and treatment of evidence regarding financial

loss to Caguas. First, they protest that such evidence

was irrelevant and prejudicial in violation of Federal

Rule of Evidence 403. Second, they argue more

specifically that the government’s Exhibit 40, aspects

of which were later shown to be inaccurate, was

erroneously admitted. Finally, they argue that, even

if evidence of loss and Exhibit 40 were properly

admitted, the district court erred in refusing to guide

the jury with an instruction about the enactment of

the Financial Institutions Reform, Recovery, and

Enforcement Act of 1989 (“FIRREA”), Pub. L. No.

101-73, 103 Stat. 183 (codified in scattered sections

of 12 U.S.C.).

Lens, and Jose Feliciano) died prior to indictment and, con-

sequently, their unavailability does not implicate the Sixth

Amendment analysis under Barker. See MacDonald, 456 U.S.

at 7 (“[NJo Sixth Amendment right to a speedy trial arises until

charges are pending.”).

67a

1. General Evidence of Loss

We review evidentiary rulings on relevance and

unfair prejudice for abuse of discretion. United States

v. Richardson, 421 F.3d 17, 37-38 (ist Cir. 2005).

Loss is not an element of bank fraud. United States v.

Blasini-Lluberas, 169 F.3d 57, 65 (1st Cir. 1999).

However, courts have held repeatedly that loss is

relevant in fraud cases to demonstrate a defendant’s

knowledge or intent to commit fraud. See, e.g., United

States v. Heimann, 705 F.2d 662, 669 (2d Cir.

1983)(“While technically the success or failure of a

scheme to defraud is irrelevant in a mail fraud case,

realistically, when the contested issue is intent,

whether or not victims lost money can be a sub-

stantial factor in a jury’ determination of guilt or

innocence.” (citation omitted)). Thus, while “an

ultimate purpose of either causing some financial loss

to another or bringing about some financial gain to

oneself is not the essence of fraudulent intent,”

United States v. Kenrick, 221 F.3d 19, 29 (1st

Cir. 2000) (citation and internal quotation marks

omitted), the knowledge that one’s actions are, in

fact, bringing about such losses may demonstrate

one’s intent to commit fraud.

In this case, the government referred to loss

throughout the trial to demonstrate appellants’

knowledge of the consequences of their ongoing

practices of using loan proceeds to make principal

and interest payments on unrelated loans, author-

izing disbursements for work not completed, and

using funds for purposes not authorized by the

Board. For example, during its opening statement

and closing argument, the government noted that

federal regulators closed Caguas in 1990 due to the

bank’s lack of funds. On a few occasions, the

68a

government also questioned witnesses about the

amount of loss that certain projects sustained and

whether those losses would have caused concern.

However, these references did not dominate the evi-

dence because the government also presented

considerable other evidence of defendants’ conduct, as

we have discussed at length in Section III, supra.

Moreover, the district court carefully managed the

effect of evidence relating to loss on the jury by

preventing both parties from addressing loss in their

closing arguments and instructing the jury that

loss was not an element of the offenses charged.

Finally, the court permitted appellants to cross-

examine vigorously the government witnesses who

discussed loss.

In sum, the general references to loss were relevant

as a means of demonstrating appellants’ intent to

defraud Caguas, and, given the carefully limited

presentation of this evidence to the jury, were not

unduly prejudicial. The district court did not abuse

its discretion in admitting this evidence.

2. Exhibit 40

Following Caguas’ closure in 1990, Banco San-

tander acquired many of its assets, and prepared a

document—government Exhibit 40—listing hundreds

of Caguas’ loans, the outstanding balances on those

loans, Banco Santander’s valuation of the loans, and

the resulting discount (the difference between the

outstanding balance of the loan and the loan’s value).

At trial, Banco Santander’s comptroller attested that

the bank had acquired all of the loans summarized in

Exhibit 40, and the exhibit served as part of the basis

for expert testimony regarding accounting practices

by Kathy McKinless, a partner at an accounting firm.

By the time of sentencing, however, the government

{

69a

discovered that the Resolution Trust Company

(“RTC”), a government-owned asset management

company, had retained many of the loans. Thus, the

exhibit could not actually have reflected valuations of

the loans made by Banco Santander upon purchase,

and was not a reliable means of establishing the

magnitude of the loss experienced by Caguas.

Appellants now contend that Exhibit 40 was both

testimonial, in violation of the Confrontation Clause,

and that the exhibit was improperly admitted under

the Federal Rules of Evidence. The government’s

acknowledgment that Exhibit 40 contained inac-

curate information indicates that the exhibit should

have been excluded on that basis alone. However, we

agree with the district court that any error in its .

admission was harmless. Under Fahy v. Connecticut,

375 U.S. 85, 86-87 (1963), the critical question in

assessing harmless error is “whether there is a

reasonable possibility that the evidence complained

of might have contributed to the conviction.”

