

                 UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                          

No. 96-1462

                         UNITED STATES,

                            Appellee,

                               v.

                     MARIA MULINELLI-NAVAS,

                     Defendant - Appellant.

                                          

          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Jose Antonio Fuste, U.S. District Judge]

                                          

                             Before

                     Torruella, Chief Judge,

           Coffin and Campbell, Senior Circuit Judges.

                                           

     Linda                     Backiel, with whom Luis F. Abreu-Elias was on brief for
appellant.
     Maria A. Dominguez,  Assistant United States Attorney,  with
whom Guillermo  Gil,  United  States Attorney,  Jose  A.  Quiles-
Espinosa,  Senior  Litigation  Counsel,  and  Nelson  Perez-Sosa,
Assistant United States Attorney, were on brief for appellee.

                                          

                          May 23, 1997
                                          

                             AMENDED
                                          

          TORRUELLA, Chief  Judge.    On August  9,  1995,  Maria

Mulinelli-Navas                          ("Mulinel                                 li") was charged with conspiracy to commit

bank  fraud,  in violation  of  18  U.S.C. S  371,  making  false

statements  to a  federally  insured  financial  institution,  in

violation of 18 U.S.C. S 1014, and bank fraud, in violation of 18

U.S.C. S 1344.   On December 21, 1995,  a jury returned a  guilty

verdict on  all counts and she  was subsequently sentenced to  27

months for each count, to be served concurrently, and three years

supervised  release.   Mulinelli  appeals only  her  convictions,

claiming that: (1) the district court's limitation on her  cross-

examination                      of her accomplices deprived her of her Sixth Amendment

right  to  confrontation;  (2)  the  district  court  abused  its

discretion  by not  allowing  Mulinelli  to  introduce  extrinsic

evidence to impeach an accomplice; (3) the district court  abused

its  discretion  by   admitting  into   evidence  an   improperly

authenticated summary  chart;  and  (4) the  district  court,  by

overruling certain  objections, deprived  her of  the ability  to

present                  her                      defense                             to                                the jury.  For the reasons stated herein, we

vacate Mulinelli's conviction and sentence on Counts V and VI and

affirm as to all other issues.

                           BACKGROUND

          The                        jury                             could                                  have                                       found the following facts.  Mulinelli

was              Senior                     Vice President of First Federal Savings Bank, in charge

of             car                 loans.  Between 1985 and 1988, First Federal approved loans

to two dealers who, in fact, neither bought nor sold the cars for

which the  loans were made.   Furthermore,  these loans  involved

                               -2-

irregular financing, with low monthly payments and large  balloon

payments at the end of one year.

          The indictment  charged  Mulinelli with  conspiring  to

approve                  fraudulent loans of $25,000 in 1985 and $273,000 from 1987

to 1988 to Lopez, and $130,000 in June 1988 to Exposito.

          At trial, the two  auto dealers testified.  One of  the

auto               dealers, Luis Lopez-Mendoza ("Lopez"), President and owner of

Cordillera                     Auto,                          testified that he was approached by Mulinelli with

a request that he loan her  money.  In response to his  statement

that he  was not  in  the business  of lending  money,  Mulinelli

suggested                    a                      financing scheme by which Lopez would apply for a loan

on a  non-existent car.    According to  the loan  documents  and

disbursement  check,  the loan  was  taken  out in  the  name  of

Mulinelli's daughter  for a Volvo  station wagon  that was  never

actually purchased.   They carried out the scheme she  described:

upon receiving the loan check, he deposited the amount, then gave

Mulinelli a  $25,000 loan  from  cash on  hand at  his  business.

Mulinelli's daughter testified that she signed for a $25,000 loan

to             purchase                      a family car that Mulinelli put in the daughter's name

because                  of                     credit problems.  She testified that the handwriting on

the sales contract "looked like my mother's."

          In 1985,  Lopez  approached Mulinelli  about  obtaining

financing of a type not available from First Federal.   Mulinelli

suggested a  similar scheme,  whereby Lopez  would execute  blank

contracts, stamped  with the seal  of Cordillera  Auto and  would

deliver the blank documents to Mulinelli for her approval.  Lopez

                               -3-

used these loans to  finance cars he was purchasing for  eventual

resale.  A similar strategy was used to provide loans to  another

dealer,                  Lazaro Exposito Cordoves ("Exposito"), President of Caguas

Auto               Wholesale.                                                    Both                               Lopez and Exposito testified that they signed

and  sealed blank  forms  for  car sales  contracts,  which  they

delivered to the bank for completion.

