             United States Court of Appeals
                         For the First Circuit


No. 13-1577

                       UNITED STATES OF AMERICA,

                                 Appellee,

                                    v.

                              MARIA M. ULLOA,

                         Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Joseph L. Laplante, U.S. District Judge]



                                  Before

                 Thompson and Selya, Circuit Judges,
                 and McConnell, Jr.,* District Judge.



             Bjorn   Lange,   Federal    Public   Defender   Office,   for
appellant.
          Seth R. Aframe, Assistant United States Attorney, with
whom John P. Kacavas, United States Attorney, was on brief, for
appellee.


                               July 28, 2014




     *
     Of the District of Rhode Island, sitting by designation.
          MCCONNELL,   District   Judge.   A   jury   convicted    Maria

Magdelena Ulloa of ten counts of submitting fraudulent federal tax

returns in violation of 18 U.S.C. § 287. On appeal, Ms. Ulloa

argues that the district court erred in three ways: by (i) finding

that the jury instruction preventing the jury from considering a

co-worker’s criminal conduct as propensity evidence under the

Federal Rules of Evidence Rule 404(b) was harmless error; (ii)

declining to strike the summary testimony of Internal Revenue

Service (“IRS”) Agent Tama Mitchell; and (iii) refusing to grant

Ms. Ulloa’s motion for acquittal on Count Eight pursuant to the

Federal Rules of Criminal Procedure Rule 29. Finding no reversible

error in the district court’s rulings, we affirm.

I.        BACKGROUND

          We recount the facts in the light most favorable to the

jury verdict, consistent with the court record below.             United

States v. Noah, 130 F.3d 490, 493 (1st Cir. 1997).

          Ms. Maria Magdelena Ulloa, owner of Main Travel in

Nashua, New Hampshire, provided services, including travel, as the

name suggests, as well as tax preparation and filing, the services

at issue in this case.   It seems that Ms. Ulloa had a reputation

within the Nashua community for maximizing her customers’ refunds

by embellishing certain details.    Many witnesses testified at her

trial that they began using Main Travel’s services because they

heard that Ms. Ulloa could prepare returns claiming fictitious


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dependents and day care costs.     On some occasions, she included

this information on tax returns with the customers’ knowledge, but

sometimes they were not aware.         In all cases, Ms. Ulloa would

prepare these false returns, file them with the IRS, and take a

fee.   That fee came in several different forms.

           Ms. Ulloa’s tax preparation business partnered with Santa

Barbara Bank and Trust (“SBBT”) to establish a refund anticipation

loan program so that Main Travel customers could be given expedited

tax refunds in the amount anticipated in the form of a loan.

Ms. Ulloa would electronically file the individual’s tax return

with the IRS and simultaneously, SBBT would receive the refund

anticipation loan application.         Ms. Ulloa would either pay a

reduced refund up front to the customer and then fraudulently

endorse the bank loan check to Main Travel or demand cash payment

from the customer who later received a refund directly from the

IRS.

           The thrust of Ms. Ulloa’s defense was to blame a Main

Travel employee, Gladys Pena, for all of the fraudulent activity at

Main Travel.    Ms. Ulloa employed Ms. Pena at Main Travel from

January until June of 2007.      Prior to working with Ms. Ulloa,

Ms. Pena and her two children lived with Ms. Ulloa.     Ms. Pena had

a prior criminal conviction for fraud and served a ninety-day

prison term for that offense.      While employed at Main Travel,

Ms. Pena learned that Ms. Ulloa was falsifying tax returns and


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began to do the same.          At Ms. Ulloa’s direction, Ms. Pena forged a

customer’s name on a refund anticipation loan check for Ms. Ulloa

to deposit in her own bank account.                     Ms. Pena had access to

Ms. Ulloa’s bank accounts.

              Meanwhile, Ms. Pena also filed fraudulent tax returns on

behalf of Main Travel customers without Ms. Ulloa’s knowledge. She

concealed her activity and deposited the ill-gotten gains in her

own bank accounts.             While Ms. Pena was away in the Dominican

Republic   in      June   of    2007,   Ms.     Ulloa   discovered   her    crimes.

Ms. Pena never returned to Main Travel.                 Ms. Pena ultimately pled

guilty to charges arising from her employment at Main Travel, but

testified that she was not responsible for filing any of the

returns for which Ms. Ulloa was charged.

