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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1392 <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                    JOSE F. BLASINI-LLUBERAS, <br> <br>                       Defendant-Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Carmen Consuelo Cerezo, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                    Boudin, Lynch, and Lipez <br>                        Circuit Judges. <br>                                 <br>                                 <br> <br> <br>  Roberto Boneta for appellant. <br>  Jorge E. Vega-Pacheco, Assistant United States Attorney, <br>with whom Guillermo Gil, United States Attorney, and Nelson Prez- <br>Sosa and Thomas F. Klumper, Assistant United States Attorneys, were <br>on brief for appellee. <br> <br> <br> <br> <br> <br>January 25, 1999 <br> <br> <br> <br>                                 <br>                                 <br>  LIPEZ, Circuit Judge.  On April 5, 1995, a federal grand <br>jury returned a multiple count indictment against defendant Jose <br>Blasini-Lluberas ("Blasini"), a former executive vice president of <br>Ponce Federal Bank, and his co-defendant, Ramiro Coln-Muoz <br>("Coln"), president of the bank.  The indictment charged both <br>defendants with five counts of misapplication of bank funds under <br>18 U.S.C.  657, one count of bank fraud under 18 U.S.C.  1344, <br>one count of false entry under 18 U.S.C.  1006, one count of <br>benefitting, directly or indirectly, from the loan transactions in <br>question under 18 U.S.C.  1006 and one count of conspiracy under <br>18 U.S.C.  357.  The jury returned guilty verdicts against <br>Blasini on all but one count, acquitting him on the charge of <br>benefitting from the loan transactions. On appeal, Blasini <br>challenges the sufficiency of the evidence to support the verdict, <br>instructions to the jury, and several aspects of the sentence. For <br>the reasons discussed below, we conclude that there was <br>insufficient evidence to support the jury verdict on four of the <br>five counts of misapplication of bank funds and order an acquittal <br>as to those counts. Finding no reversible error in the jury <br>instructions, we affirm the remaining convictions and remand for <br>re-sentencing.  <br>                               I. <br>     From a review of the evidence in this case, the jury <br>could have found the following.  On July 15, 1987, co-defendant <br>Ramiro Coln, president of Ponce Bank, and his wife purchased a <br>farm from thirteen members of the Usera family who had inherited <br>the farm from Julio Usera Santiago.  The total purchase price for <br>the farm, known as "La Esmeralda" and located in the municipality <br>of Salinas, Puerto Rico, was $555,600.  Coln paid $83,340 at the <br>closing with the remaining balance due nine months later on April <br>14, 1988.  The agreement provided that no interest would be due on <br>the outstanding balance.  As security for the $472,260 balance, <br>Coln granted the Usera family a mortgage on the property. <br>     Following Coln's purchase of the farm, but prior to the <br>due date of Coln's outstanding $472,260 obligation, four members <br>of the Usera family approached Coln requesting money.  Monserrate <br>Usera and her sister Ana Usera were the first two, approaching <br>Coln in August of 1987 for money to pay off personal debts: <br>Monserrate needed funds to pay student loans and her daughter's <br>college tuition; Ana Usera needed funds to make repairs to a <br>building.  Although Monserrate Usera understood that Coln's <br>obligation to the family was not due until the spring of 1988, she <br>went to Coln for an advance.  Coln said he would look into <br>getting her the funds she needed.  Monserrate explained that when <br>Coln agreed to help her, she understood that she would be taking <br>out a loan from the bank, the obligation for which was hers alone.  <br>Ana Usera also decided to contact Coln in an effort to obtain <br>money to pay off her current debts since it was taking such a long <br>time to complete the sale of the farm.  Ana explained that, after <br>Monserrate Usera made the initial contact with Coln, they both <br>decided to "make a loan."   Although Ana understood that she and <br>her sister had other options, she thought it best to take out a <br>loan from the bank to satisfy her outstanding obligations.  <br>     Subsequent to these discussions, Coln sent the sisters <br>to see Blasini, then an executive vice president of Ponce Federal <br>Bank. Coln instructed Blasini to assist each of them in securing <br>a loan from the bank, which he did.  