          During his testimony, Lopez recanted statements made in

an earlier  affidavit,  in which  he  denied that  Mulinelli  had

knowledge of the  fraud.  He testified  that he lied because  the

attorney to whom he made the affidavit told him, before  starting

the tape recorder,  that the attorney's purpose was to  "protect"

Mulinelli.  The defense sought to introduce the testimony of  the

attorney regarding whether he actually stated that the purpose of

his              meeting                      with                          Lopez                                was to protect Mulinelli.  After hearing the

attorney's                     proposed testimony out of the presence of the jury, the

trial court upheld the prosecution's objection that his testimony

was  extrinsic evidence  on a  "collateral matter"  and thus  was

inadmissible.

          Exposito                             testified                                      about                                            two loans made in 1988 to Caguas

Auto Wholesale,  purportedly to  finance purchases  for a  rental

business  ("Zoom") that  Exposito  never established.    Exposito

approached Mulinelli and informed her that he needed money.   She

told               him                   to                      bring her contracts and bills of sale for cars that he

would                sell                     from his dealership to this sham car rental business so

that she could approve loans  for their purchase.  For the  first

loan,                Mulinelli requested that Exposito provide her with a bill of

                               -4-

sale and a loan application  reflecting the sale of cars that  he

never purchased.  Two  hours after he delivered the documents  to

Mulinelli, the loan was approved  and he received a check in  the

amount                 of                    $60,000.  Exposito used the funds to buy other cars that

were not pledged as collateral for the loan.  He also signed  and

sealed blank  sales  contracts  and delivered  them  directly  to

Mulinelli.   Exposito  testified  that Mulinelli  knew  the  cars

referred                   to                      in                        the                            two                                loan applications were not in Puerto Rico at

the time the  loans were  made and that  he had  no intention  of

selling the cars to Zoom but  rather that he intended to use  the

money                to                   buy                       other cars.  Moreover, Mulinelli determined the terms

of             these                   loans,                         which                               included large balloon payments at the end of

the year.  In return for her assistance with the loans, he made a

personal                   loan to Mulinelli for $5,000 and did some personal favors

for her and her family.

                           DISCUSSION

I.        The district court's  limitation of Mulinelli's  cross-
          examination of Lopez and Exposito

          At  trial,  Mulinelli's  counsel  cross-examined  Lopez

regarding the  benefits  and conditions  of his  plea  agreement.

Mulinelli                    entered into evidence the information by which Lopez was

charged and  the plea  agreement under  which he  pled guilty  to

conspiracy                     to                       commit                              bank fraud.  Mulinelli elicited testimony from

Lopez                that                     he was not and would not be charged with bank fraud, in

addition to his conspiracy charge, as Mulinelli had been charged.

Lopez also testified that, as part of his plea bargain agreement,

the  United States  Attorney would  make a  recommendation for  a

                               -5-

reduction in his sentence.  The district court, however, cut  off

Mulinelli's counsel when on several occasions he tried to  elicit

testimony                    from                        Lopez                              regarding the possible sentence he faced.  The

district court noted that matters of sentencing were in the sound

discretion of  the  district court  judge  who was  scheduled  to

sentence Lopez.

          Mulinelli  elicited  similar  testimony  from  Exposito

regarding the substance of the plea agreement -- that he expected

the United  States  Attorney to  make  a recommendation  for  the

district court's consideration in his sentencing, that he was not

charged with  bank fraud, but only  with conspiracy and making  a

false statement to a financial institution, and that he would not

be             charged                     with                         any                             other crimes.  Again, the district court barred

Mulinelli from  eliciting testimony regarding  the nature of  the

sentence Exposito expected to receive.

          Mulinelli argues on  appeal that  the district  court's

limitation  on  her  cross-examination  regarding  the  potential

sentence                   that                       both                            accomplices faced before and after entering into

the plea agreements so interfered with her ability to effectively

cross-examine the witnesses that it violated her Sixth  Amendment

right to confrontation.

          The Sixth Amendment guarantees that "[i]n all  criminal

prosecutions,  the accused  shall enjoy  the right  . .  . to  be

confronted                     with                         the                             witnesses against him."  U.S. Const. amend. VI.

