Williamson v. Busconi

USCA1 Opinion












UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 95-2311
ALAN D. WILLIAMSON,

Appellant,

v.

LEWIS J. BUSCONI,

Appellee.

____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________

____________________

Before

Torruella, Chief Judge, ___________

Cyr, Circuit Judge, _____________

and Cummings,* Circuit Judge. _____________

____________________



Rosario Mario F. Rizzo for appellant. ______________________
Howard P. Blatchford, Jr., with whom Bruce F. Smith and Jager, __________________________ _______________ ______
Smith, Stetler & Arata, P.C. were on brief for appellee. ____________________________


____________________

July 3, 1996
____________________
____________________

*Of the Seventh Circuit, sitting by designation.












CYR, Circuit Judge. Appellant Alan D. Williamson CYR, Circuit Judge. ______________

challenges a bankruptcy court ruling excluding evidence probative

of the chapter 7 debtor-appellee Lewis J. Busconi's putative

intent to defraud Williamson in a substantial real estate

transaction. In due course Williamson commenced an adversary

proceeding in the bankruptcy court to except his claim from the

chapter 7 discharge on the ground that the debt had been induced

by fraud. See Bankruptcy Code 523(a)(2)(A), 11 U.S.C. ___

523(a)(2)(A) (1994). Following careful review of the entire

record, we conclude that the bankruptcy court abused its

discretion by excluding the proffered evidence, but that the

error did not affect substantial rights.

At the bench trial, Williamson unsuccessfully attempted

to introduce evidence as to various events, including Busconi's

conduct, subsequent to the closing of their real estate

transaction, from which a factfinder reasonably could have

inferred that Busconi had not intended to pay the note at the

time it was executed. The evidence was excluded as irrelevant.

Nonetheless, after hearing the testimony of both parties, the

bankruptcy judge expressly credited Busconi's testimony, found

that Williamson had failed to establish the requisite fraudulent

intent, and ruled the Williamson debt dischargeable. On

intermediateappeal, thedistrictcourtaffirmed withoutelaboration.1
____________________

1The district court's conclusions of law are reviewed de __
novo, Petit v. Fessenden, 80 F.3d 29, 32 (1st Cir. 1996); Fed. R. ____ ______ _________
Bankr. P. 8013. The bankruptcy court's factual findings are
reviewed for clear error. Id. Evidentiary rulings by the __
bankruptcy court are subject to the "abuse of discretion"

2












As direct evidence is seldom available, fraudulent

intent normally is determined from the totality of the

circumstances. Charlie Kelton's Pontiac, Cadillac, Oldsmobile & _________________________________________________

Isuzu Truck, Inc. v. Roberts (In re Roberts), 82 B.R. 179, 184 __________________ _______ _____________

(Bankr. D. Mass. 1987). And since "subsequent conduct may

reflect back to the promisor's state of mind and thus may be

considered in ascertaining whether there was fraudulent intent"

at the time the promise was made, proper application of the

"totality" test in the instant context often warrants

consideration of post-transaction conduct and consequences, as

well as pre-transaction conduct and contemporaneous events. See ___

Krenowsky v. Haining (In re Haining), 119 B.R. 460, 464 (Bankr. _________ _______ ______________

D. Del. 1990); cf. United States v. Rodriguez, 858 F.2d 809, 816 __ _____________ _________

(1st Cir. 1988) ("later events often may shed light on earlier

motivations"). In sum, the bankruptcy court ruling excluding

Busconi's relevant post-closing conduct constituted an abuse of

discretion.

Williamson must also show, however, that the

evidentiary ruling adversely affected his "substantial rights."

See Fed. R. Bankr. P. 9005, 9017 (incorporating Fed. R. Civ. P. ___

61; Fed. R. Evid. 103(a)). At a minimum, Williamson would need

to demonstrate clear error in the ultimate assessment that the

testimony given by Busconi was more credible than that given by

Williamson. In light of all the evidence in the record, we are

____________________

standard. See United States v. Cotto-Aponte, 30 F.3d 4, 6 (1st ___ ______________ ____________
Cir. 1994).

3












not persuaded that the challenged judgment was substantially

influenced by the erroneous evidentiary ruling. See Lubanski v. ___ ________

Coleco Indus., Inc., 929 F.2d 42, 46 (1st Cir. 1991). As there ___________________

was no clear error in the bankruptcy court's findings, the

district court judgment is affirmed. The parties shall bear affirmed The parties shall bear ________ ___ _______ _____ ____

their own costs. their own costs. _____ ___ _____










































4