              Ms. Ulloa was tried on ten counts of presenting false tax

returns to the IRS for the 2006 and 2007 tax years.                  Following a

five-day trial, the jury convicted Ms. Ulloa on all counts.

Ms. Ulloa was sentenced to 21 months in prison.                  She has timely

appealed to this court.

II.           ANALYSIS

              Ms. Ulloa argues that the district court committed three

errors at trial that are fatal to her convictions.

              A.      THE RULE 404(B) JURY INSTRUCTION

              At trial, both the Government and Ms. Ulloa’s counsel

asked   Ms.    Pena   about      the    other    fraud-based   crimes      that   she


                                          -5-
committed before and after her employment at Main Travel.         During

the trial, the district court declined to give the propensity

instruction that Ms. Ulloa proposed.       Instead, the district court

instructed the jury that it could not infer based on the evidence

of Ms. Pena’s other crimes that she had a propensity to commit the

crimes of which Ms. Ulloa was charged, but that it could consider

Ms. Pena’s prior criminal acts on the issue of opportunity or

identity.     However, upon reconsideration, after the trial and

verdict against Ms. Ulloa, the district court found that it had

erred in limiting the jury’s consideration of and ability to infer

a propensity to commit fraud based on Ms. Pena’s other crimes.

Citing this court’s prior decisions, the district court concluded

that the jury should not have been limited in its consideration of

Ms. Pena’s other crimes. See United States v. David, 940 F.2d 722,

736 (1st Cir. 1991) (“Objections based on Rule 404(b) may be raised

only by the person whose ‘other crimes, wrongs, or acts’ are

attempted to be revealed.”     (citation omitted)); United States v.

Gonzalez-Sanchez, 825 F.2d 572, 583 (1st Cir. 1987) (“Rule 404(b)

does not exclude evidence of prior crimes of persons other than the

defendant.”); see also United States v. Procopio, 88 F.3d 21, 29

n.1 (1st Cir. 1996); United States v. Isabel, 945 F.2d 1193, 1200

(1st Cir. 1991).    The district court determined that its error was

“not   of   constitutional   dimension,”   however,   and   undertook   to

analyze the effect of the error under a conventional harmless error


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standard. Reflecting on the record as a whole, the district court

determined that the error was harmless.

           On appeal, Ms. Ulloa challenges the district court’s

denial of her request for an instruction to the jury that it could

consider   Ms.   Pena’s   prior   criminal   acts   as    evidence    of   her

(Ms. Pena’s) propensity to commit crimes of fraud.               Ms. Ulloa

agrees with the district court that it erred in its instruction,

but urges that the error was not harmless as it found.               She adds

that because the jury was not permitted to consider Ms. Pena’s

other, similar crimes, for the purpose of showing propensity to

have committed these crimes, the error violated her constitutional

right to present a complete defense and thus was of constitutional

dimension.   Therefore, the district court should have applied a

more stringent standard, requiring the Government to prove beyond

a reasonable doubt that the error did not influence the verdict.

The Government, on the other hand, argues that the district court’s

reliance on the above cases was misplaced and therefore, it did not

err in instructing the jury on Rule 404(b).              Alternatively, the

Government argues that if the district court did err, then its

analysis under the harmless error standard was appropriate as was

its conclusion of harmless error.        For purposes of this appeal,

this court will assume without deciding that the district court was

correct in concluding that the jury instruction it gave on Rule

404(b) evidence was in error.        Beyond that assumption, we must


                                   -7-
consider whether the assumed error is of constitutional magnitude.

After all,

     [t]here are two standards for measuring harmless error in
     a criminal case. The less grueling standard (viewed from
     the government’s coign of vantage) allows a conviction to
     stand as long as a reviewing court can say with fair
     assurance, after pondering all that happened without
     stripping the erroneous action from the whole, that the
     judgment was not substantially swayed by the error. This
     less grueling standard applies chiefly to errors of a
     non-constitutional dimension.    The stricter standard,
     which applies to errors of constitutional dimension,
     requires reversal unless the government proves beyond a
     reasonable doubt that the error did not influence the
     verdict.

United States v. Melvin, 730 F.3d 29, 39 (1st Cir. 2013) (internal

quotation marks and citations omitted).

             While the opportunity to present a complete defense is

constitutionally guaranteed, see Holmes v. South Carolina, 547 U.S.

