           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                              Fifth Circuit
                                                                           F I L E D
                                                                           August 29, 2007
                                       No. 06-50587
                                                                       Charles R. Fulbruge III
                                                                               Clerk
UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

VINNIE BILOTTO

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 5:04-CR-343-ALL


Before JONES, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
       Following a jury trial, Vinnie Bilotto was convicted on four counts of
mail fraud in violation of 18 U.S.C. § 1341 for his role in procuring two “key
person” life insurance policies. Bilotto appeals, contending that (1)
insufficient evidence supported the verdict; (2) the district court improperly
limited his ability to cross-examine witnesses; (3) the district court denied
him a fair trial by disparaging his counsel in front of the jury; (4) the district
court erroneously refused to give a good-faith jury instruction; (5) the district


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 06-50587

court improperly admitted irrelevant and unfairly prejudicial evidence; and
(6) the cumulative effect of the errors made at trial, even if individually
harmless, require reversal. For the reasons that follow, we affirm.
      1.    To prove Bilotto committed mail fraud in violation of 18 U.S.C. §
            1341, the Government had to show “(1) a scheme to defraud; (2)
            the use of the mail to execute that scheme; and (3) the specific
            intent to defraud.” United States v. Harms, 442 F.3d 367, 372
            (5th Cir. 2006) (quoting United States v. Bieganowski, 313 F.3d
            264, 275 (5th Cir. 2002)), cert. denied, 127 S. Ct. 2875 (2007).
            Bilotto contends that the Government failed to prove that he had
            the specific intent to defraud in that the definition of “key person”
            provided at the trial was too vague to prove his belief and
            fraudulent intent. When reviewing for the sufficiency of the
            evidence, however, this court must affirm the conviction “if a
            rational trier of fact could have found that the evidence
            established the elements of the offense beyond a reasonable
            doubt.” United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
            Bilotto cannot meet that burden.
                  While several witness did not recite the same exact words
            when defining “key person,” a common thread ran through each
            definition: a key person was essentially somebody who did
            valuable work for the company and whose death would cause the
            company a significant loss. Moreover, the exact meaning of the
            phrase is a red herring: regardless of whether Bilotto knew the
            definition, a rational jury could have found that Bilotto had an
            intent to defraud. Karen Hathaway testified that in filling out
            the insurance form, Bilotto provided her information about
            Donald Taylor. Taylor’s mother, among others, provided evidence


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     indicating that this information was obviously false. Likewise,
     testimony indicated that Bilotto had taken out a fraudulent key-
     person insurance policy on another employee, Gilbert Edge. A
     rational jury could properly infer from this, and other pieces of
     evidence, that Bilotto had the requisite criminal intent.
2.   Bilotto next contends that the district court violated his Sixth
     Amendment rights by limiting cross-examination of Hathaway.
     “Alleged violations of the Confrontation Clause are reviewed de
     novo, but are subject to harmless error analysis.” United States
     v. Bell, 367 F.3d 452, 465 (5th Cir. 2004). If no Sixth Amendment
     violation exists, this court reviews the district court’s limitation
     on cross-examination for abuse of discretion. United States v.
     Townshend, 31 F.3d 262, 267–68 (5th Cir. 1994). Here, the
     district court was within its discretion in its handling of
     Hathaway’s cross-examination.
           Bilotto’s complains that the district court unreasonably
     limited and ultimately denied his attempts to impeach Hathaway
     with an allegedly inconsistent prior statement she made
     regarding whether Bilotto had helped her fill out the key person
     insurance form. While the district court did restrict the flow of
     questioning regarding what Hathaway had previously said—in
     part, because of the confusing way in which defense counsel
     questioned her—the district court gave Bilotto an opportunity to
     cross-examine Hathaway on her statement, stating that defense
     counsel could ask Hathaway about “anything under the sun.”
     Defense counsel did not meaningfully use that opportunity. But
     the opportunity is all that the law requires. See Delaware v.
     Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985) (per curiam)