"[T]he right of a defendant  in a criminal case to establish  the

bias of  witnesses against  him through  cross-examination is  an

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important                    component                             of                                the Sixth Amendment right to confrontation."

United                 States                       v.                          Jarabek                                ,                                  726 F.2d 889, 902 (1st Cir. 1984) (citing

Davis                              v.                   Alaska                       ,                          415                              U.S. 308, 315-16 (1974)).  A defendant has the

right to cross-examine an accomplice regarding the nature of  and

benefits, including unprosecuted crimes, afforded under the  plea

agreement.  United States v. Barrett, 766 F.2d 609, 614 (1st Cir.

1985).  Although this right  is extensive, it is not absolute  or

unlimited.                                           Once                          the                              defendant has been afforded the constitutional

minimum of an  opportunity for  effective cross-examination,  the

trial                court                     "retain[s]                                wide latitude to impose reasonable limits on

such               cross-examination                                based on concerns about, among other things,

harassment,  prejudice, confusion  of the  issues, the  witness's

safety, or  interrogation that is  repetitive or only  marginally

relevant."                                           Delaware                                                          v.                                 V                                 an Arsdall, 475 U.S. 673, 679 (1986).  "An

abuse of discretion has occurred only if the jury is left without

'sufficient  information concerning  formative events  to make  a

"discriminating  appraisal" of  a witness's  motives and  bias.'"

United States  v. Twomey,  806 F.2d  1136, 1140  (1st Cir.  1986)

(quoting United  States v. Campbell, 426  F.2d 547, 550 (2d  Cir.

1970)).

          We find no such  abuse here.  During direct and  cross-

examination                      of both Lopez and Exposito, the jury was apprised that

they               were                    not                       charged                               with bank fraud, one of the charges Mulinelli

faced.    On cross-examination,  Mulinelli  was  able  to  elicit

information regarding their  plea agreements, including that  the

accomplices  expected  the   government  to  make  a   beneficial

                               -7-

recommendatio                      n to the sentencing judge based on their cooperation,

and              that                   they were granted immunity from prosecution for any other

crimes related to their testimony.  The jury could infer from the

circumstances that the accomplices had avoided being charged with

offenses  carrying  greater   sentences  by  testifying  in   the

government's  case.   Mulinelli  was  able,  through  her  cross-

examination,  to  expose  the  biases  and  motivations  of   the

accomplices to favor the government and, once this threshold  was

met,               the                   district court's limitation was not improper.  As we find

that               the                   jury                       had                           before                                  it sufficient information on which to make

a            discriminating appraisal of the accomplices' motives and biases,

we find no abuse of discretion.

          Additionally,  Mulinelli's  counsel  sought  to  elicit

sentencing                     information regarding the charges the accomplices faced

and  avoided by  pleading guilty  to conspiracy.   Had  Mulinelli

successfully elicited this information, the potential  punishment

she              faced,                     should the jury find her guilty, would have been before

the              jury.                                         The actions taken by the district court to prevent this

information,                       which could confuse the issues presented to the jury,

from  reaching the jury  were thus entirely  proper.  See  United

States v. Alvarez, 987 F.2d  77, 82 (1st Cir. 1993) (finding  the

district  court did  not abuse  its discretion  when it  excluded

evidence of the  penalty to be imposed  on an accomplice as  such

information                      might                           mislead or confuse the jury, "particularly where,

as             here,                   the                       witness sought to testify to the same penalties faced

by the defendants").

                               -8-

II.       District court's decision not to allow Jerome Murray to
          testify

          During his  cross-examination,  Lopez  referred  to  an

interview he had  prior to the prosecution  of this case with  an

attorney named Jerome Murray ("Murray").  Lopez' trial  testimony

regarding  his interactions  with  Mulinelli  differed  from  the

responses he had given  during his interview with Murray, and  he

stated that he lied during that interview because Murray told him

that the  purpose of the  interview was  to "protect"  Mulinelli.

Defense counsel stated that  he wished to have Murray testify  to

impeach                  Lopez' testimony that Murray told Lopez that the interview

was intended to "protect" Mulinelli.  The trial court refused  to

allow Murray to testify.