319, 324 (2006), this court finds that the district court’s

erroneous     jury   instruction   on    propensity   did   not   abridge

Ms. Ulloa’s right to present a complete defense.            While it did

restrict the jury’s consideration of Ms. Pena’s propensity, it did

not prevent Ms. Ulloa from introducing copious amounts of evidence

of Ms. Pena’s similar fraudulent acts.         She did introduce that

evidence and the district court instructed the jury that it could

consider it in “deciding whether Pena had an opportunity to commit

the acts of which the defendant is accused, as well as the identity

of the person who committed the offenses.” United States v. Ulloa,

942 F. Supp. 2d 202, 209 (D.N.H. 2013).          As the district court


                                   -8-
found below, Ms. Ulloa was able to defend herself by arguing to the

jury that Ms. Pena was the person who committed the fraudulent acts

despite the legally incorrect instruction.   Therefore, she was not

deprived of her defense and the instruction was not an error of

constitutional dimension meriting review under the harmless beyond

a reasonable doubt standard.

          Using the less stringent harmless-error standard, the

district court determined that Ms. Ulloa’s convictions should stand

because the jury heard about Ms. Pena’s convictions for similar

conduct and was told that “evidence of Pena’s prior conduct was

relevant to the identity of the person who committed the offenses

of which Ulloa was accused, and that it was entitled to take that

evidence into account when considering whether Ulloa was in fact

the person who committed those offenses.”    Ulloa, 942 F. Supp. 2d

at 209.   In other words, the jury was instructed that it could

consider the evidence to determine whether it was Ms. Pena, not

Ms. Ulloa, who committed the charged crimes.

          Obviously, because Ms. Ulloa argued at the outset that

the error was of a constitutional dimension, she believes that it

would also fail under the conventional harmless error analysis

based on the same defense that Ms. Pena committed the fraudulent

acts, not her.   She asserts that the jury instruction limited the

efficacy of her defense.   The district court found that Ms. Ulloa

did in fact defend herself by blaming Ms. Pena and therefore, the


                                -9-
incorrect jury instruction had no effect on the verdict and was a

harmless error.

             This court agrees with the district court.               Ms. Ulloa

defended herself by turning the focus on Ms. Pena’s prior criminal

conduct and the limiting instruction did not prevent her from doing

just   that.     The   jury   heard    Ms.    Pena   testify   that   she   used

Ms. Ulloa’s debit card for electronic fund transfers.                 Ms. Pena

also testified that she fabricated thousands of dollars of checks,

forged signatures, and deposited the money in fake accounts that

she later withdrew. Moreover, the other evidence against Ms. Ulloa

was    overwhelming,      diffusing     the    impact    of    the    erroneous

instruction. See United States v. Pridgen, 518 F.3d 87, 92-93 (1st

Cir. 2008).    Eight of her customers testified that they dealt with

her directly, contradicting her defense that it was Ms. Pena who

committed those frauds. In light of the fact that the instructions

permitted the jury to consider Ms. Pena’s prior criminal conduct as

evidence that she could have committed, and had the opportunity to

commit, the fraudulent acts that Ms. Ulloa was accused of, the

limitation     of   the   jury’s      consideration     on     propensity    was

insignificant and would not have substantially swayed the verdict.

             The district court recognized its error and determined

that it did not impact the verdict in light of the trial record as

a whole.   The bottom line is that we see no reversible error here.

Ms. Ulloa’s convictions should stand.


                                      -10-
             B.       SUMMARY TESTIMONY OF IRS AGENT TAMA MITCHELL

             Ms. Ulloa next argues that the district court erred in

declining to strike the summary testimony of IRS Agent Tama

Mitchell.    Agent Mitchell testified that the Count Three and Count

Seven taxpayers each paid a portion of their IRS refund money to

Ms. Ulloa.    She moved to strike the testimony as beyond the scope

of a summary witness because it was beyond Agent Mitchell’s

personal knowledge.          The district court denied the motion.

             On    appeal,    Ms.   Ulloa   argues    that    Agent   Mitchell’s

testimony relied on inadmissable hearsay and put the imprimatur of

the Government on the testimony of two witnesses who were motivated

to curry favor with the Government based on their immigration

status.      The    Government      counters   that   Agent    Mitchell   merely

summarized the testimonial evidence from the taxpayers in order to

show that the money was deposited into Ms. Ulloa’s account.                  We

review a trial court’s decision to admit or exclude evidence for

abuse of discretion. See United States v. Maldonado–Garcia, 446

F.3d 227, 231 (1st Cir. 2006).