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     (“[T]he Confrontation Clause guarantees an opportunity for
     effective cross-examination, not cross-examination that is
     effective in whatever way, and to whatever extent, the defense
     might wish.”). Bilotto claims that he could not ask Hathaway
     questions about her prior statement because the district court
     said he could not “use” the transcript of the statement. But the
     district court seemed to be referring only to actual physical use of
     the transcript as opposed to questions about what she had said.
     The jury was also able to hear Hathaway’s explanation of what
     she claimed she meant.
           While the district court might be faulted for stating in front
     of the jury that the prior statement was not inconsistent with the
     witness’s testimony, that statement was harmless. The district
     court warned the jury that except for his instruction “on the law,”
     they should “disregard anything [he] may have said during the
     trial in arriving at your own findings as to the facts.” See United
     States v. McClatchy, 249 F.3d 348, 358 (5th Cir. 2001) (holding
     that a judge’s improper comments in front of the jury could be
     rendered harmless error by an instruction similar to the one
     given here). Additionally, as noted above, defense counsel was
     provided an opportunity to explore Hathaway’s allegedly
     inconsistent statement.
           Finally, Bilotto asserts that the district court improperly
     limited the cross-examination of three other witness. After
     reviewing the record, we have determined that the district court
     did not improperly limit cross-examination of those witnesses.
3.   Bilotto also contends that the district court denied him a fair trial
     with its treatment of his counsel. In reviewing claims of judicial

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     misconduct, this court’s role is to “determine whether the judge’s
     behavior was so prejudicial that it denied the defendant a fair, as
     opposed to a perfect, trial.” United States v. Bermea, 30 F.3d
     1539, 1569 (5th Cir. 1994). The proceedings must be viewed as a
     whole to determine whether the judge’s actions “amount to an
     intervention that could have led the jury to a predisposition of
     guilt by improperly confusing the functions of judge and
     prosecutor.” Id. Bilotto’s argument primarily rests on several
     sarcastic comments the district court made in front of the jury
     that were allegedly humiliating for defense counsel, thus making
     it impossible for the attorney to win the respect of the jury.
           The district court’s conduct did not deprive Bilotto of a fair
     trial. Overall, the trial was conducted in an impartial manner.
     The challenged exchanges are minor, isolated incidents, which
     seem to have been taken as a joke at the time. And while the
     district court, at times, interjected himself into a witness’s cross-
     examination, his questions were aimed at clarifying the witness’s
     testimony.
4.   Bilotto next argues that the district court erred when it refused
     all three of his good-faith jury instructions. As a threshold issue,
     however, the parties disagree on the standard of review: Bilotto
     contends that he objected to the exclusion of his requested good-
     faith defense instruction and the standard of review is therefore
     abuse of discretion. United States v. Chaney, 964 F.2d 437, 444
     (5th Cir. 1992). The Government counters that Bilotto failed to
     preserve error and thus plain-error review is warranted. Even
     assuming that Bilotto did preserve error, he cannot show that the



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     district court abused its discretion in denying his requested good-
     faith charges.
           This court has already held that the failure to give a good-
     faith instruction is not reversible error as long as the defendant
     has the opportunity to argue good faith to the jury and a good-
     faith instruction is substantially given to the jury through an
     instruction on the meaning of the word “knowingly.” Id. at
     444–46. Here, Bilotto was never denied an opportunity to argue
     good faith to the jury. The jury was also essentially given a good-
     faith instruction through the definition of “knowingly,” which the
     district court defined as doing something “ voluntarily and
     intentionally, not because of mistake or accident” and through the
     definition of “intent to defraud,” which the district court defined
     as “an intent to deceive or cheat someone.”
5.   Bilotto further argues that the district court erred when it
     admitted testimony from Taylor’s mother that she did not have
     sufficient funds from a life insurance policy to pay for her son’s
     funeral expenses. Bilotto argues that the information should
     have been excluded because it was irrelevant, and even if it were
     relevant, any purported probative value was substantially
     outweighed by the testimony’s unfairly prejudicial effects. See
     Fed. R. Evid. 403. In determining whether the district court
     erred, this court reviews evidentiary rulings for an abuse of
     discretion, although that review is heightened in criminal cases.
     United States v. Anderson, 933 F.2d 1261, 1267-68 (5th Cir.
     1991). The district court did not abuse that discretion here.
           Taylor’s mother’s statement that she could not afford a
     funeral was relevant to show that Taylor himself did not have


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         much money, supporting the Government’s contention that
         Bilotto lied about Taylor’s alleged $50,000 annual salary. See
         Fed. R. Evid. 401 (defining relevant evidence as “evidence having
         any tendency to make the existence of any fact that is of
         consequence to the determination of the action more . . . or less
         probable than it would be without the evidence” (emphasis
         added)). Furthermore, the district court was within its discretion
         to determine that the unfair prejudice did not substantially
         outweigh the statement’s probative value.
    6.   Finally, Bilotto contends that the cumulative effect of the
         multiple errors alleged resulted in an unfair trial, requiring
         reversal. There were not multiple errors. See United States v.
         Villarreal, 324 F.3d 319, 328 (5th Cir. 2003).


AFFIRMED.




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