# U nit edStates C ou rt o f App eal s For th e Firs t C ircu it

No. 10-1112 UNITED STATES, Appellee,

v . SERGE ERIC BAYARD, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Steven J. McAuliffe, U.S. District Judge]

Before Torruella, Stahl and Howard, Circuit Judges.

James M. Fox for appellant. Donald Feith, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.

April 15, 2011-2- HOWARD, Circuit Judge
. A jury convicted Serge Bayard of
use of an u nauthorized access device, 18 U.S.C. § 1029(a)(2) (2 0 0 6 ) , a n da g g r a v a t e di d e n t i t yt h e f t , 1 8 U . S . C . § 1 0 2 8 A( 2006). On appeal he presses a litany of challenges, some counseled and others pro se, for the purpose of obtaining a new trial. We affirm his conviction.
I. BACKGROUND

A friendship blossomed between Bayard and Dorothy Shovan, an elderly widow more than thirty years his senior, shortly after the death of her husband. A few years later, Bayard moved into Shovan's home; in exchange for room and board, Bayard helped her around the house. Bayard's responsibilities increased over time. By 2004, he was Shovan's driver, repairman, grocery shopper and, as her health waned, full-time caretaker. Some of these tasks required monetary outlays and, although the precise nature of their financial arrangement is unclear, it appears that Bayard used her credit cards. One of those credit cards -- a Bank of America Visa card (the "BofA Card") -- is at the center of this case.

On July 25, 2008, after several months of hospitalization and s e v e r e d e m e n t i a , S h o v a n d i e d
. A t s o m e p o i n t i n A u g u s t 2 0 0 8, Bank of America -- unaware of Shovan's demise -- re-issued the BofA Card, which was scheduled to expire around that time. Bayard, who was still living in Shovan's home, intercepted the re-issued BofA Card and used it to make severa l p urchases at a Wal-Mart storeSection 1029(a)(2) provides that "[w]hoever . . . knowingly 1 and with intent t o defraud traffics in or uses one or more unauthorized access devices during any one-year period, and by such conduct obtains anything of value aggregating $1,000 or more during that per i o d
. . . s h a l l , i f t h e o f f e n s e a f f e c t s i n t e r s t a t e or foreign commerce, be punished . . . ." Section 1028A(a)(1) provides that "[w]hoever, d uring and in 2 relation to [a v i o lation of section 1029(a)(2), among others], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to -3- totaling about $185. That same day, he used the account number on the BofA Card to book a three-month trip to a resort in New Zealand. In e-mail correspon d e n ce, Bayard told a resort representative that he wanted to pre-pay using a credit card thatbelonged to his "cousin," who Bayard identified in a subsequent email as Shovan. The r epresentative agreed and charged Shovan's account nearly $3,000. Two weeks later, Bayard left for New Zealand. An attorney for Shovan's estate later discovered the curious account activity, cancelled the BofA Card, and notified authorities.

In early 2009, shortly after he returned from abroad, Bayard was arrested in connection with charges that do not pertain to this appeal. On April 10, 2009, while Bayard was detained and awaiting trial in state court, the government filed a criminal complaint against him in federal court. A two-count i n d i c tment, handed up on April 29, 2009, charged h i m with use of an unauthorized access device, 18 U.S.C. § 1029(a)(2), and aggravated 1 identity theft, 18 U.S.C. § 1028A. On August 5, 2009, Bayard was 2the punishment provided for such felony, be sentenced to a term of

imprisonment of 2 years." Bayard does not appeal his sentence. 3 -4- released from state custody. The next da y h e was arraigned in federal court, pled not guilty, and waived his right to counsel.