Several circumstances indicate that there is no

reasonable possibility that Exhibit 40 contributed to

the convictions here. First, the exhibit was relevant

only to prove appellants’ fraudulent intent, and the

government presented considerable evidence of this

intent from other sources. Second, the court explicitly

instructed the jury that loss was not an element of

bank fraud. Third, the exhibit was the subject of

direct examination for less than one-half of one day of

a trial spanning fifteen months. Fourth, defense

counsel subjected McKinless to searching cross-

examination regarding the exhibit, revealing several

typographical errors and inaccuracies and eliciting

McKinless’ acknowledgment that she could not con-

firm the document’s completeness. Finally, even if

70a

the loss calculations in Exhibit 40 were not entirely

accurate, other evidence at trial dernonstrated that

Caguas suffered large losses on many of the loans at

issue. To some extent, the Exhibit 40 calculations

replicated evidence already in the record. Taking into

account all of these circumstances, there is no

reasonable-possibility that the isolated use of Exhibit

40 could have contributed to appellants’ convictions,

and thus any error in its admission was harmless.

3. Jury Instruction on Loss

Appellants also challenge the district court’s re-

fusal to give an instruction explaining that, when

FIRREA was enacted in 1989, “many institutions

immediately fell out of compliance with regulatory

capital requirements, making them subject to seizure

by thrift regulators.” United States v. Winstar Corp.,

518 U.S. 839, 857-58 (1996). Appellants contend that,

given the admission of evidence relating to financial

loss, the jury should have been instructed that bank

failures were common in the aftermath of FIRREA’s

enactment. In other words, the jury should have been

told that banks commonly lost money in the absence

of fraud.

A district court’s refusal to issue a jury instruction

“constitutes reversible error only if the requested

instruction was (1) correct as a matter of substantive

law, (2) not substantially incorporated into the

charge as rendered, and (3) integral to an important

point in the case.” White v. N.H. Dep’t of Corrs., 221

F.3d 254, 263-64 (1st Cir. 2000) (citation omitted). No

such error occurred here. The FIRREA instruction

was not integral to an important point in the case |

because loss is not an element of bank fraud.

Moreover, the jury was instructed that the govern-

T7la

ment need not prove loss. Thus, we find no reversible

error in the district court’s decision.

B. Forgery and Check-Kiting Evidence

Appellants assert that the admission of evidence

regarding forged signatures on checks and evidence

of a check-kiting scheme constructively amended the

indictment. A constructive amendment occurs “when

the charging terms of the indictment are altered’ at

trial so that they are different from those handed up

by the grand jury.” United States v. Rodriquez, 215

F.3d 110, 118 (1st Cir. 2000) (quoting United States

v. Portela, 167 F.3d 687, 701 (1St Cir. 1999)).

Appellants also argue that this evidence constituted

an improper variance from the indictment. A vari-

ance occurs when the proof differs from the indict-

ment’s allegations, and “is material and reversible

only if it has affected the defendant’s ‘substantial

rights’: to be informed of the charges; and to prevent

a second prosecution for the same offense.” United

States v. Vavlitis, 9 F.3d 206, 210 (1st Cir. 1993)

(citation omitted). |

At trial, the government introduced evidence that

numerous checks issued by Caguas and made

payable jointly to Gutiérrez companies and third

party contractors were deposited in the accounts of

the Gutiérrez companies after the contractor’s en-

dorsement was fraudulently added to the checks.”

*® For example, the government elicited testimony from Luis

Garate, the former vice president of Bermudez and Longo, Inc.,

a construction contractor in electrical and building mechanics.

Bermudez and Longo worked with the Gutiérrez company

Transglobe on the Modules project. Garate testified that he did .

not recognize the endorsements on fifteen checks, totalling over

$67,000, that were issued by Caguas and made payable jointly

to Transglobe and Bermudez and Longo.

72a

The government elicited this testimony as evidence of

appellants’ intent to defraud the bank.

The district court addressed the forgery evidence in

an order denying appellants’ motion to exclude it.

The court found that such evidence caused neither a

constructive amendment nor a variance, explaining

that, “[s]ince some of the checks issued by Caguas

[that were ultimately used to make payments on

failing loans} were jointly issued to innocent third

party payees, these payees’ endorsement would have

been required before the checks could actually be

cashed or deposited in the bank.” Since “disburse-

ment of the funds could not be completed until the

‘checks were cashed . . . in some cases forged en-

dorsements would necessarily be required.” The court

concluded that, rather than constructively amending

or varying the indictment, the forged endorsements

were direct evidence of one component of appellants’

scheme. Finally, to foreclose any possibility that the

jury would convict appellants based on the forgery

evidence, the court issued thorough instructions

regarding the elements of bank fraud and conspiracy

as well as an instruction specifically tailored to the

evidence of forgery: “You have heard evidence about

checks with allegedly forged endorsements. The

crime of forgery is not charged .... The fact that

endorsements may be forged may only be used to

assist you, as you may find useful, in your evaluction

of all the evidence in the case... .””

