United States v. C. Andrew Battinelli

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1634
UNITED STATES,
Appellee,
v.
C. ANDREW BATTINELLI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
[Lawrence P. Cohen, U.S. Magistrate Judge]
Before
Selya, Circuit Judge,
Walace,* Senior Circuit Judge,
and Boudin, Circuit Judge.
David Duncan, with whom Zalkind, Rodriguez, Lunt & Duncan
was on brief, for appellant.
Ellen R. Meltzer, Special Counsel, Criminal Division,
Fraud Section, U.S. Department of Justice, with whom Robert F.
Adams and Christopher L. Varner, Trial Attorneys, Fraud
Section, Criminal Division, U.S. Department of Justice, were
on brief, for appellees.
January 23, 2001

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* Of the Ninth Circuit, sitting by designation.
WALLACE, Circuit Judge. Battinelli appeals from his
conviction on four counts of bank fraud in violation of 18
U.S.C. § 1344, and one count of wire fraud in violation of 18
U.S.C. § 1343. The district court had jurisdiction pursuant
to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28
U.S.C. § 1291. We affirm.
Battinelli first contends that the district court
erred in admitting part of Kearns's testimony, a deceased
witness, before the Office of Thrift Supervision under Federal
Rule of Evidence 804(b)(3). Battinelli argues that the
admission of Kearns’s testimony violated his right under the
Confrontation Clause of the Sixth Amendment. We need not get
to that question if our review of the entire record persuades
us that any error was harmless beyond a reasonable doubt. See
United States v. Brennan, 994 F.2d 918, 927 (1st Cir. 1993).
We review Confrontation Clause violations under the
harmless error standard set forth in Chapman v. California,
386 U.S. 18, 24 (1967), which requires that we reverse the
conviction unless the government can prove that the
constitutional error complained of was "harmless beyond a
reasonable doubt." United States v. Mulinelli-Navas, 111 F.3d

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983, 992 (1st Cir. 1997). "Under this standard, we may not
declare a constitutional error harmless if there is a
‘reasonable possibility’ that the error influenced the
verdict." Id. (internal citation omitted).
In this case, Kearns’s testimony was not central to
the government's case, which would not have been significantly
less persuasive had the Kearns evidence been excluded. The
testimony was brief (less than two pages long), and was
cumulative of Pitcher's more detailed and thorough testimony.
There was an abundance of documentary evidence introduced at
trial from which the jury could have inferred that Battinelli
knew of and participated in the fraud against the banks,
including falsified loan applications and employment and
income verifications. Two officials from the banks that
issued the loans testified that if certain information
revealed to Battinelli prior to submitting the loan
applications had been disclosed to the banks as required, the
loans would have been denied. The government introduced the
testimony of a United States Secret Service document examiner,
who testified there was a strong probability that the false
information contained in two of the loan applications
submitted by Battinelli on behalf of Kearns and Pitcher was
written in Battinelli's handwriting. Finally, the government

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did not rely heavily on Kearns's testimony in its closing
argument; rather, it primarily emphasized the documentary
evidence, Pitcher's testimony, and the testimony of the bank
officials. We hold that, beyond a reasonable doubt, the jury
"would have reached the same verdict without having received
the [Kearns] evidence." Brennan, 994 F.2d at 927 (internal
quotation and citation omitted); see United States v.
Salimonu, 182 F.3d 63, 71 (1st Cir. 1999) (harmless error when
it is beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained).
Next, Battinelli contends that the district court
erred in admitting Pitcher’s grand jury testimony under
Federal Rule of Evidence 801(d)(1)(B). Battinelli argues that
the grand jury testimony, admitted to rehabilitate Pitcher, is
inadmissible as a prior consistent statement because the
testimony did not predate Pitcher’s motive to fabricate.
Unfortunately for Battinelli, he did not object to the
admission of the grand jury testimony on this basis before the
district court. Accordingly, our review is for plain error.
Mulinelli-Navas, 111 F.3d at 989. Because the portions of the
grand jury testimony that were admitted were cumulative of
Pitcher’s testimony on direct examination and, therefore,

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added nothing new to the government’s case, the district court
did not commit error “so shocking that [it] seriously
affect[ed] the fundamental fairness and basic integrity of the
proceedings below.” Id. We hold that there was no plain
error.
Lastly, Battinelli contends that the district court
erred in instructing the jury on the intent required for a
bank fraud conviction. Because he failed to raise this
objection before the district court, we review for plain
error. United States v. Kenrick, 221 F.3d 19, 26 (1st Cir.
2000) (en banc). Relying on the panel decision in United
States v. Kenrick, No. 98-1282 (1st Cir. Feb. 22, 2000)
(withdrawn), Battinelli argues that intent to defraud
necessarily includes an “intent to harm” the bank. However,
after rehearing Kenrick en banc, we held that “the intent
element of bank fraud . . . is an intent to deceive the bank
in order to obtain from it money or other property. ‘Intent
to harm’ is not required.” Kenrick, 221 F.3d at 29 (emphasis
added). The instructions given in this case are identical to
the instructions at issue in Kenrick. Therefore, as we held
en banc in Kenrick, there was no plain error in the district
court’s jury instructions.
Affirmed.

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