             The district court did not abuse its discretion in

declining to strike the agent’s brief, summary testimony.                  This

court has found in the past that allowing an IRS agent to testify

summarily is useful in tax cases as long as the testimony “does no

more than analyze facts already introduced into evidence” and “the

witness does not directly address the ultimate question” in the


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case.    See United States v. Stierhoff, 549 F.3d 19, 28 (1st Cir.

2008)(tax evasion).          Agent Mitchell’s testimony fits within the

confines of that rule.        The jury heard the same testimony from the

taxpayers themselves.         Agent Mitchell merely summarized the money

trail    for    each     fraudulent   refund,   using   the   taxpayers’   own

testimony.          Ms. Ulloa has not raised, and nothing in the record

demonstrates, that Agent Mitchell expressed an opinion on whether

Ms. Ulloa intended to file false tax returns.            See id.   This point

of error is rejected.

               C.       SUFFICIENCY OF THE EVIDENCE ON COUNT EIGHT

               Ms. Ulloa’s final argument on appeal is that the district

court erred in denying her motion for a judgment of acquittal on

Count Eight pursuant to Federal Rules of Criminal Procedure Rule

29.     Count Eight involved a tax return filed on behalf of George

Melo, who testified that he met with “Magdelena” at Main Travel and

gave her the names of dependent children he wanted to claim on his

taxes. Because Mr. Melo never specifically identified Ms. Ulloa as

the “Magdelena” he met with at Main Travel, Ms. Ulloa asserts that

the Government did not prove beyond a reasonable doubt that she

committed that fraud.         The Government counters that Ms. Ulloa was

undoubtedly “Magdelena” because that is her middle name.             It also

points out that the jury could infer that Mr. Melo did meet with

Ms. Ulloa because he testified that he specifically went to




                                       -12-
Ms. Ulloa’s business because he heard from others that she could

falsify his tax return.

            In order to prove a tax fraud violation under 18 U.S.C §

287, the Government had to demonstrate that Ms. Ulloa knowingly

made and presented false, fictitious, and fraudulent claims to the

IRS.    We consider an appeal from the denial of a Rule 29 motion de

novo.    See United States v. Santos-Rivera, 726 F.3d 17, 23 (1st

Cir. 2013).    Specifically,

        we examine the evidence, both direct and circumstantial,
        in the light most favorable to the jury’s verdict. We
        do not assess the credibility of a witness, as that is
        a role reserved for the jury. Nor need we be convinced
        that the government succeeded in eliminating every
        possible theory consistent with the defendant's
        innocence.     Rather, we must decide whether that
        evidence, including all plausible inferences drawn
        therefrom, would allow a rational factfinder to conclude
        beyond a reasonable doubt that the defendant committed
        the charged crime.

United States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009) (citations

and internal quotation marks omitted).

            The evidence in this case was overwhelming such that a

rational    jury    could    conclude    beyond   a    reasonable   doubt   that

Ms. Ulloa committed the fraud charged in Count Eight.                 Mr. Melo

testified that he worked on his 2006 tax return together with

Magdelena at her office at Main Travel.               Magdelena is Ms. Ulloa’s

middle name.       The jury could reasonably have found that Ms. Ulloa

was the person at Main Travel with whom Mr. Melo met and prepared

false tax returns.          This a reasonable conclusion since Mr. Melo


                                        -13-
testified   that   he    sought   out   Ms.    Ulloa’s   business   upon   the

recommendation of others that Ms. Ulloa could falsify the child

care and dependent information on his tax return.              He repeatedly

answered questions at trial that referenced his meetings and

discussions with Ms. Ulloa about claiming deductions for dependent

children who did not live with him.           These two facts alone, in the

context of this entire case, would be sufficient to ground an

inference that Ms. Ulloa knowingly made fraudulent claims to the

IRS on Mr. Melo’s behalf, but there is more.               The evidence also

established that Mr. Melo gave Ms. Ulloa the information she needed

to complete the fraudulent forms, that she processed the return,

and he received the money in the form of a refund anticipation loan

from the bank.     All of these facts are more than sufficient to

support the jury’s verdict on Count Eight;               Ms. Ulloa knowingly

presented false, fictitious, and fraudulent claims to the IRS.

III.        CONCLUSION

            We see no error in the district court’s analysis of the

effect of the erroneous jury instruction or IRS Agent Mitchell’s

testimony. Further, the record supports the jury’s verdict against

Ms. Ulloa as to each claim, including Count Eight.



Affirmed.




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