40

Appellants did not object to the instruction, and

consequently the objections to the instruction that they raise on

appeal are reviewable only for plain error. See Fed. R. Crim. P.

30 (d) (“A party who objects to any portion of the instructions or

to a failure to give a requested instruction must inform the court

... before the jury retires to deliberate.”). We see no such error

in the clear instruction issued here.

73a

The district court’s order accurately assesses the

value of the forgery evidence, and the admission of

such evidence did not constructively amend the

indictment or result in a variance. We further con-

clude that its instruction was more than sufficient to

inform the jury of the proper role of that evidence.

We view the check-kiting evidence similarly. The

disputed evidence consisted of testimony from

Somohano (the vice president of Caguas’ commercial

loan department) that in 1983 he detected a check-

kiting scheme involving two Gutiérrez corporations’

accounts at Caguas and Banco de Ponce. When he

informed Mufioz-Franco and Saénechez-Aradn, Mufioz-

Franco scolded Somohano and denied that check-

kiting was occurring. Somohano further testified that

Sanchez-Aran continued to honor the checks sent to

Caguas even after Banco de Ponce stopped honoring

checks deposited with them. The check-kiting con-

tinued, resulting in overdrafts of more than $900,000

on the Gutiérrez-owned companies’ accounts at

Caguas. This overdraft ultimately was converted

into a loan.

The district court did not err in admitting this

evidence. The reactions of Mufioz-Franco and San-

chez-Ara4n when Somohano toid them about the

check-kiting scheme demonstrate both their goal of

preserving the Gutierrez-owned companies’ financial

status and the preferential treatment that these

companies received. This evidence was directly

relevant to the charges of bank fraud and conspiracy,

and was not outside the scope of the original

indictment. Thus, we conclude that no constructive

amendment or improper variance occurred.

74a

C. Evidence of Civil and Regulatory Violations

Appellants also protest that the district court

improperly admitted evidence of civil and regulatory

banking violations. Again, we review this evidentiary

ruling for abuse of discretion. Richardson, 421 F.3d

at 37-38.

Evidence of civil or regulatory violations is

admissible so long as “the evidence is not presented

in such a way that the jury’s attention is focused on

the civil violations rather than the criminal ones.”

United States v. Stefan, 784 F.2d 1093, 1098 (11th

Cir. 1986). The concern is that such evidence could

create an “alternative standard of guilt.” United

States v. Christo, 614 F.2d 486, 491 (5th Cir. 1980)

(prohibiting the introduction of civil banking statu-

tory violations solely for the purpose of proving

criminal misapplication).

Courts have allowed the introduction of evidence of

civil and regulatory violations in a variety of

situations. In United States v. Devin, 918 F.2d 280,

287 (1st Cir. 1990), we found no abuse of discretion in

a district court’s decision to allow evidence of

violations of police department regulations to

demonstrate the knowledge and intent of a police

officer charged with RICO violations and attempted

extortion. We explained that “[s]uch evidence was

unquestionably helpful to the jury in determining

whether . . . [the officer] was willing to disregard his

sworn obligations and accept things of value which

influenced his performance of official duties.” Jd.

Similarly, in Stefan, the district court permitted the

government to introduce testimony regarding vio-

lations of a civil regulatory banking statute and

charts illustrating how certain loans at issue con-

travened the statute. It also allowed the government

75a

to refer to the statutory violations in its opening

statement and closing argument, and even “focused

the jury’s attention” on the statute in the in-

structions. 784 F.2d at 1097. On appeal, the Eleventh

Circuit found that the defendant’s scheme included

efforts to avoid this statute, and that the district

court therefore did not abuse its discretion in

admitting such evidence to help the jury understand

the scheme. In both of these cases, the courts placed

emphasis on a jury instruction which made clear that

civil or regulatory violations did not equate to

criminal conduct. See Devin, 918 F.2d at 288 n.9;

Stefan, 784 F.2d at 1099."

Here, the court allowed the government to in-

troduce evidence that defendants violated certain

regulations of the Federal Home Loan Bank to

provide context for their actions and to establish

their knowledge of the impropriety of their activities.

_ Although such evidence was discussed from time to

time, it was not central to the government’s case, as

our lengthy discussion of the sufficiency of the

evidence demonstrates, see Section III, supra.

Moreover, the district court issued a limiting

instruction on the use of evidence of civil and

regulatory violations:

You have heard testimony and evidence that

certain civil rules and/or regulations which gov-

“ For example, the instruction in Devin stated: “[R]ules and

regulations of the Boston Police Department were admitted into

evidence in this case. And while they may be relevant in order

to show a guideline or a code of conduct to a particular job, the

defendant is not here because he violated a rule or regulation.

