
USCA1 Opinion

	




                           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                                         -6-          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-
