767 F.3d 151 (2nd Cir. 2014), 13-1534-cr(L), United States v. Komasa

Docket Nº:13-1534-cr(L), 13-1550-cr(Con)
Citation:767 F.3d 151
Opinion Judge:POOLER, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. THOMAS KOMASA, HEIDI KOMASA, Defendants-Appellants
Attorney: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 ...
Judge Panel:Before: POOLER, HALL, and LOHIER, Circuit Judges.
Case Date:August 28, 2014
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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767 F.3d 151 (2nd Cir. 2014)

UNITED STATES OF AMERICA, Appellee,

v.

THOMAS KOMASA, HEIDI KOMASA, Defendants-Appellants

Nos. 13-1534-cr(L), 13-1550-cr(Con)

United States Court of Appeals, Second Circuit

August 28, 2014

Argued June 6, 2014

Thomas and Heidi Komasa appeal from their judgments of conviction, which were entered April 17, 2013 and April 22, 2013, respectively, in the United States District Court for the District of Vermont (William K. Sessions III, J.). Both were convicted of mail, wire and bank fraud, and conspiracy, flowing from a scheme to commit mortgage fraud. On appeal, they raise multiple challenges to their convictions. This opinion addresses their argument that the district court erred in admitting the loan application files for the mortgages at issue as self-authenticating pursuant to Rule 902(11) of the Federal Rules of Evidence. We consider the remainder of the Komasas' claims in a summary order published contemporaneously with this opinion.

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.

OPINION

Page 152

POOLER, Circuit Judge.

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.

BACKGROUND

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

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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:

I don't believe they're admissible, your Honor. I think that there has been an absence of compliance with federal rule of evidence 902(11) which requires advance, written notice from the government of an intent to...

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