          Murray's  testimony would  have  gone to  the  question

whether  Lopez was lying  about what Murray  had said before  the

interview,                     and                        therefore                                  related to Lopez' credibility.  On appeal,

Mulinelli                    contends that the district court usurped the jury's role

in  making credibility  determinations  and  thereby  abused  its

discretion.                                            Although                               the use of contradictory testimony is a valid

means of impeachment,  it is limited  in several important  ways.

United                 States v. Payne, 102 F.3d 289, 294 (7th Cir. 1996).  One of

these                limitations is the collateral issue rule, which bars a party

from               impeaching                         a                           witness on a collateral matter through the use of

extrinsic                    evidence.                                                           Unit                                 ed States v. Beauchamp, 986 F.2d 1, 3 (1st

Cir.               1993)                     ("[W]hen                             a                               witness testifies to a collateral matter, the

examiner 'must  take [the] answer,'  i.e., the  examiner may  not

disprove it by  extrinsic evidence.").   "A matter is  considered

                               -9-

collateral                     if 'the matter itself is not relevant in the litigation

to establish  a fact  of consequence,  i.e., not  relevant for  a

purpose                  other than mere contradiction of the in-court testimony of

the              witness.'"  Id. at 4 (quoting 1 McCormack on Evidence S 45, at

169).  In other words, "[a] matter is collateral if it could  not

have been  introduced into evidence  for any  purpose other  than

contradiction.  . . .   [T]he evidence  must have an  independent

purpose                  and                      an independent ground for admission."  Payne, 102 F.3d

at 294 (citation and internal quotation marks omitted); see  also

United  States v. Roulette,  75 F.3d 418,  423 (8th Cir.),  cert.

denied               ,                  117                     S.                        Ct.                            147                                (1996).  The inquiry into what is collateral

is             squarely                      within the trial court's discretion.  United States v.

Kozinski, 16 F.3d 795, 806 (7th Cir. 1994).

          In light of the  collateral issue rule, in order to  be

admissible, Murray's offered testimony must not only contradict a

statement                    of                       Lopez',                              but                                  must also be material to Mulinelli's guilt

or  innocence.    Mulinelli  fails,  however,  to  indicate   any

independent                      and                         material                                  ground for admitting Murray's testimony as

to             what                  he                     told                         Lopez                               at                                  the time of the interview.  See Payne, 102

F.3d at 295 (noting  that defendant's proffer for the purpose  of

impeaching                     a                       witness was collateral, as it did not directly relate

to substantive  issues  concerning his  guilt or  innocence,  and

therefore was inadmissible); see also United States v. Zuno-Arce,

44 F.3d 1420, 1422-23 (9th Cir.) (where accomplices testifying on

behalf of the government presented contradictory testimony, trial

court                acted                      within                            its                                discretion in determining that "whether they

                              -10-

lied,  or  erred in  their  perceptions  or  recollections"  were

questions  of credibility  for the  jury), cert.  denied, 116  S.

Ct.              383                  (1995).                                                   The                              district court did not abuse its discretion in

excluding Murray's testimony, which  was relevant only to  Lopez'

credibility on a matter immaterial to Mulinelli's guilt.

III.      Evidentiary rulings

          A. Admission of the summary chart

          The government's  first witness  was Fernando  Iglesias

Iglesias  ("Iglesias"),  an  auditor  for  First  Federal,  whose

investigation                       of First Federal's unusual car loan transactions led

to  Mulinelli's  indictment.    During  direct  examination,  the

government moved  to  admit a  summary  chart that  Iglesias  had

prepared during  the  course  of his  investigation,  based  upon

information                      he gleaned from bank loan records.  Mulinelli objected

to the admission of the summary chart, arguing that the chart was

not              an                 original.                                                     On                              appeal, she changes her position, arguing that

the summary chart  was not properly qualified under the  business

record                 hearsay exception.  See Fed. R. Evid. 803(6).  When a party

raises                 on                    appeal an argument she failed to present to the district

court, she  has forfeited  the  argument and  can only  obtain  a

favorable                    ruling upon a showing of plain error.  See United States

v.             Smith                 ,                    101 F.3d 202 (1st Cir. 1996) (explaining that failure to

argue, at time of objection, grounds offered on appeal results in

plain error review), cert. denied,     S. Ct.    , 1997 WL 106695

(Mar. 31, 1997).  Mulinelli must show that the error "resulted in

a miscarriage  of  justice or  seriously affected  the  fairness,

                              -11-

integrity  or public  reputation  of the  judicial  proceedings."

