DiPace

MEMORANDUM *

Anthony DiPace appeals his jury conviction and sentence for multiple counts of mail fraud in violation of 18 U.S.C. § 1341 . DiPace was convicted for making false statements in an application to serve as investment monitor for a Taft-Hartley pension fund.

TRIAL ISSUES

He first contends that his misstatements were not material. His application, however, grossly overstated his qualifications by claiming that he had forty TaftHartley fund clients, when he only had three; that ten Taft-Hartley clients had assets in excess of $100 million, when none did; and that he had been recognized for thirteen years as a top performer of the brokerage firm with which he was affiliated, when he had been so recognized in only one year. Trustees of the pension fund testified at trial that his claimed prior experience was to them an important job qualification. The Supreme Court has said that the standard for materiality is whether a false statement has a “natural tenden *949 cy to influence, or is capable of influencing,” the decision maker. Neder v. U.S., 527 U.S. 1, 16 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999). The false statements here, according to the testimony of the trustees,…

concurring in part and dissenting in part.

I respectfully disagree with the majority’s resolution of the “other bad acts” issue. I would hold that DiPace’s conviction must be reversed because improperly admitted bad act and bad character evidence deprived him of a fair trial. The admission of this evidence was not harmless, but instead warrants reversal.

In order to prove intent and its subset, absence of mistake, the government introduced evidence designed to show that Di-Pace deliberately lied on his subsequent job application to Moors & Cabot. A bad act is not admissible to prove intent unless it is sufficiently similar to the charged offense. United States v. Luna, 21 F.3d 874 , 878 & n. 1 (9th Cir.1994) (terming similarity a “prerequisite” to using bad acts to prove intent). In this case, the two acts were not similar enough to meet this requirement. DiPace’s Pension Fund application contained affirmative, material misstatements, which formed the basis for his prosecution. In contrast, on his Moors & Cabot application, DiPace simply failed to list fully certain negative information such as the number of tax liens and ad *951 verse lawsuits. Traditionally, the law draws a…