EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, August 29, 2014

Did You Notice That?: 2nd Circuit Excuses Lack of Written Notice Under Rule 902(11)

Federal Rule of Evidence 902(11) allows for the self-authentication of

The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

So, what happens if a party does not give reasonable written notice of its intent to offer a business record into evidence but there is evidence that the opposing party had actual notice of this intent? That was the question addressed by the Second Circuit in its recent opinion in United States v. Komasa, 2014 WL 4233396 (2nd Cir. 2014).

In Komasa, Thomas and Heidi Komasas were charged with mail, wire, and bank fraud as well as conspiracy. The gravamen of the criminal complaint was "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.

When the prosecution sought to admit these loan applications into evidence pursuant to Rule 902(11), defense counsel 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 use self-authenticating documents.

We have been given a variety of certificates over the course of this case. We have also been given a witness list that included a multitude of custodians of records. There has been no clear statement by the government of their intent to rely on self-authenticating documents, and that would be absolutely in violation of the rule.

The prosecution responded that it had orally informed the defense of its intention to admit these applications under Rule 902(11), prompting the district court to overrule defense counsel's objection

After they were convicted, the defendants subsequently appealed, but the Second Circuit affirmed while noting that it might not reach the same result in future cases:

There is no dispute here whether the written notice specified in Rule 902(11) was provided. The question before us is whether that requirement may be excused where an objecting party admits to having actual notice and an opportunity to challenge the Rule 902(11) evidence. Rule 902(11)'s notice requirement is "intended to give the opponent of the evidence a full opportunity to test the adequacy of the foundation set forth in the declaration." Fed.R.Evid. 902 advisory committee's note (2000 amendment). The district court here found that while written notice was lacking, the defendants had actual notice of the government's intent through the government's oral representations of a plan to proffer the documents as self-authenticating and also because the government provided the defendants with copies of the records and authenticating certificates....There is adequate evidence in the record to support that factual finding....

While not faced with the ideal set of circumstances, we cannot say the district court abused its discretion in admitting the documents as selfauthenticating. This is especially the case because here, as defendants candidly admitted at oral argument, they did have a chance to challenge the authenticating certificates....

That said, we caution that parties fail to comply with the Rule 902(11)'s written notice requirements at their own risk. As counsel for the government conceded at oral argument, a single sentence added to the cover letter forwarding the certifications and documents would have complied with the rule. The defendants admittedly had the loan files in question for more than two years, were orally informed of the government's intent to proffer the documents as self-authenticating and, given the nature of the case, could not be surprised by the government's decision to introduce them at trial.



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