Coastal                  Fuels                        of                          Puerto                                 Rico, Inc. v. Caribbean Petroleum Corp., 79

F.3d 182, 189 (1st Cir.) (quotation marks omitted), cert. denied,

117 S. Ct. 294 (1996).  The plain error standard affords reversal

"only in  'exceptional cases or  under peculiar circumstances  to

prevent a  clear  miscarriage of  justice.'"   United  States  v.

Griffin, 818 F.2d  97, 100 (1st Cir.  1987).  Mulinelli fails  to

indicate  any error in  the admission of  this summary chart  "so

shocking that [it] seriously affect[ed] the fundamental  fairness

and              basic                    integrity of the proceedings below."  Id.  Moreover, the

summary                  chart                       probably                                have been admissible as a business record as

the              district                       court would likely find Iglesias a "qualified person"

within                 the                     meaning of Federal Rule of Evidence 803(6).  We find no

plain error.

          B.   Admission of copy of a check

          During  the  testimony  of  Iglesias,  the   government

introduced into evidence  a microform copy of a check  disbursing

loan               funds                     to Mulinelli's daughter.  Mulinelli objected "only [to]

the              issue                   of                      authenticity," Trial Transcript, Dec. 18, 1995, at 81,

of the copy of the check.   On appeal, Mulinelli argues that  the

admission                    of                       the microform copy was an abuse of discretion because

the              government should have introduced the original and because the

check was not properly authenticated.

          Regarding                              the                                 admission                                           of the duplicate, rather than the

original, the  district court acted  well within its  discretion.

Under Federal Rule of Evidence 1003, "[a] duplicate is admissible

                              -12-

to             the                 same                      extent as an original unless (1) a genuine question is

raised  as to  the authenticity  of the  original or  (2) in  the

circumstances                       it would be unfair to admit the duplicate in lieu of

the original."  A duplicate is

          a counterpart produced by the same impression
          as the original, or from the same matrix,  or
          by   means    of    photography,    including
          enlargements and miniatures, or by mechanical
          or electronic  re-recording, or  by  chemical
          reproduction,   or   by   other    equivalent
          techniques which  accurately  reproduces  the
          original.

Fed. R. Evid. 1001(4).  The microform copy introduced here was  a

"duplicate"                      of                        the                            original check and was admissible subject to the

limitations of Federal Rule of Evidence 1003.  Although Mulinelli

objected  below to  the  document's "authenticity"  and  elicited

testimony that the microform was not the original, she failed  to

elicit  any testimony  or make  any proffer  suggesting that  the

original                   had                       been tampered with or altered in any way and that the

copy was  not what  it purported  to be.   See  United States  v.

Balzano,  687 F.2d 6,  8 (1st Cir.  1982) (declining to  question

authenticity  of duplicate  where  appellant  failed  to  proffer

testimony,                     beyond statement that evidence was not the original, of

alteration  or  tampering).   The  duplicate  complied  with  the

requirements                       of                         Federal                                 Rule of Evidence 1003 and was admissible to

the              same                   extent as the original.  The district court did not abuse

its discretion in admitting the microform copy.

          Mulinelli's challenge below as to the "authenticity" of

the copy does not clearly identify the argument that the copy was

improperly authenticated.    Nevertheless, giving  Mulinelli  the

                              -13-

benefit of the doubt as to  the scope of her objection below,  we

r                              1

states:                                     "The requirement of authentication or identification as a

condition  precedent to  admissibility is  satisfied by  evidence

sufficient                     to                        support                               a                                 finding that the matter in question is what

its proponent claims."   Such authentication can be provided  by,

among                other                      things, testimony of a custodian or percipient witness

   through  "the document's  '[a]ppearance, contents,  substance           eview                 the                    copy's                           authentication.   Federal Rule of Evidence 901(a)          or                                                              ,

internal patterns, or other distinctive characteristics, taken in

conjunction with circumstances.'"  United States v. Holmquist, 36

F.3d 154, 167 (1st Cir. 1994) (quoting Fed. R. Evid.  901(b)(4)).

We             have                  recognized that "[i]f the court discerns enough support in

the record to warrant a reasonable person in determining that the

evidence is what it purports to be, then Rule 901(a) is satisfied

and the weight to be given to the evidence is left to  the jury."

United  States  v. Paolino,  13  F.3d  20, 23  (1st  Cir.  1994).