A two-d a y jury trial began in October. Bayard represented himself for most of it, but midway through the second day his stand-by counsel stepped in at Bayard's request. The focal point of trial was Bayard's authorization vel non to use the BofA Card after Shovan's death. The government elicited testimony that Shovan was the only authorized user on the account; Bayard had no power of attorney over Shovan's financial affairs; and even if she had informally authorized Bayard to use the BofA Card, that authorization was only for her benefit and expired upon her death. Bayard testified that Shovan specifically authorized him to use the BofA Card as well as her other credit cards, not only for her benefit but also for his. He f u r t h e r t e stified that Shovan had bequeathed $20,000 to him, and that the transactions at issue were, in his v i e w , a dvances on money owed. After an afternoon of delibera t i o n , the jury convicted Bayard on both counts in the indic t m e nt. The court sentenced him to three years in prison. 3 This appeal followed.The government does not challenge this ruling on appeal. 4 -5- II. DISCUSSION

W e a ddress each of Bayard's seven arguments in turn, adding background as necessary.
A. The J.P. Morgan Chase Card

Before trial, the government moved in limine to admit evidence in its case-in-chief concerning a J.P. Morgan Chase credit card (the "Chase Card"). Bayard applied for the Ch a s e Card in Shovan's name on June 23, 2008, when she was incapacitated, and -- as with the BofA Card -- used it after her death. According to the government, t h at evidence was probative of Bayard's intent and absence of mistake concerning h is use of the BofA Card. The district court denied the government's motion on the grounds that Bayard's conduct in connection with the Chase Card was propensity evidence, see Fed. R. Evid. 404(b), and that its probative value was substantially outweighed by the risk of prejudice, see Fed. R. Evid. 403. The court, however, left open the p o ssibility that 4 such evidence might be admissible later on for some other purpose.

During trial, Bayard took the sta n d and testified that Shovan specifically authorized him to use her credit cards. On

cros s - e x a m i n a t i o n , t h e g o v e r n m e n t b e g a n t o q u e s t i o n B a y a r da b o ut the Chase Card. That prompted Bayard's stand-by counsel, who by this time had stepped in, to request a sidebar conference. There he objected on Rule 404(b) grounds. The government responded that,-6-

although the court previously had denied its motion in limine on that basis, a limited line of questioning on cross-examination was permissible under Federal Rule of Evidence 608(b), because it sought only to impeach Bayard's credibility. The court agreed with the government, adding that in this context the value of the government's proposed inquiry outweighed any possible prejudice that might result. Bayard declined a limiting instruction and thesidebar concluded. The government then continued with crossexamination.

On appeal, Bayard repeats his objection that any testimony about the Chase Card violated Rule 404(b). His refrain is misguided. By its very terms, Rule 404(b) prohibits the admission of a prior bad act "to prove the character of a person in order to show conformity therewith." See, e.g., United States v. Landry, 631 F.3d 597, 601 (1st Cir. 2011) ("[Rule 404(b)] prohibits the admission of prior bad acts to establish an ind i v idual's character or propensity to commit a crime."). But here the government sought to cross-examine Bayard for the limited purpose of attacking his character for truthfulness. That is a different purpose that invokes a different rule. Compare Fed. R. Evid. 404(b), with Fed. R. Evid. 608(b). See generally United States v. Simonelli, 237 F.3d 19, 22-24 (1st Cir. 2001) (discussing interplay between Rules 4 0 4 a n d 608; explaining that the latter "'is

ce n t r a l l y c o n c e r n e d w i t h c h a r a c t e r f o r v e r a c i t y , a m o d e of-7-

accrediting or discrediting the witness that is based on the same 'propensity' reasoning of Rule 404 but is sub j e c t to quite different rules.'" (quoting United States v. Cudlitz, 72 F.3d 992, 996 (1st Cir. 1996) (internal brackets omitted))).

Whether Bayard's actions in connection with the Chase Card were fair game under Rule 608(b) is a separate question. The government says that such questions are left to the discretion of the trial court -- a proposition that may be correct but not necessarily dispositive here. Baya r d says nothing at all. Although the ap p l icability of Rule 608(b) to this line of questioning is less than clear, Bayard's failure to brief the issue waives it. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). That le a v e s us with Rule 403's balancing test, which Bayard does make some attempt to address in his brief. Rule 403 states that releva n t evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury." We have characterized Rule 403 judgments as "battlefield determinations" subject to "great deference." United States v. Shinder m a n, 515 F.3d 5, 17 (1st Cir. 2008). "Only rarely -- and in extraordinarily compelling circumstances -- will we, from the vista of a cold appellate record, reverse a district court's on-the-spot judgment

con c e r ning the relative weighing of probative value and unfair-8-

effect." Id. (quoting Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988)).

