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).
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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.
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