As vice-president of the bank, <br>Blasini was authorized to approve unsecured loans up to $50,000 and <br>secured loans up to $100,000. When the sisters arrived, he <br>authorized an $11,000 loan for each, subject to a rate of interest <br>and a due date.  Neither loan application included a financial <br>statement or credit history. Monserrate Usera and Ana Usera signed <br>the promissory notes and executed partial assignments of their <br>mortgage interests in the farm as security for the loans. The <br>partial assignments were signed by both Blasini and Coln but were <br>not included in the loan file. The stated purpose for the loans was <br>personal; the means of repayment was the sale of a farm. Because <br>the loans did not exceed $50,000, their approval did not require <br>collateral. <br>     In January of 1988, Carmen Maduro Usera, the mother of <br>Monserrate Usera and Ana Usera, received a loan from Ponce Federal <br>Bank under similar circumstances.  Although the loan documentation <br>was introduced at trial, Carmen Maduro died before trial and her <br>testimony was never taken. Ana Usera testified that she helped her <br>mother make arrangements over the phone to obtain a $15,000 loan <br>and then accompanied her mother to the bank.  The documents <br>themselves indicated that Blasini authorized the loan, that the <br>purpose of the loan was personal and that it was needed to pay off <br>an outstanding $5,000 loan to the bank. The promissory note set a <br>rate of interest and a due date for repayment. Although the <br>application did not include a financial statement or credit <br>history, it noted that Carmen Maduro was well known to the Coln <br>family. Carmen Maduro also executed a partial assignment of her <br>mortgage interest as security for the loan one day after the loan <br>was disbursed to her, signed by Blasini and Coln, but it did not <br>appear in the loan portfolio. <br>     In March of 1998, Vincente Usera Tous received a $20,000 <br>loan from the bank, authorized by Blasini.  Vincente Usera also <br>died prior to trial and never testified about the loan transaction. <br>Although he was a member of the Usera family, he did not stand to <br>inherit proceeds from the sale of the farm. Instead, he was due a <br>commission of $23,613 for his assistance in brokering the sale of <br>the farm. His loan application, admitted in evidence, was missing <br>a financial statement and a credit history, but the application <br>stated that he was well known to the bank, in particular to Coln, <br>and that he was a responsible person. The stated means of repayment <br>was the commission from the sale of a farm. <br>     When Coln's debt to the Usera family came due on April <br>14, 1988, he was unable to meet his obligation. On April 19, 1988, <br>another member of the Usera family, Consuelo Garcia-Gomez, went to <br>the bank and demanded payment of her share of the purchase price. <br>Consuelo Garcia-Gomez was entitled to $200,000, the largest share <br>of the inheritance.  Wendell Coln, Coln's brother, told Consuelo <br>Garcia-Gomez that the money was not immediately available.  She <br>then asked for $100,000. Thereafter, Blasini brought Consuelo <br>Garcia-Gomez to a loan officer and instructed the officer to <br>disburse a $100,000 loan to her. The information in her loan <br>application was provided to the loan officer by Blasini and the <br>application stated that collateral for the loan was a partial <br>assignment of Consuelo's mortgage interest in the farm. The listed <br>purpose of the loan was the purchase of an apartment. Directly <br>above Blasini's signature, Blasini wrote, "discussed and agreed to <br>by attorney R.C. Coln."  At trial Consuelo Garcia-Gomez explained <br>that, although she signed loan documents to receive the $100,000, <br>she did not go to the bank to obtain a loan and she never read the <br>loan documents before signing the documents.  She maintained that <br>the $100,000 was partial payment of the money owed to her rather <br>than a loan.  <br>     A few weeks later, in May, Coln wrote two sets of <br>checks.  The first set paid off the debts of Monserrate Usera, Ana <br>Usera, Carmen Maduro, Vincete Usera and Consuelo Garcia-Gomez. He <br>listed the appropriate amount of their outstanding debts and named <br>both the bank and the borrower as joint payees. The second set paid <br>each Usera the balance of what he or she was owed. Each member of <br>the Usera family then signed a cancellation of the mortgage. <br>     On December 19, 1996, a jury convicted Blasini of the <br>charges described herein. On February 23, 1998, he was sentenced to <br>thirteen months imprisonment to be followed by two years supervised <br>release. He was fined $8,000.  