We discern no abuse of discretion here. Bayard does not adequately explain why his conduct surrounding the Chase Card was not probative of his credibility, so we assume without dec i d ing that it was. He does argue that the risk of unfair prejudice washigh, but we disagree. Our review of the government's crossexamination reveals that it was far from inflammatory. It was also quite short and limited in scope to what the government had proposed at the sidebar. And, as noted, Bayard declined the district court's offer to give a limiting instruction. See Shinderman, 515 F.3d at 17 ("Furthermore, the court offered to give a limiting instruction; that the defendant eschewed this course does not minimize the value of the court's offer."). Given these circumstances, we a r e reluctant to second-guess the district court's judgment in allowing cross-examination to proceed.
B. The CitiBank MasterCard

During its case-in-chief, the government called Jeffrey Ramos, a custodian of records for Bank of Am e r i c a . Among other things, Ramos authenticated account statements provided by Bank of America that reflected charges to the BofA Card. Two of t h o se charges, in addition to those described earlier, were balance transfers from a CitiBank MasterCard (the "CitiBank Card"), which was yet another of Shovan's credit cards th a t Bayard apparently-9-

used after her death. On direct examination, the government asked Ramos a series of questions concerning those transfers. Based on certain questions Bayard posed on cross, the government sought on re-d i r e c t t o c l a r i f y R a m o s ' s t e s t i m o n y b y r e f e r e n c i n g a corresponding set of account statements provided by CitiBank.

Bayard objected on the basis that he never received copies of the CitiBank records. The government explained that Bayard had received copies and that they had been m a r k ed as an exhibit, although the exhibit was not yet in evidence. The trial judge v o i c e dhis concern over questioning Ramos about an exhibit that was not in evidence and that he could not authenticate. The government ultimately proposed to introduce the CitiBank records by

means o f a certification, and then conduct its examination of Ramos. The court then admitted the CitiBank records over Bayard's relevancy objection.

On appeal, Bayard argues that the prosecutor's questions on re-direct concerning the CitiBank Card amounted to prosecutorial misconduct. According to Bayard, the prosecutor "testified through his quest i o n s that there was another card which was allegedly obtained through improper means." Bayard did not object on that ground at trial, so our review is for plain error. United States v. Sánchez-Berríos, 424 F.3d 65, 73-74 (1st Cir. 2005).

We see no error, plain or otherwise. Bayard does not id e n t i f yi n h i s b r i e f t h e s p e c i f i c q u e s t i o n s t h a t h e c h a l l enges,-10-

but our independent r e v iew of the trial transcript satisfies us that his hypothesis is unfounded. None of the prosecutor's questions on re-direct gives us pause, let alone rises to the level where, in rare cases, we have ordered a new trial. See, e.g., United States v. Hardy , 37 F.3d 753, 757 (1st Cir. 1994) (vacating conviction where the prosecutor drew an analogy between the defendant's running and hiding from police on the night of the crime, and running and hiding again at trial by invoking Fifth Amendment right not to testify); United States v. Manning, 23 F.3d 570, 573 (1st Cir. 1994) (vacating conviction where the prosecutor suggested that government witnesses c a n n ot lie and urged jury to "[t]ake responsibility for your community " b y convicting the defendant); United States v. Arrieta-Agressot , 3 F.3d 525, 527 (1st Cir. 1993) (vacating convictions where the prosecutor urged the jury to consider case as a battle in war against drugs, and the defendants as enemy soldiers corrupting "our society").