He is charged here with violations of certain specific laws, not

rules or regulations.” 918 F.2d at 288.

76a

ern the conduct of banks may not have been

followed at times at Caguas.

You are hereby instructed that a violation of

any of these rules and regulations is not a crime

in and of itself, and is not determinative of a

defendant’s guilt or innocence.

The fact that certain civil rules and regulations

may have been violated at Caguas may only be

used by you to assist you, as you may find useful,

in determining a particular defendant’s motive or

intent as to the crimes charged in the third

superseding indictment.

This instruction clearly conveys that civil and reg-

ulatory violations do not establish criminal culp-

ability. Appellants protest that the instruction

exacerbated the problem because the reference to

“the fact that certain rules and regulations may have

been violated” improperly suggested that such rules

and regulations had been violated. However, we see

no such suggestion because the phrase “may have

been violated” makes clear to the jury that, if it found

that such violations had occurred, it could use those

violations as one piece of evidence in determining the

ultimate question of criminal guilt or innocence.

Given this appropriate limiting instruction, we find

that the district court did not abuse its discretion by

admitting evidence of regulatory violations to provide

context and to demonstrate appellants’ knowledge of

their criminal conduct.

VI.

Appellants challenge other aspects of the pro-

ceedings against them, including the length of the

trial, allegedly disparaging and misleading state-

ments by the prosecutor, the jury instruction on

T7la

misapplication, and alleged error in sentencing. We

now turn to these remaining issues.

A. Length of Trial

Appellants argue that the sheer length of the trial

and the repetitive nature of the government’s evi-

dence denied them due process. In denying ap-

pellants’ motions for judgment of acquittal on these

grounds, the district court devoted more than ten

pages of its seventy-seven page opinion to a thorough

examination of this issue. We largely agree with its

analysis. Thus, we merely summarize its conclusions

here and note only a few additional points.

The trial lasted for fifteen months and the pros-

ecution’s case lasted far longer than appellants’ case.

However, appellants bore much of the responsibility

for the length of the trial. They either requested or

agreed to several continuances after the trial began.”

In response to the jury’s request that the trial occur

five days per week, they requested that trial occur

only four days per week. Moreover, much of the time

devoted to the government’s case consisted of the

vigorous and lengthy cross-examination to which the

defense subjected government witnesses. Finally,

nearly all of the witnesses testified in Spanish and

required the use of interpreters, which contributed

significantly to the length of the trial.”

* July 2001, the trial judge notified the parties that he had a

vacation scheduled for two weeks in September but stated that

he was “willing to forego, if there is absolutely any objection

from anyone,” emphasizing that “if [there] is any problem

whatsoever, be it a due process claim or some sort of mistrial, I

want to know now.” Defense counsel responded that there was

“[njo objection whatsoever.”

“ Although procedures vary from trial to trial, questions from

attorneys are usually translated into Spanish upon completion.

78a

The government’s presentation was not repetitive.

For example, although Enriquez (the senior vice

president of the mortgage department) and Kareh

(the assistant vice president of the construction loan

department) both testified at length about the same

projects, Kareh offered more detailed information

about the loans themselves, while Enriquez provided

insight into appellants’ knowledge about the .oans

and whether appellants provided certain information

to the Board. Although appellants can point to

_ instances in which the same story was told more than

once, such repetition often encompassed new and

relevant details, and was not unduly frequent given

the complexity of the violations alleged and the

length of the trial.

Finally, there is no indication that the length of the

trial and the arguably cumulative nature of the

evidence affected the outcome of the trial in any way.

In fact, the jury convicted the four appellants while

acquitting Enrique Gutiérrez on all counts, which

suggests that the jury was able to carefully weigh the

evidence against each defendant. See United States v.

LiCausi, 167 F.3d 36, 49 (1st Cir. 1999) (explaining

that a jury’s acquittal of one defendant on two counts

indicates that it “was not prevented from making

reliable judgments about guilt or innocence”). Given

appellants’ failure to demonstrate any prejudice

resulting from the length of the trial, we find no due

process violation under these circumstances.

With respect to witness testimony, the interpreter typically

instructs the witness to pause every few sentences to allow

translation of the testimony into English, and will stop the

witness if the witness does not remember to pause in giving a

longer answer.

79a

B. Prosecutorial Misconduct

Appellants claim that, throughout the trial, the

prosecutor made disparaging and misleading com-

ments that prejudiced the jury against them and

require us to vacate their convictions. The district

court denied motions for a mistrial on such grounds

on at least six occasions.

We must first resolve the threshold question of

whether these comments were improper. Darden v.