Blasini now appeals. <br>                              II. <br>A. Sufficiency of the Evidence <br>     When there is a challenge to the sufficiency of the <br>evidence to support a guilty verdict, "the relevant question is <br>whether, after viewing the evidence in the light most favorable to <br>the prosecution, any rational trier of fact could have found the <br>essential elements of the crime beyond a reasonable doubt." Jacksonv. Virginia, 443 U.S. 307, 319 (1979). A conviction may rest, in <br>whole or in part, on circumstantial evidence. See United States v. <br>Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993). It is well <br>established that "an appellate court plays a very circumscribed <br>role in gauging the sufficiency of the evidentiary foundation upon <br>which a criminal conviction rests." United States v. Woodward, 149 <br>F.3d 46, 56 (1st Cir. 1998).  Nevertheless, we have cautioned that <br>"[d]espite the deference that characterizes appellate review of <br>jury verdicts, juries do not have carte blanche. The appellate <br>function . . . requires the reviewing court to take a hard look at <br>the record and to reject those evidentiary interpretations and <br>illations that are unreasonable, insupportable, or overly <br>speculative." Id. (quoting United States v. Spinney, 65 F.3d 231, <br>234 (1st Cir. 1995)). We noted that "[t]his function is especially <br>important in criminal cases, given the prosecution's obligation to <br>prove every element . . . beyond a reasonable doubt." Id. at 56-57 <br>(quoting Spinney, 65 F.3d at 234).  We must reverse a conviction <br>"on the grounds of evidentiary insufficiency where an equal or <br>nearly equal theory of guilt[] and a theory of innocence is <br>supported by the evidence viewed in the light most favorable to the <br>verdict." Id. at 57 (citing United States v. Guerrero, 114 F.3d <br>332, 344 (1st Cir. 1997))(internal citations omitted). <br>B. Misapplication <br>     Courts have struggled to give precise definition to the <br>crime of misapplication, consistently noting that "[t]he problem <br>that has confronted and perplexed the courts is that there is no <br>statutory definition or common law heritage that gives content to <br>the phrase 'willfully misapplies.'" United States v. Wester, 90 <br>F.3d 592, 595 (1st Cir. 1996). These uncertain origins have posed <br>a challenge to courts attempting to distinguish bad judgment from <br>bad conduct that is illegal. Nevertheless, in Wester, we recently <br>discussed the two notions that underlie the crime of <br>misapplication:  one relating to conduct, i.e., wrongful use of <br>bank funds, the other focusing on an intent to injure or defraud a <br>bank. The government cannot prove its claim of misapplication <br>without establishing both elements. See id. The interrelationship <br>between these elements is subtle, given that "the same facts can <br>easily be the basis for deeming the conduct to be wrongful and the <br>intent fraudulent." Id.   <br>                    Counts Two through Five  <br>     In this case, the government's theory was that Blasini <br>was attempting to deceive the bank as to the true purposes of the <br>loans: namely, that the disbursements to the Usera family were <br>partial payments of Coln's debt.  However, Coln's obligation to <br>the Usera family did not come due until April 14, 1988. Blasini <br>approved loans to Monserrate Usera and Ana Usera in August of 1987; <br>to Carmen Maduro in January of 1988; and to Vincete Usera Tous in <br>March of 1988.  Because Coln had no current obligation to the <br>Useras at the time these four loans were extended, the loans cannot <br>be characterized as partial payments of a debt.  Both Ana Usera and <br>Monserrate Usera testified that they needed money and, since the <br>balance on the farm would not come due for many months, they went <br>to Coln to seek an advance of funds.  Although the jury could have <br>concluded from this testimony that they were initially requesting <br>an advance of the money Coln owed them, both sisters testified <br>that they understood they were executing and signing loan <br>documents. Ana Usera testified that, following her discussions with <br>her sister and Coln, she decided to take out a loan from the bank.  <br>Monserrate Usera explained that she understood her obligation to <br>the bank and she noted that, even if Coln had not paid the balance <br>of his debt, she would have paid the balance of the loan.  