Opinion
No. 2:12-cr-00062 JAM
04-02-2014
UNITED STATES OF AMERICA, Plaintiff, v. ANNA KUZMENKO, Defendant.
ORDER GRANTING GOVERNMENT'S
MOTION IN LIMINE
This matter is before the Court on the United States of America's ("Government") Motion in Limine (Doc. #57) for the admission of business and public records. Defendant Anna Kuzmenko ("Defendant") opposes the motion (Doc. #74) and the Government filed a reply (Doc. #80).
I. OPINION
A. Bank, Loan, and Escrow Records
The Government "plans to introduce into evidence documents produced from banks and escrow companies." Mot. at 3. These records include "loan files for mortgages, uniform residential loan applications," "supporting documents such as certifications of occupancy, deeds of trust, a rental agreement, wire records, bank statements, cashed or cancelled checks, deposit and withdrawal slips" as well as "records obtained from escrow companies relating to the purchase of four homes" by Defendant and her husband. Mot. at 3-4. Attached to the Government's motion are 13 certifications for these records, which purport to comply with Federal Rule of Evidence ("FRE") 902(11).
Defendant objects to the admission of the bank, loan, and escrow records on several grounds. Opp. at 1-5. Defendant's objections to the Stewart Title escrow file for Tyrone Way and the Specialized Loan Servicing loan file can be dismissed without extensive discussion: The Stewart Title escrow file certification does, in fact, identify "Stewart Title" as the certifying company, and the Government has submitted a revised 902(11) certification for the Specialized Loan Servicing loan file (Doc. #66).
Defendant also objects to a number of certifications on the grounds that they reference a subpoena that was not provided in discovery. Opp. at 4. Defendant cites no authority for her argument that the Government must disclose the relevant subpoena for business records offered under FRE 803(6). Moreover, the Government's voluntary disclosure of several subpoenas - attached to its reply brief - confirms the Court's conclusion that the subpoenas contain no information relevant to the Court's analysis under FRE 803(6) and 902(11). Reply at 4.
Finally, Defendant objects to a number of certifications from Bank of America, on the grounds that each "appears to be a form letter that does not specifically relate to the records it is designed to lay the foundation for." Opp. at 2-3. Defendant does not further explain this objection, and acknowledges that each Bank of America certification "appears to comply with FRE 902(11)." Opp. at 2-3. The Court notes that several of the Bank of America certification letters include specific descriptions of the corresponding records, such as "checks, deposits, Ca teller transfers [and] wire transfers." Doc. #57-1 at 3. Moreover, the Government represents that, in discovery provided to Defendant, each 902(11) certification is immediately followed by the corresponding records referenced in that certification. Reply at 3-4. Given this organization, Defendant should be able to determine which records each certification references, even where the certification describes the records in general terms.
Bank records, loan files, and escrow files are admissible as business records, pursuant to FRE 803(6). See, e.g., United States v. Gardley, 2013 WL 4857691, at *1 (D. Nev. Sept. 10, 2013). Provided that, in the discovery given to Defendant, each FRE 902(11) certification is immediately followed by the corresponding bank, loan, and escrow files, the records are self-authenticating under FRE 902(11) and the Government need not call a custodian-witness to lay foundation for this evidence.
B. Deeds of Trust
The Government represents that it "may offer trustee's deeds upon sale and notices of default that were recorded with the Sacramento County Recorder's and Placer County's Recorder's offices and have been sealed and signed." Mot. at 7. Defendant acknowledges that "these types" of documents may be self-authenticating and admissible as public records. Opp. at 5. However, Defendant objects that "without the government stating which documents it seeks to introduce, the court may not issue a pre-ruling on its admissibility." Opp. at 5.
Recorded deeds of trust and notices of default are admissible under the public records exception to the rule against hearsay, pursuant to FRE 803(8). See, e.g., Lingad v. Indymac Fed. Bank, 682 F.Supp.2d 1142, 1146 (E.D. Cal. 2010). Although the Government has not identified the specific deeds of trust and notices of default it intends to introduce, the Court has been provided with sufficient information to rule on the foundational admissibility of such documents. Defendant cites no legal authority for her argument to the contrary. Provided that the deeds of trust and notices of default have been recorded, signed, and sealed, they are self-authenticating under FRE 902(1) and the Government need not call a custodian-witness to lay foundation for this evidence.
C. Immigration A-file
The Government "plans to introduce documents from the defendant's and her husband's immigration 'A-files,' which were certified by the Department of Homeland Security." Mot. at 7. Defendant poses no foundational objection to this evidence. Opp. at 6.
Immigration A-files are self-authenticating under FRE 902(1) and are admissible under the public records exception to the rule against hearsay, pursuant to FRE 803(8). United States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir. 2001). Provided that the evidence meets the Government's description quoted above, the Government need not call a custodian-witness to lay foundation for the immigration A-files.
D. Tax Returns
The Government "plans to introduce the certified tax returns for [Defendant] for the years 2006 and 2007." Mot. at 8. The Government represents that the tax returns are "sealed and signed as certified true copies." Mot. at 8. Defendant "objects to the admission of these records without a custodian of records to lay the proper foundation." Opp. at 6. Defendant maintains that "personalized tax returns simply do not qualify" as a hearsay-exception under FRE 803(8), but fails to provide any further legal analysis. Opp. at 6. Defendant also objects to the Government's citation to an unpublished Ninth Circuit case. Opp. at 6.
Certified tax returns "are admissible under the public records exception to the hearsay rule," pursuant to FRE 803(8). United States v. Stefani, 338 F. App'x 579, 581 (9th Cir. 2009) (unpublished). The Court notes that, pursuant to Ninth Circuit Rule 36-3, unpublished cases issued after 2007 are citable as persuasive authority. Provided that the tax returns are certified, sealed, and signed as true copies, the Government need not call a custodian-witness to lay foundation for this evidence.
E. Driver's License
The Government "plans to introduce the certified DMV license printout for [Defendant]." Mot. at 8. The Government represents that it "bears the seal of the State of California and a signature purporting to be an execution or attestation." Mot. at 8. Defendant objects only to the Government's citation of an unpublished Ninth Circuit case, and does not address the merits of the Government's argument. Opp. at 7.
Drivers' licenses are admissible under the public records exception to the rule against hearsay, pursuant to FRE 803(8). United States v. Cuesta, 2007 WL 2729853, at *15 (E.D. Cal. Sept. 19, 2007). Provided that the "DMV license printout" bears the seal of the State of California as well as a signature purporting to be an execution or attestation, the evidence is self-authenticating under FRE 902(1) and the Government need not call a custodian-witness to lay foundation for this evidence.
II. ORDER
For the reasons set forth above, the Court GRANTS the Government's Motion in Limine, on the condition that the evidence offered at trial meets the corresponding descriptions given in the Government's motion:
IT IS SO ORDERED.
_________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE