United States v. Bayard
642 F.3d 59
1st Cir.2011Background
- Bayard, living with Dorothy Shovan, aided her posthumously and used her credit cards, including a Bank of America Visa card at issue.
- Shovan died after months of dementia; Bank of America re-issued the BofA Card in August 2008 while Bayard remained at Shovan's home.
- Bayard intercepted the re-issued card and made about $185 in Wal-Mart purchases and booked a $3,000 NZ trip using Shovan's account information.
- Shovan's estate later discovered the activity, canceled the card, and authorities were notified; a federal two-count indictment followed.
- Bayard, who mostly represented himself at trial, was convicted on use of an unauthorized access device and aggravated identity theft; he was sentenced to three years' imprisonment.
- On appeal, Bayard challenges multiple trial decisions and the court affirms his conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chase Card cross-examination violated Rule 404(b). | Bayard argues it was improper propensity evidence. | Bayard contends cross-examination should be limited to credibility under Rule 608(b). | No reversible error; proper Rule 608(b) use affirmed under discretional balance. |
| Whether CitiBank records admitted on re-direct violated procedures. | Bayard contends the CitiBank records were improperly admitted. | Prosecutor questioned re-direct using CitiBank statements; certification and admissibility contested but permissible. | No reversible error; admission within permissible scope. |
| Whether jury instruction properly defined an unauthorized access device. | Government broad definition; Bayard seeks narrower scope indicating only re-issued card was unauthorized. | Court erred by including account number as potential device and the government relies on broader statutory definition. | Instruction properly framed given context; no plain error. |
| Whether remaining claims (speedy trial, subpoenas, timing of ruling on prior conviction, cumulative error) require reversal. | Bayard asserts multiple trial-stage defects and cumulative errors require new trial. | District court rulings were within discretion; issues either waived or non-prejudicial. | No reversible error; convictions affirmed. |
Key Cases Cited
- United States v. Landry, 631 F.3d 597 (1st Cir. 2011) (Rule 404(b) analysis; credibility purposes and related distinctions)
- United States v. Simonelli, 237 F.3d 19 (1st Cir. 2001) (interplay between Rules 404 and 608)
- United States v. Cudlitz, 72 F.3d 992 (1st Cir. 1996) (Rule 608(b) credibility evidence framework)
- Ji v. Bose Corp., 626 F.3d 116 (1st Cir. 2010) (plain error standard and review)
- United States v. Zannino, 895 F.2d 1 (1st Cir. 1990) (preservation and plain error review rules)
- United States v. Hardy, 37 F.3d 753 (1st Cir. 1994) (prosecutorial conduct and error standards)
- United States v. Manning, 23 F.3d 570 (1st Cir. 1994) (prosecutorial argument standards)
- United States v. Arrieta-Agressot, 3 F.3d 525 (1st Cir. 1993) (characterization of arguments urging jury outcomes)
- United States v. Poulin, 631 F.3d 17 (1st Cir. 2011) (argument waiver and oral-argument considerations)
- United States v. Gonzalez-Melendez, 594 F.3d 28 (1st Cir. 2010) (cumulative-error doctrine applicability)
- United States v. DiPietro, 936 F.2d 6 (1st Cir. 1991) (statutory interpretation and appellate consideration)