Wainwright, 477 U.S. 168, 180-81 (1986). If we

answer that question in the affirmative, we must

determine whether the impropriety warrants va-

cating the convictions. The issue is not whether “the

prosecutors’ remarks were undesirable or even

universally condemned”; rather, “(t]he relevant

question is whether the prosecutors’ comments ‘so

infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Id. at

181 (citations omitted). We have held that the

relevant factors include: “(1) whether the prosecutor’s

misconduct was: isolated and/or deliberate; (2)

whether the trial court gave a strong and explicit

cautionary instruction; and (3) whether any prejudice

surviving the court’s instruction likely could have

affected the outcome of the case.” United States v.

Auch, 187 F.3d 125, 129 (1st Cir. 1999). We may

overturn the convictions only if “the prosecutor's

misguided tactic .. . could have affected the outcome

of the trial.” Jd. at 130.

1. Disparagement

Appellants first object to comments, made in the

presence of the jury, that they term “disparagement.”

For example, the prosecutor, on one occasion, stated

that defense counsel “just lied to the court” and

80a

referred to his statement as a “misrepresentation.”

On another occasion, the prosecutor asked the court

to “please direct [defense counsel] to refrain from his

offensive odious comment that [has] characterized [ |

this trial,” concluding, “I don’t think that I need to

endure this sort of treatment from him.” On several

occasions, the prosecutor interrupted defense coun-

sel’s objections with such comments as “say some-

thing new,” and “Improper question. First year law

school. Improper question.”

Such comments are unfortunate and unprofes-

sional. However, the trial was highly contentious,

and the record reveals that appellants’ trial counsel

made a number of similar comments. Although such

exchanges between the prosecution and defense

occurred intermittently, their impact was diluted by

the length of the trial. Immediately following such

exchanges, the court usually commented on their

inappropriateness. For example, the court on one

occasion ordered “all counsel to measure their words,

measure their conduct, and measure their civility

towards each other,” noting, “I have observed both

sides step over the line.” On another occasion the

court admonished counsel for improper comments

and stated: “And by counsel I included both sides.

This is not an admonition to one side or the other,

both sides are included.” Such statements from the

court adequately informed the jury that such conduct

was inappropriate and assigned blame equally to

both sides. Finally, any prejudice that resulted from

the prosecutor’s role in these exchanges and survived

the court’s instruction could not have influenced the

outcome in this case because, as we explained in

Section III, supra, the evidence of appellants’ guilt

was overwhelming. Thus, the prosecutor’s occasional

remarks in this long and contentious trial, although

8la

unfortunate, did not infect the trial with such un-

fairness as to make the resulting convictions a denial

of due process. Darden, 477 U.S. at 181.

2. Misleading Statements

Appellants also assert that the prosecutors made

misleading statements and referred to information

outside the record. Many of appellants’ charac-

terizations of the prosecution’s presentation are

simply inaccurate. For example, appellants claim

that the prosecutor falsely stated that Lugo (the

Board president) had testified that the Board was not

told of Modules’ performance history, when Lugo had

at most said he could not remember those state-

ments. This claim is unsupported by the record. Lugo

in fact testified: “I don’t recall that it was discussed. I

believe that if it was discussed I would remember and

it is not reflected in the minutes. .. . The best of my

recollection is that it was not discussed.” In another

instance, appellants protest that the prosecutor im-

properly suggested to Joseph Gonzalez (an examiner

for the Federal Home Loan Bank) that bank man-

agement, rather than the Board, was responsible for

Caguas’ lending practices, when in fact the prose-

cutor only elicited testimony that the Board relied on

Munoz-Franco and Sanchez-Aran to provide informa-

tion relevant to its decisions, and often accepted

Munoz-Franco’s recommendations regarding these

decisions. Such comments were not improper, let

alone prejudicial.

In other instances, even if we found the challenged

statements improper, any resulting prejudice was

negated either by appellants’ own cross-examination

or by a curative instruction from the district court.

For example, appellants assert that the prosecution

elicited testimony from Montilla (the developer on the

82a

Jardines de Villa Alba project) that Caguas sued him

but then dismissed its claim, when in fact the bank

settled with Montilla and obtained title to all but one

of the Jardines de Villa Alba lots.“* However,

appellants then elicited the terms of the settlement

on cross-examination, remedying any prejudice. On

another occasion, the court addressed defense coun-

sel’s allegations that the prosecution’s closing argu-

ment mentioned loans not charged in the indictment

and mischaracterized Victor Kareh’s testimony with

a detailed curative instruction.”

In sum, any impact resulting from these alleged

misleading statements must be evaluated in light of

the overwhelming evidence presented at this fifteen-

month trial. Under such circumstances, we again

conclude that the prosecutor’s comments could not

have caused unfairness that resulted in a denial of

due process.

C. Jury Instruction on Misapplication

Appellants argue that the jury instructions im-

properly permitted the jury to convict them on the

misapplication charge if it found them merely

“ Appellants did not object to this testimony at trial, and thus

we review their claim only for plain error. See United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

“ The complete instruction spanned several pages of trial

transcript, but a representative paragraph will demonstrate the

level of detail: “You heard reference to the Coamo loan during

the government’s closing argument and entries on the Coamo

ledger card. Because the Coamo loan is not part of the charges

in this case I instruct you to disregard the prosecutor’s comment

about the Coamo ledger card as they refer specifically to the

Coamo loan. You may consider, in evaluating all the evidence,

whether any payments from other loans were used or not used

to make any payment in the Coamo loan.”

83a

reckless. We review de novo a claim that the district

court erred in instr’ ~ing the jury on the intent

necessary to support * conviction. United States v.

Woodward, 149 F.3d 46, 68-69 (1st Cir. 1998).

The contested instruction stated that the govern-

ment must prove beyond a reasonable doubt

that the defendants acted with the intent to

injure, defraud or deceive the bank. You may

also consider whether defendants acted reck-

lessly, that is, in reckless disregard of the

interests of the bank. If you find that defendants -

acted recklessly, with respect to the alleged

misapplications, you may find that the defen-

dants acted with intent to injure, defraud or

deceive the bank.

- Relying on a Fifth Circuit case, United States v.

Adamson, 700 F.2d 953, 965 (5th Cir. 1983),

appellants contend that, contrary to this instruction,

reckless behavior is insufficient to establish mis-

application under 18 U.S.C. § 657.“ Contrary to the

Fifth Circuit, however, we have specifically held that

“the sine qua non of charges of willful misapplication

of bank funds is action taken with the knowledge of

harm to, intent to harm, or reckless disregard for, the

financial health of the bank.“ United States v.

Brennan, 994 F.2d 918, 923 (1st Cir. 1993) (emphasis

added) (quoting United States v. Fusaro, 708 F.2d 17,

“ In Adamson, the trial court instructed the jury: “A reckless

disregard of the interest of the bank is the equivalent of intent

to injure or defraud the bank.” 700 F.2d at 965. In reversing the

misapplication conviction, the court held that, “[iJn order to

convict a defendant for willfully misapplying funds with intent

to injure or defraud a bank, the government must prove that the

defendant knowingly participated in a deceptive or fraudulent

transaction.” Id.

84a

21 (1st Cir. 1983)); see also United States v. London,

66 F.3d 1227, 1241 (1st Cir. 1995) (“[Tlhe cases

applying § 656 [the misapplication statute that deals

with banks rather than savings and loans insti-

tutions] .. . have generally held reckless disregard to

establish the requisite intent to defraud.”); United

States v. Rodriquez-Alvarado, 952 F.2d 586, 590 (1st

Cir. 1991) (“A reckless disregard by a bank officer of

his bank’s interest . . is sufficient to establish the

requisite intent to defraud ... .”). In light of these

binding decisions, appellants’ arguments are futile.

We find no error in the district court’s instruction on

the misapplication charge.

D. Booker Error

Appellants were sentenced pursuant to a manda-

tory sentencing scheme that has since been deemed

unconstitutional, United States v. Booker, 543 U.S.

220, 245 (2005), but they did not preserve their

claims that they were improperly sentenced. We have

held that such unpreserved claims are reviewed only

for plain error. United States v. Antonakopoulos, 399

F.3d 68, 76 (1st Cir. 2005). Appellants challenge their

sentences on the ground that “the Antonakopoulos

plain error analysis does not comport with the

Supreme Court’s decisions in [United States v. Olano,

507 U.S. 725, 734-36 (1993)] and Booker because it

imposes on defendants the burden of proving that

error materially affected the proceedings below.”

Absent en banc or Supreme Court review, however,

we are bound to follow the Antonakopoulos frame-

work, and thus we acknowledge only that appellants

have preserved this issue for later review.

85a

VII.

After concluding our review of the immense record

in this complicated case, we agree with the district

court that overwhelming evidence supported the jury

verdicts. Also, appellants have raised no other

grounds that would justify vacating their convictions.

We have been greatly aided in our review by the

district court’s sensible management of this lengthy

trial, as well as its careful and thorough analysis of

the issues that arose throughout the proceedings. Its

handling of this burdensome case was exemplary.

We affirm the convictions and sentences of the

appellants on all counts.

So ordered.

86a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 04-1532

UNITED STATES,

Appellee,

Vv.

LORENZO MUNOZ-FRANCO,

Defendant, Appellant.

No. 04-1533

UNITED STATES,

; Appellee,

Vv.

FRANCISCO SANCHEZ-ARAN,

Defendant, Appellant.

No. 04-1534

UNITED STATES,

Appellee,

Vv.

ARIEL GUTIERREZ RODRIGUEZ,

Defendant, Appellant.

87a

No. 04-1535

UNITED STATES,

Appellee,

v.

WILFREDO UMPIERRE HERNANDEZ,

Defendant, Appellant.

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

Cyr, Senior Circuit Judge,

Lynch, Lipez and Howard , Circuit Judges.