Although <br>we have no direct testimony concerning Carmen Usera's loan, her <br>daughter Ana testified that her mother was also interested in <br>obtaining a loan to satisfy some of her debts. The government's <br>theory that Blasini was executing "sham" loans and intending to <br>defraud the bank as to their true purpose is simply not supported <br>by the evidence.  <br>     With regard to Vincente Usera, the government's theory of <br>misapplication is even weaker.  Coln had no outstanding obligation <br>to Vincente Usera, who was simply owed a commission following the <br>sale of the property. He was not entitled to a share of the <br>profits. There was no debt that Coln had to pay at any time. <br>     Nor are there "other circumstances" sufficient to convert <br>these loans into misapplication of bank funds. See United States v. <br>Gens, 493 F.2d 216, 222 (1st Cir. 1974)(holding that "where the <br>named debtor is both financially capable and fully understands that <br>it is his responsibility to repay, a loan to him cannot   absent <br>other circumstances   properly be characterized as a sham or <br>dummy"). The loan applications lacked financial statements and <br>credit histories yet they comported with minimal requirements for <br>legitimate loans. The former Ponce Bank commercial credit officer <br>testified that she could not think of any bank policy which would <br>forbid the bank to disburse a loan without any financial statement.  <br>Similarly, she testified that the lack of a credit history did not <br>mean that a loan could not be authorized.  The stated purpose on <br>the loans was accurate and Blasini was well within his authority to <br>approve the loans.  The four members of the Usera family signed <br>promissory notes and partial assignments for the loans.  Although <br>the partial assignments of Coln's obligations to the Useras were <br>not included in all of the loan applications, collateral was not <br>required for these loans and thus the partial assignments were not <br>prerequisites to their authorization. At trial the government <br>suggested that the failure to include the partial assignments in <br>the files was an attempt to withhold the fact that Coln's future <br>obligation was the means of intended repayment for the parties. <br>This omission, without more, is not enough to transform the <br>transactions into willful misapplication of bank funds. <br>     We do not mean to suggest that Coln and Blasini were not <br>playing it close to the line. Blasini may have been helping Coln <br>to curry favor with the Usera family so that they would be lenient <br>with Coln in the event that Coln had trouble satisfying his <br>obligations. This possibility, however, given the totality of the <br>circumstances, does not rise to the level of willful <br>misapplication. <br>                           Count Six <br>     The loan to Consuelo Garcia-Gomez stands in stark <br>contrast to the other four loans. Coln's debt to the Usera family <br>had matured and he was late with payment. Consuelo Garcia-Gomez <br>went to the bank and demanded payment.  She did not request a loan. <br>At the bank she initially met with Coln's brother who informed her <br>that the money was not available. She demanded that he pay her <br>something and she suggested $100,000. Thereafter, Blasini took <br>Consuelo Garcia-Gomez to meet with the loan officer and instructed <br>the officer on the details of the loan application.  On the actual <br>application, Blasini included the notation, "discussed and agreed <br>to by attorney R.C. Coln." Although there is some uncertainty in <br>the evidence as to how Consuelo Garcia-Gomez was brought to <br>Blasini's attention, the jury could have reasonably concluded, <br>given Blasini's notation on the application, that Coln himself <br>contacted Blasini and requested that Blasini facilitate a $100,000 <br>loan from the bank to Consuelo Garcia-Gomez.   <br>     In cross-examination of Consuelo Garcia-Gomez, Blasini <br>attempted to show that she knew she was taking out a loan from the <br>bank. Consuelo Garcia-Gomez denied this knowledge, maintaining that <br>she did not pay any attention to what she was signing, even though <br>she signed and notarized all the pertinent documentation for a <br>$100,000 loan. She was simply happy that she was getting at least <br>half of what was owed to her.  Morever, there was evidence, <br>discussed infra, from which the jury could conclude that Blasini <br>misrepresented the purpose of the loan in the application (stating <br>that the loan was for the purchase of an apartment). As a result of <br>this deceptive conduct, Blasini caused the bank to part with its <br>monies through a sham loan to pay a portion of Coln's delinquent <br>debt.  