Iglesias' testimony  regarding  the conduct  of the  bank's  loan

department and  surrounding  the issuance  of this  check,  which

disbursed                    funds for a fraudulent loan to Mulinelli's daughter, and

the characteristics of the check itself, adequately authenticated

1  Mulinelli directs our attention to three cases that deal  with
the  inadmissibility  of  evidence  under  the  business  records
exception to  the hearsay rule.   See United States v.  Benavente
Gomez              ,                 921                     F.2d                         378                             (1st                                  Cir. 1990); United States v. Kim, 595 F.2d
755 (D.C. Cir. 1979); United States v. Davis, 571 F.2d 1354  (5th
Cir. 1978).  As the inadmissibility rulings in these cases relate
only to hearsay and  not to authentication of evidence, they  are
inapposite.

                              -14-

the copy of the check, and we find no abuse of discretion  in the

district court's admission of the copy.

          C.   Leading questions

          During the government's direct examination of Exposito,

Mulinelli's counsel repeatedly objected to the leading nature  of

the government's questions.  Mulinelli restates the objection  on

appeal, claiming that Exposito was not adverse or hostile to  the

prosecution  so as  to warrant  leading questions,  and that  the

court's overruling this objection limited her ability to properly

cross-examine  Exposito  because  the  prosecution,  rather  than

Exposito, was testifying.

          Federal Rule of Evidence 611(c) provides:

          Leading questions should  not be used on  the
          direct examination of a witness except as may
          be   necessary  to   develop   the   witness'
          testimony.    Ordinarily  leading   questions
          should  be  permitted  on  cross-examination.
          When  a party  calls  a hostile  witness,  an
          adverse                            party, or a witness identified with an
          adverse                            party, interrogation may be by leading
          questions.

"[T]he use of leading questions '. . . must be left to  the sound

discretion of  the trial  judge  who sees  the witness  and  can,

therefore, determine in the interest of truth and justice whether

the circumstances justify leading questions to be propounded to a

witness                  by                     the                        party                              producing.'"  United States v. Brown, 603 F.2d

1022, 1025 (1st Cir. 1979).  Our review of the transcript reveals

a witness  who was, at  times, unresponsive or  showed a lack  of

understanding.   The prosecutor's  use of  leading questions  was

limited to questions intended to  lay a foundation for a line  of

                              -15-

questioning                      or                         to                           assist                                  in developing coherent testimony.  We find

that               such                    questions were not improper and the district court acted

within its discretion when it allowed this manner of questioning.

See id. at 1025-26.

          Mulinelli  also  suggests   that  the  district   court

improperly questioned  Exposito during  his testimony.   The  few

occasions  that Mulinelli points  to do not  suggest an abuse  of

discretion.                                             See United States v. Olmstead, 832 F.2d 642, 648 (1st

Cir.  1987).  The questions posed by  the judge "served to . .  .

clarify lines of inquiry  or develop the witness's answer.   Such

conduct is well within the court's discretion."  Id.

          D.   Limiting cross-examination as irrelevant

          In  her  attack on  the  prosecutor's  use  of  leading

questions, Mulinelli juxtaposes the leeway granted the prosecutor

with               the                   district court's curtailment of a line of questioning she

sought  to pursue.   Mulinelli argues that  her defense was  that

Exposito was brought to the bank by one of the bank officers, who

vouched for Exposito as  creditworthy, and that, thus,  Mulinelli

relied on the bank officer's support of Exposito.  Because of her

reliance,  Mulinelli  argues,  she was  duped  by  the  two  into

unknowingly                      providing                               fraudulent bank loans to Exposito.  Mulinelli

argues                 on                    appeal that she presented this theory to the jury in her

opening statement, but  was unable, due  to the district  court's

limitation  on her  cross-examination  of Exposito,  to  properly

present                  the                      theory during the course of the trial.  The references

                              -16-

to this  defense during her  opening statement  consisted of  the

following, separated by several pages of transcript.

          The evidence will  show that Lazaro  Exposito
          was brought to the bank by one of the highest
          officers of the bank.  He did not come in  by
          the regular channels.  And the documents that
          were presented  to  the car  department  were
          brought by this highest officer of the  bank.
          The                        evidence                                 will show that he was recommended
          by this highest officer  of the bank, and  he
          started to buy repossessed automobiles, which
          was a department, an office under [Mulinelli]
          in                       the                           department of car loan that was managed
          or                       directed                                by a man named Otero.   Of course,
          all   under  the   general   supervision   of
          Mulinelli.