ORDER OF COURT

Entered: July 20, 2007

The petition for rehearing having been denied by

the panel of judges who decided the case, and the

petition for rehearing en banc having been submitted

to the active judges of this court and a majority of the

judges not having voted that the case be heard en

banc, it is ordered that the petition for rehearing and

the petition for rehearing en banc be denied.

By the Court:

Richard Cushing Donovan, Clerk.

By: Margaret Carter

MARGARET CARTER

Chief Deputy Clerk.

Judge Howard is recused and did not participate in the con-

sideration of this matter.

88a

(ec: Andres Guillemard-Noble, Esq., Harry Anduze-

Montano, Esq., Jorge L. Arroyo-Alejandro, Esq., R.J.

Cinquegrana, Esq., Desiree Laborde-Sanfiorenze,

AUSA, Maria Dominguez-Victoriano, AUSA, Nereida

Melendez Rivera, AUSA, David W. Roman, Esgq.,

Duncan Stevens, Esq., Jorge L. Diaz-Reveron, Esq.,

Ricardo L. Rodriguez-Padilla, Esq., Mark Rochon,

Esq., Michael Pasano, Esq., Pedro Zorrilla-Martinez,

Esq., Francisco M. Dolz-Sanchez, Esq., Nelson Perez-

Sosa, AUSA, Jennifer T. Connor, Esq., Jennifer E.

Tracey, Esq., Elizabeth A. Olsen, Esq.]

a, —-

Case 3:95-cr-00386-DRD Document 1529 Filed 03/05/2004 Page 1 of 5

QAO 245B (Rev, 12/03) Judgment in a Criminal Case

Sheet !

UNITED STATES DISTRICT COURT

FOR THE District of PUERTO RICO

UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE

Vv.

a iaseaniaaateee ce Case Number: 03-95-CR-386-04 (DRD)

USM Number: 11992-069

Francisco Dolz-Sanchez, Esq.

Defendant's Attomey ‘

THE DEFENDANT:

C pleaded guilty to count(s)

1 pleaded nolo contendere to count(s)

which was accepted by the court.

X was found guilty on count(s) One (1), thres (3), five (5) thru eight (8) of the Third Superseding Indictment on May 17, 2002.

after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section Nature of Offense Offense Ended Covnt

18 U.S.C. § 371 Conspiracy to commit offence, a class “D” felony. May 25, 1990 One (1}

18 U.S.C. § §1344and2 — Aiding and abetting in bank fraud, a class “D” felony. May 25, 1990 Three (3)

18 U.S.C. §§ 657 and 2 Aiding and abetting in misapplication of bank funds, a class “D” Sept. 29, 1986 Five (5) thru Eight (8)

felony.

The defendant is sentenced as provided in pages 2 through 4 of this jadgment. The sentence is imposed pursuant to

the Sentencing Reform Act of 1984.

C) The defendant has been found not guilty on count(s)

() Count(s) Olis are dismissed on the motion of the United States.

Me aa) ge a apeny he he = en dh at ret tone fap me Hy

or mai all fines, costs, ecial assessments judgment are , er Testitution,

the defendant must notify the court and Un United States attorney of material changes io econpenc carourastane=s i’ is

February 12, 2004

Date of Imposition of Judgment

S/ DANIEL R. DOMINGUEZ

Signature of Judge

fn US. District

Name and Title of Judge

March 4, 200¢

Marc

Date

868

— ——

Case 3:95-cr-00386-DRD Document 1529 Filed 03/05/2004 Page 2 of 5

AO245B (Rev. 12/03) Judgment in Criminal Case

Sheet 2 — Imprisonment

Judgment — Page __ 2 of r

DEFENDANT: Wilfredo UMPIERRE HERNANDEZ

CASE NUMBER: 03-95-CR-386-04 (DRD)

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a

total term of: | Twenty-four(24) Months as to each of counts one (1) and three (3), and twenty-four (24) months as

to each of counts five (5) through eight, said terms to be served concurrently with each other.

X_ The court makes the following recommendations to the Bureau of Prisons:

It is recommended that the defendant shall be allowed to served his term of imgeigomment at Eglin AFB.

(C) The defendant is remanded to the custody of the United States Marshal.

C The defendant sha!l surrender to the United States Marshal for this district:

Oat O am O pm on

C1 as notified by the United States Marshal.

XK The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

1 before 2 p.m. on

X as notified by the United States Marshal. The defendant is granted 120 days to self surrender to the designated institution.

C1 as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on. to

B , with a certified copy of this judgment.