This wrongful use of bank money, carried out with an intent <br>to deceive the bank about the true nature of the transaction, <br>involved all of the essential elements of the crime of <br>misapplication.  <br>C. Bank Fraud <br>      The Government charged Blasini with one count of bank <br>fraud, the elements of which are well established: 1) the defendant <br>must engage in a scheme or artifice to defraud, or must make false <br>statements or misrepresentations to obtain money from 2) a <br>financial institution and 3) must do so knowingly. See United <br>States v. Brandon, 17 F.3d 409, 424 (1st Cir. 1994).  A scheme or <br>artifice is defined to include "any plan, pattern or course of <br>action, including false and fraudulent pretenses and <br>misrepresentations intended to deceive others in order to obtain <br>something of value." Id.  (emphasis added)(quoting United States v. <br>Goldblatt, 813 F.2d 619, 624 (3d Cir. 1987)). The statute provides <br>that each execution of a scheme to defraud will constitute a <br>separate indictable offense.  See 18 U.S.C.  1344; see alsoBrandon, 17 F.3d at 422.  We have explained that "each time an <br>identifiable sum of money is obtained by a specific fraudulent <br>transfer, there is likely to be a separate execution of a scheme to <br>defraud." Id.  The government need not prove actual loss as a <br>result of the scheme, however. See United States v. Goldblatt, 813 <br>F.2d 619, 624 (3d Cir. 1987)("The Government was not required to <br>show that [the bank] incurred a loss in order to prove a scheme to <br>defraud . . . ."); see also Brandon, 17 F.3d at 427. Nor must the <br>government show that the defendant personally benefitted from the <br>alleged scheme. See Goldblatt, 813 F.2d at 624.  <br>     In the indictment, the government charged Blasini with <br>one count of bank fraud based on five separate loan transactions, <br>each of which could have served as the basis for the fraud <br>allegation. See Brandon, 17 F.3d at 422. Thus, the bank fraud <br>conviction is unaffected by our finding that four of the loans were <br>legitimate.  With respect to the fifth transaction, the evidence <br>was sufficient for the jury to conclude that Blasini's conduct <br>satisfied the elements of bank fraud because he knowingly engaged <br>in a scheme to obtain bank funds, deceitfully characterized as a <br>loan, to satisfy $100,000 of Coln's outstanding obligation to <br>Consuelo Garcia-Gomez. Proof of Blasini's intent to deceive, a <br>necessary element of the misapplication charge, was also proof of <br>his scheme to obtain money from the bank by false representation, <br>a necessary element of the charge of bank fraud.  Accordingly, the <br>evidence establishing misapplication of bank funds on the fifth <br>loan also supports a conviction on the charge of bank fraud.  <br>D. False Entry <br>     We have not had an occasion to construe  1006.   Read <br>literally,  1006 provides that any employee of an insured bank who <br>makes a false entry in any statement to such institution with the <br>intent to defraud such institution is subject to federal penalty. <br>See 18 U.S.C.  1006.  In interpreting this section, however, the <br>Fifth Circuit has read a "materiality" requirement into the <br>provision: that is, the government must show that the defendant <br>knowingly and willfully made or caused to be made a false entry <br>concerning a material fact in any statement to the institution. <br>See United States v. Parks, 68 F.3d 860, 865 (5th Cir. 1995). ButCf. United States v. Harvard, 103 F.3d 412, 417-20 (5th Cir. <br>1997)(finding that materiality is not an element of 18 U.S.C.  <br>1005, a nearly identical statute).  In his argument, Blasini adopts <br>the Fifth Circuit's approach and contends that materiality is an <br>element of the crime. The government also reads  1006 to include <br>materiality as an element of the crime.  <br>     Despite the shared views of the parties that materiality <br>is an element of the statute, we can find no other circuit court <br>which has directly addressed this question. Recently, in United <br>States v. Wells, 519 U.S. 482, 117 S. Ct. 921 (1997), the Supreme <br>Court indicated its intent to construe similar statutory <br>definitions narrowly.  There the Court concluded that materiality <br>of the falsehood was not an element of knowingly making a false <br>statement to a federally insured bank under 18 U.S.C.  1014: <br>"Nowhere does it further say that a material fact must be the <br>subject of the false statement or so much as mention materiality. <br>. . . Thus, under the first criterion in the interpretive <br>hierarchy, a natural reading of the full text, materiality would <br>not be an element of  1014." Wells, 117 S. Ct. at 927(internal <br>citations omitted). The Court went on to conclude that the common <br>law would not import a materiality requirement into the term "false <br>statement" and that ultimately the "statutory history confirm[ed] <br>the natural reading." Id. at 928.  <br>     In light of this recent pronouncement of the Supreme <br>Court about a comparable statutory provision, the absence of <br>advocacy in this case on the inclusion of a materiality element in  <br> 1006, and our own conclusion that the evidence was sufficient to <br>allow the jury to conclude 1) that the entry in question was false <br>and 2) that it was material, we assume without deciding that <br>materiality is an element of the crime of false entry for the <br>purposes of this appeal. <br>     Marisel Marrero, an assistant manager of the bank at the <br>time in question, testified that Blasini instructed her to prepare <br>documentation for a loan to Consuelo Garcia-Gomez. She testified <br>that Blasini provided her with the basic information for the <br>application and instructed her that the purpose of Consuelo Garcia- <br>Gomez's loan was the purchase of an apartment. Given Consuelo <br>Garcia-Gomez's testimony that she did not believe she was taking <br>out a loan, and given her brother's testimony that she was not <br>intending to purchase an apartment, it was reasonable for the jury <br>to conclude that the statement on the loan application about the <br>purchase of an apartment was false and that Blasini knew it to be <br>so. <br>     Materiality requires proof that the entry would have the <br>capability or tendency to influence the bank in its decision-making <br>process, or impair or pervert the functioning of the government <br>institution. See United States v. Parks, 68 F.3d 860, 865 (5th Cir. <br>1995); see also United States v. Corsino, 812 F.2d 26, 30 (1st Cir. <br>1987)(discussing the materiality requirement in 18 U.S.C.  1001). <br>"[T]he standard is not whether there was actual influence, but <br>whether it would have a tendency to influence." United States v. <br>Edgar, 82 F.3d 499, 510 (1st Cir. 1996). Thus, the government is <br>required to demonstrate the false entry's potential effect on the <br>governmental agency, even if the false entry did not actually <br>affect the government function. See United States v. Swaim, 757 <br>F.2d 1530, 1534 (5th Cir. 1985)( the government need not show <br>actual reliance on the false statement, only that the statement <br>itself would have impacted the bank). <br>     Ironically, it was Blasini's own expert witness who <br>offered the testimony from which the jury could reasonably have <br>concluded that the false entry as to the purpose of the loan would <br>have the tendency to influence the bank's decision or, <br>alternatively, would affect a bank examiner's later review of the <br>propriety of the loan.  Michael Cinkala, a bank examiner with over <br>twenty years experience, testified that "the information you would <br>be looking for in a loan file would be, for instance, the financial <br>statement of an individual or corporation, the collateral, the   <br>any comments written as to the character of the individual, the <br>purpose of the loan, [and] some ability to repay the loan." From <br>this testimony, the jury could conclude that the stated purpose on <br>the loan application would be the type of information relied upon <br>by bank examiners in reviewing loans to determine whether the bank <br>is adhering to proper procedures.  Accordingly, we find that the <br>jury was presented with sufficient evidence from which it could <br>conclude that the entry on the loan application was false and <br>material in violation of  1006. <br>     Blasini further contends that the court's failure to <br>define "materiality" in its instructions to the jury was reversible <br>error. Blasini did not raise this objection to the instruction at <br>trial and our review is for plain error. See United States v. <br>Santana-Rosa, 132 F.3d 860, 863 (1st Cir. 1998). "[E]rror rises to <br>this level only when it is so 'shocking that [it] seriously <br>affect[ed] the fundamental fairness and basic integrity of the <br>proceedings conducted below.'" United States v. Ortiz, 23 F.3d 21, <br>25 (1st Cir. 1994)(citation omitted). We "review the context of the <br>charge as a whole to determine if it contains an error that <br>threatens to undermine the fundamental fairness of the trial." <br>Santana-Rosa, 132 F.3d at 863 (internal quotation marks omitted). <br>     Again, assuming that materiality is an element of the <br>crime, the court's failure to define "materiality" in its <br>instructions to the jury on the charge of false entry does not <br>constitute plain error. The issue of materiality was submitted to <br>the jury, with instructions that the false entry must be material <br>and that materiality was an essential element of the crime.  <br>Blasini did not offer an objection to the instruction at trial and <br>makes no developed argument on appeal why failure to define <br>material would constitute plain error.  We conclude that <br>"materiality" is not such a technical concept outside of the <br>jurors' experience that failure to define it rises to the level of <br>plain error. Cf. United States v. Fulmer, 108 F.3d 1486, 1495 (1st <br>Cir. 1997)(meaning of the word "intimidate" not outside a juror's <br>understanding such that failure to define the word would be an <br>error that threatened to undermine the fundamental fairness of the <br>trial). <br>E. Conspiracy  <br>     To convict Blasini on a charge of conspiracy, the <br>government was required to establish that: a conspiracy existed; <br>Blasini knew of and voluntarily participated in the conspiracy; and <br>an overt act took place in furtherance of the conspiracy.  SeeUnited States v. Woodward, 149 F.3d 46, 67 (1st Cir. 1998). The <br>agreement can be tacit rather than express. See id. Neither the <br>agreement nor Blasini's participation in furtherance of the <br>agreement need be proved by direct evidence. See id. at 68. <br>     We reject Blasini's contention that there was <br>insufficient evidence to support the conspiracy conviction.  As <br>discussed above, there was sufficient evidence from which the jury <br>could conclude that Blasini engaged in misapplication of bank <br>funds, bank fraud and making a false entry on a loan application -- <br>the three substantive counts underlying the conspiracy count. There <br>was direct evidence of Blasini's conspiracy with Coln to use bank <br>funds to satisfy Coln's outstanding debt: Consuelo Garcia-Gomez's <br>application includes a handwritten notation by Blasini stating that <br>the loan was "discussed and agreed to by attorney R.C. Colon."  <br>Moreover, there was circumstantial evidence from which the jury <br>could infer that Blasini agreed to assist Coln in satisfying his <br>debt to Consuelo Garcia-Gomez with bank funds, and that he <br>knowingly participated in the execution of the plan to use bank <br>funds for this purpose. <br>     Finally, Blasini contends that the use of a general <br>verdict form invalidates his conviction on the conspiracy count <br>because the jury acquitted him on Count Nine, one of the overt acts <br>charged in furtherance of the conspiracy.  He claims that "the use <br>of a general verdict form does not reveal which objects or overt <br>acts the jury relied on to find Appellant guilty of conspiracy."   <br>This argument is against the force of the law and was rejected in <br>Griffin v. United States, 502 U.S. 46, (1991), where the Supreme <br>Court stated: "When a jury returns a verdict on an indictment <br>charging several acts in the conjunctive . . . the verdict stands <br>if the evidence is sufficient with respect to any one of the acts <br>charged." Id. at 55-56 (quoting Turner v. United States, 396 U.S. <br>398, 420 (1970)); see also United States v. Mitchell, 85 F.3d 800, <br>810-811 (1st Cir. 1996)(discussing application of Griffin). The use <br>of a general verdict form does not invalidate the verdict on Count <br>One. See United States v. Fisher, 22 F.3d 574, 576 (5th Cir. <br>1994)(holding that in light of Griffin, there is no error in the <br>use of a general verdict form for a conspiracy count).   <br>III. Sentencing <br>     In light of the convictions that must be vacated, we must <br>also vacate the sentence.  We do so without analyzing the alleged <br>errors in sentencing. On remand, the sentencing court will have the <br>full opportunity to re-evaluate and recalculate Blasini's sentence <br>in light of our rulings. See United States v. Pimienta-Redondo, 874 <br>F.2d 9, 14 (1st Cir. 1989)("When the conviction on one or more of <br>the component counts is vacated, common sense dictates that the <br>judge should be free to review the efficacy of what remains in <br>light of the original plan, and to reconstruct the sentencing <br>architecture upon remand, within applicable constitutional and <br>statutory limits if that appears necessary in order to ensure that <br>the punishment still fits both crime and criminal."). <br>     The judgment is VACATED on Counts Two through Five, <br>AFFIRMED on Counts One, Six, Seven and Eight, and REMANDED for re- <br>sentencing.  Upon remand, the district court shall enter a judgment <br>of acquittal on Counts Two through Five.</pre>

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