United States v. Komasa
Decision Date | 28 August 2014 |
Docket Number | Docket Nos. 13–1534–crL,13–1550–crCon. |
Citation | 767 F.3d 151 |
Court | U.S. Court of Appeals — Second Circuit |
Parties | UNITED STATES of America, Appellee, v. Thomas KOMASA, Heidi Komasa, Defendants–Appellants. |
Elizabeth D. Mann, Tepper Dardeck Levins & Gatos, LLP, Rutland, VT, for Defendant–Appellant Thomas Komasa.
Steven Yurowitz, Newman & Greenberg, New York, NY, for Defendant–Appellant Heidi Komasa.
Gregory L. Waples, Assistant United States Attorney (Tristam J. Coffin, United States Attorney; Paul J. Van de Graaf, Assistant United States Attorney, on the brief), Burlington, VT, for Appellee United States of America.
Before: POOLER, HALL, and LOHIER, Circuit Judges.
Thomas and Heidi Komasa appeal from their convictions on multiple counts of mail, wire and bank fraud, and conspiracy, after a jury trial in the United States District Court for the District of Vermont (William K. Sessions, III, J.). Their convictions flow from a mortgage fraud scheme in which the Komasas purchased and refinanced various residential properties in the greater Burlington area in the mid–2000s. Both appeal their convictions on a number of grounds, although this opinion is limited to their challenge to the district court's decision to admit the loan files at issue as self-authenticating pursuant to Rule 902(11) of the Federal Rules of Evidence. The remainder of the Komasas' claims are resolved in a summary order published contemporaneously with this opinion.
The Komasas argue that the district court abused its discretion in admitting the loan applications as self-authenticating pursuant to Rule 902(11) because the government failed to provide defendants with the written notice required by this rule. The district court excused the lack of written notice after finding that defendants had actual notice of the government's intention to admit the records as self-authenticating, satisfying the rule's purpose. As the district court's finding of actual notice was not clearly erroneous, we affirm.
A federal grand jury issued a superseding indictment against the Komasas on May 27, 2010, charging each of them with nine counts of mail, wire, and bank fraud, and conspiracy, all in connection with the Komasas' obtaining various purchase-money mortgages between 2004 and 2006. Thomas Komasa was also charged with one count of scheming to defraud a local bank and credit union in a check scam. In broad terms, the superseding indictment alleged that the Komasas engaged in a cycle of obtaining purchase-money mortgages on various properties, only to refinance as real estate prices climbed, each time withdrawing the accrued equity.
Each mortgage was initiated by completing a Fannie Mae Form 1003, called the Uniform Residential Loan Application. These loan applications were the primary evidence in the government's case-in-chief. On the day the trial began, the government moved to admit the loan files related to each transaction at issue as self-authenticating documents pursuant to Rules 803(6) and 902(11) of the Federal Rules of Evidence. Defendants objected:
The government conceded that it did not provide the written notice required by Rule 902(11), but argued that defense counsel were orally informed of its intent to proffer the loan files as self-authenticating. The district court declined to rule on the issue before trial, instead allowing defendants to renew their objection during trial.
Defendants did raise their objection to admitting the loan files as self-authenticating documents again at trial:
[T]he government, by its own admission, has never given written notice of their intent to rely on selfauthenticating documents.... The government, no less than any other litigant, is required to ensure that the evidence that it intends to offer is admissible, to anticipate objections from opposing parties, and to comply with the federal rules of evidence.
App'x at 165. Defense counsel argued that while the government submitted the authenticating certificates required by Rule 803(6) during the discovery period:
App'x at 166–67. The district court admitted the loan files as self-authenticating documents, concluding that the certifications at issue complied with Rule 803(6), and “that the three requirements of [Rule 902(11) ] [we]re met.” App'x at 169.
After the jury delivered its verdict finding Thomas Komasa guilty on all ten counts of the superseding indictment, and Heidi Komasa guilty on all but Count Two of the charges against her, both defendants filed motions for judgments of acquittal, or, alternatively, for new trials.
United States v. Komasa, No. 2:10–cr–72, 2012 WL 5392099 (D.Vt. Nov. 5, 2012). Thomas Komasa again challenged the admissibility of the loan files as self-authenticating documents—a challenge again rejected by the district court:
Id. at *3–4 (citation omitted). These appeals followed.
“The notion that certain documents are self-validating has origins in Roman law.” 31 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure Evidence § 7131 (1st ed.2000). The current parameters for admitting documents as self-authenticating are set forth in Rule 902(11), which provides that:
Fed.R.Evid. 902(11). A record of regularly conducted business activity would be eligible for admission as self-authenticating under Rules 902(11) and 803(6) if the record is accompanied by a written declaration of its custodian, or other qualified person, who certifies that:
Fed.R.Evid. 803(6). Rules 902(11) and 803(6) are thus designed to work in tandem.
Rule 902(11) was added to create “a procedure by which parties can authenticate certain records of regularly conducted activity, other than through the testimony of a foundation witness.” Fed.R.Evid. 902 advisory committee's note (2000 amendment). When Rule 902(11) was added, Rule 803(6) was also amended so “that...
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