UNITED STATES MARSHAL

——s

Ms Filed 03/05/2004 Page 3of5

s0UED er rfl a 00386- 6-DRD Document 1529 Fi g

— Supervised Release

Judgment—Page _ 3 of y caeekd

DEFENDANT: Wilfredo UMPIERRE HERNANDEZ

CASE NUMBER: 03-95-CR-386-04 (DRD)

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of :

Three (3) years as to counts one (H) and three (3), said terms to be served concurrently with each other, under the

following terms and conditions

Os eee Se eteten eae re Rate wa Res Cetentaas ecienned wills 72 tous of ettoens from the

custody of the Bureau of Prisons.

nega cena kee Ra

The defendant shall not un possess a controlled substance. Tis fetpaters saat bate fern ey enews ery of comeind

— Th deat al adn mit to one drug test ‘vithin |S days of release fom imprisonment and at least two periodic drug tests

as determi

X The above drug testing condition: is suspended, based on the court's determination that the defendant poses a low risk of

future substance abuse. (Check, if applicable.)

X The defendant shail not possess a firearm, destructive device, or any other dangerous weapon. (Check, if applicable.)

(1 The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)

C1 The defendant shall register with the state sex offender registration agency in the state where tho defendant resides, works, or is 2

student, as directed by the probation officer. (Check, if applicable.)

[) The defendant shall participate in an approved program for domestic violence, (Check, if applicable.)

If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the

Schedule of Payments sheet of this judgment.

The defendant must comply with ths standard conditions that have been adopted by this court as well as with any additional conditions

on the attached page.

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial district without the permission of the court or probation officer;

2) ee re eee rer en ne a ne eae crepe eaten ripe willis hs on Bro digs of

month:

3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;

4) the defendant shall support his or her dependents and meet other family responsibilities;

5) the defendant shall work regularly at e lewfal occupation, unless excused by the probation officer for schooling, training, or other

acceptable reasons;

6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;

71) Go Senta stalk rebils Some eorennine wap of eiachaal end Gall pet percha, pornens, wm, distribute, or administer any

lled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;

8) the defendant shall not frequent piaces where controlled substances are illegally sold, used, distributed, or administered;

9) the defendant shal! not associate with any er eee anaes erson convicted of a

) felony, unless granted permission to do so Sty ae the pro officer; v

10) pcb wer ped ee obation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of

traband observed in plain view of the probation officer, ” se

11) the defendant shal! notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;

12) the defendan* shall not enter into any agreement to act as an informer or @ special agent of a law enforcement agency without the

permission of the court; and

13)‘ as directed by the on officer, the defendant shai) notify third parties of risks that may be occasioned by the defendant's crimina!

yom AS. ersonal history or characteristics and shall pera the probation officer to make such notifications and 10 confirm the

edant’s compliance with such nctificetion requirement

Case 3:95-cr-00386-DRD Document 1529 Filec 03/05/2004 Page 4 of 5

AO 245B = (Rev. 12/03) Judgment in a Criminal Case

Sheet JA — Supervised Release

Judgment—Page _ 32 of 4

DEFENDANT: Wilfredo UMPIERRE HERNANDEZ

CASE NUMBER: 03-95-CR-386-04 (DRD)

ADDITIONAL SUPERVISED RELEASE TERMS

Pursuant to the provisions of Title 18, U.S. Code, Section 3563(a)(5), tae Court waives the requirement for

mandatory drug testing in the absence of any evidence of present drug us: and the low risk of future abuse of controlled

substances.

Pursuant to the provisions of Title 18 U.S. Code, Section 3663, the Court did not impose an order of restitution

pursuant to the defendant's financial profile.

a? 4

AOMSE (Rev 12 ARiAMsoaeORD Document 1529 Filed 03/05/2004 Page 5of5

Sheet 5 — Criminal Monetary Penalties

Judgment— Page 4 sof 4

DEFENDANT: Wilfredo UMPIERRE HERNANDEZ

CASE NUMBER: 03-95-CR-386-04 (DRD)

CRIMINAL MONETARY PENALTIES

The defendant most pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Assessment Fine Restitution

TOTALS $ 300.00 $ $

to be paid within thirty (30) days.

1 The determination of restitution is deferred until . An Amended Judgment in a Criminal Casq(AO 245C) will be entered

after such determination.

L) The defendant must make restitution (including community a amount listed below.

| bate agen peel we a me dahneie mn ageuin mice ent, unless specified otherwise in

ori ore ox percecagepyinet Clana ew ae S § 36640), all ncnfederal victims must be paid

eter United Stites States is pard

Name of Payee Total Loss* Restitution Ordered Priority or Percentage

TOTALS $ $

C)_ Restitution amount ordered pursuant to plea agreement $

(1) The defendant nrust pay interest on restitution and a fine'of more then $2,500, unless the restitution or fine is paid in full before the

fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject

to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

C1 The court determined that the defendant does not have the ability to pay interes: and it is ordered that:

(1) the interest requirement is waived forthe [] fine [) restitution.

C) the interest requirement forthe [} fine (] restitution is modified as follows:

* Findings for the total amount of semen meoebenter hagas 200A, 11 10, :10A, and 113A of Title 18 for offenses committed on or after

September 13, 1994, but before April 23, 19

£6