                              * * *

          And finally, I think that the evidence,  when
          you hear  it  in its  totality, you  will  be
          convinced that there  is a conspiracy of  two
          crooks against Maria Mulinelli.

Trial Transcript, Dec. 18, 1995, at 26-27, 30.

          During Mulinelli's  cross-examination of Exposito,  the

following interchange took place:

            Q.  Now, sir, you were not brought to First
          Federal in the  usual way other dealers  were
          brought in.

            MS. DOMINGUEZ:2  Objection as to relevance.

            MR. ABREU:3  It's an introductory question.

            THE COURT:  Well --

            MR. ABREU:  May I make a proffer?

            THE                          COURT:                                                                   Why don't you ask him how did he
          come to the bank to begin with.

2  The Assistant United States Attorney.

3  Mulinelli's counsel.

                              -17-

            Q.   (Mr. Abreu) Sir,  how did  you get  to
          First Federal Savings to the loan  department
          as a dealer?

            A.  It was through Mr. Alcocer.

            Q.   Mr.  Alcocer was  one of  the  highest
          officers of the bank at that time, wasn't he?

            MS. DOMINGUEZ:  Objection as to relevance.

            THE  COURT:    It  think  it's  irrelevant.
          Sustained.

            MR. ABREU:   May I make  a proffer as to  a
          line?

            THE  COURT:    Well,  perhaps  you   should
          approach the bench and make a proffer.

                       (Bench conference.)

            MR. ABREU:  Your Honor, the proffer is  the
          following:   The  regular practice  in  First
          Federal was sending  young people to  recruit
          dealers.                                                           In                                 this particular case he came from
          one                        of                           the                               highest officer[s] of the bank, who
          collected   his    information   about    the
          corporation to  the  department.   He  highly
          recommended  [Exposito],   said  he  had   an
          excellent credit, and  that's how  he got  --
          that's how they trusted him.

            THE COURT:   It is total[ly] irrelevant  to
          the  issues of  this case.   This  is a  very
          discreet,                              unique, well-defined conduct that is
          the object of these charges.  Has nothing  to
          do with Mr. Alcocer.

Trial Transcript, Dec. 19, 1995, at 177-78.

          As we noted above, a defendant has a right to effective

cross-examination.  Delaware  v. Van Arsdall,  475 U.S. 673,  679

(1986).                                     Once                       that                            constitutional threshold has been met, the trial

court                "retain[s] wide latitude to impose reasonable limits on such

cross-examination based on  concerns about,  among other  things,

harassment,  prejudice, confusion  of the  issues, the  witness's

                              -18-

safety, or  interrogation that is  repetitive or only  marginally

relevant."  Id.  The  question before us is whether the  district

court  judge "exceeded  his powers  to limit  cross-examination."

United States v. Malik, 928 F.2d 17, 19 (1st Cir. 1991).  In this

case, we find that the district court exceeded the boundaries  of

its power  and deprived Mulinelli of  her ability to present  her

theory of defense to the jury.

          The information presented  by Mulinelli in her  opening

statement and  her proffer adequately  indicated to the  district

court                the                    theory                          of                             defense she wanted to pursue.  She mentioned in

her  opening statement  that "[t]he  evidence will  show that  he

(Exposito) was recommended by this highest officer of the  bank,"

which                suggests that the person with whom Exposito might have acted

to defraud the  bank was not Mulinelli,  but Alcocer, and at  the

least that  Mulinelli  was influenced  by the  recommendation  of

Alcocer.  Such a  theory of defense might suggest that,  although

Mulinelli  may  have  been  negligent  in  relying  on  Alcocer's

recommendation and not  questioning Exposito's loan  applications

more  closely than she  did, she had  no knowledge of  Exposito's

fraudulent                     transactions.                                   The information presented to the district

court adequately  apprised  the court  of  the relevance  of  the

channels                   through                          which                                Exposito's loans were brought to Mulinelli's

attention, and the court, by foreclosing the introduction of  any

testimony  to support  Mulinelli's  theory of  defense,  violated

Mulinelli's                      Sixth                           Amendment right to confrontation.  We next review

this error for harmlessness.