Separately, Bayard hints in his brief that the prosecutor's questions provided a n i mproper "shortcut" for the admission of the CitiBank records. If that cryptic remark is meant to challenge the admission of the Citibank records, presumably on Rule 404(b) grounds, the argument is woefully underdeveloped, and thus waived. Zannino, 895 F.2d at 17. Even if it were not waived, Bayard's failure to object on that ground below would subject the argument to plain error review, and under that standard it wouldDefining "access device" as "any card, plate, code, account 5 number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with an o t h e r a c c e s s d e v i c e , t o o b t a i n m o n e y , g o o d s , s e r v i c e s , o r any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument)." -11- certainly fail. See Sánchez-Berríos, 424 F.3d at 73 ("[U]nder plain error review, we have leeway to correct only the most egregious of unpreserved errors.").
C. The Jury Instructions During the charge conference, there was considerable debate as to the identity of the access device in this case. The government, pointing to the broad statutory definition of "access device," said that it was the plastic BofA Card itself (either the expired or re-issued version), the account number embossed on the pl a s t i c , a n d t h e B a n k o f Am e r i c a a c c o u n t t o w h i c h t h e c a r dwas linked. See 18 U.S.C. § 1029(e)(1). Bayard's counsel took a much 5 narrower view. He argued that the government must show that Bayard used an "unauthorized a c c e ss device," id. § 1029(a)(2) (emphasis

s u p p l i e d ) , w h i c hi s a n a c c e s s d e v i c e t h a t w a s " l o s t , s t o len, expired, revoked, cancelled, or obtained with intent to defraud," id. § 1029(e)(3). According to h i m , e v i dence adduced at trial established that Shova n a u t horized Bayard to use the (by then expired) BofA Card, along with its number and associated account, both of which remained unchanged since the t i m e Bayard wasThis was important because the bulk of Bayard's transactions, 6 including his New Zealand booking and CitiBank balance transfers, were executed online or over the phone using only t h e account or account number. Under Bayard's hypothesis, those transactions did not violate the statute because he did not physically "swipe" the plastic BofA Card. See 18 U.S.C. § 1029(a)(2) (prohibiting "use" of an "unauthorized access device"). Although he did swipe the card at Wal-Mart, the amount of his purchases there fell below the statutory threshold. See id. (imposing liability on purchases of "value aggregating $1,000 or more" during any one-year period). We do not address these contentions head-on, however, because Bayard has not appealed the denial of his motion for j u d gment of acquittal. -12- authorized to use them. Thus, he posited t h at the only access device that the government could argue was "unauthorized" was the re-issued plastic BofA Card, on the theory that it was "stolen" or fraudulently "obtained" when Bayard intercepted it in August 2008. 6

The court agreed with Bayard that, under the rather unique circumstances of this case, only the re-issued plastic BofA
Car d

- - a n dnot its account or account number -- was arguably "unauthorized." Based on that understanding, the court delivered the following instruction over the government's objection:

The term "access device" mean s a n y card, plate, c o d e , a c c o u n t n u mb e r , o r o t h e r m e a n s o f a c c o u n t a ccess that can be u sed alone or in conjunction with another access device to obtain money, goods, services or any other thing of value, or that can be used to initiate a transfer of funds other than a transfer originated solely by paper instru m e nt. In this case, the access device alleged to be unauthorized is the credit card issued in August of 2008 ending in account number [supplied]. The term "unauthorized access device" includes any credit card that was either stolen or obtained with the intent to defraud. In this case the go v e r n m ent claims that the defendant stole and/or obtained with the intent to defr a u d t he Bank of America Visa card, last fourWe w i s ht o a d dt h a t w e t a k e n o p o s i t i o n o n t h e c o u r t 's 7 statutory interpretation that led to this instruction. Our precedent i s unsettled and the answer is far from obvious. See, e.g., United States v. DiPietro, 936 F.2d 6, 7 & n.3 (1st Cir. 1991). We therefore save the question for another day. -13- digits [supplied], that had bee n i s s ued to Dorothy Shovan. Accordingly, the government must prove beyond a reasonable doubt either that the defendant sto le that credit card or that he obtained it with the intent to defraud. 7 Having gotten what he requested, Bayard now assails the court's instruction as co n f u s i ng. In particular, he argues that listing "account number" as among the possible access devices "cr e a t e d a serious risk that the jury would be confused as to whether an account number satisfied the statute." Because Bayard failed to object to the instruction as delivered, we review for plain error, Ji v. Bose Corp., 626 F.3d 116, 125 (1st Cir. 2010), and quickly dispatc h h i s p l a int. We see no likelihood of juror confusion, given the court's clear and repeated statements that the access device here was the re-issued plastic BofA Card. The phrase "account number" appears only in a list of what access devices could be in general. The court was free to include that list, which closely tracked the statute, for context. Cf. United States v. Alicea, 205 F.3d 480, 484 (1st Cir. 2000).
D. Remaining Arguments We briefly address Bayard's four remaining claims raised in his supplemental pro se brief, and reject the lot.Bayard spec i fically disavows any claim under the Sixth 8 Amendment's Spe e d y T rial Clause. See generally Barker v. Wingo, 407 U.S. 514 (1972). The g o v e r n m e n t d o e s n o t p o i n t t h i s o u t i n i t s b r i e f
. It 9 explains in a footnote that it was not present at the ex parte hearing and that a transcript was "not made available." -14- Bayard a r gues that the district court should have dismissed the case on speedy trial grounds, because 116 d ays elapsed between the return date of the indictment and when he moved for dismissal. But the critical date, for purposes of the Speedy Trial Act, was August 7, 2009, the day after he was arraigned in federal court. See 18 U.S.C. § 3161(c)(1) (2006) ("[T]rial . . . 8 shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge i n pending, whichever date last occurs." (emphasis supplied)); see als o U nited States v. Muñoz-Amado, 182 F.3d 57, 60 (1st Cir. 1999) (rejecting a r g u m ent in similar circumstances). The period between that date and the start of Bayard's trial in October 2009 was well under seventy days.

Next, he as s e r t s that the court denied his requests to subpoena four individuals, in violation of the Sixth Amendment.
See Fed. R. Crim. P. 17(b). Not true. The transcript from the ex parte hearing in which Bayard sought subpoenas reveals that he withdrew his r e q uests for three of those four individuals. The 9 judge took unde r a dvisement Bayard's request for the remaining-15-

individual -- Tania Booth, the New Zealand resort representative -- although it appears that the court never ruled on that particular request. But at no point thereafter did Bayard ask the trial judge for an up-or-down ruling, so the issue has been waived. DesRosiers v. Moran, 949 F.2d 15, 22-23 (1st Cir. 1991). In any event, because Bayard's e-mail correspondence with Booth was admitted into the record, her testimony likely would have been cumulative.

Third, Bayard critiques the t i m i n g of the district court's ruling that precluded th e government from using a prior conviction. According to Bayard, by waiting until the last day of trial to issue its ruling the court "interfered" with his "tactical decisions," including his decision to proceed pro se. If the court had ruled earlier, Bayard contends, he would have retained counsel for the entire trial. We think not. Bayard never indicated below, in extensive disc u s sions on the matter, that his decision to proceed pro se hinged on an evidentiary ruling. Moreover, the record reveals that Bayard asked his stand-by counsel to step in before the court ruled on the admissibility of his prior conviction, fatally undermining his claim.

Lastly, Bayard argues that the cumulative effect of the district c o u r t ' s errors necessitates a new trial. See United
States v. Gonza l e z-Melendez, 594 F.3d 28, 37 (1st Cir. 2010)B a y a rd's counsel asserted at oral argument that the 10 government did not satisfy its burden of showing intent to defraud. The argument comes too late, United States v. Poulin, 631 F.3d 17, 19 n.2 (1st Cir. 2011) (arguments raised at oral argument but not in a party's initial brief are considered waived), an da n y way Bay a r d d i d n o t a p p e a l t h e d e n i a l o f h i s m o t i o n f o r j u d g m e n t of acquittal, see supra note 6. -16- (discussing the so-called cumulative error doctrine). But without any errors, there is nothing to accumulate. 10

Affirmed
.