                              -19-

          On direct appeal, we apply the harmless error  standard

set              forth                    in                       Chapman v. California, which requires that we reverse

the  conviction  unless  the   government  can  prove  that   the

constitutional  error  complained  of  was  "harmless  beyond   a

reasonable  doubt."  Chapman,  386 U.S. 18,  24 (1967); see  also

United States  v. Maguire,  918  F.2d 254,  266 (1st  Cir.  1990)

(ordering  a   new  trial   where  government   failed  to   show

constitutional errors were  harmless beyond a reasonable  doubt).

Under this standard,  we may not  declare a constitutional  error

harmless if there  is a "reasonable  possibility" that the  error

influenced                     the                         verdict.                                                                   See United States v. Levy-Cordero, 67 F.3d

1002, 1015 n.15  (1st Cir. 1995)  (holding that district  court's

failure                  to                     hold                         an                            evidentiary hearing into validity of defendant's

proposed defense  "was not 'harmless  beyond a reasonable  doubt'

because there is a 'reasonable possibility' that exclusion of the

proffered alibi evidence influenced the jury's verdict").

          On  the particular  counts that  involved the  Exposito

transactions, the  government's  proof of  Mulinelli's  knowledge

relied solely on  the testimony of  Exposito.  While  documentary

evidence was presented to support Exposito's acquisition of these

loans,                 that                      evidence did not necessarily corroborate his testimony

that Mulinelli encouraged him to apply for the loans or that  she

set the terms of the loans.  The alternative version of events --

that Exposito was brought to the bank by the officer and that the

officer                  vouched for him -- would not necessarily have contradicted

Exposito's                     testimony on direct examination but would have provided

                              -20-

Mulinelli                    with                        the                            opportunity to develop her own theory of defense

against these two counts.

          The                        Sixth                              Amendment, and thus the constitutional minimum

that must be allowed a criminal defendant before a trial  court's

discretion                     to                       limit                             cross-examination adheres, includes the ability

to develop and present a defense.  See United States v. Muhammad,

928 F.2d  1461, 1467  (7th Cir.  1991) (holding  that only  after

satisfying the constitutional minimum of allowing a defendant  to

present sufficient evidence for the jury to assess her theory  of

defense and witness bias does the district court's discretion  to

limit cross-examination inure); see also Washington v. Texas, 388

U.S. 14, 18 (1967) ("'A person's right to reasonable notice of  a

charge against him, and an opportunity to be heard in his defense

-- a  right to his  day in court  -- are basic  in our system  of

jurisprudence; and these rights include, as a minimum, a right to

examine the witnesses against him, to offer testimony, and to  be

represented                      by counsel.'" (quoting In re Oliver, 333 U.S. 257, 273

(1948)).  The district court's ruling worked a severe restriction

on             Mulinelli's                        ability                                to elicit evidence relating to her theory of

defense.                                       Had the jury been presented with the theory, it may well

have accepted it  and believed that Exposito's testimony was  not

credible.   As Exposito's  testimony was  the prosecution's  only

evidence regarding Mulinelli's knowledge, the error of  excluding

her theory of defense could not have been harmless, and  warrants

reversal with regard to the loan transactions with Exposito.   We

                              -21-

therefore                    vacate Mulinelli's conviction and sentences4

                           CONCLUSION

                                        affirm in part and vacate

and remand in part.

4                                                                on Counts 5          and 6 and remand to the district court for further proceedings in          conformity with this decision.                    For the foregoing reasons, we              We note, however, that this outcome will not ultimately change
Mulinelli's sentence.   Her original base offense level was  six,
increased                    eight levels under U.S.S.G. 2F1.1(b)(1) because the loss
was              determined                         to                           be                              $349,000.  The level was further increased two
levels in  accordance  with U.S.S.G.  S 2F1.1(b)(2)  because  the
offense involved  more than minimal  planning and  two levels  in
accordance with  U.S.S.G.  S  3B1.3 because  Mulinelli  abused  a
position                   of                      trust.  Her sentence, based on these calculations, was
27 months  for all six  counts, to be  served concurrently.   The
calculations                       remain                             the                                 same, even after the loss from Counts 5 and
6 ($130,000) is excluded, because the district court enhanced for
an amount of loss over $200,000 under U.S.S.G. S 2F1.1(b)(1), and
the total loss for Counts 1 through 4 remains over $200,000. 

                              -22-
